Page 21 - Impact: Collected Essays on Expanding Access to Justice

for the lawyer, that is not working for the court, that won’t have an attitude if you say “I can’t read .” That won’t have an attitude if you say, “These numbers don’t figure out . You’re going too fast .” . . . it means that you’re guaranteed somebody for you when you go before that judge and when you come back, and that will help you understand why you’re there in the first place . Because sometimes you just really don’t know .35
With the right to counsel it’s not all about the tenants going up against the landlord in a negative way, it’s going up against the landlord in a positive way and letting the landlord know that we are aware of what the rules and regulations are and we both can abide by those rules, not just that we’re fighting the landlord to try to get on . Some people might think that that’s what the right to counsel is . No . . . . The right to counsel, let’s face it, they went to school for this . We did not go to school for this . So it has nothing to do with being ignorant . It has a lot to do with how they were educated in that field . So as tenants we have to have a right to counsel and that right to counsel, attorney, have to be really for the tenants, not siding with landlords .36
A right fosters equal treatment
Ronald Dworkin, the renowned legal scholar, has argued that there is a moral right to be treated as an equal in decision-making processes . While external preferences and political pressures inevitably influence decision-making processes, “our legal system should and does counteract their influence by identifying in advance the interests these preferences are most likely to infringe upon and then providing these interests with special protection . These interests thereby become rights .”37 Dworkin’s thesis is highly relevant to eviction proceedings in which the vast imbalance in money, power, influence and, most importantly, access to counsel or legal firepower, cries out for the special protections required to secure equality in the decision-making process .
The inordinate imbalance in resources, power, influence and access to counsel in Housing Court gives rise to the widely held perception of a need to “level the playing field .”
Well I went to court and then this guy showed up, you know, I’m representing myself and I thought he was gonna help me and he’s like, “Oh, I’m here to help you” and then lo and behold when I get into court it’s him against me .
[So you didn’t have your own lawyer then?]
No, no . At that point I did not have a lawyer, and if I had a lawyer, I would not have been evicted . . . 38
A right fundamentally shifts power to the right-holder
Ultimately, as discussed above, the creation of rights shifts power to the rights-holder and away from government . This concept has been recognized as far back as the Romans .39 When low- income tenants facing eviction have a right to counsel at government expense, they gain power .
35 Gwynn Smalls, CASA focus group, Nov. 17, 2015.
36 Paulette hew, CASA focus group, Nov. 17, 2015.
37 R. Lea Brilmayer & James W. Nickel, Taking Rights Seriously, 77 colum. l. reV. 818, 819 (1977)(reviewing ronald dworkin,Taking righTs seriously (1977)).
38 Joseph Cepeda, CASA focus group, Nov. 17, 2015.
39 hutson, supra note 7, at 192.
Specific Areas for Reform: Housing
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