MA trial court issues historic right to counsel decision

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12/17/2017, Litigation, Housing - Evictions

In a case before Judge Fein in the Western Division of the Massachusetts Housing Court Department, an indigent and disabled tenant faced eviction because of his drug-related arrest "near" his subsidized apartment building. The eviction trial started while his parallel criminal case was pending. The tenant expressed concern that his conduct in Housing Court would affect his privilege against self-incrimination and liberty interests in criminal court.


The court first stayed the eviction trial to explore these concerns.  Then, recognizing that significant rights and interests were implicated in this complex case -- including the court's own interest in ensuring the "sound administration of justice" -- as well as the tenant's disabilities, Judge Fein concluded that the tenant had a "right to effective assistance" and appointed an attorney to serve as guardian ad litem.  The landlord filed an objection to the court's appointment of counsel to the tenant, but Judge Fein affirmed her appointment, basing her decision on due process grounds and holding that "nothing short of appointing counsel suffices to protect the tenant's rights under the federal and state constitutions". The court also cited sound administration of justice as other grounds to uphold the appointment.

Appointment of Counsel: discretionary Qualified: yes