Should there be a right to counsel in civil adversarial proceedings where basic human needs, such as shelter, sustenance, safety, health or child custody, are at stake? In 2006, the American Bar Association unanimously adopted a resolution urging “federal, state, and territorial governments to provide legal counsel as a matter of right at public expense” in such proceedings, and in the years since, a number of state and local bar associations have acted in support of efforts to recognize this right.
Recently, the Boston Bar Association (BBA) released a report concluding that “extensive assistance from lawyers is essential to helping tenants preserve their housing and avoid the potential for homelessness.” After completing a year-long study of the impact of two pilot projects involving eviction cases in two separate courthouses, the BBA report found that “[w]ithout full representation by counsel or an effective alternative, many vulnerable tenants forfeit important rights, lose possession they could have retained, and forego substantial financial benefits. With counsel, eviction proceedings have outcomes that are more just.”
In addition to the admirable goal of achieving greater justice, the BBA report explored other societal benefits to providing full representation to tenants facing eviction. By helping tenants to preserve housing and avoid the potential for homelessness, full legal representation for tenants results in a reduction in certain tangible and non-tangible costs to society associated with homelessness. Such costs include, for example, those that the state (or in our case, the District of Columbia) incurs to provide homeless shelters and related services. In addition, homelessness implicates a number of human costs – the stresses that homeless families face daily can have real and serious effects on the health and stability of a family.
Legal Aid has long recognized the value of legal representation in housing matters, having assisted poor and low-income tenants in the District of Columbia for 80 years. Presently, approximately half of Legal Aid’s cases involve housing issues. In addition, Legal Aid places lawyers in the courthouse as part of the Court Based Legal Services Project, which we run jointly with Bread for the City. In 2011, project attorneys provided critical legal assistance in 642 landlord-tenant matters.
Since I joined Legal Aid as a loaned associate nearly six months ago, I have had the opportunity to witness first-hand the dramatic impact that legal representation can have for our clients. I’ve worked with clients who are facing eviction, trying to enforce a landlord’s compliance with the housing code, or attempting to maintain a housing subsidy. In most cases, my clients faced landlords or agencies that were represented by counsel. Without representation of their own, it is virtually impossible for tenants to defend their cases effectively. Lawyers help their clients to understand the claims against them, formulate defenses, file pleadings, investigate the facts, advance legal arguments, and present the evidence in a compelling and persuasive way. Based on my experiences, I have no doubt that having legal representation has led to better results for Legal Aid’s clients.
I believe the answer to the question posed at the beginning of this post, therefore, is yes – representation should be available as a matter of right in cases where basic human needs, such as housing, are at stake. But until then, I take comfort in knowing that attorneys at Legal Aid and similar organizations are working diligently to ensure that low-income tenants are getting the full representation they need in order to obtain outcomes that are more just