Kriston Capps is a staff writer for CityLab covering housing, architecture, and politics. He previously worked as a senior editor for Architect magazine.
The new law protecting low-income tenants is the first in the nation.
On Friday, New York City Mayor Bill de Blasio signed into law an act that guarantees legal representation to any low-income resident facing eviction. This is the first law in the nation to establish a right to counsel in housing cases, the culmination of a push by activists and organizers that started in 2014.
The law promises legal representation to any resident facing eviction whose income is 200 percent of the federal poverty level or less. The act could transform housing court in New York, where landlords appear with counsel in more than 90 percent of cases. Until 2014, tenants were represented in just 1 to 10 percent of cases.
“When you have that kind of imbalance, not occasionally but almost guaranteed in every case, it starts to change the entire way that the court works and the entire way that the justice system works,” says John Pollock, coordinator for the National Coalition of the Civil Right to Counsel. “Cases are disposed of quickly. There’s not really any due process.”
Often, tenants have defenses to eviction lawyers would raise that could stop or at least postpone an eviction, such as improper notice or neglected repairs.
Fewer illegal evictions also means fewer households experiencing transitional homelessness, a crisis on the rise in America. That means reducing suffering for families but also limiting a substantial burden carried by cities. The coalition predicts an overall savings of $320 million per year, well above the program’s costs.
Even in cases where an eviction is warranted, legal representation can make the process less painful and interruptive.
“Lawyers do a lot of things for tenants besides just [determining in court] whether or not they’re evicted,” Pollock says. “There’s some tenants who may not be able to stay in their units, but the attorney may be able to keep the eviction off their records. They may be able to find them alternative housing. They may be able to get them into subsidized housing. They can arrange a soft landing in so many ways.”
With New York leading the way, several other cities may soon embrace so-called “civil Gideon” laws, namely San Francisco, Boston, Philadelphia, and Washington, D.C. However, budget plans by the Trump administration could affect how broadly a right to counsel can be embraced in other places.
The tenant legal services community has pursued a right to counsel in housing court for decades, says Marika Dias, director of the Tenant Rights Coalition at Legal Services NYC. But that effort became much more aggressive in 2014, when a number of advocacy campaigns, bar associations, unions, and other groups formed The Right to Counsel NYC Coalition. They sought, and won, greater funding for legal representation for tenants.
Since 2014, evictions have already declined in New York by 24 percent, and the percentage of tenants who have appeared before housing court with representation has climbed to about 27 percent.
“Over the course of the next five years, there will be a phase-in process, so it’s going to take five years to get to the point where all tenants who are under 200 percent of federal poverty guidelines get full representation,” Dias says.
She adds, “But in addition to that, the legislation provides for tenants who are over that income threshold to also get some legal services as well. By the time we get through the 5-year phase-in, 100 percent of tenants in housing court will have access to either full representation or the advice of the lawyer.”
The act, which the New York City Council passed in July (with a veto-proof majority), commits $155 million over five years to fulfill a right to counsel. The Right to Counsel NYC Coalition projects that the increase in legal representation will be met with a considerable cost savings for the city, as frivolous cases that might otherwise go unchallenged fall out of the justice system.
San Francisco almost beat New York to the punch. Back in 2012, the San Francisco Board of Supervisors passed an ordinance declaring its intent to become the nation’s first city to establish a right to counsel in civil matters. California has led the way for years, in fact: The state’s 2011 Sargent Shriver Civil Counsel Act established seven pilot programs at about $9 million per year to provide legal representation to low-income residents in civil cases—mostly housing cases. One of the pilot programs, in Los Angeles, was originally designed to end in 2016; that’s now a permanently funded (but not comprehensive) program.
With the ordinance, San Francisco set up its own pilot. The results are revealing: An analysis by the John and Terry Levin Center for Public Service and Public Interest at Stanford University found an enormous potential costs savings for the city (albeit based on limited results). During the pilot, pro-bono lawyers helped more than 600 tenants avoid homelessness. The cost of sheltering a family runs about $30 per night, meaning a savings of more than $18,000 each day. Over the course of 60 days—the average shelter stay in San Francisco—the potential savings adds up to more than $1.1 million. Paying the lawyers for their time would not cost nearly as much.
“A number of people from San Francisco contacted me and said, ‘We want to be next,’” Pollock says.
The Philadelphia City Council has appropriated half a million dollars to give low-income renters legal representation in housing matters. Boston Mayor Marty Walsh is pursuing a civil Gideon bill in Massachusetts. (The name refers to Gideon v. Wainwright, the 1963 case in which the U.S. Supreme Court established a right to counsel in criminal cases.) In Washington, D.C., the Housing Right to Counsel Project, another coalition of legal-service providers and advocates, rallied behind a law expanding housing counsel that is currently under congressional review. (As D.C. is not a state, all its laws are reviewed by Congress.)
Civil Gideon laws establishing a right to counsel for cases involving immigration, guardianship, and incarceration over fees and penalties are on the rise; housing is only the newest front. The budget proposed by President Donald Trump could curb the progress of these laws, however. The Trump administration wants to slash the budget of the Legal Services Corporation, a federal agency that provides legal-services aid to states. This federal funding accounts for 20 percent of the funding of Legal Services NYC, for example.
While cutting funding out would not necessarily affect New York’s ability to implement its right-to-counsel plans, it would make public defense that much harder. For some places, these budget cuts could prove devastating, especially for rural and older communities. “In some states, legal aid funding comes almost entirely from the Legal Services Corporation,” Pollock says.
If the worst does not come to pass—if federal funding for legal aid is retained—then more cities may soon try to adapt New York’s law. Dias says that members of The Right to Counsel NYC Coalition and Legal Services NYC recently gave a presentation at a conference in Austin in July attended by legislators, community board members, and school board members from all across the country.
“In many places there’s some version of this, in the sense that they’ve appropriated funds or passed legislation,” Dias says, “but none of them have the comprehensive right that we now have.”