Housing Defense as the New Gideon

Abstract

New York City has become the first jurisdiction in the United States to create a right to appointed counsel for poor people facing eviction. This Article draws on NYC’s housing defense statute to highlight three ways in which the creation of a civil right to counsel has the potential to build on and expand beyond the Gideon v. Wainwright model. The right to appointment of criminal defense counsel, as recognized in Gideon, was part of the Supreme Court’s indirect response to the Civil Rights Movement. In contrast, the NYC legislature openly promotes substantive outcomes, explicitly targeting eviction and its secondary effects. Additionally, the legislature’s focus on housing recognizes concerns that disproportionately impact Black women; this echoes the racial equality goal underlying Gideon and promotes gender equality. Finally, while the criminal defense model defends individuals against only state power, NYC’s right to housing defense counsel includes tenants of private landlords and thereby checks private power. All three of these features are worth attention from legislatures considering expansion of the right to civil counsel. The Article also identifies one important way in which the new model of appointment of housing counsel is like the criminal model for appointment: NYC’s legislation addresses appointment of defense lawyers, as opposed to lawyers for plaintiffs, potential plaintiffs, or people engaged in non-litigation matters. This Article argues that the focus on defense lawyering limits the impact of appointment of counsel. Defense lawyering suffers from systemic limitations that influence litigation strategy and the potential to collaborate with social movements. With respect to the substantive goal of housing preservation, problems like discrimination, harassment, and dangerous conditions also pose significant threats and could be more robustly addressed through affirmative suits. In spite of recognizing the limits of defense lawyering, this Article concludes that the availability of counterclaims in civil litigation makes civil defense more flexible than criminal defense. As a result, civil defense might be able to do more than criminal defense to challenge the status quo and advance substantive improvements for poor litigants.