Sheltering Counsel: Towards a Right to a Lawyer in Eviction Proceedings

This Article provides an overview of the current arguments presented by advocates who seek to establish a right to counsel for indigent tenants in eviction proceedings and assesses the strength of those arguments in the current political, social, and economic milieu. It is beyond question that the overwhelming majority of low-income tenants are unrepresented in proceedings in which their homes are in jeopardy and having counsel in such proceedings often prevents eviction and homelessness. Preventing those evictions reduces the human cost of homelessness, saves government substantial money by not having to provide shelter to the homeless, and preserves the stock of affordable housing at a time when there is a dire shortage of affordable housing across New York State. For years, advocates have stressed the argument that having access to counsel in eviction proceedings is simply a right, and the absence of counsel calls into question the fundamental fairness of our judicial system. This Article attempts to assess whether such an argument is the most persuasive that can be made in the face of current political, social, and economic realities. It goes on to review trends in philanthropy and governance that emphasize a preference for solutions and outcome-based programs. After recounting a discussion of housing experts from across the state, and the arguments formulated during that session, this Article concludes that advocates promoting a right to counsel in eviction proceedings in New York State would be well served by furthering arguments stressing the role the right to counsel plays in preventing eviction and homelessness and preserving affordable housing