Less Than 10% of Tenants Facing Eviction Actually Got a Lawyer Last Month, Undermining ‘Right to Counsel’ Law
Over 17,000 tenants did not have legal counsel in Housing Court cases brought by their landlords this year, new state numbers show.
Most tenants facing eviction in New York City have the right to a free attorney in Housing Court. But new numbers from the state court system show that fewer than 10% of new cases got assigned a lawyer last month.
Tenants are going without legal representation at a crucial time — after a COVID moratorium on evictions expired in January and with tens of thousands of eviction cases pending that include backlogged cases accumulated before the pandemic.
The Association for Neighborhood and Housing Development (ANHD), a network of community-based housing groups, analyzed data provided by the state Office of Court Administration. Verified by THE CITY, their numbers show that in the majority of eviction cases filed in 2022, tenants did not receive legal counsel.
Under New York City’s Right to Counsel law, all low-income tenants — those below 200% of the federal poverty level — are entitled to a free attorney when navigating an eviction case. Independent research estimates that 82% of tenants in eviction cases qualify based on income.
The state data shows that only 36% of tenants received legal counsel when appearing for an eviction case this year, compared to 98% of landlords who had legal counsel.
Moreover, the weekly rate of legal representation for tenants in Housing Court has steadily declined, month after month, since January — dropping as low as 6% during one week in September.
Right to Counsel lawyers allege that tenants are not all being adequately informed of their right to get a free lawyer — and may be presented with incorrect information even while in Housing Court.
This lack of representation may lead to more tenants losing their homes. A report from the city’s Office of Civil Justice (OCJ) — the agency that oversees city-supported legal services for low-income New Yorkers — found that 84% of households represented by a Right to Counsel lawyer “were able to remain in their homes” following an eviction case during the initial test period.
Weekly eviction case filings have reached their highest levels since the COVID pandemic started. Over the last six months, landlords have filed about 2,100 new eviction cases per week.
On Thursday, the Right to Counsel NYC Coalition, along with ANHD and other members of the Housing Data Coalition, are calling attention to this issue by launching a tool called the NYC Eviction Crisis Monitor, a real-time tracker that shows the level of tenant representation in eviction cases as well as total cases filed.
“I honestly think it’s gonna get worse, if no action is taken by the people who can take it,” says Corinthia Carter, president of the Legal Services Staff Association, a union affiliated with UAW. “We have the influx of migrants coming, that’s going to put a burden on the system as well. If you allow these cases to go forward without legal representation, that’s going to lead to homelessness.”
Communities of Color Hit Hard
Resulting from three years of grassroots organizing efforts, led by the Right to Counsel NYC Coalition, the City Council-initiated Right to Counsel law went into effect in 2017, first phased in through zip codes “where eviction and displacement risks and pressures are acute,” then expanded to include all eligible tenants across the city in 2021.
Before the law, just 1% of tenants had legal representation in House Court.
Earlier this year, ANHD and the Right to Counsel NYC Coalition published a report that outlined the impacts of the eviction crisis on communities of color in New York City. The study found that since the start of the COVID pandemic, eviction case rates were twice as high in neighborhoods whose residents were majority people of color, compared to majority-white neighborhoods.
Data on who receives legal counsel also shows disparities in rates of legal representation between different areas of the city.
An analysis of Census statistics by THE CITY shows that since January 2022, the vast majority of new eviction cases — 82% — were issued in majority non-white zip codes. Yet tenants from majority-white zip codes were 45% more likely to receive counsel than tenants from majority non-white zip codes.
“I really want people to know that I’m angry,” says Randy Dillard, a long-time Bronx resident who is a tenant leader with Community Action for Safe Apartments. “From what I’m seeing, this is discrimination against Black and brown people.”
After a two-and-a-half-year eviction proceeding with his landlord, Dillard joined the early organizing efforts around Right to Counsel and now serves on the Right to Counsel NYC Coalition steering committee.
Dillard and other tenant advocates expressed to THE CITY their frustration that after years of advocacy work to enshrine the right to counsel as law, the state court system does not enforce this right.
“The court is supposed to uphold due process,” says Susanna Blankley, coalition coordinator for the Right to Counsel NYC Coalition. “If the court cannot uphold this role, there’s something deeper going on here.”
Lack of Lawyers
Not every tenant in New York City is eligible for Right to Counsel, but income eligibility alone seems an unlikely reason that legal representation for eviction cases has plummeted, experts say.
Tenant lawyers say the problem is driven by not having enough attorneys available — combined with the courts’ insistence on moving cases forward regardless of whether tenants are represented. Also, as cases move forward, tenants are not informed that access to a lawyer is a legal right they hold, and they may see outdated and misleading information in court.
In a visit to Brooklyn Housing Court this week, THE CITY found that the only visible signage explaining access to a free lawyer included incorrect and outdated information. On both the second and fourth floors, OCJ-branded placards outlined eligibility only for four qualifying ZIP codes across the borough, nearly 18 months after the city granted universal access. The signs also directed tenants interested in obtaining free counsel to find an Human Resources Administration representative in a room no longer occupied by their staff.
The Right to Counsel law does not mandate any particular court procedures for ensuring access to legal representation, but according to Blankley, the courts’ intake process prior to the pandemic was effective at connecting tenants with lawyers.
“There was a scheduled rotation of Right to Counsel providers in the courtroom, and the judge would make an announcement saying you might be eligible for a free attorney,” says Blankley. “Whether or not you got an attorney depended only on your income. You could not be denied for any other reason.”
According to Jenny Laurie of Housing Court Answers, an organization that runs free information tables in courthouses, the court’s procedure for assigning legal counsel fell apart after the COVID eviction moratorium ended in January.
Laurie says that the courts still facilitate an intake process that screens tenants for income eligibility, but only some tenants get matched with an attorney, depending on how many open slots legal services can provide.
“There might be 40 cases on the calendar but only two of those cases will get full legal representation,” says Laurie. “Certainly, no one is saying you have a right to counsel, because they don’t want to say you have a right to counsel and are not getting it.”
Marika Dias, managing director at the safety net project at the Urban Justice Center, says “it is absolutely possible” that tenants do not know of their right to an attorney, “and particularly right now.” Dias confirmed that outdated materials on Right to Counsel are currently posted around several city courts.
In the courtroom, Dias asserts that judges use their own discretion to announce the right to counsel. “Of course you’re not going to think it’s a right,” Dias explains, “It’s not being honored as a right.”
Both the state court system and OCJ say a shortage in available attorneys — who come from “nonprofit legal services provider organizations across the City” according to OCJ — is a key reason tenants lack representation in Housing Court. Court system spokesperson Lucian Chalfen told THE CITY that since March of this year, “there have been more than 7,000 cases declined by the Right to Counsel providers because of their inability to fulfill their contractual obligations.”
A spokesperson for the Office of Civil Justice said the agency is “working to identify additional legal services providers to supplement our existing program capacity.”
Jeremy Bunyaner currently works as one of these Right to Counsel providers, holding this role since before the pandemic. A member of the Association of Legal Aid Attorneys, Bunyaner attests that “there are just not enough attorneys” to cover all eligible eviction cases, citing the uptick of cases at the end of the eviction moratorium.
He also acknowledged difficulty hiring new attorneys, complaining the city has “really dragged their feet” on attorney salary reform, adding: “Right To Counsel has always been underfunded.”
Nonetheless, the court system is moving eviction cases forward, even with most tenants lacking lawyers.
Fighting for a Pause
The Right to Counsel Coalition is calling on the city and the state court system to pause any eligible eviction case until tenants can access a Right to Counsel attorney. It also wants the courts to adjust their calendaring procedures to accommodate the current backlog of cases.
Chalfen equated the slowing down of eviction cases to “asking the Courts to discriminate solely on who is petitioning the court,” which, he added, “would set a dangerous and potentially unconstitutional precedent.”
Tenant attorneys around the city say that adjourning or otherwise delaying cases that cannot guarantee eligible tenants a lawyer is well within the law.
“People have a right to get adjournments. The court has a right to calendar things as it can handle,” says Bunyaner. “It mostly falls on OCA to provide guidance that gives judges the leeway to grant automatic adjournments to these tenants.”
The city court system already has legal precedents for stalling cases until it’s able to meet a staffing need, Dias told THE CITY. For example, if court staff in New York do not have needed interpreters available to match a litigant’s dominant language, cases are adjourned until staff needs are satisfied.
Carter, who has been a Right to Counsel attorney since the law’s inception in 2017, noted that the pace of legal cases may interfere with lawyers’ “ethical obligation” to explore their clients’ cases holistically. Many eviction cases she’s represented had a separate “root cause” issue — such as an illegal rent overcharge, for example — that led to an eviction filing in the first place.
“The focus should always be on the tenants,” she says. “There’s all this drama and background noise, but these tenants are people.”
Tenants Push Back
Earlier this month, Manhattan Borough President Mark Levine and Bronx Borough President Vanessa Gibson penned a letter to the state’s top judge, interim Chief Judge of the Court of Appeals Anthony Cannataro, demanding a stop to all eviction cases without right to counsel.
Meanwhile, tenants groups are fighting to defend tenants’ right to an attorney and share stories of how legal representation keeps people housed.
Flatbush Tenant Coalition, alongside the Right to Counsel Coalition, are organizing a protest outside of Brooklyn Housing Court this Friday morning to show solidarity with a Flatbush tenant currently facing an eviction proceeding.
For Lauren Springer, volunteer tenant leader with Catholic Migration Services, “following the blame game and repeating what the government officials are putting out there” takes focus away from the true problem: tenants losing their homes.
She describes the “unnecessary fear” she senses from fellow tenants at meetings. “People are saying, ‘I’m trying to get a lawyer and can’t get one, What can I do?’” she says, adding: “If they knew that they had somebody who was knowledgeable about the court system representing them, at least they would know that they had a fighting chance.”
About the data methodology
Eviction case data referenced in this article represents residential holdover and nonpayment cases filed at any New York City-based court. Cases where defendants did not appear in court, or appeared less than a week before this article was published, were excluded from the analyses. Cases with partial representation — where any named defendant had counsel — were counted as a case receiving legal counsel. Due to reporting lags, cases filed within the last four weeks before this article was published were also excluded from the analyses.
Case-level data came from the NYS Office of Court Administration via the Housing Data Coalition. The Association for Neighborhood and Housing Development (ANHD) analyzed the data in collaboration with the Right to Counsel Coalition. THE CITY verified the analyses and made modifications to match the editorial needs of this article.
You can access the source code that analyzed data for this article at our GitHub Page.