Researchers Publish First Descriptive Analysis of Right to Counsel Programs in the United States

A recently published article in Housing Policy Debate, “A Descriptive Analysis of Tenant Right to Counsel Law and Praxis 2017–2024,” provides the first comprehensive description of state and local tenant right to counsel (RTC) policies implemented in the United States. Tenant RTC policies provide eligible tenants with free legal representation in eviction lawsuits and, under some policies, in matters that may lead to eviction or where tenants are asserting legal rights. The authors describe each RTC policy and identify how its implementation meets or diverges from legislative requirements in ways that promote or hinder RTC goals. 

The authors employed longitudinal policy surveillance, legal mapping, and legal analysis to identify all 23 state and local RTC policies active in the United States as of June 2024 and created a dataset that captured substantive features of each policy. Additionally, the authors conducted 48 qualitative interviews with stakeholders responsible for program implementation, including program administrators, tenant organizers responsible for education and outreach, and nonprofit or legal service providers. Nineteen of 23 RTC policies were implemented at the time of the study, with an average of 200 days between passage and implementation across all locations. Where RTC was incrementally rolled out by zip code or county, the average time to implementation was longer (330 days). In 19 jurisdictions, RTC legislation included statements justifying the policy. Justifications from 13 jurisdictions were based on principles of judicial fairness, including the imbalance of representation between tenants and landlords (9), fairness in legal proceedings (6), and access to justice (3). Twelve jurisdictions cited eviction as a social determinant of poor health, a threat to public health, or both. 

Eligibility for RTC services was dependent on criteria set forth in the underlying legislation, as well as requirements from funders or legal service providers. Most RTCs were limited to individuals below a set income (14). Other eligibility considerations included household characteristics (e.g., families with children), legal proceeding type, and receipt of housing assistance. While all jurisdictions included eviction defense as part of RTC, nine also provided tenants with RTC services in cases where tenants assert rights, such as for violations of rent control or fair housing claims. While some RTC polices were limited to private-market renters, 14 extended to public housing residents and 11 were extended to renters in subsidized housing. Even where the legislation was silent on eligibility, eligibility depended on provider capacity and any restrictions placed by the funder or the provider organization. For example, RTC services delivered by Legal Service Corporation-funded organizations could only serve renters who met LSC income eligibility and United States citizenship requirements.

In all RTC jurisdictions, renters were responsible for initiating contact with the RTC program to receive services. Interviews revealed that extensive outreach was needed to inform tenants of RTC programs. In many jurisdictions, RTC legislation required some form of notice to renters about the right, such as formal notice of the right in a lease or court summons (12) or tenant education and outreach programs (13). 

The authors found that providers and other stakeholders from many jurisdictions celebrated the successes of RTC programs in creating more favorable and just outcomes for renters, renter-supportive case law, and streamlined coordination between legal service organizations and other community service providers. However, the authors found that issues related to insufficient funding, staff turnover, and infrastructure for outreach and education made it difficult to implement RTC programs successfully. While tenants might have a right to counsel, their ability to access RTC services is still contingent on funding. Many programs relied on the piecemealing of several funding sources, some of which were temporary. Nine programs relied on one-time federal funding sources allocated during the COVID-19 pandemic and 13 relied on state or local general fund allocations, which typically required annual reauthorization. Providers operating with limited funding or staff discussed an inability to meet needs, the need to further limit eligibility, postpone or slow education and outreach, the burden of advocating for additional or sustained funding, and the pressure to demonstrate cost savings and outcomes. Providers also highlighted barriers to outreach and education for historically disempowered populations. 

The authors also found that judicial discretion limited RTC’s success. They explained that the success of RTC often depends upon judges’ willingness to inform renters of RTC at the time of hearing and postpone cases to award tenants more time to meet with attorneys. Except for three jurisdictions (Minnesota, Nebraska, Washington), judges were not required to appoint counsel to eligible renters in proceedings. Interviews revealed that judges were reluctant to inform tenants of RTC, perhaps due to a longstanding status quo of judicial deference to landlords. The authors found that courts that were responsible for or more supportive of the RTC program experienced a culture shift that resulted in more successfully meeting legislative intents such as procedural fairness and access to justice.

Despite challenges, the authors conclude that RTC programs can shift court culture and power imbalances in favor of renters. They suggest that their research can serve as a framework for evaluating existing RTC programs and creating new ones. They call for additional research on how RTC directly impacts courts and court processes, the mobility and well-being of tenants, and landlords’ behavior. The authors also call for more longitudinal research to determine how RTC impacts broader aspects of the tenant-landlord relationship, housing supply, community wellbeing, and class and racial power dynamics. 

Read the report at: https://bit.ly/452irMD.