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What is ‘right to counsel’ and how could it prevent evictions after the coronavirus pandemic?

By 2022, all eligible tenants across NYC will be allowed a right to an attorney when they face eviction in housing court. 

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The right to counsel refers to the legal right for tenants who meet specific criteria to be represented by an attorney when they are facing eviction in housing court.

Tenants who earn an income that is 200 percent below the federal poverty guideline are guaranteed this right. That means a single person who earns less than $25,520 a year or a family of four earning less than $52,400 can get legal help in this way. 

New York City was the first city to establish right to counsel in 2017. Since then, San Francisco, Newark, Philadelphia, and Cleveland have all adopted it. Studies in NYC have shown a steep drop in evictions as a result. An analysis by the Community Service Society showed 84 percent of tenants who were represented by an attorney when they faced being kicked out of their apartments ended up not being evicted. 

The right to counsel is being rolled out by zip code in NYC over a five-year period, which means by 2022, all eligible tenants in NYC will have the right to an attorney when facing an eviction in Housing Court.

However, in a recent New York Law School webinar, Andrew Scherer, visiting associate professor, says that as courts open up, this zip code approach “may not work as we move forward, at least in the short run.” What we may see is an "accelerated expansion" of right to counsel, he says, so that all the city's eligible tenants can get the help that's available. 

It’s not clear what will happen in terms of evictions as the pandemic continues. All evictions are banned until June 20th and that has been extended until August 20th for people eligible for unemployment insurance or facing hardship due to coronavirus. However, some landlords are taking steps to fight the eviction moratorium in court, claiming it is unconstitutional.

There are several initiatives aimed at rent relief for city tenants. Scherer says this moment is an opportunity to make housing "less discriminatory," with the health and safety of all New Yorkers "paramount."

He points out "low-income people of color are bearing the brunt of the pandemic and are the majority of respondents in eviction proceedings and must not suffer disparate impact from the opening of the courts."

Tenant activists want to increase the income eligibility of right to counsel and expand the types of eviction cases covered by the current law. The organization, Right to Counsel NYC Coalition, points out that doubling the income threshold to 400 percent of the federal poverty line could help tens of thousands of households facing eviction in housing court each year.