An Investment in Justice: Right to Counsel in Eviction Cases

by Christine M. Netski

President’s Page

As BBA President, I have been fortunate to be involved in many important advocacy efforts to improve access to our justice system. In just the last few months, the BBA has filed amicus briefs in the Supreme Judicial Court arguing for just compensation for appointed counsel representing indigent criminal defendants, advocating for the right to counsel in civil contempt proceedings where indigent defendants face a realistic risk of incarceration, and urging that unidentified IOLTA funds should revert to the IOLTA Committee for the benefit of indigent residents of the Commonwealth. Most recently, I was honored to represent the BBA at the annual Walk to the Hill for Civil Legal Aid, where we once again advocated for increased funding for legal services through our partnership with the Massachusetts Legal Assistance Corporation (MLAC). Access to justice and service to the community at large are central to the BBA’s mission and we believe that no one in need of legal help should be turned away based on the inability to pay.

Too often, however, one’s ability to access justice is directly tied to one’s financial resources and far too many indigent litigants in civil cases are forced to navigate the legal system without the benefit of counsel, often with devastating consequences. One area where the justice gap on the civil side is particularly acute is housing. Boston is in the depths of a housing displacement crisis spurred by skyrocketing rents, higher rates of eviction for profit and a severe shortage of truly affordable housing. Approximately 39,600 households in Massachusetts faced eviction proceedings in 2019[1] and 92% of these tenants were forced to defend these cases without help from attorneys. In contrast, over 70% of the landlords in these proceedings were represented.[2] Moreover, MLAC’s statistics reveal that 64% of eligible residents (those who are at or below 125% of the federal poverty level) who seek help with a housing case are turned away due to a lack of available funding.[3]

The BBA has long advocated for the right to counsel for indigent parties in civil cases and, in 2008, established a Task Force on Expanding the Civil Right to Counsel that produced Gideon’s New Trumpet, a comprehensive report outlining the arguments for a right to counsel in a variety of civil cases where basic human needs are at stake. Among other areas, the report highlighted housing law and made a compelling case for counsel as a matter of right for indigent tenants facing eviction, noting that “tenants who are represented are much more likely to obtain a better result, whether it be maintaining possession of the premises, reaching a favorable settlement or winning a trial.”[4]

Today, now 12 years after Gideon’s New Trumpet, there is reason to believe that the right to counsel for indigent parties in eviction cases will finally become a reality in Massachusetts. In June 2019, the BBA joined the Massachusetts Right to Counsel Coalition, a group of advocates and community members who support ensuring legal representation to low-income tenants, post-foreclosure occupants, and landlords. The Coalition’s proposed bill includes full legal representation for eligible individuals facing eviction in court and also calls for building the capacity of existing organizations to prevent evictions and promote housing stability, including proactive education and outreach, housing stabilization assistance, and other “upstream” support before litigation ensues.[5] At the July hearing before the Judiciary Committee, Mary Ryan of Nutter McClennen & Fish LLP (and co-author of Gideon’s New Trumpet) testified for the BBA in support of the legislation.

Chief Justice Ralph Gants of the Supreme Judicial Court also formally endorsed the bill in his October 2019 State of the Judiciary address, expressing hope that the efforts to provide legal counsel for all indigent parties in eviction proceedings “finally come to fruition.” And the Boston Globe has lauded the proposed legislation, stating that “Massachusetts residents facing eviction deserve legal representation” and outlining how this legislation could dramatically shift the disparity in representation between tenants and landlords.

Of course, as we monitor developments on the legislative front, the BBA continues to help tackle the immediate shortage of counsel in housing cases through Lawyer for the Day in the Housing Court. For over 20 years, the BBA has collaborated with Volunteer Lawyers Project, Greater Boston Legal Services, the Legal Services Center of Harvard Law School, Harvard Legal Aid Bureau, and the Boston Housing Court to offer assistance to unrepresented tenants and landlords on Eviction Day. Since May 1999, volunteers in this collaborative program have helped more than 18,000 clients.

We are also proud of the work our BBF grantees are doing to combat evictions. As just one example, City Life/Vida Urbana is defending more than 800 Boston families fighting to stay in their homes, building anti-displacement zones in rapidly gentrifying areas, and opposing the construction of luxury housing in vulnerable neighborhoods without the addition of strong anti-displacement protections. They too believe that a right to counsel in eviction cases is an essential ingredient to addressing the current housing crisis.

And there is no question that civil legal aid organizations are doing a tremendous job in protecting and securing safe and affordable housing by enforcing health, safety, and accessibility standards; advocating for reforms that promote access to affordable housing; defending clients from unlawful eviction and combatting housing discrimination; protecting tenants at risk of losing housing subsidies; and helping to place vulnerable families in emergency shelters.

But the justice gap in eviction cases cannot be solved by legal services organizations and pro bono volunteers alone. The time has come for Massachusetts to be the first state in the nation to guarantee full legal representation for all indigent litigants in eviction proceedings.

Christine M. Netski is the President of the Boston Bar Association. She is also a managing partner and a member of the executive committee at Sugarman, Rogers, Barshak & Cohen, P.C.

[1] “Trial Court Statistical Reports and Dashboards.” Mass.gov, www.mass.gov/info-details/trial-court-statistical-reports-and-dashboards.

[2] “Why.” Right to Counsel in Massachusetts, www.massrtc.org/why.html.

[3] “Civil Legal Aid in Housing & Foreclosure.” Equal Justice Coalition, Massachusetts Legal Assistance Corporation, equaljusticecoalition.org/wp-content/uploads/2019/02/FY-20-Issue-fact-sheet-Housing.pdf.

[4] In fact, since New York City passed right to counsel legislation in 2017, 84% of tenants with full legal representation have remained in their homes (“Mass Coalition for the Right to Counsel.” Mass RTC, www.massrtc.org/uploads/2/7/0/4/27042339/rtc_flyer_11-19-19.pdf.)

[5] “Civil Legal Aid in Housing & Foreclosure.” Equal Justice Coalition, Massachusetts Legal Assistance Corporation, equaljusticecoalition.org/wp-content/uploads/2019/02/FY-20-Issue-fact-sheet-Housing.pdf.