In a crowded room off of Philadelphia’s Landlord-Tenant Court, a branch of Municipal Court tucked inconspicuously into the sixth floor of an office tower on Chestnut Street, Monica Green was waiting. She wasn’t sure for whom or what. All Green — a middle-aged African-American woman from West Philly who didn’t want to give her real name — knew was that she didn’t want to be evicted.
Green had fallen behind on her rent after a fire temporarily shuttered her workplace. But by Monday, she said, she was paid up through February. All she owed was $625 for March. “I thought you had to be behind a certain amount before they take you to court,” she said. “I’m just one month behind. I’m trying to catch up.”
But Green had brought nothing with her: No receipts, no copy of her lease — and no lawyer to argue her side of the case. So, when an attorney summoned her into negotiations, she didn’t have much leverage. The lawyer offered her a settlement: Pay $1,551, including $450 in lawyer’s fees, and remit the next two months’ rent early — and, if any payment is even a day late, accept eviction. Green signed.
If Green had stopped by the Philadelphia Landlord/Tenant Legal Help Center — a pilot program administered that just wrapped up its first year of operations — the center’s lone staffer, lawyer Michele Cohen, might have advised a different course. For one thing, her landlord’s Housing Inspection License, legally required to collect rent, was expired. As such, Green owed no rent at all.
This situation — an unrepresented tenant going up against a lawyered-up landlord and walking away with a raw deal — is typical. That’s why the Philly Bar Association and legal service providers set up the Help Center, administered by the SeniorLAW Center and housed in the court’s offices. The program has already helped more than a thousand families. But Cohen says it’s only a “stop-gap” measure, a “first step on a long road to getting full representation.”
Fifty years ago this week, the Supreme Court decision Gideon v. Wainwright affirmed poor criminal defendants’ right to legal counsel. Now, lawyers like Cohen are working on behalf of a so-called Civil Gideon movement, based on the notion that people should have the right to representation in the most important civil cases, too. Pilot efforts like the Help Center, among the first of its kind in the nation, are springing up alongside traditional legal-aid organizations to fill in some gaps. But turning those into fully funded, sustainable programs remains an extraordinary challenge.
“Most Americans think there is a right to counsel on the civil, noncriminal side,” says Catherine Carr, executive director of Community Legal Services (CLS). But they would be wrong. “There’s really been a push to make this a constitutional or a statutory right to counsel, not for every case, but in the most important cases: losing your shelter, your income, your basic safety, your kids.”
With 30,000 eviction cases coming through each year, Philadelphia’s Landlord-Tenant Court has become an extreme example of the impact representation can have. CLS and others estimate that 97 percent of tenants go unrepresented, while the majority of landlords have lawyers.
“There’s a clear imbalance of power,” says Karen Buck, executive director of the SeniorLAW Center. With the Help Center, “We’re trying to go to the source, because we recognize that the courts have an obligation to address the imbalance.”
The court works like this: Dozens of cases are scheduled at once (and those tenants who are even a few minutes late can lose by default, finding themselves evicted and owing hundreds or thousands of dollars in rent and legal fees). Those who show up are sent into the back room, typically to meet with their landlord’s lawyer and negotiate a settlement, like Green did. Out of 100 or more cases in a day, only a few may make it before a judge.
It’s in that back room, where most cases not won by default are resolved by agreement, that the balance of power really shifts.
“People come to court and they agree to pay a lot — even more than they owe. I have tenants that only owe $300, and they sign agreements for $2,000. They’re intimidated,” Cohen says. Often, the tenants will also agree to pay attorney’s fees as high as $750, whether or not the fees are reasonable — or even allowed under the lease. “Tenants come to me and say, ‘The judge said I had to sign an agreement,’ and it ended up being the landlord’s attorney they were speaking with.”
But by then it’s too late: Judgments by agreement, fair or not, can’t be appealed.
Cohen, with help from Penn and Drexel law students and volunteer lawyers, tries to counteract that by giving advice and helping clients — many of whom have disabilities or mental-health issues — organize their cases. “I’ll sometimes type out the recommended arguments, staple the receipts together and say, ‘Just hand this to the judge.’” Cohen says that makes a material difference for about half the families she serves. “The other half really needs an attorney in court with them.”
Buck says that’s the goal, but a year into Help Center operations, “the demand is overwhelming all of us, and we’re out there looking for resources.” No funding has yet been identified to continue the work — and there’s more to do. “What we’d really like is to be able to provide an attorney to every low-income tenant who needs us.”
But now, even sustaining the legal-aid services currently offered by Philly agencies is uncertain. CLS cut its staff by 20 percent in 2011, and Carr fears more belt-tightening could follow. That’s because providers rely heavily on funding from a program called Interest on Lawyers’ Trust Accounts (IOLTA); when interest rates were slashed, that funding dried up. The sequester is expected to reduce funding further, though the exact impact is unclear. One thing is evident, though, at a time when more people have fallen into poverty: Many who need help won’t get it — and legal-service providers will have to pick and choose their clients.
That, Carr says, is why Civil Gideon is so important.
“In this non-mandatory, non-entitlement system, the public-interest lawyers will give priority to victims of domestic violence trying to maintain custody of their children [over cases not involving violence]. Those are the kinds of triage decisions we’re making. … Which clients do we put at the top of the list?”
In Philly’s Family Court, more than 90 percent of people are unrepresented, says Carr. The legal-aid system takes on very few custody cases: “There are too many of them, and too few of us.”
While CLS has done work on foreclosures — a hot-button issue for which there’s been increased funding lately — funding for tenant cases remains negligible.
All this is despite legal aid’s documented economic impact: A report by Pennsylvania IOLTA last year found each dollar in civil legal-aid spending resulted in $11 of income and savings for Pennsylvanians.
So, the question is: Could a case along the lines of Gideon go to the Supreme Court and change the game? Carr says it’s not likely. Litigation or legislative reform at the state level is more plausible. But, she says, “We’re not there in Pennsylvania right now.” It will take a lot more advocacy first. She says the fact that most people mistakenly believe that civil representation is guaranteed, though, shows a gut-level understanding of its importance among the American public.
Until then, the “civil-justice gap” remains. “It’s a real crisis in our country, because the law affects our lives in very profound ways,” Buck says. “The amount of justice you get should not be dependent on your income.”