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Why People Who Face Losing Their Homes in Legal Proceedings Must Have a Right to Counsel

Executive Director, Legal Services for New York City (ascherer@lsny.org; 646-442-3606) The author is indebted to Laura Abel of the Brennan Center on Justice at New York University Law School, who co-authored the discussion of social science research in New York City in this article and whose comments on the remainder of the article were enormously helpful, and to Jonathan Siegelbaum of Wilmer Cutler Pickering Hale & Dorr LLP, for his legal research on potential bases for appointment of counsel in civil cases under New York law. The author also gratefully acknowledges the assistance of Sharon K. Samuel, a second year student at Benjamin N. Cardozo School of Law, for her helpful research assistance and the assistance of Blossom Lefcourt, Senior Articles Editor of the Cardozo Public Law, Policy & Ethics Journal, for her thorough and very helpful editing of a series of drafts of this article.

The author takes inspiration for this article from members of growing movement to advocate for the right to counsel in civil litigation on the national and local levels. A National Coalition for a Civil Right to Counsel, comprised of legal services, legal aid and other public interest lawyers, private attorneys and academics, has been organized by Debra Gardner of the Public Justice Center of Maryland and Deborah Perluss of the Northwest Justice Project. A New York City group of advocates, focused on the right to counsel for tenants in Housing Court, has been organized by Lisa Rubin of N.Y. City Councilmember Alan Gerson's office at the council member's behest, with much of the work shouldered by Laura Abel of the Brennan Center. The energy, determination and wisdom of the advocates involved in these efforts will, I am confident, lead to monumental advances toward equal justice for all.

"To no one will We sell, to no one will We deny or delay, right or justice."

-Magna Carta (1215)1

"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel."

-Powell v. Alabama (1932)2

"Everyone needs a place where they can live with security, with dignity, and with effective protection against the elements. Everyone needs a place which is a home."

-Nelson Mandela (2003)3

Introduction.

This paper argues in favor of a simple proposition: people who face losing their homes in legal proceedings must have a right to be represented by counsel in those proceedings, whether or not they can pay for counsel. Public policy, the fair administration of justice, constitutional and statutory law, and a growing international consensus on the human right to a fair hearing, all support this proposition. Specifically, this paper argues that New York City residents who face eviction in proceedings brought before New York City's Housing Court have a right to counsel at the government's expense if they are unable to afford counsel.

In October of 2004, the Benjamin N. Cardozo School of Law and the New York County Lawyers Association (NYCLA)4hosted a conference to examine New York City's Housing Court5on the occasion of the Housing Court's thirtieth anniversary; the title and challenge of the conference was "The New York City Housing Court in the 21st Century: Can It Better Address the Problems Before It?" Establishing a right to counsel for people who face eviction would vastly improve the New York City Housing Court's ability to "Better Address the Problems Before It."6The fundamental purpose of Housing Court, as with any court, is the fair and impartial administration of justice. The Housing Court's biggest problem is that the court is unable to fairly and impartially administer justice because the vast majority of people who pass through its doors facing eviction are not able to defend their interests meaningfully because they need, yet due to their poverty cannot secure, legal assistance.7For all the reasons set forth below, the Housing Court cannot fulfill its fundamental purpose unless access to counsel is provided to all people facing eviction who need representation, whether or not they can afford it. No other measure will adequately address the Housing Court's inability to fairly and impartially administer justice: its biggest problem.

Overview and Summary.

Most families and individuals who face eviction from their homes in New York City cannot afford or obtain counsel to represent them.8Indigent people coming before New York City's Housing Court risk losing their homes, unrepresented, in adversarial legal proceedings governed by an unfamiliar and complex web of city, state, and federal laws. In contrast, landlords are almost always represented by attorneys who are familiar with the court and the law.

A home is a precious thing to lose. One's home is ...

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