Lawyers can play many roles, often contributing to economic inequality. They can represent large corporations against their low-wage workers, receive large salaries representing Too Big to Fail Banks, and lobby for tax dodges for billionaires. But they can also work for greater economic equality and to prevent the harshest consequences of racial and gender discrimination. This is probably no more evident than in the housing context, where lawyers for non-profits help to prevent eviction and foreclosure, saving people from dislocation, preserving communities, and preventing homelessness and the downward spiral that comes when a family loses its home. Recent research shows not just the economic and human costs of eviction for lack of a lawyer who could mount a legal defense, but also the benefits of government funding for non-profits to provide such assistance free of charge.
One of the most important and noble roles lawyers can play is to defend their clients against eviction and foreclosure. The human cost of homelessness is profound, as individuals of all ages suffer mental trauma, place their physical health at risk, lose days at work and are sometimes left unemployed. Children miss days of school and are simply unable to learn when their worlds are turned upside down.
When a lawyer defends someone’s home in court, he or she can interpose important and complicated defenses that can prevent eviction or foreclosure, keeping the client off the streets or out of the homeless shelter. In his recent work, Evicted: Poverty and Profit in the American City, Harvard University’s Matthew Desmond traces the trajectory of eight families in Milwaukee as they struggle to survive in substandard housing and face displacement by landlords seeking to exploit their tenants’ lack of economic power and defenselessness. Lawyers can change that balance of power, but lawyers are not always available.
Unlike in most court cases where someone is charged with a serious criminal charge, individuals in cases in the civil courts of the U.S., when they may face the loss of their home or apartment, are seeking to discharge their debts in bankruptcy, or pursue restitution for unpaid wages, are not guaranteed a right to a lawyer if they cannot afford one. Roughly eighty percent of low-income Americans and fifty percent of middle-income Americans face these sorts of legal problems without an attorney.
Even though the federal government and many state governments offer some funding for legal services for individuals whose income does not exceed 125% of the federal poverty line, such funding is woefully inadequate and providers of free legal services typically turn away four eligible clients for every one they represent due to lack of funding. And what funding is available is always subject to the budget ax by politicians eager to please their wealthy supporters by undercutting lawyers for the poor who may work against the interests of the donor class. There are even fewer sources of public funding for the working poor and none for the middle class.
While this lack of funding has profound effects on low- and middle-income individuals and families, it also has a broader, societal effect, which should convince everyone that providing a free lawyer for those who cannot afford one makes fiscal sense. Indeed, if the human cost of evictions was not enough to urge public action to fund lawyers for the tenants and homeowners who cannot afford them, the public cost of homelessness and eviction makes apparent the need to ensure balance in the scales of justice, to guarantee everyone has his or her day in court, with a lawyer.
How to fill the “justice gap”: the yawning chasm between the need for lawyers and the availability of affordable lawyers or free lawyers for those who cannot afford them? There are many ways. Providing volunteer lawyers is one mechanism, where lawyers at private firms work on a pro bono basis. Low-cost options are now being explored, with lawyers working in an on demand fashion, in limited ways, to provide guidance and some level of representation, if not full representation in court. But there simply is no substitute for a lawyer, provided at government expense, who will help defend a low- or middle-income person’s home. Certainly this would be expensive, but, as it turns out, such funding would more than pay for itself.
A just-released study of the potential benefits of providing lawyers for tenants making up to 200% of poverty—so the poor and the working poor—shows that a roughly $200 million investment to provide a lawyer for every qualifying tenant facing eviction in New York City would save over half a billion dollars in money spent on shelter for the homeless and the other costs associated with evictions.
One of the added benefits of preserving tenants in their homes is that it helps to maintain affordable housing. In a city like New York, where rent regulations help keep the rents down in roughly half of the residential units in the city, eviction from a regulated unit usually means the landlord can raise the rent for that apartment to market rate, removing it from the protections of rent regulations forever. So, eviction of a rent regulated tenant typically means not just that the tenant is homeless but his or her apartment is now no longer regulated and another low- or moderate-income tenant cannot live there, making the already overheated housing market a little hotter. This phenomenon is particularly pernicious in communities facing gentrification as landlords are eager to file eviction cases on trumped up charges so they can get tenants protected by rent regulations out of their apartments and begin charging a higher, market-rate rent. These practices have contributed to economic inequality and the displacement of whole communities in New York City over the last twenty years, leading to the hollowing out of New York’s once traditional working class communities.
While it might seem counterintuitive and might dash the vision many hold of lawyers as playing a role in worsening economic inequality, lawyers for non-profits and those serving as volunteers can make a real difference in the lives of tenants and homeowners of modest means facing the loss of their home. The human costs of eviction are profound and there are quantifiable benefits to providing free legal services to prevent eviction and foreclosure. If the moral reasons are not enough to build the public will in a time of austerity and unwise fiscal restraint that chills economic opportunity, the bottom line arguments should compel an enlightened approach to funding lawyers that can prevent eviction, foreclosure, and homelessness. In turn, such efforts can help reduce economic inequality and improve the lives of those at risk of homelessness by helping them avoid the horrible consequences of housing insecurity.