Letter From The President Of The New York County Lawyers' Association

2008-12-01 01:00

To The Readers Of The Metropolitan Corporate Counsel:

Don't Just Pass The Senior Citizen Right To Counsel Bill - Expand It

The New York City Council is considering the Senior Citizen Right to Counsel Bill, which would establish a right to counsel in eviction and foreclosure proceedings for persons 62 or older whose income is low enough to qualify for the Senior Citizens Rent Increase Exemption (currently $27,000). In today's harsh economic climate, this bill would provide an important safety net for a vulnerable population.

But this bill does not go far enough. As every viewer of Law & Order knows, all indigent criminal defendants are entitled to counsel. The consequences of homelessness are no less severe for an indigent tenant than are the consequences of conviction of many crimes for which there is an unquestioned right to counsel.

All low-income persons facing eviction or foreclosure should be entitled to counsel. The New York County Lawyers' Association adopted this position in 2005, and it was endorsed last month by the New York State Bar Association House of Delegates.

Although government budgets are under great pressure today, providing counsel for persons who may become homeless as a result of a legal proceeding is both morally right and economically efficient.

More families entered the homeless shelter system in September than in any other month in the 25 years for which we have statistics. Eviction is the second most frequently cited reason for entry into the city's homeless shelters (domestic violence is the first). According to the Brennan Center Strategic Fund, New York City saves approximately $61,000 every time a senior citizen's household is prevented from becoming homeless. Other sources have estimated that every dollar spent on counsel for persons facing eviction saves four dollars in government expenditures related to homelessness. Thus, measures like the Senior Citizen Right to Counsel Bill may actually reduce government expenses, although the savings and the expenses do not appear on neatly matching budget lines.

The idea of a right to counsel in civil matters for indigent persons is hardly new. Ironically, many people wrongly believe that such a right already exists. It was part of English law as early as the fifteenth century, and arguably was imported into American common law in some of the 13 original states. Most European countries enacted a civil right to counsel in the nineteenth or early twentieth century. New York law already allows judges to appoint counsel in civil cases for indigent parties, but lack of funding has made this a rarely invoked procedure.

The backbone of our judicial system is the concept that adversarial proceedings produce just results. For an indigent person facing eviction or foreclosure, this is a very theoretical proposition. Numerous studies have documented the unsurprising fact that having a lawyer improves the outcome for a litigant. In Housing Court, 90 percent of tenants are not represented by a lawyer (in contrast, less than 10 percent of landlords are unrepresented). Unrepresented litigants face a complex set of procedural and substantive rules. They may have defenses of which they are not aware.

For all these reasons, the City Council should pass the Senior Citizen Right to Counsel Bill. Then it should pass an Indigent Resident Right to Counsel Bill to provide similar protections for low-income litigants facing eviction or foreclosure.


Ann B. Lesk