Editorial Advisory Board: The right to counsel in landlord-tenant cases

This month, Baltimore joined the growing list of cities that has enacted a civil right to counsel. Council Bill 20-0625 was passed unanimously by the Baltimore City Council and signed in law by Mayor Bernard “Jack” Young on Dec. 3. This board endorses that legislation. This board has previously commented on the civil right to counsel, especially in landlord-tenant situations. In Baltimore, 99% of tenants in court proceedings are not represented, though 96% of landlord are. Nevertheless, many tenants have a good defense to eviction.

This legislation provides free legal representation for ALL of Baltimore City’s renters: “Covered individual” includes any individual who “occupies a dwelling” in the city or any dwelling owned or operated by the Baltimore City Housing Authority. Covered proceeding includes any proceeding involving failure to pay rent or any related proceeding—including evictions.

The legislation also mandates tenant education, outreach, and information concerning tenants’ rights. This may involve: know-your-rights trainings and other workshops for tenants, distributing written information, and referring tenants to designated community groups.

As well, the tenant is to be provided with a brochure detailing the tenant’s rights, including “free or reduced-price legal representation” and pretrial and day of trial mediation programs to resolve landlord-tenant disputes; the brochure is to be provided whenever a landlord sues a tenant.

The Baltimore City Affordable Housing Trust Fund Commission and Department of Housing and Community Development are to adopt rules and regulations related to this legislation. Tenants are to be offered “legal representation from a designated organization in a covered proceeding as soon as practicable after the initiation of that proceeding, but no later than” the tenant’s first scheduled appearance.

This program is to be phased in over four years to account for: prioritization of covered individuals, the availability of funding, the availability of trained and qualified attorneys, scope of the need for legal representation and any other appropriate logistical consideration. But many housing advocates consider that four-year phase-in to be unacceptable.

The major problem is, of course, funding. An extremely detailed 100-page report titled “The Economic Impact of an Eviction Right to Counsel in Baltimore City” prepared for the Public Justice Center, and released in May, states that this legislation would require an annual investment of $5.7 million, and that this investment could effectively pay for itself over time. “With an annual investment of approximately $5.7 million in a right to counsel, Baltimore City may reduce the current cost of disruptive displacement caused by eviction or avoid costs related to disruptive displacement estimated to be approximately $17.5 million annually.”

Since the state provides funds for those safety net programs, the report also estimates “the annual cost of disruptive displacement and potential costs avoided as a result of a right to counsel in Baltimore City eviction cases that accrue to Baltimore City and Maryland to be approximately $35.6 million annually.”

For the report’s estimate of $5.7 million, the study examines various and interconnected factors. These factors and the report’s conclusion are too detailed to go into here. However, the report states: “If a right to counsel were fully implemented, there would be approximately 6,900 tenants receiving free representation”— 5,900 in nonpayment of rent and 1,000 in other related categories (breach of lease, tenant holdover, etc.). At $5.7 million invested in the program, providing a right to counsel to 6,900 eligible tenants will “equate to approximately $821 per case.”

This board concludes that funding this legislation is highly recommended — or come as close as possible — and the sooner the better. Baltimore has finally joined the growing list of cities that have enacted a right to counsel, in one form or another: New York City, Newark, Philadelphia, Cleveland, and San Francisco. Other cities are considering similar legislation.

This legislation comes on the heels of a November letter sent to Gov. Larry Hogan by Attorney General Brian E. Frosh prompting the governor to set aside $22 million to assist financially strapped Marylanders in need of free legal representation in eviction, foreclosure and debt-collection proceedings. The state’s previous infusion of $12 million for civil litigation assistance — even when supplemented by $10 million in federal aid – is insufficient to meet the demand for legal help caused by the pandemic.

Frosh said $20 million in additional funds for the Maryland Legal Services Corporation, supplemented by $2 million in housing and financial counseling services, should be part of governor’s budget request for fiscal year 2022, which begins July 1. “Civil justice is a right, not a privilege,” Frosh stated.  We agree, and ask the city and the state to fund this program — at least in a trial form — to see how it works.

Editorial Advisory Board members Arthur F. Fergenson, Julie C. Janofsky, Stephen Z. Meehan, and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Michael Hayes

Julie C. Janofsky

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.