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Terri Smith had the right to go to trial in her recent eviction hearing, but she never asked for one. (Photos by David Kidd)

Right to an Attorney? Most Tenants Face Landlords Without One.

But a handful of cities are starting to provide counsel in civil court.
by | June 2019

Terri Smith lost her home in three minutes. Standing before a judge in a Richmond, Va., courtroom one morning this spring, she admitted that although she had paid her April rent on schedule, she had missed the deadline a handful of times over the past year. It was usually just by a day or two: The rent is due on the third of each month, and Smith often doesn’t get her paycheck until the fourth or fifth. The judge ruled for the landlord and evicted her.  

Smith could have demanded a trial -- and in doing so would not have had to admit that she hadn’t paid her rent on time. That would have given her a chance to collect evidence for her case. It would have allowed her to discuss the mold in her apartment, the leaky ceiling and the fact that her landlord had failed to keep up on repairs. All of those are legal reasons that could have exempted her from paying rent on time and kept her in her home. She also might have presented the eviction letter her landlord had sent, which listed a domestic violence incident as one of the reasons for eviction, even though Smith was the victim in the incident.

But she’d already had to wait for hours in Room 222 of the John Marshall Courts Building, watching dozens of other renters get evicted, and it was well past 11 a.m. by the time she was called in front of the judge. She was pressed for time. Smith needed to catch a bus back across town to her apartment, change for work, and get another bus to her job working with dementia patients. She couldn’t be late for her job, Smith says. And she got nervous. 

So she didn’t fight back. She never presented the landlord’s letter. She never asked for a trial. When the judge ruled in favor of the landlord and gave Smith two weeks to get out of the apartment, she left the court saying, “I just want my deposit back and move on.” 

In those three minutes in front of the judge, Smith’s reluctance to push back against her eviction cost her a great deal. It will be harder for her to move to a new home. The judgment rendered in the brief court appearance will show up on her credit report. Landlords are reluctant to rent to people with evictions on their records. 

The odds in the John Marshall Courts Building, as in most courthouses across the country, remain stacked against the renter. 

In the dozens of evictions that moved through the Richmond courthouse on April 11, none of the tenants who appeared had an attorney. That is indicative of the eviction process across the nation, says David Stern, executive director of Equal Justice Works. Only one in 10 tenants comes to court with an attorney. Landlords, meanwhile, almost always have legal representation. And while the lawyers can jockey for the best interests of their clients, and all of them understand court procedures, renters in eviction courts seldom understand the rules. According to the National Center for State Courts, plaintiffs in a wide variety of civil cases are twice as likely to win when only their side is represented by an attorney as they are when there is counsel on both sides. “The plaintiff’s lawyer, when unopposed, will introduce hearsay and do other objectionable things in court the defendant doesn’t know to object to,” says John Pollock, coordinator for the National Coalition for a Civil Right to Counsel. 

 

 

Since 2016, when Matthew Desmond brought national attention to evictions with his Pulitzer Prize-winning book Evicted: Poverty and Profit in the American City, local governments across the country have started using their resources to provide legal representation for tenants. After three years of pilot programs, New York City passed a “right to counsel” law in late 2017. The city spends $155 million each year to help low-income renters (for example, a family of four making less than $49,000 a year qualifies). The program assists tenants in 15 ZIP codes hard hit by evictions. In its first year, the percentage of tenants represented by a lawyer in eviction court rose from 1 percent to 56 percent, according to city data. Evictions dropped by 27 percent in the same time period. In the next three years, the program is expected to cover the entire city. 

Other cities have rolled out their own versions of the program, albeit on a much less ambitious scale. Washington, D.C., spent $4.5 million last year to provide lawyers for low-income tenants facing evictions. Philadelphia spent $800,000. A recent study by the Philadelphia Bar Association estimated the city would save $45.2 million each year if it invested $3.2 million in legal services in eviction cases. This takes into account the strain that evicted residents place on shelters and other social services, the burden placed on the courts and the stress the children of the evicted put on public schools. 

But those tenants-rights programs are the exceptions. Richmond is more typical. According to research conducted by Princeton University’s Eviction Lab, Richmond has the second-highest eviction rate in the country. During a one-month span in 2018, judges in the John Marshall Courts Building handed down more than 1,300 evictions, more than five dozen a day, according to Martin Wegbreit, director of litigation with the Central Virginia Legal Aid Society. The court normally handles its daily load of eviction cases in the morning. The cases fly through in less than two hours. The process is hastened by a sea of attorneys representing landlords. They bark out the names of tenants and follow up with “please speak with me in the hallway.” 

Renters, mostly women, many of them poor or close to it, enter the hallway to strike a deal. Sometimes it’s a straight monetary agreement. Pay the past-due rent and pay the late fees, which in Virginia can exceed the industry norm of 10 percent of the unpaid total, and the lawyer will stop the eviction process. But often the tenant must allow the landlord to ask for a writ of possession from the court clerk, and at any time within a year, the landlord can hand that writ to the sheriff, who will evict the tenant within three days of receiving the court order. Although Virginia will soon shorten the time landlords can hold a writ from one year to six months, the court papers are a powerful weapon in the hands of a landlord. “It’s not about money,” Wegbreit says. “It’s about power and control.” 

 

Eviction cases like those in Richmond are just one element of the larger and sometimes hidden problem of representation for defendants in a whole range of civil proceedings. For the past 56 years, legal representation in criminal court has been guaranteed under the Supreme Court decision in Gideon v. Wainwright. In that case, the court held that when life and liberty are at stake, defendants should have the right to an attorney, whether or not they can afford one. A growing number of civil attorneys believe the same should be granted to low-income residents in certain civil cases. They argue that civil courts are equally capable of stripping people of fundamental rights. 

States have given people the right to an attorney in some matters beyond criminal court, notably in child custody cases. But an eviction can end up costing someone custody because they have failed to provide their child with adequate shelter. An eviction can also lead to criminal charges if the person is arrested for loitering while homeless. “The distinction between a criminal case and civil case is really nonexistent,” says Helen Hardiman, a Richmond-based housing attorney. “It’s where lawmakers have decided to place the case.” 

 


Attorney Helen Hardiman

 

The blurred line between civil and criminal justice was starkly apparent with California’s longtime use of civil gang injunctions. These were common across the state, but Los Angeles used them more often than any other city. Initiated by a lawsuit filed by the city against alleged members of a street gang, the injunctions would make it illegal for those believed to be in the gang to carry cellphones or travel together in the area covered by the court action. Anyone included in the injunction could be subjected to stop and frisk searches by law enforcement, and violation of the conditions of the injunction could result in incarceration. 

Those faced with an injunction in gang cases did not have the right to an attorney during the civil procedure. This was the basis of a successful 2016 class action lawsuit in which a federal court ruled the injunctions unconstitutional, calling them criminal prosecutions in the guise of civil justice. The city was forced to take the names of 9,000 residents off the gang injunction lists it had kept. 

The problem comes up in school discipline cases as well. By state statute, Mississippi guarantees its students a right to a quality education. However, the state’s track record of heavy-handed student punishment threatens the ability of many of its students to exercise that right, according to Amelia Huckins, a fellow with Equal Justice Works, which supports public interest lawyers across the country. During the 2014-15 school year, 8 percent of Mississippi public school students received at least one suspension. In some districts, as many as one in five received a suspension in a single year. In Moss Point, a school district along the Gulf Coast, 42 percent of students received at least one suspension. 

Mississippi law does provide a right to legal representation in school discipline hearings. If a student is to be suspended more than 10 days, or expelled, they can be represented by counsel in the hearing. There is one problem -- Mississippi won’t pay for the attorney. School disciplinary hearings in Mississippi often start with the school’s own disciplinary review board, but can ultimately land in the state’s chancery court, where the students are rarely provided with legal assistance.

In the chancery court hearings, those families fighting suspension or expulsion, often low-income single mothers, are nearly always up against school district lawyers steeped in education law. It’s unlikely that a parent or guardian would know, for example, to pull the school’s own disciplinary handbook to see if the action threatened against the student is in line with district policy. It’s even less likely that they would know that a child with a disability is protected from disciplinary actions in specific circumstances. “The school has representation in discipline cases who understand the proceeding. The school runs the proceeding,” says Pollock. “There is a significant reason you should have a lawyer. How can you say education is not a fundamental right? It impacts almost every outcome in a person’s life.”

Last fall, a special needs student in Mississippi had a classroom outburst that led the district to attempt to suspend him for more than 10 days. However, the student is autistic and, according to Huckins, had not received federally mandated accommodations to help with his disability. If Huckins can prove the school district did not meet the 8-year-old student’s accommodations, the suspension won’t stand. Without this kind of specialized help, there is almost no chance that the suspension would be overturned. 

As the U.S. population continues to age, more families are grappling with the question of adult guardianship. When the elderly are no longer capable of making decisions for themselves, their family members can take control of their finances and determine where they will live. The adults who can end up under guardianship aren’t entitled to an attorney, and abuses happen often. “Children convince elderly parents that they can help them with their money,” says Sarah Everett, an attorney with Indiana Legal Services. “Guardianship is a vehicle that can be misused.”

If an attorney is present, the terms of the guardianship can be negotiated, Everett says, to “ensure the individual knows what the process is about.” Clients are better informed about the consequences that can result from being subjected to guardianship. Equally important, an effective counsel can place in the court records more instances of abuse when they occur.

 

Helen Hardiman is one of a handful of attorneys representing tenants faced with eviction in Richmond. Both a lawyer and a trained social worker, she helps eviction clients who make too much money to qualify for a legal aid attorney, but not enough to afford most private counsel. When she takes a case to trial, it usually involves an alleged violation of the Fair Housing Act on the part of the landlord. A Fair Housing Act violation (race, gender or disability discrimination) allows Hardiman’s clients to file a lawsuit against the landlord. The act allows Hardiman to be paid on contingency. Still, there are only so many clients she can see. “Over the past year,” Hardiman says, “I have learned I can’t say yes to too many of the eviction cases.” If she did, she could no longer keep her practice afloat.  

This leaves a void in representation. Hardiman has suggested Virginia adopt a system for civil court that copies current practice in criminal courts. Many of the state’s rural courthouses don’t staff dedicated public defenders. Small law firms dispatch private attorneys to those courts, who are assigned to clients by the judge and collect legal fees from the state. The fees are small, so any profit comes from handling a high volume of cases. With Richmond’s courthouse flooded with eviction cases, Equal Justice Works plans to send law fellows to the city this summer to assist low-income tenants facing eviction. Meanwhile, two of the fellows sent by Equal Justice Works will work on policy change at the state level. 

Virginia has made some changes on this front. In January, Richmond became the first of four Virginia cities to launch an eviction diversion program, which will use taxpayer money to pay for attorneys who will help negotiate rent disputes between landlords and tenants. This is not the same, however, as full legal representation at an eviction trial. Still, as Richmond prepares for a change in the way eviction courts operate, Manoli Loupassi says the courts will be faced with cases that won’t be won on facts but on technicalities. He’s one of dozens of attorneys who come to eviction court in Richmond to represent landlords. The former Virginia state delegate splits his time between representing landlords in civil courts and accused felons in criminal court. Loupassi’s opposition to the right to legal counsel in civil cases is nuanced. He sees the need for them in civil asset forfeiture cases, where someone can lose their property, or when orders of protection expose people to enhanced criminal prosecution for simple violations of the order. 

 


Manoli Loupassi

 

Loupassi warns that extending the guaranteed right to counsel in civil matters would come with risks. When “life and liberty are at stake,” people should have a right to counsel, he says. Evictions are a matter of contract law, however. Most of the tenants he seeks evictions against have broken the terms of their lease, which is a contract. “Most people in court are here because they didn’t pay their rent,” Loupassi says, “which puts them in violation of that contract.”

Lawyers, Loupassi contends, won’t be able to argue that most of the tenants they represent did indeed pay their rent on time, but will try to win cases on technicalities, throwing cases out because a landlord didn’t follow the eviction process to the letter of the law. “There is what is just and what’s right. Getting someone out of an eviction on a technicality might make it just, but it doesn’t make it the right decision.” 

While Richmond is changing some of its rules and getting help from public interest attorneys, several states and cities are working on the issue through the legislative process. Lawmakers in Connecticut and Massachusetts are exploring ways to expand legal representation to people facing evictions. Nevada and Colorado lawmakers have expanded legal representation in adult guardianship cases. Similar efforts are underway in Cleveland and Austin.

The growing effort by lawmakers to expand the right to an attorney in civil matters is encouraging to those who have long called for these changes. Civil cases involve important rights, Stern says. “We ought to have a lawyer present when those rights are at risk.”

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