About COVID-19 and the right to counsel

04/20/2020, Miscellaneous, All Basic Human Needs

Even before COVID-19, which is creating an unparalled access to justice crisis, the American civil justice system was in desperate straits: the World Justice Project’s 2020 Rule of Law Index ranked the United States 106th out of 126 countries as to access to and affordability of civil justice.  The full impact of COVID-19 on the civil justice system cannot yet be measured, but it is certain it will be immense, and will be made far worse by the huge numbers of unrepresented litigants in these critically important cases due to the lack of a right to counsel in so many states. 

It's not hard to see why the U.S. ranked so low in the Rule of Law Index: 80 percent of the legal needs of the poor go unmet.  These legal needs include vital areas such as housing, child custody, education, protection from domestic violence, access to public benefits, guardianship of adults, immigration, and more.  As we have reported on our interactive map, while all the states provide a right to counsel for some types of civil cases, it is uneven and patchwork.


Housing is a prime example of the problem that was drastic before and even more so now.  In an ordinary year, well over 2 million individuals and families are sued for eviction, and at least one-third of those lose their home in the process.  Those numbers made evictions a true national crisis, and COVID-19 threatens to make that crisis many magnitudes worse because millions more Americans are out of work and unable to pay rent. 


It is true many states have acted to temporarily halt evictions.  But not all have, and even those that have acted have had varying levels of effectiveness (check out the Eviction Lab's moratoria scorecard, and also the National Housing Law Project's map of the state eviction moratoria and other moratoria resources).  And even with states that have a moratoria, landlords have been acting to illegally evict tenants, which is easier to do due to the widespread lack of tenant counsel. In most places, fewer than ten percent of tenants are represented by counsel, compared to 90 percent or more of landlords. 


In the end, the eviction moratoria are temporary, and there will be a full-blown catastrophe once the courts reopen and untold numbers of unrepresented tenants face eviction orders due to months of unpaid rent during the COVID-19 crisis.  Some estimates are that one-third of all tenants didn't pay their rent in April.  Very few unrepresented tenants will be able (where it is required) to demonstrate that their unpaid rent was due to COVID-19, or to assert other defenses they may have related or unrelated to the crisis.  And studies have repeatedly shown that tenants who lack an attorney are routinely evicted regardless of the facts or strength of any legal defenses and are pressured into one-sided “agreements” that benefit only the landlord.  Even if the government provides necessary relief from rent or mortgage payments once the moratoria are lifted (as Rep. Omar's bill would do), there will still be a huge need for legal assistance to navigate these uknown waters.


On the other hand, there is substantial and growing evidence that:


  • tenants who have counsel are far more likely to remain in their home, and even where the matter is genuinely as simple as unpaid rent (which is often not the case), tenants with attorneys obtain “soft landings” (with more time to move, less money owed, cleaner eviction records, and assistance with relocation) when remaining is not possible;
  • providing counsel can save cities and states money by preventing negative outcomes (since evictions frequently lead to use of tax-funded shelters and hospitals) and by increasing housing stability; and
  • those who are provided counsel have a much greater faith in the fairness of the judicial system.


Evidence of the positive effects of a systemic right can be seen in New York City, the only city that has had a right to counsel on the books long enough to have collected empirical data. Although it has not yet fully rolled out its new right, 84 percent of those receiving counsel have remained in their homes, while the zip codes with a right to counsel have seen a 35 percent drop in the number of court filings for eviction and an eviction rate that is five times lower than the zip codes without counsel.


Evictions are but one type of case affected by COVID-19, but many more types of civil cases could be similarly analyzed.  For instance, COVID-19 has led to a rise in domestic violence incidents and a concurrent increased need for civil protection orders.  Additionally, millions of people have been suddenly unemployed but some will undoubtedly face hurdles in filing for unemployment benefits without counsel. 


The right to counsel in these cases would do much to protect essential rights and stabilize our civil justice system.  We already know it works, and we know it saves money.  It's also about helping to save lives, and family cohesion, and communities.  The right to counsel can't do it all, but it should be a vital piece of the COVID-19 recovery process. 


Having a right would also help with stabilizing civil legal aid funding.  Legal aid programs currently rely on programs like the Interest On Lawyer Trust Accounts (IOLTA) and court filing fees for program expenses.  Due to the cut in interest rates and the reduced filings, legal aid across the country is looking at a devastating loss of revenue at the same time that their services are under huge demand, and the government is under no obligation to replace that revenue.