When tenants have a right to counsel in eviction cases, but there aren't enough lawyers to help

Miami Herald

14 hours ago

When tenants have a right to counsel in eviction cases, but there aren't enough lawyers to help
Icy snow crusted the sidewalks outside the Bronx housing courthouse on a Thursday in late January, a bitterly cold day in a string of bitterly cold days. Inside, spread out over three floors, dozens of people in puffy coats, some cradling babies or hunched over canes, waited to find out whether they would be kicked out of their homes or what it would take to stay housed. Every few minutes, a lawyer or court employee exited one of the courtrooms and shouted a name down the hall, searching for whoever was needed to proceed with an eviction hearing.
Even more people were crowded inside the hearing rooms on each floor. Inside Room 550, around 11 a.m., a man in a black-and-white tracksuit and gold chain sat next to a woman in a sweatshirt and jeans who was wiping away tears. They faced a judge with long black twists and large, round glasses. No lawyer was with the couple, only the court's Spanish-language interpreter, in a blue suit and neat gray beard. Their landlord wasn't in the room, either; the landlord's attorney was there instead, texting and stepping into the hallway to talk to his client on the phone. The couple was trying to move back into the home they'd been evicted from, but the judge denied their request, informing them that they had to remove all their belongings within five days. "Good luck," the judge said at the end of the proceedings.
The next defendant, a Black woman dressed all in black, had accumulated $27,849 in outstanding rent; she was given until the end of February to pay it off, plus the next month's rent. If she paid up, then the case would end, the judge told her. But if not, the landlord would have the right to seek an eviction warrant. Because she had no lawyer to help her parse the proposed deal, the judge had to stand in to make sure she could legally agree to it.
Did she understand that she was waiving her right to a trial? Yes. Was she coerced into entering into the agreement? No. "Good luck, ma'am," the judge told her. "Thank you," she said softly as she left.
For a brief time in the depths of the pandemic, the hallways and courtrooms of this courthouse had sat empty; eviction moratoria kept most cases from moving forward, and any that did proceed happened online only. But those measures are now long gone, and courts across the city have filled back up.
"Housing court is like what it was before," said Munonyedi Clifford, attorney-in-charge of the citywide housing practice at The Legal Aid Society. Yet one key thing has changed: All of these tenants are, by law, supposed to have legal representation at their side. As the late January proceedings in Room 550 would prove, however, that right on paper has not prevented thousands of people from facing eviction all by themselves.
Economic Hardship Reporting Project and The Baffler examined the high number of eviction cases in New York City, in which most tenants have no legal help despite residents' right to counsel. Other jurisdictions that have passed similar laws should pay attention to New York's current predicament.
The unrepresented
This isn't supposed to happen in New York City. In 2017, it became the first place in the country to enact a right to counsel in eviction cases, a guarantee of legal help for tenants navigating the process. In much of the rest of the country, just 4% of tenants have lawyers at their sides in eviction cases, compared to 83% of landlords.
This creates a "huge imbalance," according to Peter Hepburn, associate director at The Eviction Lab, a research project at Princeton University, "not just in terms of power but just of procedural knowledge."
Landlords find themselves in eviction proceedings frequently, and their attorneys deal with it daily. "The system works very well for them," Hepburn said. For tenants, eviction yanks them into an unfamiliar and often confusing world of legal maneuvering. "It doesn't work so well for them."
New York City's landmark Universal Access to Legal Services law-codifying the right to counsel-was designed to fix this imbalance for households earning up to 200% of the poverty line, or $64,300 for a family of four. It started in just three zip codes per borough and was supposed to expand gradually, with five new zip codes added each year for five years, until the entire city would be covered. Before the pandemic began, right to counsel applied to only 25 of the city's 180 zip codes.
The program quickly proved successful. Research published in a June 2023 issue of the Journal of Public Economics found that tenants who got legal representation through the program faced smaller monetary judgments and were less likely to be evicted. For tenants lucky enough to have representation in court in 2023, 84% percent were able to stay in their homes. The program has also reduced the number of eviction filings in the first place. "There's no question that the right to counsel works," Clifford said.
After COVID-19 hit, the city's program was abruptly opened to all low-income tenants in early 2021 in an effort to keep people housed and healthy. At the time, caseloads were low, thanks to eviction moratoria, and in early 2022, close to 70% of tenants facing eviction were represented by an attorney. But after the CDC's nationwide moratorium was struck down in August 2021, and New York City's version ended a few months later, the floodgates were flung wide open.
Stalled eviction cases started to move forward just as landlords filed a flurry of new ones: Eviction filings jumped 83% between 2022 and 2023. "It's back to business as usual," Clifford said. As a result, things quickly deteriorated. The percentage of tenants represented by an attorney declined steadily after January 2022. According to a paper written in 2023 by 11 legal services organizations, the right-to-counsel program has been plagued by "client eligibility outstripping provider capacity, funding shortfalls, and staff attrition, while tenant needs continue to rise."
There were 111,830 eviction filings across the city last year, compared to just 42,203 in 2021. The Bronx is consistently the hardest hit, experiencing an eviction rate double that of the other four boroughs. And the majority of those Bronx tenants go it alone.
In the fourth quarter of fiscal year 2024, only 42% of people facing eviction in New York City received full legal representation, while about half had no legal help at all; in the Bronx, less than a third were fully represented, while about 60% went through eviction proceedings by themselves.
When a New York City tenant receives an eviction notice, they must reply to avoid automatic eviction. Their response triggers an "intake part," or IP, date. That's where, if they're lucky, they'll be assigned a legal aid lawyer who can help them. But there are 80 households at each IP date, which are held over Microsoft Teams for cases in the Bronx, and legal aid lawyers "just don't have the capacity" to cover all of them, said Jennie Stephens-Romero, deputy director of the housing unit at Bronx Legal Services.
Her organization and the five others that offer free legal help to tenants facing eviction in the Bronx use a calendar system to make sure that one of them covers at least some of each weekday's IP date. Stephens-Romero's team was "very big," but they could only cover part of their assigned day; for a while they were able to cover either the morning or the afternoon, but after staff departures, they can only take on the first 20 tenants on their given day.
Other organizations, she imagines, can take on even less. "It's really luck of the draw," she said, as to whether a tenant's IP date corresponds with the part of the day when attorneys are able to tune in and help.
Everyone else is left to fend for themselves. It's "incredibly rare," Stephens-Romero said, for a tenant facing eviction to be able to afford their own lawyer without the help of a legal aid attorney. Last year, 11,587 tenants without representation called The Legal Aid Society's hotline (some may not be eligible for the right to counsel, and others may get a lawyer later in the process). Stephens-Romero said it's unusual for her to come to housing court and not be approached by somebody asking how to get a lawyer.
Post-pandemic flood
There doesn't seem to have been any planning for what would happen when the housing court system returned to its pre-pandemic state. Right-to-counsel lawyers in the city quickly realized that they couldn't handle all of the cases for eligible tenants; they didn't have adequate funding to meet the demand. So they, along with elected officials, asked housing judges to issue adjournments and postpone cases for tenants who weren't yet represented to give them time to get an attorney. The courts refused.
"Courts are totally aware legal service providers can't handle all these cases," Stephens-Romero said. Indeed, as Community Service Society of New York policy analysts Oksana Mironova and Yvonne Peña write, courts are "choosing to move cases faster than the legal services providers can take them on, prioritizing speed over the tenants' right to due process." These priorities are precisely backward, Stephens-Romero said. "We're pushing tenants' rights to the side to clear the docket."
Meanwhile, New York City's right-to-counsel program has only expanded further. In 2023, eligibility was extended to anyone of any income age 60 or older facing eviction. Legal service providers calculated that they needed $16 million a year to be able to handle those new cases-an alarming number, as the program wasn't fully funded even before that expansion.
In 2023, legal aid providers told the city that it would take at least an additional $351 million to adequately serve the tenants they were already taking on plus all of the qualified tenants who were estimated to go through the process solo in 2024. Yet legal services providers in the city were granted only an additional $36.6 million for this work last year, and even then, the Eric Adams administration failed to pay out the money on time, forcing some organizations to contemplate cutting the help they offer. This is despite the fact that an analysis found in 2016 that the city would actually save $320 million a year in foregone shelter and housing costs by providing tenants with attorneys in eviction cases.
"We want the right to counsel to really have the true meaning of what the tenant movement and folks who fought for this right really wanted, which is that everybody will get it," Clifford said. "But the city doesn't seem to be putting resources toward that kind of idea."
More funding could also ease the staffing problems plaguing legal services organizations. Of the $351 million that these organizations have asked for, $226 million would go toward hiring more than 880 staff attorneys, a badly needed influx. Public interest lawyers face crushing workloads on salaries far lower than what they could command at private practices.
In 2023, legal aid organizations reported attrition rates ranging from 20 to 55%; one provider lost six of 13 new hires within a year. "This is a tough job," Stephens-Romero said. If caseloads could be brought down and salaries increased, more people might stick around. The state court system released a report in 2023 recommending that attorney caseloads be limited to 48 a year. That represents an improvement from what caseloads used to be; Clifford said lawyers were routinely taking on more than 60 a year. But it's still a high number, according to Stephens-Romero, especially when some can be lengthy. Housing laws "are pretty complicated and complex, and each housing case requires a tremendous amount of work," Clifford said.
Legal service lawyers wouldn't have to work so hard, however, if there weren't so many eviction cases inundating the system to begin with. As much success as the right-to-counsel program has shown for the tenants it's able to reach, New Yorkers would be much better off if they could simply stay housed in the first place. Yet New York City has long struggled to build and provide affordable housing, and the housing crunch is now the worst it's been in 50 years. "So many people wouldn't be ending up in housing court if apartments were eminently affordable," Clifford said.
The city could also offer more help covering rent. Vouchers, which help low-income tenants afford apartments on the private market, are notoriously hard to use: The eligibility limits are stringent, and although it's illegal for landlords to refuse to rent to voucher holders, many do in practice. But the city has struggled to make improvements. In 2023, the city council overrode Mayor Eric Adams' veto to expand eligibility for some voucher programs, but Adams refused to implement the expansion, claiming it was too costly. After the city council sued over his refusal, a judge sided with Adams last summer.
Other attempts to protect tenants might prove more successful. New York State approved good cause legislation for the city in 2024, which, for covered buildings, caps rent increases and bans landlords from evicting tenants except for things like nonpayment of rent or illegal behavior. But the law has a number of carveouts, including for buildings constructed after 2009, luxury units, rentals in condos and co-ops, and those owned by landlords with small portfolios. The hope, Clifford said, is that the law will eventually push the number of eviction filings down. "It's not everything that we wanted," Stephens-Romero said. But "it's definitely something we can use."
Going national
The early success of New York City's right-to-counsel program inspired other lawmakers around the country. "It basically made right to counsel seem achievable for lots of places," said John Pollock, coordinator at the National Coalition for a Civil Right to Counsel. In the three years after New York City enacted its program, four other jurisdictions-Cleveland, Philadelphia, Newark, and San Francisco-passed their own.
Then the pandemic, which exposed not just the way job loss deprives people of the income to pay rent but also the impact of housing on people's health, lit a spark. Since the start of 2020, 14 cities, two counties, and five states have passed programs. Three states and six cities added their programs in 2021 alone. That frenzy has calmed down, but "we're still seeing the momentum rolling forward," Pollock said.
These jurisdictions, and any others that join in, will have to heed the lessons of New York. Funding is one of the biggest question marks for other right-to-counsel programs, too. Many were set up with pandemic-era federal aid, money that has all been disbursed.
When Hepburn and his colleagues at the Eviction Lab recently interviewed people working on implementing all the right-to-counsel programs across the country, "underfunding was something that came up throughout," he said. Still, Pollock hasn't seen any jurisdiction renege on its right-to-counsel program even as federal funding has dried up, and many are turning to their own sources to keep it going. In Hepburn's research, he and his colleagues found that thirteen programs are supported by state and local funding, including four that have their own revenue streams from things like taxes on landlords or developers.
But even if programs were flush with cash, there is still a shortage of lawyers interested in and willing to do this work. "This is a sector-wide problem," Pollock said. Fixing it, as in New York, will take not just enough funding to make salaries competitive and workloads bearable but also a steady pipeline of new lawyers ready to go into housing law, which some law schools don't even cover.
Then there are the court systems themselves, which have appeared to resist slowing things down to make sure tenants get the legal representation that they're due. "That approach of continuing cases when lawyers are not available, making tenants go through when unrepresented, that's a huge part of the problem," Pollock said. Courts tend to favor the interests of landlords. But in Washington State, judges are required to delay a case if a tenant who is eligible for the right to counsel appears solo. "Courts could take a different approach. They're choosing not to," Pollock said.
He pointed out that, at less than 8 years old, the movement for the right to counsel in eviction proceedings is a relatively new one. "As with any movement, you expect there are going to be challenges," he said. But if New York wants to retain its status as a leader, it will have to pave a path toward finding the resources and the political willpower to make a groundbreaking right mean something real for everyone to whom it's owed.
Pay up
None of the half dozen Bronx tenants who were called before the judge in Room 550 over the course of an hour on that morning in late January had a lawyer helping them make sense of the process.
A woman with the court's Spanish interpreter and no one else by her side was told she had to pay $3,554 by the end of February to avoid an eviction warrant. A white-haired man, also accompanied only by the translator, had accrued $2,221 in outstanding rent; the eviction warrant against him would be put on hold, the judge said, if he paid his February and March rents on time. "Good luck sir," she told him.
Another woman, her dark hair tied up in a bun, sat next to her landlord's attorney. She owed $24,660 in outstanding rent. She was told, with the help of the interpreter but no lawyer, that her warrant would also be put on hold if she paid by the end of February. Last was a man who had accumulated $5,395 in outstanding rent; he had nine days to pay $3,200, plus the following months' rent, in order to stave off his eviction warrant. He, too, faced the judge alone.
These judgments represent staggering amounts of money for most low-income renters. Many of Stephens-Romero's clients are "in really dire straits," she said. A large number have physical and mental limitations that prevent them from working, while others struggle to find jobs, or at least ones that offer enough hours and pay to make rent.
If the tenants in Room 550 had had a lawyer on their side, they would likely have pushed back against the judge and managed to lower the amounts that their clients had to pay, or at least bought them more time. None of the tenants had the capacity to argue on their own behalf. Instead, they all accepted the sums that were handed down, whether they could afford them or not.
Right to counsel "is a law," Stephens-Romero said, "and we aren't meeting it."
Co-published by Economic Hardship Reporting Project and The Baffler.
This story was produced by Economic Hardship Reporting Project and The Baffler, and reviewed and distributed by Stacker.
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