About COVID-19 and the right to counsel

Background

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: 92% 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.

COVID-19 and eviction cases

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 at various times threatened to make that crisis many magnitudes worse because millions more Americans are out of work and unable to pay rent. 

As the country wrestled with the impact of COVID-19 on housing, many states and cities, as well as the federal government, issued moratoria halting evictions (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 the Centers for Disease Control and Prevention (CDC) issued its own moratorium that halted evictions across the country. The NCCRC strongly supported these moratoria: for the tens of millions of tenants who have lost income due to COVID-19, the moratoria have been a welcome respite from imminent homelessness. 

However, such moratoria do not eliminate the need for a right to counsel during this crisis.  There are many reasons this is true:

• Many landlords filed evictions that violate the moratoria, or engaged in other types of illegal evictions, such as lockouts and utility cutoffs.  

• Tenants, and the courts, were unlikely to know about the complex layers of federal, state, and city-level moratoria and other laws that protect tenants.  The CDC moratorium expressly did not preempt any other moratoria that were more protective.  And the state/city moratoria were constantly being altered as they were renewed.

• There were questions about exactly what the CDC moratorium covered and how courts should proceed that were litigated.

• The CDC moratorium had a complicated declaration requirement that tenants needed legal help completing in order to be protected.  When courts allowed landlords to challenge the tenant’s declaration, the unrepresented tenants were cross-examined by landlord attorneys, who were looking to find a way to have tenants make inconsistent statements and who often engaged in hearsay, speculation, and other rule-breaking techniques that the tenant did not know how to object to.  Additionally, the potential for criminal charges (perjury) meant that the tenant had a strong Fifth Amendment interest in the housing case, yet they risked prejudiced any future criminal proceedings via their uncounseled testimony.

• The moratoria did not cover everyone.  For instance, the CDC moratorium only covered nonpayment of rent cases, and some courts held it did not cover nonrenewals of leases.

• Many tenants needed legal assistance to tap into available rent relief or get it applied to their eviction case.  

• The renewed eviction proceedings have been beset with due process issues, such as technological, income-based, or disability-based barriers to participation in remote hearings, as well as the health dangers to immunocompromised or other at-risk tenants of attending in-person hearings. 

• The economic crisis and the struggle to pay rent will last long past most of the moratoria (and in fact, some moratoria have already expired or face legal challenges). 

Given that the data from right to counsel programs shows that lawyers are extremely effective at helping tenants avoid disruptive displacement, even where rent has not been paid, a right to counsel is both directly responsive to and critically needed during this time.

Additionally, because the Federal Reserve has slashed interest rates and because courts have been closed, the revenue from IOLTA and filing fees (two of the principal funding sources for legal aid organizations) are down significantly.  Were there a right to counsel, state and local governments would be obligated to provide funding, but because there is no such right, these funding cuts may not be replaced with other revenue.  

There is also a growing movement for suspension or cancellation of rent, government subsidies, or other means of providing direct rent relief.  The NCCRC fully supports such proposals: while the moratoria delay evictions, rent relief can potentially prevent them.  Failing to offer such assistance will flood the courts with eviction actions, causing dire consequences not just for individuals and families but for society as a whole, while also requiring already-beleaguered court systems to process a backlog of hundreds of thousands of nonpayment cases.  The ensuing evictions will create a surge of homelessness, with the costs and burdens of emergency services (such as shelters and hospitals) and re-housing falling hardest on local governments whose resources have been hard hit by the health crisis.  However, if rent relief does not materialize or does not fully abate the new wave of evictions (and it is unlikely it will), then appointed counsel will still be needed for all the reasons outlined above.  

Other types of cases

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.