Why People Who Face Losing Their Homes in Legal Proceedings Must Have a Right to Counsel

• Author: Andrew Scherer
• Position: Executive Director, Legal Services for New York City
• Pages: 699-732

Page 699

Executive Director, Legal Services for New York City (ascherer@lsny.org; 646-442-3606) The author is indebted to Laura Abel of the Brennan Center on Justice at New York University Law School, who co-authored the discussion of social science research in New York City in this article and whose comments on the remainder of the article were enormously helpful, and to Jonathan Siegelbaum of Wilmer Cutler Pickering Hale & Dorr LLP, for his legal research on potential bases for appointment of counsel in civil cases under New York law. The author also gratefully acknowledges the assistance of Sharon K. Samuel, a second year student at Benjamin N. Cardozo School of Law, for her helpful research assistance and the assistance of Blossom Lefcourt, Senior Articles Editor of the Cardozo Public Law, Policy & Ethics Journal, for her thorough and very helpful editing of a series of drafts of this article.

The author takes inspiration for this article from members of growing movement to advocate for the right to counsel in civil litigation on the national and local levels. A National Coalition for a Civil Right to Counsel, comprised of legal services, legal aid and other public interest lawyers, private attorneys and academics, has been organized by Debra Gardner of the Public Justice Center of Maryland and Deborah Perluss of the Northwest Justice Project. A New York City group of advocates, focused on the right to counsel for tenants in Housing Court, has been organized by Lisa Rubin of N.Y. City Councilmember Alan Gerson's office at the council member's behest, with much of the work shouldered by Laura Abel of the Brennan Center. The energy, determination and wisdom of the advocates involved in these efforts will, I am confident, lead to monumental advances toward equal justice for all.

To no one will We sell, to no one will We deny or delay, right or justice.

-Magna Carta (1215)¹

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.

-Powell v. Alabama (1932)²

"Everyone needs a place where they can live with security, with dignity, and with effective protection against the elements. Everyone needs a place which is a home."

-Nelson Mandela (2003)³Page 700

Introduction

This paper argues in favor of a simple proposition: people who face losing their homes in legal proceedings must have a right to be represented by counsel in those proceedings, whether or not they can pay for counsel. Public policy, the fair administration of justice, constitutional and statutory law, and a growing international consensus on the human right to a fair hearing, all support this proposition. Specifically, this paper argues that New York City residents who face eviction in proceedings brought before New York City's Housing Court have a right to counsel at the government's expense if they are unable to afford counsel.

In October of 2004, the Benjamin N. Cardozo School of Law and the New York County Lawyers Association (NYCLA)⁴hosted a conference to examine New York City's Housing Court⁵on the occasion of the Housing Court's thirtieth anniversary; the title and challenge of the conference was "The New York City Housing Court in the 21st Century: Can It Better Address the Problems Before It?" Establishing a right to counsel for people who face eviction would vastly improve the New York City Housing Court's ability to "Better Address the Problems Before It."⁶The fundamental purpose of Housing Court, as with any court, is the fair and impartial administration of justice. The Housing Court's biggest problem is that the court is unable to fairly and impartially administer justice because the vast majority of people who pass through its doors facing eviction are not able to defend their interestsPage 701 meaningfully because they need, yet due to their poverty cannot secure, legal assistance.⁷For all the reasons set forth below, the Housing Court cannot fulfill its fundamental purpose unless access to counsel is provided to all people facing eviction who need representation, whether or not they can afford it. No other measure will adequately address the Housing Court's inability to fairly and impartially administer justice: its biggest problem.

Overview and Summary

Most families and individuals who face eviction from their homes in New York City cannot afford or obtain counsel to represent them.⁸Indigent people coming before New York City's Housing Court risk losing their homes, unrepresented, in adversarial legal proceedings governed by an unfamiliar and complex web of city, state, and federal laws. In contrast, landlords are almost always represented by attorneys who are familiar with the court and the law.

A home is a precious thing to lose. One's home is one's place in the world and is crucial to one's well-being. The home is the locus of family life and child development, necessary for accessing education, jobs, and government benefits, and a prerequisite for participating in civil society and exercising political rights. The precipitous loss of one's home through eviction is a devastating and traumatic experience, partic-Page 702 ularly for low-income tenants in New York City who are displaced into a housing market that has virtually no housing that is affordable to them.⁹While a lucky few find alternative housing, most are forced to double up with family or friends or to enter the city's homeless shelter system. Many who initially double up eventually enter the homeless shelter system when tension and overcrowding make doubling up no longer feasible. The damage done by eviction and homelessness is psychological and physical, as well as economic. Eviction imposes long-term costs on the individuals and families affected and also taxes the social service, child welfare, and criminal justice systems.¹⁰

Eviction proceedings in New York City's Housing Court are adversarial legal proceedings, thus counsel often makes a determinative difference in the outcome. A lawyer representing a tenant knows how to navigate the court's process, knows the defenses that can be raised and how to pursue them, knows how to secure available government benefits, social services, and other assistance. In most cases, a lawyer helps the tenant avert eviction, and when eviction cannot be averted, a lawyer knows how to negotiate for time to move out before the tenant is forced out. An unrepresented tenant is sorely disadvantaged because he or she likely does not have the specialized knowledge required to maneuver through the morass of the Housing Court.¹¹

Fundamental fairness, the constitutional rights to due process and equal protection of law, and sound social policy all require recognition of a right to counsel for tenants facing eviction. A right to counsel for tenants facing eviction in New York City's Housing Court would be consistent with a growing international consensus as to the meaning of the right to a fair hearing under international human rights law. The U.S. Supreme Court established a right to counsel for a person accusedPage 703 of a crime four decades ago.¹²New York State established a right to counsel in child custody matters over three decades ago.¹³Like one's liberty and custody of one's children, having a home is one of the most important and fundamental human needs that may be at jeopardy in legal proceedings. Providing counsel to low-income tenants in eviction proceedings averts the human, fiscal, and social costs of homelessness, streamlines the functioning of the court, and furthers the fair administration of justice in civil society.

I Recognition of a Right to Counsel for People Who Face Eviction is Sound Public Policy

A Eviction Proceedings and Other Legal Proceedings Through Which People Lose Their Homes are Too Complicated and Difficult for Untrained People to Defend Themselves Adequately

Eviction proceedings are formal court proceedings in which rules of evidence and numerous technical pleading requirements apply. Under New York law, eviction matters are special proceedings and not plenary actions, therefore evictions move more swiftly than ordinary civil proceedings.¹⁴Eviction proceedings are particularly complex and technical in New York City where a complicated collection of laws regulate rent levels¹⁵and public subsidies,¹⁶grounds for eviction,¹⁷building conditions,¹⁸building and apartment registration,¹⁹and lease renewals.²⁰

People facing eviction proceedings without lawyers are far more likely to be evicted than similarly situated people represented by coun-Page 704 sel.²¹Yet most tenants appear in New York City's Housing Court without counsel, while most landlords have representation. A 1993 study found that counsel represented fewer than 12% of the tenants appearing in the Housing Court, while over 97% of the...