Virus Lights Fire Under Eviction Right To Counsel Movement

By Natalie Rodriguez | August 16, 2020, 8:02 PM EDT

The ongoing pandemic has put new urgency behind a nascent movement pushing to give tenants facing eviction a right to counsel, advocates say.


The massive unemployment and economic stress fueled by the novel coronavirus has some access to justice advocates calling for federal lawmakers to not only place a nationwide moratorium on evictions but also to create a right to counsel for those involved in such proceedings, according to speakers on a Wednesday panel at the virtual Equal Justice Conference held by the American Bar Association and National Legal Aid & Defender Association.

"We know that full representation makes a tremendous difference in outcomes for housing cases," John Pollock, coordinator of the National Coalition for a Civil Right to Counsel and an attorney at the Public Justice Center, said at the panel.

Pollock said that as many as 90% of tenants are underrepresented in housing matters, whereas only about 10% of landlords are underrepresented, often putting potential evictees at a disadvantage.

The right to counsel movement is fairly young, with only five jurisdictions currently having some legislation or policy on the matter. The oldest of these is New York City, which began in 2017 and provides a right to counsel to those who qualify based on certain income levels.

Research shows that legal representation among New York City evictees has risen to 38% and that evictions have dropped 41%, including a 15% drop in 2019, according to Pollock. Eviction filings also dropped by 30% overall. San Francisco, which began a similar program, has also seen eviction filing rates drop 10% from 2018 to 2019.

Before the pandemic, several other cities and states were considering right to counsel legislation, according to Pollock. These include Massachusetts; Connecticut; Minnesota; Los Angeles; Santa Monica, California; and Boulder, Colorado; which all had pending legislation last year.

Prepandemic, however, an affordable housing crisis had also been brewing due to increasing rent rates, predatory lending practices and more, several experts noted. Before the pandemic, an estimated 20.8 million families were struggling to meet their rent, Emily Benfer, a Wake Forest University law professor, said at the panel.

"COVID-19 struck at a time when many renters were already vulnerable to eviction," Benfer said, adding that she estimates between 30 million and 40 million Americans, adults and children, are at risk of eviction between now and the end of the year.

92%

Percentage increase in daily rental assistance requests compared to 2019

Source: Washington University
in St. Louis

While many states and courts had instituted eviction or housing court moratoriums in the early months of the pandemic, those have begun to lift. At the time of the panel, 31 states lacked state-level eviction moratoriums, Benfer said. Most moratoriums were instituted by courts as they closed their doors amid the pandemic.

Now, with courts reopening, new socially distant court procedures are adding to the difficulties for tenants trying to maneuver through the eviction proceedings on their own, experts said.

"We have court hallways filled with people and a lot of folks confused about where they are supposed to go or missing their court dates," Jesse McCoy, supervising attorney at the Duke Law Civil Justice Center, said at the panel.

In areas where there are virtual hearings, meanwhile, there can be technological disadvantage issues for those in certain poor or rural areas, Pollock noted.

This is pushing many to advocate for new federal legislation to both put a nationwide moratorium on evictions and to also create a right to counsel for potential evictees, Pollock said.

Before the pandemic, there had been several bills proposing money for new funds with a priority to areas with right to counsel or to help fund state-based right to counsel pilot programs. None of the bills have passed, but Pollock said there is a renewed push for similar legislation because of the pandemic.

"To the extent courts are open, we need this right to counsel," he said.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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