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11 Harv. L & Pol'y Rev. Online S1 (2017)

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   Consumer Debt Collection in Massachusetts:

                Is  Civil Gideon a Solution?



                                Joel Tay*

                            I.  INTRODUCTION

     In 1963, Justice Black wrote, on behalf of the United States Supreme
Court, that reason and reflection require us to recognize that, in our adver-
sary system of criminal justice, any person haled into court, who is too poor
to hire a lawyer, cannot be assured a fair trial unless counsel is provided for
him.  That  case, Gideon  v. Wainwright, stood for the idea that criminal
defendants have a constitutional right to counsel as part of their due process
rights. Recognizing the systemic advantage offered to those with representa-
tion, even in civil cases, then-Attorney General Robert Kennedy  lamented
that the legal profession has secured the acquittal of an indigent person-
but only to abandon him to eviction notices, wage attachments, repossession
of goods and termination of welfare benefits.2 This paper seeks to continue
this conversation about protecting civil defendants' rights and proposes that
Massachusetts  provide defendants in consumer  debt collection proceedings
with a right to counsel to mitigate the negative effects of predatory collec-
tion practices.
     To do so, the paper will (1) explain the severity of the problem, specifi-
cally illustrating the impact on debtors; (2) discuss the enactment of a right
to counsel for defendants;  (3) outline how the proposal  might be  imple-
mented;  and (4) explore shortcomings and  analyze alternative solutions.


                            II. THE  PROBLEM

     The current system of consumer  debt collection proceedings results in
debtors being unfairly punished and  requires a strong response. Consumer
debt collection3 is a pervasive problem in the United States today; it is esti-
mated  that one in three, or seventy-seven million adults, in this country have

   * J.D. Candidate, 2017, Harvard Law School. This paper was initially written for Judge
John Cratsley (retired) as part of my participation in his Judicial Process in Trial Courts clinic
at Harvard Law School.
    'Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
    2 Robert F. Kennedy, Att'y Gen., Address at University of Chicago Law School (May 1,
1964), https://www.justice.gov/sites/default/files/ag/legacy/201 1/01/20/05-01-1964.pdf
[https://perma.cc/FUW2-Z49E].
    3 The five main types of delinquent debt are credit card, telecommunications, electric util-
ity, healthcare, and government debt. See FED. TRADE COMMN, COLLECTING CONSUMER
DEBTS: THE CHALLENGES OF CHANGE 10 (2009), https://www.ftc.gov/sites/default/files/docu
ments/reports/collecting-consumer-debts-challenges-change-federal-trade-commission-work
shop-report/dcwr.pdf [https://perma.cc/6N5Q-7SVS].

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