Where Are the Free Housing Attorneys NYC Promised to Tenants Facing Eviction?￼
As evictions ramp up, housing court officials aren’t waiting for people to get attorneys.
3:56 PM EDT on October 17, 2022
In 2021, when Bill de Blasio signed a bill expanding the City’s successful program offering free legal representation to low-income tenants in housing court to the entire city, he thought he was advancing one of his most favorably viewed policies—and a year ahead of schedule. “This game-changing program has yielded staggering results–protecting families from harassment and providing legal services to all tenants facing eviction, cementing its status as a national model for increasing housing stability and preventing homelessness,” the former mayor said in November of last year.
But today, the program, known colloquially as right to counsel, is failing to provide much-needed legal representation to thousands of qualifying tenants with cases in housing court, the result of a predictable confluence of factors: Eviction cases, while still below pre-pandemic numbers, have risen sharply since resuming in January, at the same time as the number of housing attorneys leaving the field has skyrocketed, creating a dire staffing shortage. Though the root of the staffing problem comes from the City's decision to expand the program early, an avalanche of resignations made the strain exponentially worse. In response, the City has ignored legal providers' pleas to increase pay to meet the challenge of attracting new staff quickly, leaving the Office of Court Administration as the sole entity that can provide a short-term remedy.
Since the spring, legal organizations and legislators have been calling on the Office of Court Administration, the supervising arm of the court system, to slow the rate of eviction cases to better match legal service providers' capacity, but the court has refused, telling Hell Gate that a request "to discriminate" the timing of eviction cases based on the interests of tenants is "potentially unconstitutional."
Without cooperation from the court administrators, groups like Legal Services NYC and the Legal Aid Society can only take on a limited amount of new cases per month, housing attorneys are burning out, and low-income tenants facing eviction have no guarantee that they will get representation.
"In order to have [right to counsel] continue in any meaningful way, we have to really look at what the systems change needs to be in this moment—or people are going to have to be content with the idea that a lot of people are not going to get counsel," Adriene Holder, the Legal Aid Society’s Chief Civil Attorney, told Hell Gate.
OCA told Hell Gate that since March of this year, right to counsel providers have had to decline 7,000 eviction cases out of a total of about 28,000 that the court has calendared in 2022, an untold number of which would likely have qualified for free legal representation. Some tenant organizers believe that the number of tenants who have not received access to free legal representation is actually considerably higher. In a letter demanding that OCA take action, Manhattan Borough President Mark Levine and Bronx Borough President Vanessa Gibson noted that "only 33 percent of tenants in housing court are receiving legal representation, half of those who qualify" for free counsel.
On a recent visit to Brooklyn housing court, Hell Gate met several of those New Yorkers. The atmosphere of the court was orderly and manageable; an unceasing but short line of tenants shuffled along to speak to a court administrator every few minutes. But tenants' experiences with legal providers played out differently.
One frazzled Flatbush tenant facing eviction said that he had made around 12 calls to legal service providers to try and line up a lawyer before initially going into court, but never got through or received a call back.
A younger Brooklyn resident with a streak of dye in her hair who had an upcoming COVID-related nonpayment proceeding said that she had called Legal Aid prior to coming to housing court, and was told they were "slammed."
Her first appearance before a judge, which is typically when a tenant would be matched up with a right to counsel lawyer, was coming up in a month. “I was told that it would probably take weeks or months to get someone to actually help—like an attorney,” she said.
When the city council passed the "Right to Counsel" bill in 2017 advocates hailed the first-of-its-kind program as "essential to keeping people in their homes, preserving neighborhoods, and preventing homelessness." Last year, the City released data showing that 84 percent of households represented by a right to counsel lawyer were able to stay in their homes.
Manhattan Borough President Levine, who authored the bill when he was a council member, told Hell Gate that investing in the program "isn't just the right thing to do morally, but also ultimately will save the City money because it's cheaper to keep people in their own homes than to provide them space in the shelter system."
Starting with tenants in a few high-need ZIP codes, the program was meant to be phased in over a period of five years; by the time the pandemic shut down housing court, it covered tenants living in 25 ZIP codes.
The reasons why the program is struggling are many. Its sudden expansion combined with a subsequent wave of attorney resignations laid the foundation of its problems. Legal providers have had trouble attracting new candidates, and new hires take around a year to get trained. On top of these factors, attorneys say that OCA has been moving cases at a rapid clip in an attempt to catch up on the backlog of hundreds of thousands of eviction cases that accumulated during the moratorium.
De Blasio’s early expansion of the program to the entire city represented a dramatic, eight-fold increase. Levine pointed out in an interview with Hell Gate that before the expansion, the program already applied to many of the most dense low-income areas of the city, and therefore likely a majority of eviction cases.
The 25 ZIP codes did include many of the highest eviction rates in the city. But all attorneys who were interviewed by Hell Gate said that since January, the number of cases that providers have taken on has increased substantially—even though the total number of eviction filings are still lower than before the pandemic.
The Legal Aid Society's Holder believed the City's decision to expand citywide in January was "the right thing to do." But the expansion did overwhelm providers with eviction cases. "Had we been required to take all of those cases and those ZIP codes back in January and February of 2020, we would've been turning down a lot of people, and that's where we are right now," she said.
Holder and other attorneys interviewed by Hell Gate argued that OCA has more power to guarantee the program's success than the City's Office of Civil Justice, which manages it, but they also said that there was more the City could have done to avoid this point.
For one thing, the City failed to follow through on a four-year plan to increase public defender salaries as a way to increase attorney recruitment and retention. The union representing Legal Aid workers asked for salary increases ahead of the executive budget this summer after it had become clear that thousands of tenants were not getting representation, but the City kept the funding for Office of Civil Justice programs at roughly the same level as last year’s budget.
Though it made no mention of increasing salaries for the existing providers, the City informed Hell Gate that it is working to identify additional legal service providers in order to, as a Department of Social Services spokesperson put it, "supplement our existing program capacity and address any staffing shortages which may have resulted from external factors influencing citywide and nationwide labor market trends."
Though the right to counsel program's short-staffing problem may have been spurred by the expansion, it ended up being compounded by an exodus of housing lawyers when eviction cases started to pick back up.
Some advocates describe the departures as part of the so-called "great resignation." "Things started heating up last fall and winter. That's when we had the biggest vacancies, because all of a sudden folks were just like, 'I don't want to live in New York anymore, or I don't want to do this anymore,'" Holder said. Since January, 36 Legal Aid civil attorneys have left their positions, a number that represents 14 percent of all attorneys in the group's civil branch, which takes on both housing and immigration cases.
Others, like Legal Services Union President Corinthia Carter, said the resignations are more specific to housing court, where the workload was already overwhelming for most attorneys before the pandemic. "It was unsustainable pre-pandemic, and it's just gotten exceedingly worse," she said. Carter, whose union represents Legal Services NYC and Mobilization for Justice, said that since January, the two organizations have lost somewhere between 14 to 20 percent of their attorneys.
Either way, each resignation or reassignment has put extra demands on the lawyers who stay. At one legal service provider where the pre-pandemic norm was to handle about 60 cases over the course of a full year, it's become common for attorneys to have that many active cases at one time. "I have about 50 active cases right now," said Joanna Laine, a tenant attorney. "It was pretty much always accepted that if your caseload got to be over about 30, that was a problem and more than you could handle. Now it seems like our organizations have almost lost all concept of that."
Given that it takes about a year for new housing attorneys to get fully trained, hiring will not provide an immediate remedy, according to the providers. The bulk of new housing lawyers get hired fresh out of law school in the fall. But even as Legal Aid has started to onboard a new class who will plug staffing holes over the coming year, it's encountered another problem: The pool of applicants seems to be shrinking, an issue likely exacerbated by the relatively low salaries offered by nonprofit legal providers.
The more immediate solution, advocates say, is for OCA to issue a policy that would force housing courts to move more slowly, such as limiting the number of new cases per month—and for the City's Office of Civil Justice to put pressure on the OCA to slow cases. Recently, Levine and Bronx Borough President Gibson called for all evictions cases where tenants do not have a lawyer be paused. The former head of the Office of Civil Justice, Jordan Dressler, who attorneys say played a leading role in pushing for the expansion of right to counsel, left the agency in November to work as special counsel on housing courts issues for OCA—the agency that has since declined to come to the aid of providers.
Instead, OCA has merely pledged to "strategize" about other ways to address the staff shortages. When Hell Gate reached out to OCA, spokesperson Lucian Chalfen responded that intervening on behalf of tenants could constitute a form of discrimination. "We continue to work with both Human Resources Administration’s Office of Civil Justice and the legal service providers to provide attorneys in eviction cases," he wrote. "However, asking the Courts to discriminate as to which cases to commence, or when they will be heard, solely on who is petitioning the court, would set a dangerous and potentially unconstitutional precedent. And as the service providers are well aware, there are numerous laws and regulations that exist, dictating case movement, which we are not free to just ignore."
But several housing attorneys told Hell Gate the court's resistance represents a confirmation of a commonly held opinion among tenant attorneys: that certain judges and administrators have a pro-landlord bias. (OCA did not respond to a question about the allegation of bias.) "If the landlord-side says they want an adjournment, the courts have no problem with that," Carter pointed out.
Justin La Mort, a supervising housing attorney at Mobilization for Justice, argued that the right to counsel program is going to slow down eviction cases regardless—and the court will have to accept this reality to figure out how to run more efficiently.
"You're going to have more people questioning and more people doing motions, meaning that those cases are getting more attention," he said. "I think that is part of the intended process to make sure that everybody gets justice and isn't just funneled through an eviction mill. And I think whether you're in the court system or whether you're a tenant advocate, you want to see justice done."
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