In 2017, New York City passed its Right To Counsel law, becoming the first city in the country to guarantee free attorneys to people facing eviction. Originally rolled out in five ZIP codes, the program was expanded in 2021 to cover everyone in the city whose income is at or below 200% of the federal poverty level.

The program was initially a huge success and helped right the balance in housing court, where 95% of landlords have attorneys but tenants rarely do. 85% of people provided attorneys through Right To Counsel were able to avoid eviction.

But since the state’s eviction moratorium elapsed in January 2022, cases have gone to court faster than RTC attorneys can be provided. Attorneys, short-staffed due to a wave of pandemic resignations, were able to represent a smaller share of eviction cases.

In January 2022, 63% of tenants in eviction court were represented by attorneys. During the week of Oct. 30, the representation rate was just 5.4%.

A Right To Counsel program has been introduced in 16 other cities and in three states since 2017, according to the Right To Counsel NYC Coalition. But New York City, despite its first-in-the-nation program, now likely has the worst rates of tenant representation of all RTC programs nationwide, advocates say.

“It’s a little particular to New York,” says Susanna Blankley, coalition coordinator of the Right To Counsel NYC Coalition. “Nowhere else is having this challenge.”

In Queens housing court on Nov. 28, several cases observed by Next City went forward with landlords present but neither tenant attorneys or tenants showed up, resulting in default judgments. (According to the ACLU, in at least half of eviction cases, tenants do not show up to court due to family and work or because they don’t understand their legal obligations.)

In one courtroom, a private attorney said that he only represented a client during a previous appearance because the tenant had approached him in the hallway and begged him to take his case, promising to retain him later on. The tenant could not be reached after that appearance, the attorney told the judge. He asked the judge to remove him from the case, which was granted, and the case proceeded with only the landlord and his attorney present.

A new eviction monitoring tool

To track data on evictions and the rate of legal representation, the Right To Counsel NYC Coalition – together with the Association for Neighborhood & Housing Development (ANHD) and the Housing Data Coalition – launched a website called the NYC Eviction Crisis Monitor.

Their findings are stark: Tenants only had attorneys in 39% of eviction cases in 2022. The weekly share of cases where a tenant has had legal representation has been trending down precipitously, from 63% in the first week of January to a low of 3.2% the week of Oct. 23.

Lucy Block, senior research and data associate at ANHD, says that Right To Counsel attorneys and advocates had approached her about parsing the data from the Office of Court Administration (OCA) when it seemed an overwhelming amount of tenants were facing judges without an attorney earlier this year. ANHD collaborates with NYC’s RTC coalition and other housing organizations across the city to parse often-opaque data from the Office of Court Administration.

“It’s a big effort. It’s a lot of time and digging and research and analysis to figure out what the state of things is,” Block says. “We’re not getting neat whole numbers reported to us by the courts. We’re calculating those numbers ourselves.”

Their data initially only tracked who had legal representation at their first court appearance and found only 36% of tenants had such representation. In response, an OCA representative suggested that the rates of representation would be much higher if subsequent court appearances were captured, as it takes at least one appearance for an attorney to be paired with a client. So ANHD adjusted their methodology to include two court appearances instead of one.

“What we found was a very small difference,” Block says. Just 39% of tenants had representation at their first two court appearances – still far lower than before the pandemic.

An untenable pace

There are a number of causes to lower rates of representation – but most agree that an attrition of housing attorneys working on Right To Counsel cases is among the biggest issues. Blankley says the wave of departures can partially be attributed to the “great resignation” that occurred during the pandemic.

It does not help that nonprofit attorneys hired by the city to represent tenants make far less than they would in other forms of law and less than attorneys who work directly for the city. According to HellGate, the city also failed to provide phased-in raises promised in 2019.

Blankley says that RTC coalition members have been working with law schools across the city and state to set up housing legal clinics in an effort to recruit more people as nonprofit tenant attorneys.

But she says a big reason it has been difficult to retain attorneys is the pace of cases, which sped up this year after the state’s eviction moratorium expired in January and after in-person cases resumed.

The total number of eviction filings in 2022 are still lower than in 2019. But those cases are being processed slightly faster, particularly between May and August, according to court data which the Housing Data Coalition analyzed for Next City.

The data show that between May and August of this year, the time between a first appearance – at which point tenants are typically vetted and paired with attorneys – and a second appearance increased slightly compared to pre-pandemic. During those months in 2022, the median time between a first and second appearance was 35 days, compared to 41 days during the same period in 2019. (These figures have been corrected based on additional data analysis from the coalition.)

Rather than slow down the pace of cases to allow tenants to be paired with attorneys, judges appear to either be scheduling them at the same pace or even faster than they did before the pandemic.

Reached for comment, Lucian Chalfen, a spokesperson for the city’s court system did not dispute that cases were being scheduled more frequently, instead pointing to the court’s efforts to accommodate free housing attorneys in the past. “For years, the Housing Court has adjusted its calendars and devised a number of programs to increase access to free legal services providers,” Chalfen said. According to Chalfen, since March, 48% of eligible litigants have had “access to free legal services” through Right To Counsel.

But according to tenant attorneys, the legal services that are accessed are frequently advisory, as attorneys have been too overwhelmed to represent many tenants directly. As many as 10,000 legal service providers turned down requests for representation from March to October, Chalfen told Gothamist.

Advocates have been arguing for months that cases should be slowed. In March, Bronx and Manhattan Borough Presidents Vanessa Gibson and Mark Levine wrote a letter to New York State’s acting chief judge requesting a slowdown, a call they renewed in October. Protestors also called on Acting Chief Judge Anthony Cannataro to halt eviction cases earlier this month.

While the city can provide incentives that can increase staff in the long-term, training and onboarding attorneys will take time. This means that ensuring that tenants have attorneys is up to New York City’s court system.

Until judges slow down cases, the city that originated Right To Counsel is only providing it in theory.

“I don’t know of anywhere in the country that has Right To Counsel that is not upholding it,” Blankley says.