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| Bob Glaves |
Growing numbers of people in the legal industry and beyond rightly support the idea that no one should get evicted without access to a lawyer to ensure their rights are protected. But what does that mean? What should it mean? What other solutions should we look at beyond access to lawyers?
These are big questions that too often get skipped over in these conversations, and for many good reasons the answers are a lot more nuanced in civil cases than in the criminal context.
And given the cost and logistics that would be involved in creating an unlimited right to counsel for evictions and other serious civil cases — particularly when our country remains far from fulfilling our responsibilities on the criminal side[1] — it is incumbent on all of us in justice leadership positions to responsibly answer these big questions.
Rather than everyone getting a lawyer for the whole case regardless of the merits of their position, we should be focused on making sure people have the right amount of legal help necessary to level the playing field in their case.
We also need to recognize that legal assistance does not sit in a vacuum in these cases. Legal assistance, whether limited-scope or extended representation, is more effective at preventing avoidable evictions when combined with changes to the court process, community outreach, rental assistance and social services.
The Civil Right to Counsel Concept and the Eviction Context
The push for a right to counsel in civil cases centers around the idea that in civil proceedings where basic human needs are at stake, people should have a similar right to a lawyer as they do in criminal cases and other contexts involving fundamental liberty issues — e.g., parental rights.
The American Bar Association is among the organizations that have come out in favor of the concept, first adopting a resolution in 2006.[2]
The book "Evicted" by Matthew Desmond brought heightened attention to the inequities in both the housing market and the legal system for eviction cases, and the stark consequences for the people facing eviction, who disproportionately are racial and ethnic minorities.[3]
Because most landlords typically are represented and the vast majority of tenants are not, the unequal power dynamics that already exist between the two sides are exacerbated in the legal system.
Without access to legal assistance, tenants struggle to assert legal defenses or to negotiate fair resolutions, leading to high numbers of otherwise preventable evictions and the harsh consequences that follow.
Given the high stakes involved, conversations about a right to counsel in civil cases have come to the forefront in the eviction context in recent years.
The pandemic and the early fears that a wave of evictions could follow from the associated economic dislocation shined a greater spotlight on the importance of legal assistance in these cases and accelerated conversations about a right to counsel by providing new funding opportunities for eviction prevention programs through federal rescue funds.
Key Differences Between Right to Counsel in Civil Cases Generally, and Evictions Specifically
There clearly are good reasons for expanding access to legal assistance for people facing eviction, but when that is framed in the right to counsel context, we need to understand the key differences from criminal cases.
Gideon underscored the fundamental American principle that "every defendant stands equal before the law," and found that this "noble ideal cannot be realized if the poor man charged with a crime has to face his accusers without a lawyer to assist him."
However, there are three key distinguishing factors in the criminal right to counsel context versus evictions and other civil cases: (1) The state is always represented; (2) it is the government bringing the action, and (3) the defendant's liberty is at stake.
The constitutional liberty interest at stake in criminal cases dictates full representation for a defendant even when they have no apparent defense, to ensure, as much as possible, that the state meets its high burden of proof beyond a reasonable doubt.
In contrast, for evictions and other civil cases, landlords and other opposing parties are not always represented; they are usually private parties; and the legal context is substantially different, most notably in the burden of proof and legal issues at stake.
For these reasons, giving an unlimited right to a lawyer to every tenant irrespective of the merits of their case or whether the opposing landlord is represented is a very different proposition.
In fiscal terms alone, the cost of such an unlimited right in an already underfunded legal aid and public defender system would be unreasonably high. But the more important reason to question giving full representation to all tenants is that it generally is not what tenants need to reach a fair and effective resolution for their case.
Focusing on the Right Legal Intervention Rather Than One-Size-Fits-All Solutions
The goal in providing legal assistance should be to provide the right level of legal intervention to ensure the parties can reach a fair and effective solution for their eviction case.
That should start with universal access to legal advice and triage for all unrepresented parties, and, where appropriate, brief legal assistance to help them reach negotiated solutions as early as possible in the process.
The triage aspect of this universal access point is where a lawyer can determine whether a tenant has a meritorious legal defense or is otherwise particularly vulnerable based on their individual circumstances, e.g., someone living in subsidized housing or with a disability that would make it difficult to proceed on their own in their case.
The reality is that most tenants do not have a substantive legal defense to their eviction, and legal advice or brief services — which can include everything from a brief consultation, to help negotiating and drafting a settlement agreement — will be the full extent of what is appropriate for their case.
Providing full representation in those instances costs a lot more, but does not achieve more.
For the smaller share of tenants who meet the above criteria for further legal support at the triage stage, like someone at risk of being wrongfully evicted, extended representation for the full case should be considered, and that is where we should focus those more expensive resources. These are the tenants for whom full legal representation is both necessary and likely to make a meaningful difference in the outcome.
This tiered approach to providing legal assistance has many advantages over giving everyone full representation regardless of the merits of their case.
It is far more cost-effective. It is more equitable, since it meets people where they are and gives everyone the level of help they need to get a fair shake in their case. And it is more balanced, helping both unrepresented tenants and landlords get the help they need to reach fair resolutions.
While landlords generally are represented and have the upper hand in eviction cases as a result, many smaller landlords are unrepresented and face some of the same challenges as unrepresented tenants.
Legal assistance can be just as important for them to ground them in the legal realities of their case, and help them negotiate settlements that are fair and effective for all concerned.
Legal Assistance Is Only One Part of the Solution
As important as access to the right level of legal assistance is for ensuring a fair eviction process, it is just one part of any real solution.
Improving the court process and building in other key interventions are equally important changes that are more realistic to accomplish when the program is designed in a balanced way for landlords and tenants.
With that in mind, Cook County and the city of Chicago have implemented a different kind of eviction prevention program in Illinois with the active leadership of the court, and several critical changes to the eviction court process: the Cook County Legal Aid for Housing and Debt program.[4]
The CCLAHD gives all unrepresented tenants and landlords access to legal advice on their rights and responsibilities, limited-scope legal assistance, and case managers who connect people to other resources like rental assistance and mediation to help level the playing field and negotiate early resolutions when possible.
These services all are integrated into the eviction court process, which has been modified to provide more time for the parties to access this assistance.
A city of Chicago pilot program provides extended representation to a smaller pool of tenants who are unable to resolve their cases in the early resolution program but have viable legal defenses or are particularly vulnerable.
The National Center for State Courts is promoting similar models in courts around the country through its Eviction Diversion Initiative,[5] utilizing many other innovative strategies to reach better resolutions in eviction cases in jurisdictions of widely varying size and makeup.
There are many promising models that incorporate a continuum of more holistic interventions for tenants and landlords to reach better, more sustainable solutions.
A More Realistic and Sustainable Model for Evictions and Beyond
There are solid reasons to prioritize access to legal assistance for people facing eviction, but not in an unlimited sense, and only as part of a larger solution that takes a more holistic view.
The reality is that most tenants do not have substantive legal defenses that necessitate full representation from a lawyer, but all can benefit from brief legal advice and assistance to understand the court process and their options and to help reach the best solution possible for their circumstances.
When we look beyond evictions to other civil cases where basic human needs are at stake, these same principles can be used to provide the right level of legal assistance for people to get the fair shake they deserve in the justice system.
While the details of the other necessary interventions will vary based on the legal issues involved in other civil cases, this tiered and holistic approach offers a cost-effective and sustainable path to creating a fair, balanced and effective legal process for everyone.
Bob Glaves is the executive director of The Chicago Bar Foundation.
Disclosure: The Chicago Bar Foundation is a partner of the CCLAHD program.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.abajournal.com/magazine/article/gideon-at-60-the-right-to-a-lawyer-was-established-but-the-promise-of-equal-justice-remains-elusive.
[2] ABA House of Delegates - Resolution 112A (americanbar.org). https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_resolution_06a112a.pdf.
[3] Evicted by Matthew Desmond (evictedbook.com). https://evictedbook.com/.
[4] Cook County LEGAL AID for Housing and Debt. https://www.cookcountylegalaid.org/.
[5] Eviction Diversion Initiative Grant Program | NCSC. https://www.ncsc.org/consulting-and-research/areas-of-expertise/access-to-justice/eviction-resources/eviction-diversion-initiative-grant-program.