Toward a Right to Counsel for Housing Court Defendants – by John S. Kiernan

John S. Kiernan

President’s Column, September 2016

What if the protection that transformed America’s criminal justice system—that the government would supply a lawyer to a defendant facing a loss of liberty if the defendant could not afford one—became applicable to low-income New York City tenants who face landlord actions to evict them from their homes?

Proposed City Council legislation, known as Intro. 214-a, is pursuing this question with unprecedented purposefulness, in an effort that the City Bar is supporting just as the City Bar continues to support State funding for legal services through the Judiciary budget.

The vast majority of tenants facing eviction have historically been unrepresented by counsel, while a recent important inaugural report by the NYC Office of Civil Justice confirms that over 99% of landlords appear through counsel in eviction actions.  The City Council and Mayor are rightfully questioning whether this kind of imbalance should be viewed as intolerable when tenants are facing the loss of their homes, one of the most basic of essentials of life.

Longstanding discussions of the powerful social and human reasons for providing counsel to tenants facing eviction have recently been supplemented by economic evidence suggesting that doing so would be cost-effective for the government, too.  The components of the analysis are complex and only approximate in application, but not difficult or counter-intuitive in principle:

(I)  The average cost of eviction protection through provision of counsel (about $2,000) is less than one-twentieth of the average cost to the City of sheltering a family that has become homeless because of eviction (about $44,000);

(II) Studies unsurprisingly confirm that tenants represented by counsel have far higher prospects of avoiding eviction – more than four times higher, according to the broadest study currently available;

(III) The savings in shelter costs alone from providing the proposed right to counsel would probably exceed the estimated additional cost necessary to provide free representation of tenants (about $250 million), according to an expert analysis by the firm of Stout, Risius & Ross commissioned by the City Bar’s Pro Bono and Legal Service Committee – and the other economic and human savings from preventing thousands of evictions would likely vastly outstrip the program’s costs.

There is substantial basis for belief that providing this right to counsel would achieve significant results.  While correlation can’t fairly be transformed into claims of causation, it’s difficult to resist intuiting a connection between the significant increase in representations of tenants over the past two years, as a result of substantial increases in funding from the City and from the State Judiciary budget, and the significantly improved eviction statistics reported in the NYC Office of Civil Justice Report.  That Report carefully saves for its next iteration a fully rigorous analysis of how effectively legal representation reduces evictions and shelter entries.  But,  as an early indicator the Report identifies studies showing that unrepresented tenants are far likelier than represented ones to receive eviction orders and points out that in just the last two years of increased funding for legal services, marshals’ evictions have fallen from more than 28,000 to about 22,000, almost 24%, and warrants of eviction (which often cause families to move before marshals show up to evict them immediately) have fallen by more than 21,000, from almost 133,000 to less than 112,000.  Since the average eviction notice attaches to three family members, according to the same Report, these statistics suggest that about 63,000 fewer New Yorkers – a medium-sized city’s worth of people – received eviction warrants in 2015 than in 2013.

We don’t know exactly what providing this counsel will do to the court system, but some speculative prediction seems reasonable.  In the short term, all this representation of tenants may make the courts busier, although they may also make the courts more efficient.  Some landlord counsel support free representation of tenants, believing that disputes are resolved more quickly and less expensively when tenants are represented.  There is already some evidence, though, supporting the intuition that over time, landlords who see that formerly successful categories of eviction actions are no longer successful will likely stop bringing those actions, so that the total number of actions should decrease and the percentage where the tenants are forced out when they have strong defenses should significantly decrease.  Tenants who need both legal and social service assistance should more often get that assistance, enabling them to resolve or moderate the personal financial crises that have placed them on the brink of eviction.  Over time, the housing courts should become less rather than more busy, and the administration of those courts should improve, when the percentages of defendants with no representation falls radically.

New York is the right city to pursue the important first-time experiment of providing legal services to all people facing the potential loss of their homes who can’t afford those services.  The City Bar’s Pro Bono and Legal Services Committee and our Housing Court Committee have issued a report endorsing the proposal, and the City Bar is testifying in support of Intro 214-a at a City Council hearing today. 

The City Bar will also testify tomorrow, in support of allocations to legal services funding from the State Judiciary Budget in a hearing of the Permanent Commission on Civil Legal Services in Albany.  Beginning with pathbreaking efforts by Chief Judge Lippman and continuing with Chief Judge DiFiore, the judiciary has responded to the dramatic decrease in legal services funding from the Interest on Lawyers’ Accounts (IOLA) Fund and other governmental cutbacks in available funding by adding new commitments to legal services from the judiciary budget that now amount to $100 million per year.  This represents a significant allocation of limited judiciary funds at a time when other judicial functions have weathered painful cuts.  The City Bar has strongly applauded this difficult allocation decision.

The concept of providing legal representation to people facing the threatened loss of essentials of life, who otherwise may find themselves defenseless even when the law provides them with significant defenses and protections, seems strongly consistent with the component of the City Bar’s mission directed to advancing protections for the disadvantaged and application of the rule of law and enhancing the administration of justice.  Bold steps like this require vision and resoluteness from our governmental leaders.  The City Bar encourages and applauds that vision and resoluteness.

John S. Kiernan is President of the New York City Bar Association