Gotham Gazette

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Courts and Other Officials Must Act Now to Protect Right to Counsel in Eviction Proceedings

Protect housing for the most vulnerable (photo: Michael Appleton/Mayoral Photography Office)

Five years ago, New York became the first city in the country to create a right to counsel for low-income tenants facing eviction. Unfortunately, this right is now being hollowed out by the combination of a recent explosion of eviction cases and a shortage of tenants’ rights attorneys. Since the beginning of March, housing court judges have compelled at least 18 tenants to participate in their own eviction proceedings without access to a city-funded attorney.

This should not be happening. Our courts have the power to proactively manage their dockets to protect the right to counsel. It is time for them to use it.

Like so many challenges these days, the current threat to the right to counsel has its roots in the pandemic. The stresses of covid, combined with low pay and long hours, have led to a great resignation of young tenant rights attorneys. Our city-funded right to counsel programs have been depleted as a result. The Bronx Right to Counsel program, for example, recently reported that it has lost over a quarter of its tenant rights attorneys.

Tenants might not have initially noticed this shortage of attorneys because a statewide moratorium on eviction proceedings remained in place. That moratorium recently expired. Now eviction filings are skyrocketing.

The long-run solution to this challenge is to replenish the number of tenants’ rights attorneys and to reduce evictions by passing “good cause” eviction legislation. In the short-run, however, our options for protecting tenants are limited. Today, even though city law promises that every tenant earning less than 200% of the federal poverty level has the right to an attorney in eviction proceedings, in practice many cannot get one.

Tenant attorneys are currently overwhelmed, with many reportedly handling 80 cases at a time. Legal service providers are concerned that if attorneys take on even more clients they will not be able to provide quality counsel, putting them at risk of violating their ethical obligations to provide tenants with competent representation. 

Our courts must act to protect the right to counsel. In cases where a tenant is entitled to a city-funded attorney but cannot find one, state law empowers housing court judges to adjourn eviction proceedings until an attorney becomes available. New York’s Office of Court Administration could direct housing court judges to use that power to slow the torrent of eviction proceedings to match the availability of tenant attorneys. 

Unfortunately, the Office of Court Administration announced that it would not do so. Instead, eviction cases are proceeding double time. Whereas in some courts judges used to hear one eviction proceeding every 30 minutes, they are now reportedly hearing two cases every 15 minutes. 

These assembly-line style eviction proceedings are devastating for families. Without counsel present, landlords – who are almost always represented by an attorney – are able to ride roughshod over tenants, who are overwhelmingly low-income Black and Latino New Yorkers.

This only causes unnecessary pain on all sides. Attorneys can often prevent evictions and help landlords get paid. They are able to help tenants access federal funds to cover overdue rent or find other paths to stay in their homes. In fact, according to legal service providers, right to counsel legislation can reduce evictions by more than halfThe original Right to Counsel bill, which passed in 2017, was an unconditional success: 84% of families facing eviction stayed in their homes in the program’s first year.

If our courts will not act on their own, we need all hands on deck to solve this crisis. The city’s Office of Civil Justice, which is responsible for working with legal service providers to ensure a right to counsel, should step into the breach. The state Office of Court Administration has signaled that it might be willing to adjust its docketing practices if the city Office of Civil Justice asks it to do so. The Office of Civil Justice should engage the courts immediately to find a speedy resolution.

In addition, the New York City Council, where we are members, must act to prevent our history-making right to counsel legislation from becoming dead letter. If state legislation is needed to reform the Office of Court Administration in order to better safeguard our tenants, the City Council should work with lawmakers in Albany to get this done. Regardless, the Office of Court Administration should set an upper limit on the number of housing cases that one judge puts on their calendar at a time.

Every day, families walk into a court of law, alone, unaided by an expert of the law. Tragically, entering without an attorney often means exiting without a home. Instead of rushing people out of stable housing, the courts must give every New Yorker a true right to counsel by adjourning until an attorney can be provided.

City Council Member Shaun Abreu represents parts of Upper Manhattan and chairs the Council’s Committee on State and Federal Legislation, and is a former tenant rights attorney who was evicted from his home as a child. Deputy City Council Speaker Diana Ayala represents neighborhoods in Upper Manhattan and the South Bronx with some of the highest eviction rates in the city and chairs the Council’s Committee on General Welfare. On Twitter @ShaunAbreu & @DianaAyalaNYC.

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