Should Low-Income Tenants Receive Low-Cost Defense?

Going off of last week’s post concerning low-income tenant exploitation, a question that naturally arises is should a tenant who fall below a certain income threshold be entitled to low-cost or free legal representation? The first objection, of course, is who is going to pay for it? While some attorneys are willing to volunteer their time, either directly or through a legal aid society, such measures are few and far between. Moreover, landlords—and their attorneys—have a crucial advantage right off the bat, namely aggregation.

One attorney, on a given hearing day, can run a bulk of cases before the court, collecting $75-150 in attorney fees per case. While a single case may not be terribly lucrative, bulk matters can return a handsome and easy payday, regardless of the merits of the cases. Most low-income tenants lack higher education, legal sophistication, and may not even be native English speakers. They may be told they have to appear in court on a given day without understanding their rights or even if the claims against them are valid. If they don’t default, more often than not they enter into consent judgments with their landlord’s attorney without having any opportunity to scrutinize the case against them.

What if these tenants could aggregate their cases under one attorney for a dispersed rate? A single defense attorney could take on 10-15 cases, charge say $30/case, and be able to cover their rate. The time commitment would be an hour or two, and even if they earn slightly less than what they might representing a higher-earning client, the amount generated would not be inconsequential. For this very modest fee, the attorney could quickly review a client’s case, give practical advice on what they might want to do in response, and likely negotiate a deal for the low-income tenant or get a meritless claim tossed altogether.

There are challenges to this scenario, of course. First, tenants facing civil action rarely know in advance who else will be in the court room with them; there is no time to plan in advance. Second, the ethics rules tend to frown upon attorneys lingering around court looking to pick up clients; an enterprising attorney wishing to do something for the public interest may find themselves sanctioned for soliciting clients. And last, even if tenant-defendants identified each other in advance, how would they find bulk representation in a timely fashion?

Arguably, the district courts to have an attorney or series of attorneys on call to be available on hearing dates so that low-income tenants facing action could decide whether or not to pay the modest fee for representation. No, not every tenant-defendant will be freed from liability to their landlord, but the measure would curtail landlords (and their attorneys) from abusing the system for pecuniary gain. Of course, there are many attorneys who represent landlords of low-income housing who would balk at this suggestion, knowing as they do that it will limit their collection options.