Right to Counsel in Eviction Cases.

Posted on June 10, 2021

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We’ll Need it After the Moratorium Runs Out.

Two Charlotte city council members the other day floated the idea of adopting a right to counsel program for tenants facing eviction. That’s a milestone, and an indicator both of how serious the eviction crisis is about to get, and of how fast the right to counsel laws are catching on.

The moratorium on evictions, which blocks landlords from evicting tenants who have fallen behind on rent because of COVID-related income losses, has been pieced together now for over a year with successive and overlapping extensions, renewals and improvements. But now, barring something unexpected, it’s finally set to expire on June 30. If and when that happens (and even if it is extended in some form), we will see a rise in evictions – possibly a massive rise. Thousands of tenants will find themselves in scary, fast-moving and barely comprehensible court proceedings. Whether they will have lawyers to help them will be an urgent question.

We’ve spent a lot of time thinking about this question of who will have lawyers to help them. In the course of our research across the state over the past year for our study of civil legal needs in North Carolina, we asked people what measures they would support to improve low-income North Carolinians’ access to justice. Right to counsel in civil matters was high on their wish list, but low on their list of probability of achievement. They may be right. The National Coalition for a Civil Right to Counsel reports “no recent civil right to counsel activity in North Carolina.” Only Alaska, Idaho and West Virginia receive an assessment as dispiriting as this in the Coalition’s state-by-state accounting. But when it comes to the right to counsel specifically in eviction cases, North Carolina has much more company: forty-eight other states recognize no right to counsel in eviction cases. But interest is building, and while the vicious cycle of housing instability and homelessness keeps spinning, help is on the way.

The “right to counsel” will be familiar to anyone with knowledge of the criminal justice system, and even to those whose knowledge is limited to what they learned watching cop shows. “If you cannot afford a lawyer, one will be appointed for you.” The Supreme Court in its unanimous decision in Gideon v. Wainwright in 1963 had set down the simple proposition – one required by common sense as well as by the constitution – that a criminal defendant cannot get a fair trial unless they have the assistance of counsel. Therefore, courts have to provide counsel to indigent defendants in felony cases (and a few years after Gideon, the right was extended to misdemeanor cases).

These breakthrough developments shifted forever the balance of power in the criminal courts. But they gave rise to two big problems. One, Gideon is an unfunded mandate. Somebody has to pay for all those public defenders, and state legislatures have been perennially unwilling. So, who’s going to pay for yet another cadre of lawyers to provide assistance on the civil side? Two, the Supreme Court has been unwilling to extend the constitutional guarantee to civil cases. Early on, they did so for juvenile delinquency; after all, as in a criminal prosecution, the defendant’s very freedom was at stake. But in the following years, the Court refused to go further. Though important interests were at stake – parental rights and even jail for civil contempt – the right to counsel, like many other rights of poor and vulnerable people, fell victim to the backlash against the progressive jurisprudence of the Warren Court era.

This means the courts won’t impose on state and local governments the obligations to provide counsel in civil cases, but legislatures can choose to do it by statute, and they have sometimes done so. North Carolina, that reluctant state, actually does have it for several categories of litigants, including both parents and children in abuse and neglect cases and termination of parental rights cases, vulnerable adults in wardship cases, a minor bypassing parental consent in abortion cases, and indigent respondents in civil commitment. But in many of the most important subject areas, such as child custody, domestic violence, public benefits, and eviction cases, where very substantial family, health, safety, and financial interests hang in the balance, you’re on your own.

A movement to change that – the “Civil Gideon” movement – has burgeoned over the past couple of decades, with the support of commentators, advocates and staid bar associations. And in recent years, the civil Gideon spotlight has shone brightest on housing courts. New York City led the way in 2017, with its first-in-the-nation law guaranteeing counsel to low-income tenants in eviction cases. Any tenant facing eviction, with household income of not more than 200 percent of the federal poverty guideline, and regardless of neighborhood or immigration status, get full representation (and even higher-income tenants can get free legal advice though not representation).

Several cities have followed New York’s lead, with Baltimore, Cleveland, Louisville, Newark, Philadelphia, and San Francisco now requiring counsel in eviction cases. A pilot program has started in Houston, and in April, Washington became the first to mandate counsel in eviction cases statewide.

And, just as important, advocates and legislators across the country are watching New York and learning much from their experience. For one thing, it’s clear that it works. We’ve long known that low-income tenants who are represented by counsel have better outcomes in eviction proceedings than unrepresented ones. A New York study from the 1990s showed that tenants representing themselves were evicted more than four times as often as those with lawyers; and in a Boston pilot program from 2009 to 2011, one-third of unrepresented tenants remained in their homes, while two-thirds of those with lawyers did.

Early evidence from the New York program is encouraging. They don’t yet have data showing the difference in outcomes between represented and unrepresented tenants, but the court administration reports that of those tenants with lawyers, 86% remained in their homes – an astonishing number. Before the law went into effect, less than ten percent of tenants were represented in housing court, against 90 to 95% of landlords; tenants rightly saw housing court more as a debt collection agency than as a place where they might assert rights.

The Gideon court wasn’t seeking more acquittals in criminal cases; their goal was procedural, to ensure a fair trial as required by the constitution. Today, though, the right to counsel has become a tool of public policy, wielded by legislators with ambitious social and political objectives. Some have claimed for it the potential to transform poor neighborhoods in cities across the country. In the housing arena, the goal is to keep more tenants in their homes, to keep families safe, to prevent the harms of eviction both to the tenants and to the society at large. This is the goal of those forward-thinking council members in Charlotte, not only to make the process fair, “to ensure that families are being properly represented and getting the legal advice that they need,” but to promote the desired outcome of eviction cases, “to keep people in their homes.”


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Photo credit: Thomas Hawk.

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