Although most countries recognize an obligation to provide counsel for indigent criminal defendants (a right universally acknowledged as fundamental to individual liberty), a right to publicly funded legal assistance in civil cases is not as widely conferred. People seek legal aid for different reasons: property disputes, housing, child custody, divorce, immigration, public benefits, or labor matters, to name a few. In most of the world, the demand (and need) for free or reduced-cost civil legal services far exceeds capacity.
International Covenants Referencing the Right to Legal Aid
Article 10 of the International Declaration of Human Rights implies an affirmative obligation to provide legal aid. Though the International Covenant on Civil and Political Rights does not include this right explicitly either, it has been interpreted to require access to civil legal aid. Other international instruments substantiating a right to legal aid include the International Convention on the Elimination of All Forms of Racial Discrimination and the Charter of the Organization of American States.
There are several models for providing free or affordable legal assistance; a single country may use multiple systems.
The majority are needs-based; some may also include a merits-based evaluation. In most countries, people in need of legal advice are directed to a national organization or community legal services office. These are usually not-for-profit organizations supported by public funds, philanthropy, or religious organizations.
Some providers offer a broad range of legal services; others are more specialized and serve specific groups such as women and children, or refugees. Many countries contract with private practitioners to provide legal aid.
Law schools and universities often have pro bono law clinics serving the poor; they may specialize in housing, immigration, family, or other areas of law. The clinics are staffed by students and overseen by experienced practitioners and faculty.
Is There a Right to Legal Aid?
Some nations incorporate a right to civil legal aid in their constitutions (Brazil, Iceland, India, Ukraine).
Some nations incorporate the right through legislation (Armenia, Estonia, France, Japan, South Africa, Turkey).
In some countries, the right is recognized by judicial opinion (Switzerland).
Other countries do not recognize a right to counsel in civil proceedings (Cambodia, United States).
While Latin America has a robust tradition of public criminal defense, only a few countries in Latin America and the Caribbean offer legal services for indigent civil litigants. These countries have invested in paralegal training, legal aid programs, and university-based law clinics.
In Argentina, civil legal aid is provided to those below a financial threshold and members of a vulnerable or protected group. Brazil’s public defender offices provide criminal and civil legal aid. Brazilians abroad have the right to be assisted by a publicly funded lawyer. Although publicly funded criminal representation is available to all, applicants for civil legal aid must show income eligibility. Other providers include civil society organizations, and some private law firms require their lawyers to provide pro bono services.
Limited legal aid services are available in Ecuador for income-eligible citizens through public defender offices, mediation centers, and civil society organizations. Ecuadorians in rural areas obtain services through “Mobile Defence” vans travelling throughout the country.
In Guatemala, legal aid lawyers only provide legal advice, assistance with the execution of legal documents, and general guidance for navigating the court system.
In Trinidad and Tobago, the Legal Aid and Advisory Authority was established in 1976. It is a government agency within the Ministry of Justice that provides legal services and advice to indigent citizens in both civil and criminal matters.
Canada’s Legal Aid Program provides criminal defense services and civil legal aid for refugee and asylum matters, along with legal advice to victims of workplace discrimination or harassment. On the provincial level, publicly funded legal aid may be more broadly available. For example, Legal Aid Ontario also provides representation for family matters, landlord-tenant disputes, and other civil matters like guidance with drafting wills, social benefits, and workplace safety.
In the United States, there is no right to counsel in civil cases, including immigration cases. Some states have legal services offices, many of which specialize in areas such as landlord-tenant relations or child welfare. The Legal Services Corporation receives financial support from the government and non-governmental organizations to fund a limited number of independent nonprofit legal aid programs.The inadequacy of public funding has led to calls for “Civil Gideon,” invoking the Supreme Court ruling recognizing a constitutional right to counsel in criminal cases. Proponents of Civil Gideon advocate for publicly funded legal representation in matters involving basic human needs such as housing, food, health, child custody, and health.
China’s National Legal Aid Centre is overseen by the Ministry of Justice and coordinates legal aid services. Amendments to China’s Criminal Procedure Code and Lawyers’ Law require lawyers to provide pro bono legal services to the poor. A 2003 law, titled “Regulations on Legal Aid,” declared legal services a right of all citizens and established legal aid programs across the country. These programs provide services through a mix of salaried lawyers and appointed counsel. Further revisions to this law in 2017 and 2020 addressed the process for appointing and compensating counsel.
Japan has recognized a right to legal aid in criminal cases since 1880; the right to a lawyer in civil cases was codified in 2004. Subsequent legislation created the Japan Legal Support Centre. It has offices in areas with district courts around the country and coordinates both civil and criminal representation. The Centre provides a broad range of civil legal aid, including information to assist self-represented citizens, free legal services, loans to cover legal costs, referrals to lawyers, and services for crime victims and refugees.
The constitution of India includes the right to legal aid. Initially this right was conditioned on income level, but a series of reforms in the latter half of the twentieth century eliminated a means test. The National Legal Services Authority oversees legal aid services around the country and distributes funds to state and local agencies, as well as NGOs that provide legal aid services. NLSA coordinates legal aid for both civil and criminal cases.
In Central Asia, Kazakhstan first recognized a right to legal aid in 1991. The Law on Guaranteed Legal Aid was introduced in 2013, funding legal aid services on the national, regional, and local levels. Civil society organizations offer legal guidance to specific communities, including women, refugees, LGBTQ+ individuals, and ethnic or religious minorities.
The European Court of Human Rights held in Airey v. Ireland (1979) that access to counsel in civil cases is a human right. Following this ruling, the Council of Europe required its 47 members to provide low-income people with free legal representation in civil cases. However, each country may develop its own eligibility standards.
Many European countries have a long tradition of providing government-funded legal services. For example, the English legal aid system was well-established by the early 1800s, providing free or reduced-cost legal services depending on income eligibility and the merits of the claim. Those seeking assistance can go to one of the legal aid centers throughout the country. England and Wales also have an extensive network of Citizens Advice offices where trained paraprofessionals offer confidential advice twenty-four hours a day online, by telephone, or in person.
In 1851, France enacted a law mandating—but not funding— lawyers to represent indigent litigants; this service was considered a duty and a charitable honor. In 1972, France reformed this law to authorize government payments to lawyers appointed to represent the poor.
A similar progression occurred in Germany in 1877, when the right to counsel was guaranteed, and in 1923, when lawyers were allocated public funds for this work.
Austria, Spain, Portugal, and Italy all have guaranteed the right to a lawyer in civil cases since the nineteenth century.
In the early twentieth century, Norway, Sweden, Belgium, and the Netherlands passed laws creating a right to counsel in civil cases.
Kosovo’s constitution guarantees a right to legal aid, and the government is obligated to fund legal clinics through the national budget; external donors may also contribute to legal aid funds.
Legislation in Denmark provides a right to basic verbal legal advice free of charge. Additional assistance is available to the poor either through legal aid institutions, via private attorneys compensated by the government, or as subsidies to cover the costs of litigation. Some law firms partner with nongovernmental organizations to provide legal representation to the poor pro bono.
Estonia has a statute mandating legal aid and uses “legal pharmacies” staffed by paralegals or law students for certain types of cases.
Middle East and North Africa
Morocco’s Legal Aid Bureau screens requests for state-funded legal assistance. Applicants must be citizens with a nonfrivolous claim. If both sides in a dispute come to the Bureau, staff will attempt to mediate their dispute. There are also nongovernmental organizations offering limited legal services.
Access to the justice system is a constitutionally protected right in Egypt. Free legal aid is available to victims of human trafficking and domestic abuse, as well as in cases involving family law and labor disputes. The Ministry of Justice coordinates legal aid programs financed by the government and donors.
The Justice Center for Legal Aid is the largest provider of legal aid in Jordan. It is a nongovernmental organization with offices throughout the country. The Center implements legal awareness programs and provides consultation, mediation, and representation in civil, criminal, and family matters. Jordanian bar associations provide limited pro bono legal services.
In Ghana, legal aid services are available to those below a financial threshold; to children; when the interests of justice require counsel; or when the case relates to the enforcement of a constitutional right.
Kenya implemented a modest national legal services program in 2016 that is available in certain counties. Nongovernmental organizations and private law firms also provide free legal services. The Kenyan government instituted a “Legal Aid Action Plan” in 2017 to coordinate legal services for the poor and expand their reach.
South Africa has programs for specialized legal aid that provide representation for people with disabilities, children, women, the elderly, refugees, asylum seekers, stateless and internally displaced persons, indigenous populations, ethnic and religious minorities, and members of the LGBTQ+ population.