Who deserves a lawyer? The case for a right to counsel in housing proceedings

January 28, 2020 by Benjamin Kamelhar

by Sarah Hainbach

In criminal proceedings in American courtrooms, criminal defendants have the right to be represented, and if they cannot pay for an attorney, the government will provide one for them.[1] In civil cases, however, parties generally have no right to counsel, even if important rights are at stake and even if being pro se undermines chances of a favorable outcome.[2] This post discusses why this discrepancy exists, how New York City and the District of Columbia are creating access to counsel in housing court cases, and why other cities should follow suit.

In general, the right to representation has not been expanded to civil proceedings, even when pro se litigants are at as much of a disadvantage in civil cases as in criminal ones. [3] In 1981 the Supreme Court held that due process did not require the appointment of an attorney for an indigent mother facing loss of custody of her child.[4] The Court asserted that the determination of whether an indigent civil litigant is entitled to counsel should be made on a case-by-case basis, and that the presumption is that there is no right to counsel unless physical liberty is at stake.[5] However, many civil proceedings frequently have consequences that can be as serious as the loss of physical liberty, including those concerning eviction, deportation, protective orders against abusers, child custody, termination of benefits, or employment disputes.[6]

The need for a right to counsel in civil proceedings is not new, but the effort that some American jurisdictions are making to achieve it now, especially in proceedings regarding housing, is notable.[7] In August 2017, New York City became the first jurisdiction in the United States to take steps to guarantee free legal representation for low-income tenants in eviction proceedings in Housing Court.[8] The City plans to phase in the Right to Counsel (“RTC”) over five years, a few zip codes at a time.[9] Tenants who live in covered zip codes and whose income is at or below 200% of the poverty line (about $23,000 for an individual and about $49,000 for a family of four) become entitled to a free attorney when an eviction case is filed against them.[10]

Last summer, I interned with nonprofit housing attorneys in New York City who are dedicated to defending low-income tenants in eviction proceedings. Through this internship I saw how the RTC developed about a year after its inception. From observing court proceedings and speaking with attorneys and tenants, I gained an understanding of the advantages and disadvantages of the RTC. Every tenant stands to benefit from an attorney’s involvement, but increased attorney caseloads can stress already overburdened tenant resource systems. Some of the most important positive impacts of the RTC are access to information, resources, and time.

First, attorneys help tenants to understand court proceedings. New York City Housing Court is notoriously confusing and chaotic.[11] Having representation or even merely the opportunity to talk to a tenant lawyer before going to court can mitigate mistakes and miscommunications, such as the stories I heard during my internship about pro se tenants who spoke with official-looking men in a suits without realizing they were the landlord attorneys, and then left without formally checking in with the court’s clerk. These tenants defaulted because they “failed to appear” even though he came to court, and then lost the opportunity to defend their rights to their home.[12] Second, attorneys can investigate legal defenses against landlords such as illegally raised rent on a rent stabilized apartment or a failure to make repairs. Third, attorneys can connect tenants to social services agencies and charities that can help them pay back rent arrears and can push landlords to settle by showing them that tenants have the money they owe and are unlikely to fall behind again. If tenants fall behind in rent due to a temporary change in circumstances, they could be eligible for emergency rent assistance (a “one shot deal”) from the City government[13] or for help from a private charity but might not realize that these options are available.[14]

Finally, even in cases where tenants do not have strong legal defenses and are unlikely to qualify for assistance with rent arrears, legal representation helps tenants because it slows down the court proceedings, providing tenants with valuable time to find new living arrangements.[15]

Of course, the RTC is not perfect. In my internship over the summer, I learned that New York City is expanding access to counsel faster than nonprofits can hire and train new housing attorneys. Also, limited funding forces housing attorneys to add to their already overburdened caseloads, meaning they may not have the time or resources needed for the best possible representation. Still, universal access to counsel is an important step for low-income tenants, and for indigent litigants generally because it helps them to achieve justice in a court system that was designed with lawyers in mind. Given the benefits of access to counsel for low income tenants, other cities should consider following New York City’s lead.[16]

D.C. has taken a different approach towards achieving the same goal of expanding access to counsel for tenants in eviction proceedings. The Housing Right to Counsel Project began as a collaborative pilot project by the D.C. Bar Pro Bono Center, the D.C. Access to Justice Commission, the Legal Aid Society of the District of Columbia and other legal services providers.[17] The D.C. Bar Foundation provided funding in 2015, and the positive results of tenant representation in housing court motivated the D.C. City Council to appropriate $4.5 million in new annual funding for eviction defense, starting in 2017.[18] This has resulted in representation of roughly the same proportion of low-income tenants in D.C. Landlord & Tenant Court as in New York City Housing Court: approximately 25%.[19]

In D.C., two judges oversee the approximately 31,000 housing cases that come through Landlord & Tenant Branch of the Superior Court each year.[20] This high volume creates a “fast-paced and intimidating” atmosphere and creates pressure for the vast majority of cases to settle.[21] This leads to unfair settlement terms for many of the District’s tenants, of whom 90-95% were unrepresented prior to the Housing Right to Counsel Project’s inception. 90-95% of landlords, on the other hand, are represented by counsel. Similar to the RTC in New York City, when low-income tenants in D.C. access lawyers it allows them to take advantage of the many protections provided by D.C.’s relatively tenant friendly laws. The Housing Right to Counsel Project’s results are a promising reminder that representing low-income tenants greatly improves their outcomes in court: represented tenants are sixteen times more likely to raise defenses, eight times more likely to take more time to resolve their cases (fifteen weeks as opposed to two weeks), eight times less likely to have a judgment entered against them, five times less likely to violate the terms of a settlement reached with their landlord (suggesting that the settlements reached are with an attorney’s help are more tenant-friendly), and four times less likely to be evicted.[22]

While housing is not the only civil setting where an attorney’s help could critically change the outcome of court proceedings, the RTC in eviction proceedings is a good way to start expanding access to counsel in civil cases.[23] While the outcome of many civil proceedings could change a person’s life, housing is especially important given the huge impact stable housing has to one’s ability to succeed at work and school.[24] Cities need to address the housing crisis facing their low-income residents. Despite its limitations, the RTC is an important step in the right direction because court representation that affords people a chance to stay in their homes is more efficient than spending money on shelters or new housing.[25] More cities should consider passing RTC legislation in the housing context in order to serve their low-income tenants.

[1] In 1938, the Supreme Court held that it was unconstitutional for indigent defendants to be unrepresented in federal criminal cases. Johnson v. Zerbst, 304 U.S. 458, 467 (1938). Twenty-five years later, the Court expanded the right to representation to felony defendants in state prosecutions. Gideon v. Wainwright, 372 U.S. 335, 342 (1963). Then the Court ruled that misdemeanor defendants who could not afford a lawyer but faced imprisonment if convicted were also entitled to free representation. Argersinger v. Hamlin, 407 U.S. 25 (1972).

[2] Robert Hornstein, The Right to Counsel in Civil Cases Revisited: The Proper Influence of Poverty and the Case for Reversing Lassiter v. Department of Social Services, 59, Catholic Univ. L. Rev. 1057, 1072 (2010) (discussing indigent litigants’ need for counsel in civil cases). Impoverished homeowners, for instance, are likely unable “to locate cases or… statutes and regulations that might provide a defense” without an attorney’s assistance. Id.

[3] Less than one in five of the legal problems experienced by low-income people are addressed with help from an attorney. Legal Servs. Corp., Documenting the Justice Gap In America: The Current Unmet Civil Legal Needs of Low-Income Americans, 1 (Sep. 2009), https://www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocuments/JusticeGaInAmerica2009.authcheckdam.pdf; See Lisa G. Lerman & Philip G. Schrag, Ethical Problems in the Practice of Law 747 (4th ed. 2016)(“about half of all low- and moderate-income households in the United States face a serious situation that raises a civil legal issue’… [but] most people did not turn to lawyers, paralegals, or the courts for help. Only 39 percent of the moderate-income households and 29 percent of the low-income households turned to the civil justice system for assistance. The majority either tried to solve the problems themselves, sought help from someone other than a lawyer, or took no action”).

[4] Lassiter v. Dep’t. of Soc. Servs. of Durham City, NC, 452 U.S. 18 (1981).

[5] Id. at 26 (“as a litigant’s interest in personal liberty diminishes, so does his right to appointed counsel”).

[6] Nat’l Coal. For a Civil Right to Counsel, The Right to Counsel in Criminal and Civil Cases, http://civilrighttocounsel.org/about/criminal_and_civil_rights_to_counsel (arguing that there is “little logic to distinguishing between criminal and civil cases [because] the label put on a case does not necessarily relate to how serious it is”).

[7] See Hornstein, supra note 2, at 1069. Reginald Heber Smith’s 1919 study showed how poorly impoverished people fared in American courts in the early 20th century and argued that “equal administration of justice must take cognizance of, and provide for, a class of citizens, numbering millions, who cannot secure for themselves the legal services without which the machinery of justice is unworkable.” Id.

[8] The Official Website of the City of New York, Office of the Mayor, Mayor de Blasio Signs Legislation to Provide Low-Income New Yorkers with Access to Counsel for Wrongful Evictions (Aug. 11, 2017), https://www1.nyc.gov/office-of-the-mayor/news/547-17/mayor-de-blasio-signs-legislation-provide-low-income-new-yorkers-access-counsel-for#/0.

[9] Frequently Asked Questions about RTCNYC (last visited Nov. 10, 2018), https://www.righttocounselnyc.org/faq.

[10] Id.

[11] See Kim Barker et. al., Unsheltered: The Eviction Machine Churning Through New York City, N.Y. Times (May 20, 2018), https://www.nytimes.com/interactive/2018/05/20/nyregion/landlord-tenant-disputes-housing-court.html.

[12] See New York City Housing Court, Judgments in Nonpayment Cases (last visited Nov. 10, 2018), https://nycourts.gov/courts/nyc/housing/nonpaymentjudg.shtml#failstoappear.

[13] The Official Website of the City of New York, NYC Resources, One Shot Deal Short Term Emergency Assistance (last visited Nov. 10, 2018),https://www1.nyc.gov/nyc-resources/service/1205/one-shot-deal-short-term-emergency-assistance.

[14]If you just can’t afford the rent: what you need to know, Metro. Council On Hous., (last visited Nov. 10, 2018) http://metcouncilonhousing.org/help_and_answers/if_you_just_cant_afford_the_rent.

[15] See Brian Gilmore, Give Tenants Lawyers, N.Y. Times (Oct. 9, 2018), https://www.nytimes.com/2018/10/09/opinion/evictions-homelessness-legal-aid.html.

[16] Alexis Stephens, Can Other U.S. Cities Follow in NYC’s Footsteps to Help Renters?, Next City, Feb. 21, 2017, https://nextcity.org/daily/entry/can-other-cities-follow-nyc-footsteps-help-renters-right-to-counsel.

[17] Beth Mellen Harrison, Presentation at Georgetown University Law Center Law: Affordable Housing, Eviction, & Access to Counsel, 8 (Nov. 5, 2018).

[18] D.C. Enacts Expanding Access To Justice Act of 2017, Nat’l Coal. For a Civil Right to Counsel (7/12/2017), http://civilrighttocounsel.org/major_developments/1031; 2017 Washington DC Legislative Bill No. 24, Washington DC Council Period Twenty-Two, 2017.

[19] Interview with Georgetown University Law Center Professor Peter Edelman, in Washington, D.C. (Nov. 13, 2018.)

[20] See Harrison, supra note 17, at 5.

[21] Id.; See, Housing Right to Counsel Project,DC Bar (last visited Nov. 10, 2018), https://www.dcbar.org/pro-bono/about-the-center/right-to-counsel-project.cfm.

[22] See Harrison, supra note 17, at 9.

[23] Housing has been found especially important by several authorities. The United Nations (UN) has labeled housing as a “human right” and the American Bar Association (ABA) calls it a “basic human need.” United Nations, Fact Sheet No.21, The Human Right to Adequate Housing, https://www.un.org/ruleoflaw/files/FactSheet21en.pdf; ABA, Housing Rights Are Human Rights (Oct. 23, 2012), https://www.americanbar.org/publications/human_rights_magazine_home/human_rights_vol32_2005/summer2005/hr_summer05_housing/.

[24] Mattthew Desmond & Carl Gershenson, Housing and Employment Insecurity among the Working Poor, Social Problems, Jan. 2016, at 2 (“finding forced removal to be a strong and robust predictor of job loss”); Claire Zippel, A Broken Foundation: Affordable Housing Crisis Threatens DC’s Lowest-Income Residents, DC Fiscal Policy Institute, (Dec. 8, 2016), at 8 (finding that “children lacking affordable homes struggle to succeed in school.”)

[25] See Gilmore, supra note 15.