A pandemic-fed boom in tenant right-to-counsel laws appears to have staying power, with New Orleans and Detroit recently joining more than a dozen cities and states in guaranteeing renters facing eviction the right to a free lawyer.

While Detroit's program will be available only to low-income tenants, some advocates see growing momentum for the "full access" model used in New Orleans and some other cities.

Cashauna Hill of the Louisiana Fair Housing Action Center, which led the push for the New Orleans ordinance, said there had been "no significant debate" through a long drafting and pilot program process to limit access to just the city's poorest renters. City leaders were aware of growing data and research from other cities that public dollars put toward preserving housing save money in other areas, she told Law360 Pulse.

"Here in New Orleans, it's majority renters, and our landlord-tenant legal scheme doesn't provide much of any rights at all to people facing eviction," she said. "Given the realities of our system and our communities, it just makes sense for everyone to have access to an attorney before being forced from their home."

Since New York City's landmark right-to-counsel law was enacted in 2017, the movement toward a guaranteed right to a lawyer has picked up steam, particularly amid the COVID-19 pandemic's spotlight on the massive disparities many tenants face against landlords in eviction proceedings.

On May 5, the New Orleans City Council voted through an ordinance that cements a right to counsel for all tenants in eviction proceedings, as well as to those threatened with termination of housing subsidies. The law also covers tenants seeking injunctive relief related to an illegal eviction and for "good grounds" appeals.

According to a 2019 report from researchers at Loyola University and Jane Place Neighborhood Sustainability Initiative, a housing rights nonprofit, just 6% of households facing eviction in Orleans Parish had access to an attorney. Of those cases, nearly 15% got an eviction judgment, compared to more than 65% of tenants without representation.

The program will be part of the city's Office of Community Development and funded through this year with $2 million from city coffers.

In Detroit, where just over half of residents are renters, City Council members this month also unanimously passed a right-to-counsel ordinance. The law covers those in evictions and other proceedings threatening occupancy, including mortgage and property tax foreclosures and challenges to rent subsidies. 

"Out of the 30,000 eviction cases in Detroit, only 4% of those tenants had an attorney," City Council President Mary Sheffield said after the vote, according to radio station WDET in Detroit. "Also, half of all the evictions that took place in Detroit could have been avoided if they had an attorney."

With the Detroit and New Orleans additions, 15 cities and three states — Washington, Maryland and Connecticut — have enacted right-to-counsel laws over the last five years. Lawmakers in other states, including Illinois, Delaware and New York, are considering similar bills.

John Pollock, a coordinator with the National Coalition for a Civil Right to Counsel, said he's also encouraged by a growing number of right-to-counsel laws getting to voters via ballot initiatives. That route was used successfully to pass a no-eligibility-requirement law in Boulder, Colorado, two years ago, and one in San Francisco in 2018.

Later this year, voters in Multnomah County, Oregon, which includes Portland, are also expected to weigh in on a ballot initiative that, if passed, will obligate county government to provide "culturally specific" and free representation to anyone facing a residential eviction, regardless of income.

In Denver, which has long struggled with a severe housing crisis and high rents, housing advocates got a universal right-to-counsel initiative certified for the November election, despite the city's enactment last year of a program for free legal help for low-income tenants.

"What we're seeing is more right-to-counsel legislation not even going through city councils," Pollock said. "That's people saying, 'We want to get this done now,' and taking it straight to voters."

Of the cities and states with right-to-counsel laws, five have included some form of eligibility requirement for tenants seeking free legal help, according to the NCCRC. Most are based on a tenant's income relative to the "affordable median" for housing in the area, or the federal poverty level as determined annually by the U.S. Department of Health and Human Services.

Two cities — Louisville, Kentucky, and Cleveland, Ohio — require tenants to be low income and have at least one child living in the home to qualify.

Those and other eligibility restrictions reflect lawmakers' concerns about already-stretched budgets and long-term funding, Pollock argued, rather than a belief that only the poorest people facing eviction deserve legal representation.

Pollock says recent data from San Francisco's right-to-counsel program shows the vast majority of tenants there seeking free legal help are very low income.

But establishing income requires tenants to bring documentation and go through screening with legal aid groups, adding costs and slowing down the process. Income limits also undermine the message being sent to landlords that the dynamics of landlord-tenant proceedings can be radically altered under right-to-counsel laws, he argued.

Knowing tenants will have a lawyer, he said, "really changes the thinking, and rather than just going immediately to court, a lot of landlords will say, 'Maybe I'll try to work it out directly with the tenant.'"

--Editing by Philip Shea.

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