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FREE LEGAL AID AT EVICTION COURT
#BROKE IN PHILLY: IDEAS WE SHOULD STEAL
A FAIRER EVICTIONS COURT
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Proposed legislation would provide free lawyers for Philly tenants at risk of evictions, similar to how defendants are guaranteed counsel in criminal court. Could it help even the playing field here, as it has in New York City?
By: Steve Volk, The Philadelphia Citizen
Gerrell Sampson, a wife and mother of six children, says the first time she walked into landlord-tenant court in winter 2016, all she saw was a wall of attorneys, lined up talking to the court staff.
She was facing an eviction hearing, the threat of losing her home, and felt like maybe she should just walk out because she didn’t have an attorney of her own. “I lost before I started,” she says. “That’s how it felt.” This was Sampson’s first trip to eviction court, which has traditionally run lopsided. Landlords come in bearing an attorney. Renters don’t. The consequence can be disastrous for individual citizens, families and a cash-strapped city that bleeds tens of millions each year covering the damages. Last week, Philadelphia City Councilmember Helen Gym stepped up a years-long effort to correct this imbalance, beginning hearings on a Right to Counsel bill. Her legislation would provide an attorney to any tenant facing eviction and earning up to 200 percent of the federal poverty level, allowing Philadelphia to benefit from an idea already made law in New York, Newark, San Francisco and now Cleveland. “Eviction is a huge issue,” says Gym. “The impact of getting thrown out of your house, particularly because eviction falls disproportionately on black women who are heads of a household, creates instability in entire families.” A study conducted for a Philadelphia Bar Association Task Force in 2018 concluded that a $3.5 million annual investment in attorneys for renters would save the city at least $39 million in eviction-related shelter, medical and social service costs. For instance, in Philadelphia, about 20 percent of those entering homeless shelters report eviction as the cause. At a cost of $40 per person, per day, with an average stay of six months, the city picks up an expensive tab. Gym is seeking about $5 million to fund her proposal, which already has a kind of proof of concept in a pilot program, the Philadelphia Eviction Prevention Project (PEPP), adopted in 2017, which has bumped up the number of tenants receiving counsel from 8 to 11 percent and produced a cascade of benefits. According to statistics from Community Legal Services, which provides counsel through PEPP, tenants represented by lawyers save an average of $950 off what landlords are charging them, and get about 16 extra days before moving out. They are also about four times more likely to win a judgment outright. These improvements, say tenant advocates, often represent the difference between homelessness, or an unmanageable debt load, and the chance to move on.
“You go in the courtroom, and you recognize all these people in suits must be attorneys, and none of them is there for you,” says Sampson.
Gym’s bill is short on detail, as she hammers out particulars with Mayor Kenney’s Managing Director’s office. Generally, she has support from the Mayor, Council President Darrell Clarke and five additional co-sponsors, plus Councilmember Allan Domb, himself a real estate mogul and landlord. “Maintaining your home is one of the most important factors to preserving stability and quality of life,” Domb wrote this week in an email. “This legislation is another tool to allow Philadelphians most in need with legal assistance to help keep a roof over their head and to strengthen their overall well-being.” Still, she won’t predict an easy win in Council, and property owners, represented by the Homeowners Association of Philadelphia, are pushing back. “I think it’s a terrible bill,” says Harvey Spear, HAPCO’s president. “People should pay their rent. Why are property owners the only people expected to give away their product? And then, when people don’t pay for it, they get a free attorney?” Passage of the Right to Counsel bill might depend on recognizing just how big a shift it represents, philosophically. The American justice system awards free counsel to criminal defendants who cannot afford an attorney because depriving someone of their liberty is so serious that providing an attorney is a necessary constitutional protection. In civil court, however, those who cannot afford an attorney must defend themselves. Gym and other tenant advocates argue that depriving someone of the roof over their heads presents a similar crisis. “The threat of being thrown out of your home,” says Gym, “is arguably an impediment to a person’s ability to pursue life, liberty and happiness. So subjecting someone to that without the benefit of an attorney would be a dereliction of our constitutional responsibility to protect that right.” An attorney would be vital to renters in negotiating with a landlord seeking eviction, but there is no guarantee that renters will prevail in court. Cases that go to trial still would be up to the judge, after hearing arguments from attorneys for tenants and landlords. The ruling could be in favor of the landlord; or, it could be a compromise that would allow a tenant to be evicted, but require more time for them to find a place to live, for example. In Philadelphia, prior to last year, about 8 percent of tenants walked into eviction court with an attorney of their own, while 81 percent of landlords enjoy legal representation. At the start of each session, court officers instruct tenants to step into a side-room to “try and work something out” with their landlord’s attorney. About one-third of the time, eviction cases are settled through a judgment by agreement—no real negotiation at all, say tenant advocates, in which renters accept whatever their landlord’s attorney offers, even if they cannot make the payments, because they think it is the best offer they’ll get.
“The whole system has been geared in favor of the landlord,” says George Donnelly, an attorney with the Public Interest Law Center, a nonprofit protecting civil, economic and social rights. “And it’s most obvious in the role attorneys play. …Tenants with no attorney are intimidated into reaching adverse agreements.”
The difference in results is dramatic: The study performed for the Philadelphia Bar Association, by Stout, a financial advisory firm, found 78 percent of low-income renters without attorneys face “disruptive displacement”—a term connoting a forced move with disastrous consequences, like homelessness or payment agreements the tenant can’t meet. But 95 percent of renters with an attorney enjoy more favorable outcomes, from staying in their homes to moving out with a manageable debt and a timeline that will keep them off the streets. A recent update by Stout found that Gym’s suggested city cash outlay of $5 million would allow Philly to provide representation to 6,200 tenants and, factoring in the average household size, help at least 18,600 people per year avoid disruptive displacement. According to Stout, the City’s total estimated savings would near $63 million. Sampson, who made her first trip into landlord-tenant court unrepresented, has seen both sides of the issue. She felt, that first time, tremendously vulnerable. Her landlord in Kensington had never kept the place up. There were leaks, making every rainstorm a scramble for pots and buckets. Her electrical sockets sometimes threw sparks. Her heater didn’t work. She complained, many times over many months, with no result. But by fall, 2016, she feared the conditions were so bad she might lose her children.
“I think it’s a terrible bill,” says Harvey Spear, HAPCO’s President. “People should pay their rent. Why are property owners the only people expected to give away their product? And then, when people don’t pay for it, they get a free attorney?”
One of her kids suffers from cerebral palsy, requiring regular care from a home nurse. Sampson worried the nurse might report the poor condition of the house, triggering a child welfare investigation. And it was this fear about her kids that motivated her to use what, for tenants, serves as a kind of nuclear option. She withheld her rent, a legal right given the needed repairs. Finally, her landlord acted, sending an eviction notice. “It just felt like he had all the power,” says Sampson. “‘Cause here he was, feeling like he could throw me out because I’d asserted my rights. …Then you go in the courtroom, and you recognize all these people in suits must be attorneys, and none of them is there for you.” Incredibly for Sampson, that morning started a run of good luck. First, she doesn’t know why, but her landlord’s counsel requested a postponement. She felt a surge of relief, realizing she wouldn’t have to address the court and would have more time in the house. Then, a couple of days later, someone at the Legal Clinic for the Disabled, involved in her child’s care suggested she seek a pro bono attorney. “I had no idea there was any such thing as a ‘free’ attorney,” she says. Of course, most of the time—then and now— there isn’t. But she reached out to Community Legal Services, who connected her to the Public Interest Law Center, a nonprofit legal advocacy organization protecting civil, economic and social rights. “There was some good fortune in that I was available,” says Dan UrevickAckelsberg, who wound up representing Sampson. “The demand for attorneys is far greater than the supply,” leading the lawyers who take pro bono work to decline a lot more cases than they accept. The subject of evictions rose to national prominence in 2016, with the publication of Evicted: Poverty and Profit in the American City, a Pulitzer Prize winning book by sociologist Matthew Desmond, who went on to found the Eviction Lab at Princeton University. The book revealed the role evictions play in destabilizing families and entire communities: Evictions disproportionately affect black residents and families with children, even controlling for variables like income. The displacement of kids renders them far more likely to end up in foster care, and sets back their education—even undermining entire classrooms as children around the city are shifted, abruptly, from one home and school to another. The book sparked action here and elsewhere, lending momentum and academic heft to tenant’s rights movements, including the idea of providing free counsel to low income renters. In its wake, Philadelphia has already instituted other tenant protection measures: a provision requiring landlords to supply renters with a brochure describing their rights, and a good cause law, making it a violation to engage in retaliatory evictions, the situation Sampson faced in which she was evicted for insisting on lawful repairs. Rachel Garland, managing attorney at Community Legal Services, says these improvements are important, but by themselves can only do so much.
“Without a Right to Counsel, these rights just don’t get exercised as they would with an attorney present,” she says. “The laws go underused because the tenant isn’t sure how to access them or because they fear some kind of retaliation from the landlord at a time when they are very vulnerable.”
New York City legislators introduced a bill providing attorneys to people earning 125 percent of the federal poverty level, but upped that to 200 percent (the same number Gym is aiming for) prior to passage in 2017. In New York, the law is being phased in to cover a growing number of “Right to Counsel” zip codes till full implementation in 2022. The results are promising. Evictions fell last year by two percent in comparable non-RTC zip codes. But they fell five times as much, by 11 percent, in zip codes where the RTC law went into effect. It is too soon to gauge results in Newark and San Francisco, where bills were passed more recently. However, pilot programs in Hennepin County, Minnesota and Boston yielded dramatic results—greater numbers of renters who won reductions in money owed, and received ample time to move or avoided eviction altogether. “Phasing the program in made sense,” says Susanna Blankley, Coalition Coordinator for the Right to Counsel NYC Coalition. “It’s a big shift.” The difference between New York’s evictions volume and court infrastructure and Philly’s is vast. Philadelphia handled 18,641 eviction filings last year, in one full-time courtroom and another that hears cases one- to two days per week. New York has seven different courthouses that hear housing cases, spread across its five boroughs and handles a volume of 230,000 filings. That said, Gym and her legislative aides have tracked the New York proposal and hope to land on a method of implementation that will look a lot like Gotham’s. Details, though, are scant, because when Gym calls the upcoming hearings a “process,” she isn’t kidding. The measure would require an estimated $5 million for lawyers to represent people earning up to 200 percent of the poverty
level. (Some of that funding already exists, as part of the City’s Tenant Legal Defense Fund—launched in 2017—which contains $2.1 million, including $1.5 million allocated in the 2020 budget.) Gym says she is working on the details with the managing director, so how it will all work is also not yet clear. The program would probably phase in, like New York, over a five-year period. They do not know yet if they will roll it out by zip code or some other means, but the discussion, right now, revolves around ways of deploying it for the people who can use it most: those who live in neighborhoods with high eviction rates, for instance, and neighborhoods that contribute the most to the homeless population. In New York, tenants in RTC zip codes are scheduled for particular courtrooms, where they are assigned an attorney who takes the case on from there. Philadelphia tenants would likely receive some notice in the mail of their potential eligibility to receive free counsel and a number to call. Tenants who reach out, via a provided phone number, would be able to consult with an attorney before any scheduled court date. Tenants who show up the day of their hearing would be met by an attorney, who will be able to seek a postponement, if necessary, to get up to speed.
“You can look at landlords and tenants and tell who’s who without looking at how they are dressed,” Sampson says. “Because the tenants, you can feel the fear in them.”
Income screening would probably be the responsibility of the legal service providers, selected through an RFP process and come from existing organizations, like Community Legal Services, with expertise in housing and pro bono services. (City money frequently goes to nonprofits to administer services, like Community Behavioral Health, for example.) The logistics of running such a program span the mundane and monumental: The Right to Counsel could result in 10 or more new attorneys being added to an already cramped courtroom on a daily basis. Where will they stand? Or sit? Does the municipal court need to find a bigger room? Also, how will the Right to Counsel evolve? Last year, about one-third of the city’s eviction filings ended in a default judgment for the property owner because the renter simply failed to show up. Tenant advocates believe this is because many tenants figure being there won’t make a difference. With a free attorney provided, how many of these people will take part? Not knowing that answer makes it difficult to figure out how many new attorneys will need to be hired, trained and put to work. The bill also calls for the program’s results to tracked—as PEPP has done—to determine the program is beneficial. Blankley, in New York, credits a wide grassroots coalition with winning unstoppable support in New York, including a Mayor who initially rejected the idea, which passed in council by a 423-1 vote. Philly advocates, including the seven nonprofits involved in the PEPP program, have tracked New York’s efforts to build support for the bill in the hopes of emulating their success. Sampson, today, can talk convincingly about what a lawyer meant to her. “To tell the truth,” she said, “I had mixed feelings because I felt bad for the people all around me who didn’t have an attorney like I did.” She saw one woman with pictures on her phone of repair work that hadn’t been completed. At the court’s behest, she went in the backroom with her landlord’s attorney and took a deal in which she agreed to leave, never saying a word to the judge about the pictures on her phone. “You can look at landlords and tenants and tell who’s who without looking at how they are dressed,” she says. “Because the tenants, you can feel the fear in them.” Consider it a form of survivor’s guilt, but looking around the courtroom, she says, she wanted to tell Urevick-Ackelsberg, her attorney, to go help all these other people. Ultimately, the case against Sampson was withdrawn. She was even plaintiff in a suit that served as a test case for a later class action suit, which alleged plaintiff’s attorneys had violated the fair debt collection practices act. Fact is, she was not legally liable for rent due when the property owner was not in compliance with landlord-tenant provisions, and the case settled. Now, she wants to see everyone enjoy the benefit she did. “Making sure the process is fair, and everyone has an attorney,” Sampson says. “That’s the best thing we could do.”
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