Page 22 - Impact: Collected Essays on Expanding Access to Justice

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In a very real sense, they gain a power that government gives up when it gives up its discretion to grant or deny legal assistance for any or no reason at all . But they not only gain power within the eviction proceeding itself . The security of knowing that they will have a meaningful opportunity to be heard and that their interests will be protected if they should be brought to court in an eviction proceeding empowers them to organize and assert their rights in their homes and communities . And that empowerment could very well produce results that avert court proceedings altogether by enabling pre-litigation resolution of disputes over housing conditions, rent levels and the like .
You know, we have a right to organize, now we need the right, the human right, of free lawyers in housing court to back up the work of low income people who are organizing .40
A right to counsel, I think would be a very good thing . It would be one step towards empowerment in this great, big city that is about regentrification and it would mean that people could have and feel comfortable about organizing to stay in their homes .41
A right will disrupt the ecology of housing justice
By increasing fairness in the operations of the Court, improving the status and treatment of tenants, fostering equality and altering the balance of power, the right to counsel would disrupt the existing ecology and bring about concrete changes in the practices of New York City’s Housing Court and in the relations between landlords and tenants . The current ecology is based on well-established and long-standing expectations and understandings about how things work . Attitudes, behavior and decisions of the tenants, landlords, managing agents, community organizers, landlords’ lawyers, tenants’ lawyers, Housing Court Judges, court clerks, court attorneys and others who participate in the system of housing justice are based on a current set of expectations and understandings . As the core expectations and understandings change, the behavior, attitudes and decisions will change .
We can only speculate as to the kinds of changes that would result from the advent of a right to counsel, but there is broad consensus among those most familiar with Housing Court – the attorneys who practice in the court on behalf of landlords and tenants and the judges who preside in the court – as to at least some of those changes that would affect the court . I did an informal and unscientific poll of about 200 landlord and tenant attorneys as well as Housing Court Judges at the 2015 Jack Newton Lerner Landlord-Tenant Institute at the New York County Lawyers’ Association on October 15, 2015 and there was general agreement among members of the audience that a right to counsel would bring about at least the following changes: with attorneys on both sides, the role of judges would become easier, there would be more decorum in the court and there would be less stress over the complicated role of judges when presiding over proceedings in which one side has legal representation and the other does not; settlements of cases would be more permanent and less likely to be vacated because they would be negotiated between attorneys, leading to fewer “repeat” cases brought and fewer applications for emergency stays (orders to show cause) sought; and there would be greater attempts by landlords and tenants to resolve cases before they result in litigation, and expanded efforts to address public policies that impact on landlord-tenant litigation such as, for example, the availability of government benefits to pay rent .
40 Jim Fairbanks, CASA focus group, Nov. 17, 2015.
41 Althea Matthews, CASA focus group, Nov. 17, 2015.
Impact: Collected Essays on Expanding Access to Justice