Washington May Soon Be First State to Guarantee Lawyers for Low-Income Tenants Facing Eviction

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Washington may soon become the first state in the country to ensure that low-income tenants have legal representation when faced with an eviction, an idea lawmakers see as a way to head off a feared wave of evictions once pandemic-era rental restrictions are lifted.

A bill likely to pass the state Legislature follows years of organizing by tenant advocates across the country who say guaranteeing lawyers for  tenants during evictions, also known as "right to counsel," keeps people in their homes at far higher rates than the current system. Yet a last-minute amendment added to the  bill would also lift the state's moratorium on evictions less than three months from now, raising alarm from advocates who say that's not enough time to ready the state for a potential "eviction cliff."

Washington's Senate Bill 5160, which has passed the state Senate and House and now goes back to the Senate for final approval, would provide attorneys to tenants who receive certain public assistance, have been involuntarily committed to a public mental health facility, can't afford a lawyer or who have incomes at 125% or below the federal poverty level — $16,100 annually for individuals, $33,125 for a household of four. The state's Office of Civil Legal Aid would have 90 days to draft a plan to implement the law within a year.

Jim Bamberger, director of the Office of Civil Legal Aid, projects that the office would need to hire 58 additional attorneys throughout the state to represent poor tenants and an additional force of contracted attorneys to handle the wave of cases expected to hit the courts when eviction moratoria are lifted. His office estimates $11.4 million in first-year costs.

"I think this (right to counsel provision) is a powerful statement on the part of the legislature in terms of balancing power in the justice system between tenants and landlords," Bamberger said. "And I think it will work, honestly, in favor of both."

Yet there's still significant uncertainty about whether there would be enough help for tenants by the time the statewide eviction moratorium lifts. An amendment added to the bill Thursday night would end the current eviction moratorium June 30, the same day it's scheduled to expire.

Gov. Jay Inslee has extended the moratorium multiple times as the pandemic has continued, and could, in theory, create a new moratorium even if the amendment becomes law. Bipartisan support for the amendment sent the bill back to the Senate, and it's unclear whether political leadership will support ending the moratorium for good. Bamberger said that it would be impossible to have all the lawyers needed for tenants by July 1.

While housing advocates are raising alarm about ending the moratorium in June, Lawmakers from both parties in the state legislature disagree on the impact of the timing, given other tenant protections included in the bill, such as repayment plan restrictions and a resolution program to work out disputes between landlords and tenants.

At the same time, if poor tenants  do not have access to the eviction resolution program or a lawyer, the amendment would temporarily require the state to provide rental assistance directly to their landlord.

"The argument that the day the moratorium ends people are going to be on the street is just false," said Rep. Andrew Barkis, R-Olympia. "It takes months to go through the eviction process. We believe there will be plenty of time for these things to get set up."

Meanwhile, Sen. Patty Kuderer, D-Bellevue, the original sponsor of the bill, said the June 30 deadline jeopardized the impact of right to counsel.

"It's not the right policy and it's just going to end up doing far more harm than good," Kuderer said.

More than 160,000 Washington households are estimated to be behind on rent as of late March, according to the U.S. Census Bureau's Household Pulse Survey, nearly 11% of households renting in the state. Nationally, 7.2 million renter households are estimated to be behind, with back rent projections totaling billions of dollars.

The pandemic has set off an unprecedented wave of enthusiasm for tenant protections across the country, according to John Pollock, coordinator for the lobbying organization National Coalition for a Civil Right to Counsel. Seven other state legislatures are now considering similar types of bills.

"What we're seeing right now is a game-changer," Pollock said.

Tenant organizers have long supported right to counsel as a way to correct a power imbalance between usually wealthier landlords with attorneys and renters who can't afford  or don't know how  to get lawyers in eviction proceedings. Between 2010 and 2017, just 11% of eviction defendants in Washington state had lawyers named in their cases, according to the University of California, Berkeley, and University of Washington Evictions Study, compared to 93.4% of plaintiffs.

Preliminary numbers from cities with a right to counsel suggest that the protection, if it arrives in time, could be a powerful deterrent to the mass evictions feared once federal and state moratoriums expire.

In New York City, which in 2017 became the first city to start rolling out the right to attorneys in evictions by Zip code, 86% of households represented by public attorneys were able to stay in their homes, according to the city's Office of Civil Justice.

In 2020, San Francisco officials said that 67% of people represented through the city's right to counsel law were able to stay housed, though more than a year into implementation, the program still fell short of demand for representation.

A 2021 assessment on the first six months of Cleveland's right to counsel law also found that 93% of cases with legal aid attorneys for tenants in housing court avoided evictions.

But teasing out a causal link between the law itself and fewer evictions is difficult to do when city programs are so new and data is limited.

Sophie House, New York University Furman Center legal fellow and co-author of a study published late last year that looked at the impact of New York City's right to counsel law, said the research wasn't able to conclude whether access to attorneys decreased the eviction rate without controlling for other possible factors like increases in tenant outreach, other legal services and rental assistance.

New York City evictions have been decreasing since 2013, and fell by nearly 17% between 2018 and 2019, according to city data.

"We saw a downward trend, and we hope in future research we'd be able to parse out lawyers' roles in that," House said.

Devika Balaram, staff attorney at New York legal services nonprofit Mobilization for Justice, was hired to represent tenants as part of the city's new right to counsel program right out of law school in 2019. She works in the Bronx, the borough with the highest rate of evictions each year, and  before the pandemic saw mostly cases for people who owed rent.

Balaram said she has found major successes just in buying her clients time through legal maneuverings. If a client has lost a job and faced eviction, a motion to dismiss a case based on a landlord's procedural error could give her client the two months needed to find work and catch up on rent. Balaram could also help clients get public assistance for debt in that period.

Time, Balaram said, is "the victory that can really matter in putting power back into the tenant's hands."

The bill's supporters say enacting right to counsel legislation would better outcomes for everyone, particularly communities that bear the disproportionate brunt of evictions.

The individuals and families most likely to be evicted are Black and Latino. The University of California, Berkeley, and University of Washington Evictions Study found in 2019 that in King County, Black adults are evicted more than 5 times more than white adults; in Pierce County, nearly 7 times more.

"There's a lot of impact between my county and Pierce County and the only way we're going to make this more equitable is to change the [law]," said Paula Sardinas, who represents South King County on the Washington Commission on African American Affairs and sits on the governor's eviction moratorium task force.

Otherwise, she said, "we're going to push a lot of mothers and children to becoming homeless."

A major part of the landlord lobby is also supporting the bill. Brett Waller, director of government affairs for the landlord group Washington Multi-Family Housing Association, has testified in favor of the legislation in the state House.

Rental assistance, Waller added, was key to preventing evictions. In February, Washington allocated an additional $355 million from federal funds for rental and utility assistance, and Kuderer's bill authorizes landlords to receive rental assistance funds.

Under the $1.9 trillion federal stimulus package signed by President Joe Biden last month, another estimated $404 million in rental assistance is headed to Washington state.

"Having that ability to have that access to counsel provides value to tenants and to landlords because it helps to resolve cases more quickly," Waller said, though he noted that representation could still be a challenge for smaller landlords who are cash-strapped due to lack of rent payments.

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