Right-sizing “Right to Counsel” for Eviction and Other Civil Cases

The concept of “Civil Right to Counsel” is having its moment, particularly in the context of evictions.

There rightly is a lot of support for the idea that, given the stakes involved, no one should get evicted without access to a lawyer to ensure their rights are protected. But what does that mean? What should it mean? What other solutions should we look at beyond access to lawyers?

These are big questions that too often get skipped over in these conversations, and for many good reasons the answers are a lot more nuanced than in the criminal context.

Rather than everyone getting a lawyer for the whole case regardless of the merits of their position, we should be focused on making sure people have the right amount of legal help necessary to level the playing field in their case. We also need to recognize that legal assistance does not sit in a vacuum in these cases. Legal assistance, whether limited scope or extended representation, is more effective at preventing avoidable evictions when combined with changes to the court process, community outreach, rental assistance, and social services.

The “Right to Counsel” Concept

The push for a right to counsel in civil cases centers around the idea that in civil proceedings where basic human needs are at stake–such as those involving shelter, sustenance, safety, health, or child custody–people in need should have a similar “right” to a lawyer as they do in criminal cases and other contexts involving fundamental liberty issues (e.g., parental rights). The American Bar Association is among the organizations that have come out in favor of the concept, first adopting a resolution in 2006.

The pro bono and legal aid system serving people with civil legal problems has been chronically underfunded for years now and  people in need regularly go without access to legal assistance in even higher-stakes cases. This has led to many detrimental effects for the people involved, our justice system, and our entire community. For these reasons, taking a closer look at whether a “right to counsel” goal is viable and can be accomplished in a fair, sustainable, and cost-effective manner makes good sense.

The Eviction Context for Right to Counsel

The book “Evicted” by Matthew Desmond brought heightened attention to the inequities in both the housing market and the legal system for eviction cases, and the stark consequences for the people facing eviction who disproportionately are racial and ethnic minorities.

Because most landlords typically are represented and the vast majority of tenants are not, the unequal power dynamics that already exist between the two sides are exacerbated in the legal system. And given the high stakes involved, the civil right to counsel conversation has come to the forefront in the eviction context in recent years.

The pandemic and the early fears that a wave of evictions could follow from the associated economic dislocation shined a greater spotlight on the importance of legal assistance in these cases and accelerated right to counsel conversations by providing new funding opportunities for eviction prevention programs through federal rescue funds.  

Key Differences Between Right to Counsel in Civil Cases Generally, and Evictions Specifically

There clearly are good reasons for expanding access to legal assistance for people facing eviction, but when that is framed in the right to counsel context, we need to understand the key differences from criminal cases and the distinct legal issues involved in evictions. 

In the criminal right to counsel context, there are three key distinguishing factors from evictions and other civil cases: the State is always represented, it is the government bringing the action, and the defendant’s liberty is at stake. The constitutional liberty interest at stake dictates full representation for a defendant even when they have no apparent defense, to ensure as much as possible that the state meets its high burden of proof beyond a reasonable doubt.

In contrast, for evictions and other civil cases, landlords and other opposing parties are not always represented, they usually are private parties, and the legal context is substantially different, most notably in the burden of proof and legal issues at stake.

For these reasons, giving an unlimited right to a lawyer to every tenant irrespective of the merits of their case or whether the opposing landlord is represented is a very different proposition. In fiscal terms alone, the cost of such an unlimited right in an already underfunded legal aid and public defender system would be unreasonably high. But the more important reason to question giving full representation to all tenants is that it generally is not what tenants need to reach a fair and effective resolution for their case.

Leveling the Playing Field v. Tilting It

While public attention focuses on the tenants who far more often are unrepresented and at heightened risk, it is wrong to demonize all landlords. Landlords generally only file evictions as a last resort after tenants have stopped paying rent or otherwise have significantly breached their lease.

There unquestionably are bad landlords who are not holding up their end of the bargain for their tenants or improperly file evictions for retaliatory purposes, but there are also bad tenants who have earned their eviction filings and many more otherwise good tenants who no longer can pay their rent.

About 20% of landlords are typically unrepresented in eviction cases in the Chicago area. They tend to be small landlords who play an important role in the provision of affordable housing in our community, and often are at high risk themselves when they have bad tenants or when good tenants stop paying. These smaller landlords typically rely on rental payments to pay their mortgage on the property, and a tenant not paying for extended periods of time can be the tipping point for them to go into foreclosure on their property, which they often live in themselves.

Therefore, as we seek to create a fairer and better evictions process, we should strive for balanced solutions that are fair for both tenants and landlords.

Understanding the Problem and Clearly Defining Goals

Understanding the problem we are trying to solve and then defining goals for what we hope to achieve from the legal intervention are the first key steps:

  1. We should work to avoid wrongful evictions whenever possible.
  • For the majority of cases where there is not a substantive legal defense to the eviction, we should encourage negotiated resolutions that will keep people stably housed.
  • When it is not possible for the tenant to stay in their current home, we should try to facilitate negotiated agreements where landlords have the certainty of when they can get their unit back on the market and tenants have time to stably move to new housing without an eviction on their record.
  • Tenants and landlords should be able to objectively believe that throughout the legal process, they were treated fairly and obtained a just outcome in the end.

Put simply, we want a fair, balanced, and effective legal process for evictions that promotes housing stability and confidence in the legal system for both tenants and landlords.  

Focusing on the Right Legal Intervention Rather Than One-Size-Fits-All Solutions

With the above goals in mind, the goal in providing legal assistance should be to provide the right level of legal intervention to ensure the parties can reach a fair and effective solution for their eviction case given the specific issues involved.

That should start with universal access to legal advice and “triage” for all unrepresented tenants and landlords, and where appropriate brief legal assistance to help them reach negotiated solutions as early as possible in the process.

The triage aspect of this universal access point is where a lawyer can determine at the outset whether a tenant has a meritorious legal defense or is otherwise particularly vulnerable based on their individual circumstances (e.g., someone living in subsidized housing or with a disability that would make it difficult to proceed on their own in their case). 

The reality is that most tenants do not have a substantive legal defense to their eviction, and legal advice or brief services (which can include everything from a brief consultation to help negotiating and drafting a settlement agreement) will be the full extent of what is appropriate for their case. Providing full representation in those instances costs a lot more but does not achieve more.

For the smaller share of tenants who meet the above criteria for further legal support at the triage stage, like someone at risk of being wrongfully evicted, that is where the “right to counsel” concept of extended representation for the full case should come in and where we should focus those more expensive resources. These are the tenants for whom full legal representation is both necessary and likely to make a meaningful difference in the outcome.

This tiered approach to providing legal assistance has many advantages over the full “right to counsel” model where everyone gets full representation regardless of the merits of their case. It is far more cost-effective. It is more equitable, since it meets people where they are and gives everyone the level of help they need to get a fair shake in their case. And it is more balanced, helping both unrepresented tenants and landlords get the help they need to reach fair resolutions.

Legal Assistance Is Only One Part of the Solution

As important as access to the right level of legal assistance is for ensuring a fair eviction process, it is just one part of any real solution. Improving the court process and building in other key interventions are equally important changes that are more realistic to accomplish when the program is designed in a balanced way for landlords and tenants.

With few exceptions, the court process for evictions historically has been an efficient one for landlords and the courts, but not something that could be objectively viewed as a fair process for tenants or an ideal process for promoting housing stability in our community. It is not unusual for people to be evicted within weeks of the case being filed, which makes it difficult for tenants to connect to legal assistance or other resources to protect their rights and help them reach better resolutions.  

Modifying the court process to give tenants enough time to realistically access legal assistance also allows the court to incorporate other key interventions into the court process. Those interventions include rental assistance, mediation, community outreach, and other social services that help both tenants and landlords find the best solution for their cases.

No one wins when cases go all the way to an enforced eviction, and by modifying the process to connect both landlords and tenants to key resources including legal aid at the outset of the process, courts can help the parties reach better resolutions for all concerned.

Innovative Court-Based Programs That Take a Holistic Approach

With the above principles in mind, we have implemented a different kind of eviction prevention program in Chicago and Cook County with the active leadership of the court and several critical changes to the eviction court process. It is called Early Resolution Program, one of several programs under the broader umbrella of the Cook County Legal Aid for Housing and Debt (CCLAHD) program.

CCLAHD gives all unrepresented tenants and landlords access to legal advice on their rights and responsibilities, limited scope legal assistance, and case managers who connect people to other resources like rental assistance and mediation to help level the playing field and negotiate early resolutions when possible. These services all are integrated into the eviction court process, which has been modified to provide more time for the parties to access this assistance.

The City of Chicago has a right to counsel pilot program that supplements and builds on CCLAHD to provide extended representation to a smaller pool of tenants who are unable to resolve their cases in the Early Resolution Program. The focus of the extended representation is on tenants who have viable legal defenses or are particularly vulnerable. On a smaller scale, extended representation is available to tenants in suburban Cook County as well.

While it is very much a work in progress at this stage, we believe the CCLAHD model with a limited right to counsel component has the potential to be a sustainable, equitable, and fiscally responsible way to provide legal aid to vulnerable tenants and make for a fairer and better eviction court process for all.

Outside of Cook County, Eviction Help Illinois includes many of these same resources, connecting people facing eviction in other parts of the state to legal advice and assistance as well as court-based rental assistance.

The National Center for State Courts is promoting similar models in courts around the country through its Eviction Diversion Initiative, utilizing many other innovative strategies to reach better resolutions in eviction cases in jurisdictions of widely varying size and makeup. Many of these court programs combine legal assistance with social workers, public benefits screeners, financial counselors, and housing navigators to meet the different legal and non-legal needs of landlords and tenants. There are many promising models to incorporate a continuum of more holistic interventions for tenants and landlords to reach better, more sustainable solutions.

A More Realistic and Sustainable Model for Evictions and Beyond

To summarize, there are solid reasons to prioritize access to legal assistance for people facing eviction, but not in an unlimited sense and only as part of a larger solution that focuses on the defined goals above. The reality is that most tenants do not have substantive legal defenses that necessitate full representation from a lawyer, but all can benefit from brief legal advice and assistance to understand the court process and their options and to help reach the best solution possible for their circumstances.

The legal system can only do so much in these cases when the underlying issues most often are primarily economic, and we need other interventions like rental assistance, mediation, and social services to meet the goals of housing stability and to build a legal process that we all can have confidence in. Any “right to counsel” program for evictions should put equal priority on these other crucial interventions, spending wisely on the legal assistance component so that resources are available to fund the other integral services.