Council Eyes Giving Tenants Facing Eviction the Right to a Lawyer

With the City Council preparing to consider a bill that would give tenants facing eviction the right to a lawyer, Mayor Bill de Blasio’s administration released a report Aug. 30 trumpeting the huge increase in city funding for civil legal services for low-income people. The report said that has dramatically increased the number of tenants with lawyers in Housing Court and helped reduce the number of evictions by an unprecedented 24 percent over the past two years. 

The 2016 Annual Report of the NYC Office of Civil Justice, written by the city’s new Civil Justice Coordinator’s office, said funding for civil-court legal services will reach $110 million by the end of this fiscal year, and the amount spent on eviction prevention is now 10 times higher than it was in 2013. Its other research consists of a survey of tenants in Housing Court; interviews with tenant advocates, policymakers, judges, politicians, and legal-service providers, and a two-day count in April of all cases in the city’s Housing Courts. 

In the 2,169 cases counted in April, 27 percent of the tenants with a scheduled appearance had attorneys representing them. The percentage of tenants with lawyers was the lowest in the Bronx (where the city’s poorest tenants live and where there are the most eviction cases) and highest in Staten Island, where 42 percent had an attorney. Tenants with addresses in low-income neighborhoods were less likely to have a lawyer. 

Overall, the report said, just over half the tenants who had lawyers had free or low-cost representation such as Legal Services, while the rest hired private attorneys. The percentages with private lawyers were highest in the boroughs with the fewest low-income tenants: Queens (where 32 percent of tenants overall had a lawyer, and 63 percent of those were private) and Manhattan (where 29 percent had an attorney). Many people frequently in the city’s Housing Courts are highly skeptical that there were that many cases with private lawyers.

Among tenants without lawyers, a survey in May of 528 people in line and waiting in the halls found that 77 percent were in court to answer a summons for nonpayment, 14 percent were there on a holdover (an eviction case not related to rent payment) and less than 3 percent were suing their landlord for repairs (an HP action). Most (63 percent) of the tenants without lawyers would have qualified for one under the current intake rules, because their incomes were less than twice the federal poverty level (or just over $40,000 a year for a family of three), and another 23 percent had slightly higher incomes. More than two-thirds of the tenants in court without an attorney were women.

The report’s authors also asked judges, legal services attorneys, and advocates about why having lawyers would help tenants. One said that tenants often thought that the landlord’s attorney was either their lawyer or worked for the court. Others highlighted the need for lawyers in repair cases, as the HP process is long and tortuous. The common sentiments were that tenants with attorneys are less likely to get evicted, less likely to agree to pay rent they don’t owe, and more likely to get repairs, especially when Housing Court’s schedule is so overcrowded that the average tenant settles his or her case in the hallways, meeting alone with the landlord’s attorney. 

While the average person in America recognizes the need for a lawyer if they’ve been charged with committing a crime, most people are unaware of the devastating consequences of going into a civil case without one. “Civil cases affect some of the most important parts of a person’s life: the ability to have and keep a home, to keep a family together, to escape from domestic violence, in fact, to be able to stay in this country,” Mayor de Blasio said last June when he signed the bill creating the Civil Justice Coordinator’s office.

Under the U.S. Supreme Court’s 1963 decision in Gideon v. Wainwright in 1963, people accused of a crime have the right to an attorney, and if they can’t afford one, the government has to provide one. But the Court has since decided that Gideon does not extend to civil cases. That means the government is not required to fund legal services for civil cases. The federal government’s contribution to such funding has dropped precipitously since the 1960s, and it has been up to individual states and cities to make up that gap. 

Two years ago, City Councilmembers Vanessa Gibson (D-Bronx) and Mark Levine (D-Manhattan) introduced Intro 214A, which would require the city to provide a lawyer for tenants facing eviction who earn less than twice the federal poverty level. Councilmember Rosie Mendez (D-Manhattan) introduced legislation in 2007 that would have established a right to counsel for seniors facing eviction, but it never received a hearing. 

The Council will hold its first hearing on Intro 214A on Monday, September 26. While the mayor wants to narrow the justice gap, he has not endorsed enacting a law that would provide a right to counsel for low-income tenants facing the loss of their homes.