What is ‘right to counsel’ and how could it prevent evictions during the pandemic?
The pandemic has made the right to counsel that much more urgent—if you're eligible for legal help you will most likely get it.
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The right to counsel refers to the legal right for tenants who meet specific criteria to be represented by an attorney when they are facing eviction in housing court.
Tenants who earn an income that is 200 percent below the federal poverty guideline are guaranteed this right. That means a single person who earns less than $25,520 a year or a family of four earning less than $52,400 can get legal help in this way.
New York City was the first city to establish right to counsel in 2017. Since then, San Francisco, Newark, Philadelphia, and Cleveland have all adopted it. Studies in NYC have shown a steep drop in evictions as a result. An analysis by the Community Service Society showed 84 percent of tenants who were represented by an attorney when they faced being kicked out of their apartments ended up not being evicted.
The original plan was to roll out the right to counsel by zip code over a five-year period, but the pandemic made the services being offered that much more urgent. Speaking on The Brick Underground Podcast, Andrew Scherer, a visiting associate professor at New York law School, says that by partnering with other agencies the courts will now match anyone who shows up in Housing Court with counsel. "If anyone is served with a petition, commencing an eviction proceeding, counsel is very likely to be available," he says.
[Editor's note: An earlier version of this post was published in June 2020. We are presenting it again with updated information for November 2020.]
The formal protections from eviction as a result of the pandemic will begin to expire in January next year. At that point a tenant who is underwater financially and at risk of eviction from non-payment may only be protected by the slowed functioning of the courts. When courts begin to operate again, Scherer points out the number of eviction cases will likely overwhelm the system. "There just aren't enough lawyers in New York City to handle that volume—and the court itself can't handle the volume. There would be no due process whatsoever," he says.
There are several initiatives aimed at rent relief for city tenants but a lot hangs on what kind of stimulus can be passed at the federal level.
"This is certainly an economic issue, but it's going to be resolved politically," says Scherer. He points out the more that people are outspoken and get involved, and advocate for the kinds of remedial policies that are needed to address the crisis, the more likely it will be addressed.
Tenant activists want to increase the income eligibility of right to counsel and expand the types of eviction cases covered by the current law. The organization, Right to Counsel NYC Coalition, points out that doubling the income threshold to 400 percent of the federal poverty line could help tens of thousands of households facing eviction in housing court each year.
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