As Other Cities Look to Copy it, a Report on How Right to Counsel is Working in NYC

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Adi Talwar

Bronx Housing Court.

Cities around the country have shown interest in replicating New York City’s year-old program providing counsel to low-income tenants facing eviction in housing court. San Francisco voters approved a similar program, Los Angeles lawmakers tasked that city’s housing department with developing one, and places like Philly, Newark and the nation’s capital are headed down the same road.

A new report by the NYU Furman Center notes that each of those cities will adopt a different version of New York’s “groundbreaking” right to counsel (RTC) law, because the court system and housing laws vary from place to place. But there are lessons to be learned from the Big Apple, so Furman spent a year observing the roll-out of the program here—visiting courthouses and talking to stakeholders.

“New York City’s experience in the early years of the [program] implementation provides valuable lessons for other jurisdictions about the choices and challenges that implementing large-scale access to counsel in eviction cases is likely to pose,” the study finds.

After three years of debate, the City Council passed the RTC bill in August 2017. Starting with three ZIP codes in each borough, access to counsel is being offered in stages with citywide implementation by 2022.

The Furman report identifies challenges any large new program would face–like the need for policymakers to figure out how to sequence eligibility for counsel, and for legal-services providers to hire and train large new teams of attorneys. “It is important to consider the relationships different providers have with neighborhoods, and to structure the assignment of tenants to a provider in ways that support that provider’s relationship with the community or the individual tenant,” the study finds.

Figuring out when to match tenants and lawyers is crucial: “Tenants who are unrepresented when they arrive for their first appearance date may be less likely to take advantage of the counsel if they have only a limited block of time within which to resolve the case—if, for example, they must be at work at a particular time or have caregiving responsibilities,” so ways of getting lawyers and would-be clients together before that court date is key, the report reads.

The authors also point out unique issues that have arisen in New York—for instance, New York is changing the way people’s eligibility for the program is determined. First, staff from the city’s social welfare agency interviewed clients. “Now, the program is moving toward a system where all screening will be done by attorneys because of concerns that discussions about income eligibility should be subject to attorney-client privilege.”

Furman also finds that one familiar element of the scene in city housing courts – that of landlord attorneys approaching tenants without a lawyer in courthouse hallways and cutting deals – still occurs, sometimes in a way that makes the right-to-counsel moot.

“In New York City, some landlords’ attorneys have approached tenants before an attorney is assigned and convinced them to work out a settlement without counsel. In those circumstances, when the Court then advised that an attorney can be assigned, some of those tenants nevertheless declined counsel. As noted earlier, many tenants may not understand that an attorney can appear in court on their behalf; investigate relevant issues that a tenant is not likely to pursue on their own (such as rent overcharges); assert claims that the tenant may not know to raise (such as claims that a landlord has failed to provide a habitable dwelling unit); review building and housing code violations, and identify jurisdictional or procedural problems with the court proceedings. Ensuring that tenants who decline counsel do so knowingly is essential.”

Getting tenants around the city informed of the right to counsel is critical, Furman concludes. New York’s Right to Counsel Coalition said as much this week in a “right to counsel toolkit” they have developed to help guide organizers in other cities considering a similar system. “We have important questions to answer: now that tenants have this new right, how do they learn about it? And once they are informed about it, how do they claim it as theirs and use it to unleash organizing potential and build the tenant movement?”

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