Everyone who’s watched a police procedural knows the rights a police officer reads someone when they’re being arrested:
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
This is the case for criminal defendants because we acknowledge that the courts are a foreign and scary place for most people, and without a lawyer to show you the way, guide you in your defense, and speak for you in technical legal matters, you can’t meaningfully assert the rights granted to you by our laws and constitution. The state has a fully trained and resource lawyer in the form of the prosecutor, and if this is your first time in a court room, odds are you won’t know what a successful strategy would be and can’t argue it in a way that corresponds with the rules of legal procedures and precedents.
Although it won’t land you in prison (directly), there are many times someone can come into contact with the legal system in such a way that they could lose their liberty, security, or both. Courts decide who gets to keep custody of their kids, whether someone will retain access to their health or worker benefits, and whether someone will be made homeless through an eviction. Each of these situations represents a high-stakes scenario where someone without a lawyer could easily lose their case even if they have a compelling defense. How can we let that be? Above the Supreme Court the phrase “Equal Justice Under Law” is etched in marble, but if a tenant is in court defending themself for the first time against their landlord’s expensive lawyer, can the outcome of that case truly be considered just?
We believe there can be no justice in housing court until every tenants has access to a lawyer with whom they can discuss the facts of their case, collaborate in their construction of their defense, discuss the best options for their situation, and provide fair representation in court.
Common Right to Counsel Questions:
- What is a right to counsel in civil cases?
- What is a right to counsel for tenants?
- Don’t tenants already have a right to counsel?
- Can’t tenants just get representation from legal aid?
- Why does a right to counsel in eviction cases matter?
- Is the right to counsel for tenants connected to race equity and racial justice work?
- Where has the right to counsel for tenants been enacted?
- What does a right to counsel enactment include?
- What does it mean for a tenant to be guaranteed “full representation”?
- Where can I find samples of legislation establishing the right to counsel in eviction proceedings?
- Shouldn’t landlords have a publicly funded right to counsel?
- How does the right to counsel interact with other access to justice interventions or eviction interventions?
What is a right to counsel in civil cases?
A right to counsel is a government obligation or commitment, established in the law, to ensure that a person has an attorney to represent them in a civil case. Unlike the right to counsel in criminal proceedings, where defendants whose life or liberty is at stake have a right to counsel firmly situated in the U.S. Constitution and federal law, the right to counsel in civil cases is a patchwork of statutes, caselaw, and rules at the federal, state, and local levels. Though every state has a right to counsel in one or more civil areas, whether a person has a right to counsel in a particular civil proceeding depends on where they reside and whether they are eligible. Want to learn more? Check out the NCCRC’s introductory bibliography and status map to catch up on civil right to counsel history and advancements.
What is a right to counsel for tenants?
A right to counsel for tenants is an enacted law that guarantees eligible tenants will be offered free full legal representation in covered proceedings and that has government funding. The right to counsel can be enacted at the city, county, or state level. The right can be enacted through the legislative process (i.e. through a city/county council or state legislature) or the ballot initiative process (where the question goes directly to the voters). The right looks different in almost every jurisdiction where it has passed.
Don’t tenants already have a right to counsel?
Tenants have a right to be represented by a lawyer they hire and pay for (“retained counsel”), but prior to 2017, no jurisdiction in the country provided tenants with a right to government-funded counsel in eviction proceedings. Because of this, on average only 3% of tenants nationwide are represented in eviction proceedings, compared to 81% of landlords. However, that is starting to change. 18 jurisdictions (15 cities, and 3 states) have established a right to counsel for tenants. In addition, places like Ithaca and Rochester, NY, and Milwaukee County, WI, have committed funding for “universal representation” programs, without enacting a right to counsel. There are also many places that have used federal emergency rental assistance funds to increase legal representation of tenants in eviction proceedings.
Can’t tenants just get representation from legal aid?
Where it is available, a civil legal aid program can provide legal services, including representation, for eligible tenants. However, without a right to counsel there is no guarantee of representation. Many civil legal aid applicants are turned aways because existing programs, as currently funded, do not have the resources or capacity to represent everyone who is eligible. In addition, not all areas in the country, particularly rural regions, have a legal aid provider or an easily accessible office in a covered territory. For those that do, not all legal aid providers do eviction defense work. Not all tenants are income eligible for legal aid. Finally, funding, capacity, and resource issues severely restrict the number of clients that legal aid programs can serve. With a right to counsel, the government can ensure that Legal Aid and other legal services providers, have the resources they need to represent everyone.
Why does a right to counsel in eviction cases matter?
Evictions destabilize families, neighborhoods and cities. They sink residents deeper into poverty, cause job loss, create student churn, and greatly exacerbate physical and mental health problems. To stop this, all tenants must have the ability to secure legal counsel. A right to counsel is an acknowledgment that, contrary to the perceptions of some, all eviction cases warrant the provision of counsel. This is because of the multitude of potential interests at stake (preservation of the family home, physical and mental health, child custody, employment, educational access, and so on) as well as the fact that there are always ways that counsel can take steps to improve long-term housing stability prospects for tenants regardless of the particular facts or law at issue in the case. Moreover, it is a commitment to rectify the enormous power imbalance in eviction proceedings (where most landlords are represented, but most tenants are not). Passage of a right to counsel sends a message to tenants that the government recognizes the dramatic interests at stake as well as the fundamental unfairness and lack of due process in the current system.
Additionally, legal representation makes a difference. Represented tenants are more likely to remain housed, more likely to obtain additional time when they must vacate, have more favorable settlements, and pay less in arrears. Where it’s been implemented the right to counsel has led to decreased filing rates and more tenants remaining housed or avoiding involuntary moves.
Is the right to counsel for tenants connected to race equity and racial justice work?
People of color make up a disproportionate share of the renter population, a share that has increased in the last ten years. A right to counsel for tenants facing eviction is a racial and gender justice issue. Tenants of color are disproportionately filed against for eviction. In eviction cases, Black women are filed against for eviction twice as often as white renters. Black and Latinx women are disproportionately threatened with eviction. A right to counsel in eviction proceedings, combined with a robust outreach campaign, can help ensure that communities of color have access to legal representation, which is a demonstrably effective intervention in eviction matters.
Where has the right to counsel for tenants been enacted?
As of September 2022, the right to counsel for tenants has been enacted in 18 jurisdictions (15 cities, and 3 states). The NCCRC maintains a list of the jurisdictions and the parameters of the enacted ordinances and laws in the enacted legislation matrix.
What does a right to counsel enactment include?
There are several important components of a right to counsel enactment.
- Most important is a guarantee from the government entity that an eligible tenant will have full representation in a covered eviction matter and that payment of such representation is the responsibility of the government entity. This guarantee is what sets the right to counsel apart from increased funding for a local legal aid provider, including situations where such funding may be enough in theory to represent all tenants.
- Most enactments also include provisions related to:
- purpose and significance,
- pertinent definitions,
- substantive legal changes,
- tenant eligibility requirements,
- specifications about the cases or stages of a case are covered,
- training requirements for attorneys and other legal staff,
- data recording and reporting requirements,
- funding source specifics, and
- implementation process specifications.
- The enactment may also set out the agency or organization charged with coordinating the right to counsel, as well define what kinds of organizations can be designated to provide legal services.
- Finally, the enactment may contain a provision concerning contracting with community organizations to engage in tenant education and right to counsel awareness building.
What does it mean for a tenant to be guaranteed “full representation”?
This means providing the level of service to the client that the legal services provider has determined ensures the best possible outcome given the applicable facts/law for their case. This is contrasted with traditional “triage”, where legal services providers may provide lesser services such as brief advice that will still leave the tenant unrepresented and having to face-off against a trained attorney… due to resource constraints rather than a determination that such services suffice.
Where can I find samples of legislation establishing the right to counsel in eviction proceedings?
The NCCRC has compiled all the tenant right to counsel enactments. You can also find the components that the Right to Counsel NYC Coalition considers essential in this fact sheet.
Shouldn’t landlords have a publicly funded right to counsel?
Landlords and tenants are not similarly situated in eviction proceedings. Landlords are business owners, and the costs of eviction are built into the operating model of the business. Landlords also have revenue streams to pay for attorneys. While landlords face the loss of some investment revenue, tenants face the loss not just of their home, but potentially their belongings, physical/mental health, child custody, employment, and even physical liberty (if they are arrested for living on the street). Moreover, in most jurisdictions, landlord-tenant law favors the landlord: the fact that evictions are “summary proceedings” (i.e. conducted on a much faster timeline than the typical civil case) is done entirely for the benefit of landlords. Even landlords who do not hire attorneys are typically far more familiar with the eviction process than tenants.
Additionally, we know from the available reports documenting representation in eviction proceedings that whereas tenants are represented in only 3% of the cases on average, landlords are represented in 81% of cases. The need is thus much greater on the tenant side.
Finally, most right to counsel programs to date have imposed income limits that the vast majority of landlords would not meet due to their status as property owners.
How does the right to counsel interact with other access to justice interventions or eviction interventions?
Upstream interventions, such as the provision of more affordable housing and rent control, can help ensure fewer tenants wind up in eviction proceedings, which in turn reduces the cost of right to counsel programs. Conversely, there are many tenant protections that will go unenforced without counsel for tenants, as was seen during the pandemic when eviction moratoria were ignored or disputed by landlords and courts alike and where tenants struggled to apply for and effectively utilize emergency rental assistance. As such, the right to counsel is intimately interwoven with other tenant protection efforts.
Oftentimes, jurisdictions will experiment with other types of eviction intervention, such as mediation, drop-in clinics, hotlines, and the production of forms that unrepresented tenants can utilize. These services, particularly when they are pre-filing, may have their place in the access to justice continuum, provided that they have been evaluated (as right to counsel has) to determine their specific impact on eviction outcomes and not simply the number of clients they can serve. These services should not supplant the right to counsel, but may be compliments to the right to counsel.
To address both the immediate and long term impacts of evictions, eviction diversion and tenant screening protections, such as eviction record sealing, are complementary policies that work interconnectedly with tenant right to counsel to undermine the eviction system and increase access to housing opportunities. They are each important race equity tools and solutions for decreasing the racial impacts of evictions.