How Can Lawyers Help Address Poverty and Eviction? A Conversation with Law Professor Raymond Brescia

In this New Thinking podcast, Raymond H. Brescia, associate professor of Law at Albany Law School, speaks with Aubrey Fox and Robert V. Wolf of the Center for Court Innovation about the role lawyers can play in addressing poverty and eviction, why New York City has been dramatically expanding funding to provide lawyers to respondents in Housing Court, debt collection cases as the next great issue for public interest attorneys, and how a good lawyer is like a patronus from a Harry Potter book.  ROB WOLF: Hi. I’m Rob Wolf, Director of Communications at the Center for Court Innovation. Joining me today is Aubrey Fox, who was my colleague here at the Center for Court Innovation for about 15 years, where he helped set up a number of innovative programs that we run, including Bronx Community Solutions, and he is now helping out in various capacities as a consultant. Today, he and I are going to do a podcast together. Aubrey, let’s tell listeners who we’re speaking with today. AUBREY FOX: We’re interviewing Ray Brescia, who is a Associate Law Professor at the Albany Law School. WOLF: Why are we speaking with him? FOX: Rob, as you know, the Center for Court Innovation is known for our work on criminal court programs and we operate criminal courts and partnership with the New York State Court system all over the city, but people may know a little less is that we also have some new experiments in the civil justice space. WOLF: Specifically, civil refers obviously to noncriminal. That’s family, housing, that sort of thing? FOX: Exactly. Two of the programs that we’re running now, one is called Poverty Justice Solutions, in which we assign recent law school graduates to nonprofit civil justice firms around the city, and they work mostly on housing court cases. We also have new program called Legal Hands, where we employ volunteers and train and equip them to give advice to people who are facing issues, in hopes that it can help them keep out of court in the first place. WOLF: I know Poverty Justice Solutions is focused particularly on working with people who face evictions. FOX: Yeah, I mean a lot of the nonprofit civil justice law firms in the city focus on eviction and housing court cases, and there’s an immediately obvious reason why. A lot of New Yorkers face issues with their housing, and we know now that there are some very direct links between housing and poverty. People who struggle to pay their rent, if they get evicted, there are all sorts of negative consequences that accrue from that. The city is paying a lot more attention to try and intervene, and at the very least provide legal representation to people who are facing eviction in housing court. WOLF: It’s both a more humane approach, trying to prevent people from losing their homes, but there’s a practical aspect too, that it’s going to cost the city, and impact the quality of life for both the tenants and people who live in the city if they don’t prevent these evictions. FOX: Yeah, I mean there’s one estimate just produced by the city council that you could save about $300 million dollars, the city that is could save about $300 million a year if it kept around 5,000 families out of shelters. It costs about $43,000 per family per year to put someone in a shelter. Obviously, if there is an appropriate way to keep them in the housing that they currently have, and thus keep them from going into a homeless shelter, then it would seem that everyone would be better off. WOLF: I guess the rationale is that without representation, they may be losing their homes, their tenancy unfairly, because they don’t have the right advocate. Legally, if someone was articulating their position and their rights, they hopefully would be able to stay in their home. FOX: Yeah, I mean the housing eviction cases are often very complicated, and sometimes the existing rules and laws aren’t applied because in this case, the defendant who’s facing eviction doesn’t know their rights, doesn’t have legal representation. It’s an issue that the city is really directly focused on, and as you say, not just because losing a house, your home is a huge personal crisis, but because the consequences of losing your home end up being faced by the city quite often. WOLF: Well so let’s get Professor Brescia on the phone. Just so people understand, I’m actually in our office in Manhattan, you are in your special studio in New Jersey, also known as your home. Now we’re going to be joined by Professor Brescia, who we’re calling in his office. FOX: In Albany. WOLF: In Albany, there you go. FOX: Yes, all right. WOLF: Okay, let’s get him on the line. Ray Brescia, welcome to the podcast. PROFESSOR RAY BRESCIA: Thank you very much, thanks for having me. FOX: Ray, where we wanted to start was just to get you to tell us a little bit about how you got involved in public interest law. BRESCIA: Well, it goes back to being a young person and being very concerned about politics and the world, and being very excited about things that were happening around me. I was a child of the 70’s, and so there was a lot of politics that went on in the 70’s. Some of my earliest memories were of the end of the Vietnam War, and then Nixon’s resignation. I just have always been interested, I think it comes from a family that’s very interested in political issues, and over the years as I was growing up, I realized that a lot of people about whom I was reading in the newspaper were lawyers and involved in the issues that I was interested in. That really sparked my interest in becoming a lawyer. WOLF: You’ve been deeply involved now in the civil side of the law and civil justice, so you’ve observed recently how there’s been growing interest in civil justice. In fact, the city created recently an office of civil justice, and now there’s talk of what’s being referred to as “civil Gideon”, and Aubrey and I were curious, you know if you could maybe explain what civil Gideon means. Obviously Gideon refers to the 1963 Supreme Court decision that gives people right to counsel in criminal cases. What does that mean on the civil side? BRESCIA: On the civil side, it would mean the same thing in civil cases as you see in many criminal cases, not all criminal cases. Lower level offenses, you don’t have a right to counsel, but on the civil side, just like on the criminal side, when people talk about civil Gideon, they mean a right to counsel in cases where fundamental human rights are at stake, shelter, loss of benefits, things like that. If you look at sort of what the consequences are of not having counsel in a criminal case and in a civil case, in many of the more impactful civil cases, the outcome can be the same. Someone could be institutionalized, someone could be incarcerated, someone could be, you know their freedom could be restricted if they become homeless, if they have to move into a shelter. If the consequences are similar in certain civil cases as they are in some criminal cases, then the importance of counsel is similar as well. I think a lot of people don’t understand, they think that there’s legal aid, and so people have a right to counsel in an eviction case, but they just don’t. The number of people in a place like housing court in New York, which evicts 25,000 families a year, low-income tenants who can’t afford an attorney, most of them do not have access to counsel, even though we do have phenomenal legal aid programs that can provide services to low-income people and to help them prevent eviction. Short of the funding that recently came down from the city of New York, when I was practicing in housing court in New York City, a very small fraction of low-income tenants had counsel. That meant that they faced eviction without a lawyer, and eviction cases can be very complicated. I think what the de Blasio administration is doing and what city council is proposing is really going to expand access to justice in housing court, and hopefully in other settings as well, at least in New York City, to ensure that in really important cases on the civil side, like in the criminal side, people have access to a free lawyer. WOLF: Let me just throw out some numbers too related to what you said. The office of civil justice said that in 2013, only 1% of tenants in New York City housing court were represented by attorneys, but they project that with their investment of, I think $100 million, the city’s investment in fiscal year 2017, 27% will be represented, one in four basically, of tenants will be represented. That would represent a dramatic shift, and would you anticipate that that would then dramatically change outcomes, you know fewer people would in fact be evicted and have to move into shelters and that sort of thing? BRESCIA: Certainly. It’s going to do two primary things: One, it’s going to ensure that many thousands of tenants have a fighting shot in housing court. Once you do, if you have a fighting chance, most of the time a lawyer can make a huge difference in raising important defenses, negotiating viable solutions that don’t require the tenant losing his or her home, dismissing cases because the landlord’s case is weak. ...