BBA Panel Discussion on Right to Counsel in Eviction Cases

As part of our effort to support the Massachusetts Right to Counsel Coalition, in their campaign to enact a right to counsel for indigent tenants and landlords in eviction cases, the BBA hosted a panel discussion about the issue on February 26.  The event, sponsored by our Delivery of Legal Services section, featured:

  • Chief Justice Ralph Gants of the Massachusetts Supreme Judicial Court (SJC)
  • Annette Duke of the Massachusetts Law Reform Institute (MLRI) and leader of the Coalition
  • Stefanie A. Balandis, Associate Director of Northeast Legal Aid
  • Marc Migliazzo of Ropes & Gray LLP and long-time Lawyer for the Day volunteer in Housing Court

Chief Justice Gants kicked off the event by highlighting why establishing such a right is so important, saying that it will not only protect the rights of litigants who currently go unrepresented but also promote housing stability in communities statewide. 

To understand why legal counsel is especially important in eviction cases, one need look no further than the SJC’s unanimous 2019 ruling (authored by Chief Gants) in the Adjartey case—in particular, its 25-page appendix, which seeks to catalog, as a kind of “one-stop shopping” for lawyers and pro se litigants, all the statutes and court rules that make up the landscape for summary-process cases.  The judge asked for a show of hands in the audience from all who had the read the appendix in its entirety (few went up), then said, “It is hard to read because the law is hard to understand.”  The relevant statutes inherited and adopted the arcane language of property law (think first-year of law school), the Housing Court rules (currently being revisited) are similarly complex and sometimes in conflict with the Rules of Appellate Procedure, and the Legislature has granted considerable rights to tenants over the past 40 years. 

With the BBA set to release a report that will calculate the savings that the state would achieve by investing in an eviction right to counsel, Chief Gants also urged attendees to consider not only the fiscal benefit to the state budget—from avoided costs on foster care, emergency shelter, health care, and the like (as documented first in our 2014 report, Investing in Justice)—but also non-monetary benefits, which can’t easily be quantified. 

Those include, for example, the value of a single parent able to stay at home and thus not have to work out a new individualized education program (IEP) for a child with special needs, as the result of being displaced and forced to move to a new school.  Health and mental health are directly affected by the stress of facing eviction without legal assistance, and figures presented at the event show that household income often rises significantly when tenants are able to stay in place.

As Chief Gants put it, we can’t afford not to enact a housing right to counsel.

Annette Duke offered some background on the Coalition she leads, in which the BBA is a proud member—one of 125 (and growing).  But when the campaign began last year, there were only 13 members.  As Duke recounted, having successfully coordinated the effort to enact legislation to expand the Housing Court to statewide jurisdiction, she sought input on what the next logical step should be and ultimately, after input from community partners, chose to pursue a right to counsel—in large part because of the numbers: There are 40,000 eviction cases in Massachusetts courts each year, and in 91% of them, the tenants are unrepresented.

In January 2019, three separate bills were filed in the State Legislature, by Sen. Sal DiDomenico, Reps. Michael Day and David Rogers (together), and Rep. Chynah Tyler, respectively.  The Right to Counsel Coalition advisory committee then set about studying lessons from the six cities in the US that have already adopted a right to counsel, to learn from their experiences about how to improve legislation that would make Massachusetts the first state to do so. 

In New York City, for example, 84% of represented tenants remain in their homes, eviction filings in court are down 15% overall, savings are showing up elsewhere in the municipal budget, and the new city-funded right to counsel is changing the culture around evictions.  One challenge, however—which Massachusetts will need to be mindful of—is the need to develop a strong pipeline to train and recruit lawyers for right to counsel. In Massachusetts, we are fortunate to already have law schools with clinical programs based in Housing Court.

The Coalition has now put forward a new draft that incorporates those lessons, and the Judiciary Committee is expected to consider it in the next few months.  Duke offered an overview of its main points:

  • State funding for the program must come from a new stream, rather than draw from existing resources in the budget for legal and housing-stability assistance.
  • The program would be based in a newly-created Office of Civil Justice, housed within the Executive Office of Housing and Economic Development.
    • First, though, a committee would engage in a one-year study on how best to implement and administer the program.  (Many of these details are intentionally left to this committee to determine.)
  • The right would extend to litigants who are below 200% of the poverty level (which translates to $52,400 for a family of four), covering both tenants and owner-occupant landlords of two-family units.
    • This would include full representation in litigation and require a Civil Justice Committee to make recommendations about “upstreaming”—that is, outreach, education, and guidance for people early in the process, after a notice to quit has been served but before any court eviction has been filed.

On upstreaming, the Access to Justice Commission’s Justice For All Housing Pilot Project, operating out of Lawrence and supported by Northeast Legal Aid and Lawrence Community Works, is showing success in identifying vulnerable tenants when they first become at risk, helping virtually all its clients remain in their homes. 

At the other end of the continuum, the Lawyer for the Day program in the Boston Housing Court—a partnership among the BBA, Volunteer Lawyers Project, Greater Boston Legal Services, The Legal Services Center of Harvard Law School, Harvard Legal Aid Bureau, and the Boston Housing Court—has been offering representation to tenants and landlords on Eviction Day, from a table outside the courtrooms, helping more than 18,000 tenants and landlords over the past 20 years, with a high percentage of cases settling on the spot. 

Such assistance (shameless plug: volunteers needed!) can be critical, considering the speed with which evictions can proceed: Tenants may have as few as seven days to file an answer, including counter-claims, discovery motions, etc., and trials are often scheduled for only a few days after that deadline.  When you consider how a tenant—typically unsophisticated in housing law and court rules (see the Adjartey discussion above!) and with limited free time during business hours, often facing language and/or educational barriers—is supposed to find and hire counsel, schedule a meeting, and draft and submit a filing in such limited time, it’s no surprise that so many simply show up for trial without having done any of that.

These programs are important in addressing the pro-se crisis in Housing Court, but they cover only a fraction of the need. Most tenants facing eviction cannot afford a private lawyer, and even among those seeking help from legal aid in housing matters, most must be turned away due to under-funding.

Only a true right to counsel in evictions—as endorsed by the BBA more than a decade ago—can resolve the problem, save the state money, and build housing stability.  That’s why we’ll keep advocating for enactment of the Coalition’s legislation.  And watch for news, in the coming days, about our new report on cost savings associated with it…

—Michael Avitzur
Government Relations Director
Boston Bar Association