Young Lawyers Renovate Housing Court
There is a youth movement in New York City Housing Court.
Thanks to Right to Counsel, a piece of legislation signed last year that guarantees all low-income New Yorkers an attorney in eviction cases, the number of households receiving publicly-funded legal services is expected to quintuple by 2022.
To help meet the demand, legal service organizations such as Legal Aid and Legal Services NYC are scrambling, hiring droves of new lawyers, many of them fresh off passing the bar exam. As these young lawyers pour into the city housing courts, there has been a bit of a culture clash as they face off with the community of veterans who have handled housing cases for years. The new lawyers have brought new perspectives. They are filing motions and subpoenas at an unprecedented rate. They’re also catching old abuses never exposed and reshaping the legal landscape in the process.
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“I’m dealing with motions, substantive motions, that would never have been made before,” Judge Timmie Elsner said. She’s seen a difference, for example, in cases where landlords have been overcharging rent. “Now that [tenants] are represented, somebody actually takes a look at a rent history and says, ‘You know, maybe this isn’t what you have to pay,’ ” she said.
Elsner has a courtside seat to this transition. Eviction cases from 10025, 10026 and 10027, three Manhattan zip-codes currently eligible for public legal counsel, generally start in her courtroom on the 11th floor of the New York Civil Court building at 111 Centre Street. Legal service providers receive new clients in an unused courtroom right next door.
There’s less formality in housing court than in criminal court. The wood furniture isn’t as dark and expensive-looking. There’s a drop-down ceiling. Elsner sits at a judge’s bench (actually more of a stand), but right up against that platform is a single desk with enough room for the landlord, tenant and their attorneys to sit together.
This intimacy extends into the hallway. On long wooden benches, with views of the monolithic criminal court across the street, lawyers, tenants and sometimes landlords wait for their cases to be called. Opposing parties often informally hash out deals while waiting in the hallway.
Both veteran and rookie lawyers say the wheels of New York City Housing Court really turn in these passages.
“Everything happens in the hallways,” said Elizabeth White, who began work in the Bronx for the nonprofit legal services provider Mobilization for Justice last August after graduating law school earlier that year. “There’s no privacy involved in this case whatsoever. It’s everyone yelling at each other and kind of saddling up to the opposing counsel and negotiating in the hallway with your client and then a bazillion other people around you.”
In housing court, a lawyer’s ability to work with their opponent and the presiding judge can make the difference between a quick, fair settlement or a punt to trial.
So, when droves of new lawyers enter the picture, it changes the dynamics.
“Coming into a community that is a small legal community, that seems like a pretty closed legal community, is not easy,” Elsner said. “We have a group of practitioners that have just been here forever.”
By simply being present in the courthouse, legal service attorneys are already upending an entrenched power balance.
“Many of these folks have been doing this for a very long time and have not been seriously challenged in a legal sort of way,” said Andrew Darcy, 33, a supervising attorney for Mobilization for Justice who graduated law school in 2010. Darcy handles Right to Counsel cases in the Bronx. He oversees White and several other staff attorneys.
Though Right to Counsel went into effect in 2017, the city began increasing funding for legal services for housing court cases in 2014. Organizations like Mobilization for Justice began increasing staffing at that time, but the pace has accelerated since the legislation’s launch last year. Darcy estimated that Mobilization for Justice now employs 12 to 13 staff attorneys in its Bronx office, up from the six to seven on staff in 2015.
The increased staffing helps account for the rise in pre-trial motions filed in New York City Housing Court, which rose 19.1 percent from 2014 to 2016, according to the Office of Civil Justice’s 2017 annual report. The Office of Civil Justice is the arm of the Human Resources administration that administers the Right to Counsel rollout. In the Bronx alone, pre-trial motion numbers have risen 42.6 percent.
White estimated that a straightforward, non-payment case usually has about two to three court dates. When a case features more motions, that number can start to climb. More court dates means more time on the clock, something landlord attorneys like to avoid.
“They don’t know when they should settle a case,” said Christopher Halligan, a landlord attorney at Adam Leitman Bailey, referring to the new lawyers representing tenants. Halligan said he has worked in New York housing court since 1994.
Impatience with the newcomers can lead to friction between lawyers who need to repeatedly work together.
“I don’t want to place everybody in the same bucket, but there are certain landlord attorneys who almost want to haze a little bit,” Darcy said.
According to Darcy, the hazing ranges from heated arguments in the hallways to veteran landlord lawyers ignoring newer attorneys efforts to discuss a case. Occasionally, when a more unique legal tactic or argument is used, the landlord lawyer will act perplexed and tell the lawyer representing the tenant that they are wrong.
“Either A, they’re putting on an act to, again, sort of haze or make someone feel foolish for making an argument, or B, they truly haven’t seen it before, and maybe don’t fully understand the law,” said Darcy.
While some landlord lawyers bristle at the influx of newcomers, such sentiment isn’t universal.
“For the most part, the motions that they make … are very helpful for standing up for their clients’ interests,” said Massimo D’Angelo, 36, another attorney for Adam Leitman Bailey who has practiced in New York City Housing Court since 2008. “It does involve more motion practice,” he later added. “But I want to see justice done at the end of the day.”
With more tenant lawyers entering the field, legal service providers have been able to more finely comb through New York City’s complex regulatory structure.
“Housing law, there are so many cases, the law is truly fluid, right?” Darcy said. “You have laws being passed, you have decisions coming down expounding upon the law, changing the law. And so it’s our job to keep up with it. To know it inside and out, and if we see problems, to call them out.”
Darcy is trying to reshape how the New York City housing court handles non-payment cases when a tenant is enrolled in the city’s Living in Communities Rental Assistance Program. The program, which was established in September, 2014, helps cover rent for families moving out of shelters. With Living in Communities, the tenant is only responsible for paying the portion of their rent not covered by the program. The city’s Human Resources Administration or Department of Homeless Services pays the rest directly to the landlord without any involvement from the tenant.
Darcy and his staff attorneys are currently handling a case where a landlord stopped receiving checks from the Human Resources Administration. The landlord then sued the occupants, alleging they had not paid the full rent, despite their having regularly paid the portion not covered by the Living in Communities program. Darcy has moved to dismiss the case, asserting that the tenants cannot be responsible for rent beyond what was initially outlined in their lease.
Part of the reason this type of dispute exists, said Nora Machuga, another recent graduate Mobilization for Justice lawyer, is that no clear caselaw has been established to help clarify the dense rules underpinning public housing assistance programs. Such caselaw develops when disputes go to trial, and a judge hands down a decision determining, for instance, whether a tenant is responsible when a city agency fails to pay its share of the rent. Since most disputes in housing court are settled without going to trial and with no formal decision issued, discrepancies can persist, sometimes for decades. All the while, tenants are hauled into housing court for violations of the same unclear regulations.
The Living in Communities program may be relatively new, but White said she has seen similar cases related to the much older and established Section 8 voucher program, which was established in 1978.
If Darcy succeeds in getting the Living in Communities case dismissed, it will become just another docket file on the pile. But with more tenants now represented by lawyers, a similar dispute stands a greater chance of going to trial. If that happens, a judge would hand down a decision that could clarify the law and lead to less frivolous suits, according to Machuga.
That’s the hope of lawyers like Darcy and White who see even small shifts in the housing court system as important victories for tenants.
“I hope that we are changing the culture of the court, because I certainly have seen tenants be treated very poorly by, kind of, everyone, but especially by the landlord attorneys,” White said. “And so I hope that even if we’re not changing the system, that we are changing the way that people interact with each other – that tenants are receiving more respect when they come to court.”