Courts saw a number of cases in 2022 that could potentially affect access to both the civil and criminal legal systems for those who often can't afford attorneys.


Litigation during the past year over the shortage of public defenders and bans on nonlawyers offering legal advice may have huge consequences for access to justice, according to experts.

So might a case over habeas corpus claims based on ineffectual counsel, attorneys said. A controversial ruling on abortion access could also have unintended fallout affecting access to the courts.

Law360 spoke to several experts, lawyers and academics about some of these cases, why they're important, and how their outcomes could widen or shrink the access to justice gap.

Class Actions Over Public Defender Shortages

The public defender shortage isn't new, but criminal defendants in several states took legal action this year to address it.

Wisconsinites charged with crimes filed a proposed class action lawsuit in August over what they called the "devastating" impact of the state's dearth of public defenders.

A similar suit was filed in May by criminal defendants in Oregon. And in July, a Maine judge granted class certification to a suit over that state's alleged failure to provide adequate legal counsel to indigent defendants.

The suits accuse each state of violating the Sixth Amendment, among other claims, by failing to provide sufficient — or, in some cases, any — public defense counsel to those who qualify for it.

"Public defense is in crisis really all over the country, and there are very few jurisdictions that are getting it right," said Jason D. Williamson, executive director of the Center on Race, Inequality, and the Law at New York University School of Law and one of the attorneys representing the plaintiffs in Wisconsin and Oregon.

But while in most jurisdictions that crisis means too few public defenders handling too many cases, the Wisconsin and Oregon shortages are so bad that criminal defendants aren't being given any legal representation, according to Williamson.

"In these cases in particular, we're talking about people who have no access to a lawyer at all," Williamson said. "You have people waiting for weeks, months on end, sometimes while in jail, without the ability to start to build their defense."

In Oregon, for instance, there were more than 700 criminal defendants without representation as of mid-December, while another 500 unrepresented defendants failed to appear in court, according to the Oregon Circuit Courts.

There are "tons" of similar cases in Wisconsin, according to Henry R. Schultz, who is representing the plaintiffs in that state.

"And when I say tons, I mean thousands. There are thousands and thousands of people in the state in that predicament," Schultz said.

In the Pine Tree State, the Maine Commission on Indigent Legal Services, or MCILS, anticipates that 32,000 public defense cases will be handled by just 140 private attorneys this fiscal year, according to its executive director, Justin Andrus. Until December, Maine was the only state that farmed out all public defense cases to private attorneys and had no public defenders on staff.

The delays caused by these shortages don't just impact criminal defendants, Schultz pointed out — they also affect victims and law enforcement, clog up the court calendar and allow evidence to be lost.

"To sum it up, justice doesn't happen," Schultz said.

Referring to the Maine case, Andrus said, "MCILS does not necessarily agree with all of the factual allegations, but we're hopeful that through the lawsuit there may be an avenue to help continue to develop our program."

Andrus and representatives of the Wisconsin State Public Defender and Oregon's Office of Public Defense Services all acknowledged that the public defense systems in their states are imperfect and need improvement — something they all say they're working on.

"The right to counsel is a fundamental constitutional principle. High workload and low compensation can make it difficult to recruit and retain the attorneys that fulfill the crucial Sixth Amendment right to counsel," a spokesperson for the Wisconsin State Public Defender told Law360 in a statement.

In a similar statement, the Office of Public Defense Services for the State of Oregon said, "While the agency cannot comment on pending litigation, we acknowledge that the agency has been unable to achieve its mission to provide timely access to competent legal counsel to all eligible individuals, and we appreciate all current efforts across the state to modernize public defense so that the agency can achieve its mission."

The lawsuits variously ask the courts to declare that the states are violating the U.S. Constitution, order them to provide indigent criminal defendants with legal representation and, in some cases, dismiss the charges against defendants, a remedy Williamson and Schultz acknowledge is complicated and unlikely.

"But unprecedented circumstances call for unprecedented solutions," Williamson said.

The cases are Benjamin et al. v. Oregon et al., case number 22-CV-16098, in the Circuit Court of the state of Oregon, County of Multnomah; Thomas et al. v. Evers et al., case number 2022-CV-001027, in the Circuit Court of Brown County, Wisconsin; and Robbins et al. v. Maine Commission on Indigent Legal Services et al., case number CV-22-54, in the Kennebec County, Maine, Superior Court.

Upsolve and Nonlawyer Advice

One case that "rightfully" got a lot of attention this year was a lawsuit brought by New York-based legal tech nonprofit Upsolve, according to Lauren Sudeall, director of the Center for Access to Justice at Georgia State University College of Law.

Upsolve, which provides online resources for people dealing with civil legal issues, wants to also offer legal advice to those facing debt collection lawsuits, Sudeall said. But doing so would run afoul of New York's prohibition on the unauthorized practice of law.

So Upsolve sued the state's attorney general in federal court in January, claiming those rules violate the First Amendment's protections for free speech and association.

"A huge number of Americans are in desperate need of ordinary legal advice, and they can't get it because laws like New York's make it illegal just to talk to people about what their options are," said Robert McNamara of the Institute for Justice, who represents Upsolve. "That violates basic First Amendment protections."

Debt collection suits are some of the most common lawsuits in New York, according to Upsolve's complaint, which added that the "vast majority" of defendants in those cases can't afford attorneys.

"They never have a day in court and lose their lawsuits and their property — even where the cases against them lack merit," Upsolve said.

The case could set precedent for when nonlawyers can give legal advice and provide a model for challenging similar rules in other states, according to Georgia State's Sudeall.

Upsolve took a step toward that goal in May, when a New York federal judge enjoined New York's attorney general from prosecuting the nonprofit for practicing law without a license.

The state has appealed that injunction to the Second Circuit, but McNamara said he's "extremely confident" the legal tech company will win its case on the merits.

"There are a lot of people who look at the way the practice of law is regulated in this country and see it for what it is, which is a cartel," McNamara said. "And if you have the interest of ordinary people at heart as opposed to the financial interests of the cartel, I think the correct response is to try to loosen those restrictions."

The New York Attorney General's Office did not respond to a request for comment.

The case is Upsolve Inc. et al. v. James, case number 1:22-cv-00627, in the U.S. District Court for the Southern District of New York.

Closing the Door on Ineffective Counsel Claims

The U.S. Supreme Court in May made it "unbelievably difficult" for prisoners to challenge their state court convictions on the basis of ineffective counsel, according to Robert Loeb, a partner at Orrick Herrington & Sutcliffe LLP who argued Shinn v. Ramirez at the high court.

In their 6-3 ruling in that case, the justices said David Martinez Ramirez and Barry Lee Jones, who are on death row in Arizona, can't present evidence in federal court that they say proves they had ineffective trial counsel.

Even though ineffective counsel claims can be heard in federal court, incarcerated persons can't produce new evidence and must rely solely on what's in the state court record, Justice Clarence Thomas wrote in the majority opinion.

"It's a Catch-22," Loeb said. "If all this stuff you have about how incompetent the lawyers were or how innocent you were wasn't already in the state court record, you lose. Well, of course you don't have that evidence, because the incompetent counsel didn't develop it."

The ruling in effect nullifies another Supreme Court opinion from 10 years ago in Martinez v. Ryan , Loeb said. That decision, written by Justice Anthony Kennedy, found that defendants convicted in state court could bring claims of ineffective counsel in federal court.

"So now, 10 years later after that decision, once Justice Kennedy's gone and you have more conservatives on the court, they completely eviscerated that earlier decision," Loeb added. "I mean, there's nothing left of that decision from 10 years ago."

A ruling in favor of Ramirez and Jones, though, would have encouraged defendants to withhold evidence in state court in order to receive a better outcome and undermined the justice system, according to Arizona Attorney General Mark Brnovich, whose office represented the corrections department petitioner in the case.

The justices' ruling "protected our justice system by enforcing proper and timely convictions," Brnovich said in a statement.

Shinn v. Ramirez was overshadowed by higher-profile high court decisions last term concerning abortion, guns and religious freedom, Loeb said. But it will significantly affect criminal defendants seeking to challenge their convictions on the basis of ineffective counsel, particularly in states where defendants don't have a constitutional right to appellate counsel.

The ruling is also a signal that the current Supreme Court doesn't feel bound by precedent, according to Loeb.

"There are definitely other habeas rights which I think they're going to curtail," he said.

The case is Shinn v. Ramirez, case number 20-1009, in the U.S. Supreme Court.

Ending the Right to Abortion

The Supreme Court's decision in June to overturn the long-standing Roe v. Wade precedent guaranteeing a constitutional right to abortion was "far and away the biggest case" of the year, according to David Cole, national legal director of the American Civil Liberties Union.

The ruling in Dobbs et al. v. Jackson Women's Health Organization et al.  will mean many people have limited or even no access to abortion care. But it could also limit access to justice, particularly for victims of rape and sexual assault, according to Stacy Malone, executive director of the Victim Rights Law Center.

Forcing victims to carry pregnancies caused by rape to term makes victims less likely to press charges against the rapists or pursue civil remedies in court, Malone said. Rapists could even sue their victims to gain custody and visitation rights to those children, something Malone said she has seen happen.

The Dobbs decision "really puts rape survivors across the country at risk of harm," according to Malone.

That harm will fall largely on people of color, people with disabilities and LGBTQ+ individuals, who are disproportionately affected by rape, she said.

"That means that limiting abortion care will in turn be devastating for these communities," Malone said.

The fact that some states can now criminally prosecute abortion providers and potentially people who get abortions could also have implications for an overburdened criminal justice system, according to Fair and Just Prosecution, a group of elected local prosecutors from around the country.

The Dobbs ruling "will erode trust in the legal system, hinder our ability to hold perpetrators accountable, take resources away from the enforcement of serious crime, and inevitably lead to the retraumatization and criminalization of victims of sexual violence," the prosecutors said in a statement when the decision was issued.

The prosecutors added that they would decline to use their offices' limited resources to prosecute those who seek or provide abortions.

Finally, the high court's willingness to overturn long-standing precedent places other legal rights at risk — and not just those involving same-sex marriage and contraception, as was hinted at in Justice Thomas' concurrence in the Dobbs decision, according to Cole of the ACLU.

The rights to educate children as parents see fit, not to be sterilized as criminal punishment, to refuse medical treatment, and more could be in jeopardy based on the court's reasoning in Dobbs, Cole said.

The court's decision to take away the right to abortion access and its justification for doing so "was a remarkable act of hubris," Cole said.

The case is Dobbs et al. v. Jackson Women's Health Organization et al., case number 19-1392, in the U.S. Supreme Court.

--Editing by Alanna Weissman and Jill Coffey.

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