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BBA Joins Coalition on Right to Counsel in Eviction Cases

June 20, 2019

The Boston Bar Association has joined the Massachusetts Right to Counsel Coalition, proclaiming its support for the goal of ensuring legal representation to low-income tenants, post-foreclosure occupants, and landlords.  The BBA will work alongside the Coalition to promote state legislation that will achieve this goal.

This stance is in keeping not only with the BBA’s mission to advance access to justice but also with past BBA positions on expansion of the right to counsel to include civil matters where basic human needs are at stake—including, to quote from a 2006 ABA resolution endorsed by the BBA, “those involving shelter, sustenance, safety, health or child custody.”  All of this is in service to fulfilling the promise of Gideon v. Wainwright through what is known as “civil Gideon”.

BBA History

The following year, the BBA appointed a Task Force on the Civil Right to Counsel, chaired by past BBA President Mary Ryan and Jayne Tyrrell (director of the Massachusetts IOLTA Committee).  The Task Force’s report, Gideon’s New Trumpet, sought to further advance the debate over civil right to counsel by proposing concrete steps that could be taken toward its implementation, across a range of issue areas, through nine separate pilot projects—all focused on civil proceedings involving a basic need or right, where nothing short of representation by counsel will preserve that right.

Among these pilot projects, the report included a plan for eviction cases, based on its finding that:

The need for assistance in cases involving eviction is great. … In Massachusetts, as elsewhere around the country, most tenants and some landlords appear without counsel.  With no right to counsel established in the eviction area, indigent tenants obtain full representation only when legal services offices or a pro bono attorney are able to take their case, a relatively rare occurrence because housing cases are high on the list of unmet legal needs. 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 at trial.

The Task Force’s recommendation was that the right to counsel for tenants under threat of eviction attach in certain specified cases (involving mental disability or criminal conduct) or under judicial discretion, and that it extend as well to landlords in limited instances (owner-occupied dwellings, for example). 

Following the release of the report, there was considerable public interest in the recommendations, particularly the concept that judicious use of legal aid could prevent homelessness and minimize the impact of evictions.  The Boston Bar Foundation, the Boston Foundation and the Massachusetts Bar Foundation funded two pilots in Quincy and the Northeast Housing Court which demonstrated the significant impact of having counsel.  For example, in Quincy District Court, two-thirds of those represented retained possession, compared to one-third of those in the control group (no representation).  Two additional pilots in Worcester and MetroWest were funded by a grant from the Attorney General’s HomeCorps program, with similar results.

[1] See BBA Task Force on the Civil Right to Counsel, The Importance of Representation in EvictionCases and Homelessness Prevention: A Report on the BBA Civil Right to CounselHousing Pilots, at 5  (March 2012). 

Whether by the Legislature or the courts, the right to counsel has been recognized in Massachusetts in some civil cases, including care and protection cases, child guardianship cases, children requiring assistance, mental-health commitments and waiver of consent to adoption.  In two related cases, in 2014 and 2015, the BBA signed onto amicus briefs supporting an expansion of the right to counsel in guardianship cases, to include counsel for guardians whose parental rights are at stake.

And of course the BBA has long provided pro-bono attorneys for both landlords and tenants at Lawyer for the Day sessions in the Housing Court. 

The Proposal

In recent years, state legislation has been proposed to promote housing stability by providing a right to counsel in eviction cases, modeled on efforts undertaken in major cities around the nation.

The Massachusetts Law Reform Institute (MLRI)—which previously led a successful coalition (in which the BBA took part) to expand the Housing Court to statewide jurisdiction—has turned its attention to this issue and is building a coalition in support of a newly-drafted framework for legislation to enact a right to counsel for indigent parties in evictions.  The coalition’s detailed guidelines build on the best elements of two different bills filed on this issue in the current 2019-20 legislative session.

More than 40,000 households in Massachusetts were served with eviction papers in 2018, and 92% of these tenants lacked legal representation.  Adoption of a right to counsel in these cases will ensure that low-income people have access to resources and assistance to prevent illegal or unnecessary evictions; reduce homelessness, trauma, and family displacement; allow tenants to avoid the stigma of a public court record; and stabilize individual housing as well as communities.  Although 70% of landlords have counsel, the proposal would extend the right to counsel in eviction cases to cover certain indigent landlords, as endorsed by the BBA (see above). 

In summary, the plan includes the following elements:

  • A broad definition of eligibility, to include:
    • tenants, former homeowners facing eviction after foreclosure, and owner-occupants of two-family homes seeking possession where their own and only home may be at stake
    • income-eligibility at 200% of poverty-level or less.
  • Attachment of the right to counsel when a notice to quit is received—or if no notice to quit is provided, upon service of an eviction complaint.
    • Covers summary process and similar proceedings, including formal public- housing grievance hearings requested by tenants facing an eviction and voucher-terminations hearings.
  • A continuum of legal assistance and housing-stability support should be provided by a designated agency with collaborating community partners, to include:
    • Community outreach to educate people about legal rights and assistance
    • At the notice to quit stage, assessment to screen for housing-stability resources, mediation and legal support as needed.
    • At the administrative hearing stage, assessment to screen for housing stability resources and a trained legal advocate.
    • At the eviction complaint stage, full representation by a legal advocate.
  • A requirement that a landlord inform the occupant of the right to counsel, with protections and penalties in place for failure to do so.
    • The courts should develop procedures to inform litigants about the right to counsel and provide a written waiver for eligible parties that they are knowingly and voluntarily waiving this right.
  • The coalition seeks to create a Civil Justice Committee with independent authority that would be based in the Executive Office of Housing and Economic Development, to develop, implement, monitor, and evaluate a program to implement the right to counsel.
  • The Committee would be tasked with developing, within one year, a plan for implementation.
    • It would be composed of 17 members, including gubernatorial and legislative appointees, three court representatives, two CPCS members, and various other stakeholders, including three MLAC seats and one for the Volunteer Lawyers Project.
    • Its goal would be to designate existing regional entities with legal expertise in landlord/tenant law that will establish collaborations with existing non-profits organizations to achieve effective tenant education, housing stability, and homelessness prevention.

The legislation would not specify how the right is to be funded, but one of the coalition’s organizing principles is that the right must be funded with new money and not by simply reallocating existing legal-assistance and housing-stabilization resources.

Other coalition principles include:

  • Pre-court eviction help, pro-active education and outreach, and housing stabilization are needed to prevent tenants from losing subsidized housing, and to save landlords, tenants, and courts time and money and better facilitate the resolution of cases.
  • Development of an implementation plan must provide a process to allow for input from all stakeholders on the multitude of issues to consider.
  • Implementation must build upon the work of existing organizations with a proven track record of effectiveness in the areas of landlord/tenant legal assistance, homelessness prevention, and housing stabilization. 
  • Collaboration is needed among legal services, social services, community organizers, municipalities, courts, educational institutions, and other organizations to create a continuum of impactful assistance. 
  • Oversight and assessment of the program should be designed in a way to insure measurable outcomes, data collection, and public reporting.

A legislative hearing on the issue is expected in the summer or fall, and the BBA will work alongside our coalition partners—including law firms, legal-services providers, municipalities, and community groups—to advocate for this plan’s enactment.

—Michael Avitzur
Government Relations Director
Boston Bar Association