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Right to Counsel at Eviction Proceedings: Lawyers Keeping Families at Home

October 21, 2020


Lawyers and non-lawyers alike are aware of the right to counsel for criminal defendants thanks in part to law-enforcement-focused television shows that taught us the Miranda warning, including: ”You have the right to an attorney. If you cannot afford an attorney, the court will appoint one for you.” This right stems from the 1963 Supreme Court case of Gideon v. Wainwright. The defense bar and the system of public defenders across the country grew to meet the need for representation as a result of Gideon.

For at least two decades, advocates have sought the same right in civil cases, including matters involving special education, employment discrimination, consumer debt, and child custody. While not framed as a public health measure, this advocacy is consistent with the public health community’s focus on social determinants of health. Given that housing is a critical determinant of health from which many other determinants flow, one area in which public health advocates  align with civil Gideon advocates is access to an attorney for tenants facing eviction.

Maintaining a job, keeping children in school, and being able to engage in the community very much depend on having stable housing. Although advocacy for the right to counsel at eviction proceedings began well before the COVID-19 pandemic brought light to the eviction crisis, the pandemic has revealed publicly the critical need for housing stability and the role that lawyers can play in protecting tenants from unlawful and abusive eviction. As federal, state, and local governments develop policies to address the eviction crisis, the right to counsel at eviction proceedings will likely be a part of those policy discussions.

Fortunately, advocates have examples of the positive impact on tenants and on a jurisdiction’s financial picture of right to counsel laws. In 2017, New York City passed the country’s first law affording tenants a right to counsel at eviction proceedings. The law gives income-eligible tenants the right to an attorney in eviction cases, including public housing tenant cases in administrative hearings. The law provides for brief advice sessions for those who earn more than the income threshold and calls for data collection, analysis, and reporting on the impact of the law.

The NYC law was immediately applicable in certain low-income communities and will rollout citywide through 2022. Preliminary data from zip codes where the law was first implemented reveal that 84 percent of represented tenants have remained in their homes and the eviction rate declined more than 30 percent. A similar law in Newark, New Jersey, passed in 2018, explains why we would see a decline in evictions when tenants are represented. The Newark law declares that housing instability is an emergency that was “created, in part, by the filing of frivolous and/or retaliatory eviction actions by landlords” and that landlords are less likely to file if they know the tenant will be represented. Further, tenants’ lack of awareness of their rights discourages them from fighting eviction or complaining about substandard conditions. San Francisco took a bigger step in 2018 with Proposition F, a ballot initiative that led to creation of a right to counsel at eviction proceedings for all tenants, regardless of income, and established the Eviction Defense Collaborative to match tenants with legal services providers.

One obvious concern is the cost of a right to counsel at eviction proceedings. Although the raw number will vary based on the size and demographics of the locality, studies support that there is a net gain when right to counsel results in reduced eviction and increased housing stability. In a recent study, The Economic Impact of an Eviction Right to Counsel in Baltimore City, researchers conclude that for an investment of $5.7 million to support 7,000 tenants in eviction proceedings in one year, Baltimore City would reap $35.6 million in savings, including costs associated with emergency shelter, temporary housing programs, health care for people experiencing homelessness, foster care, and school transportation for students experiencing homelessness.

On the strength of the study, the Baltimore City Council President introduced legislation on October 5, 2020, to provide the right to counsel for income-eligible tenants in eviction proceedings. With eviction rates 2.3 times higher than the national average and only 1 percent of tenants having counsel, Baltimore City could gain significantly from reduced eviction rates like those experienced early in New York City and predicted in the study. Despite the potential for significant savings, right to counsel laws will not be in place comprehensively across the country any time soon. Yet eviction moratoria have expired in some states and will continue to expire across the country. The result is a backlog of eviction filings through which unrepresented tenants will be churned and put out of their homes. Tenants need legal assistance now.

Across the country, law schools are using student-practice laws to leverage law student resources to help low-income tenants facing eviction. At the University of Maryland Carey School of Law, law students and social work students are working collaboratively to provide advice and support to tenants in Baltimore City and Prince George’s County who are facing eviction. With training, law students are capable of representing tenants effectively but the supervised practice rule requires significant clinical faculty resource and limits assistance to those who live in areas near law schools and only during the academic year. Modifying practice rules to allow upper-level law students and recent graduates with training to represent tenants independently may be a short-term solution that protects tenants and offers students and graduates valuable experience and the opportunity to make a difference even before bar admission.

This post was written by Kathleen Hoke, J.D., Director, Eastern Region Office of the Network, and Professor, University of Maryland Carey School of Law.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.