All about Washington State's groundbreaking eviction right to counsel

UPDATE MARCH 2024: Appellate court reverses another eviction where right to counsel denied

 

In MOSM v. Deegan, a Washington State appellate court reversed and remanded an eviction order because the trial judge a) failed to send a tenant who had requested counsel to a RTC screening; and b) failed to continue the matter until she had counsel.  In the case, the tenant asked for a lawyer, but "The trial court did not determine whether she was indigent or appoint her a lawyer.  Instead, it proceeded with the hearing, failed to provide Deegan with an opportunity to present evidence or argument at the hearing, and entered a writ of restitution and judgment of unlawful detainer against her."  The appellate court noted that

 

Grays Harbor County Superior Court adopted a standing order providing that “at any show cause hearing or trial where a tenant defendant appears unrepresented, the Court will advise the tenant of their right to appointed counsel if indigent and inquire whether they wish to assert that right.” GRAYS HARBOR COUNTY SUPERIOR CT., Ord. 2021-5, at 2 (Aug. 24, 2021) (emphasis added). “If the tenant defendant requests appointment of counsel, the Court shall refer them to” services to screen the tenant for indigency. Id. (emphasis added). And “the Court will continue the initial hearing for not less than one week to permit the tenant defendant time to be screened for eligibility and, if eligible, secure appointment of and consult with their counsel.”

 

The appellate court also rejected the landlord's argument that the capacity issues experienced by legal aid meant the RTC law was not funded and therefore not active, noting that there had been over 100 other appointments in the county in two years. The appellate court then concluded:

 

Nothing in the statue or in the standing order authorized discretion on the part of the trial court: if a tenant appeared without an attorney and asked for one, the trial court had to continue the hearing and refer the tenant for screening.  The trial court did not need any proof of indigence at that stage. The predicate for referral for screening was whether the tenant appeared without a lawyer and asked for one. And even if the tenant had not asked about obtaining counsel, the trial court had a duty under the standing order to inform Deegan of the statutory right to counsel for indigent eviction defendants and inquire whether she wanted to be screened for indigency.

 

UPDATE: Legislature provides $3 million in additional RTC funding

 

The Seattle Times reports that in March 2024, the Washington State Legislature approved $3 million in additional funding for the statewide tenant RTC program.  According to the article, "The funding will allow the office to hire 10 more attorneys — reaching a total of 80 attorneys statewide — to handle cases across Washington, particularly in the corners of the state with the highest eviction numbers: the Seattle area, Clark County and Spokane County."

 

UPDATE: 2023 report looks at RTC results

 

A 2023 report on Washington State's eviction right to counsel found that:

• Among all case outcomes: 26.3% of cases were dismissed, 27.3% ended with a negotiated agreement for the tenant to move, and 15.2% ended with a negotiated agreement for the client to stay.
• Approximately one-fifth of clients received rental assistance and one-fifth received extra days to move.
• Of the 398 cases with recorded savings amounts, clients saved an average of $9,500.
• Only 15% of cases ended with a writ of restitution, which is an eviction judgment against the tenant requiring the tenant to leave a residence.

 

UPDATE: state adopts court rule requiring continuances of eviction cases

 

In October 2023, the Supreme Court of Washington adopted a court rule that creates uniform procedures for first appearances in eviction cases.  Critically, the rule not only requires the court to advise an eligible tenant of the right to counsel and refer the tenant for appointment of counsel but also to continue the case for a reasonable time for the tenant to obtain counsel.  This is a critical piece in ensuring that representation for tenants is effective by providing attorneys sufficient time to meet with tenants and prepare for representation.

 

UPDATE: court reverses eviction where tenant denied right to counsel

 

In Payton v. Nelson, the Washington Court of Appeals considered a scenario where an eligible tenant was denied an appointed attorney in their eviction case.  The trial court had held the right to counsel law specifies the right is "subject to the availability of amounts appropriated for this purpose" and that the court believed the funds were not yet available, so it denied that the right to counsel had been violated and then ordered the eviction of the pro se tenant. 

 

The Court of Appeals noted that the right to counsel law, which specifies that the court appoint counsel for eligible tenants, had been made effective immediately upon enactment and that funding had been appropriated; the delay in attorneys being available was actually due to necessary contracts not yet being signed between the state and the legal services provider.  The Court of Appeals also noted that the State Office of Civil Legal Aid took the position that evictions are not permitted to proceed until the tenant is provided an attorney.  The Court of Appeals conceded, "It was unusual, to be sure, to mandate court-appointed counsel in cases that landlords could bringbefore procedures were in place to make the appointment. But the legislature characterized the problem being addressed as a public health emergency."  It then concluded:

 

Given the context and all the legislature had to say in related provisions, it is unsurprising that unlawful detainer proceedings that had already been delayed would be delayed somewhat longer if OCLA did not have contracts in place in a given county.  Critically, given plain language that the right to counsel and duty to appoint counsel existed immediately, the only reasonable reading of RCW 59.18.640(1)is that if indigent tenants did not have appointed counsel, an eviction proceeding would have to be delayed.

 

UPDATE: first annual RTC report released

 

The Office of Civil Legal Aid released the first annual report to the Washington State Legislature documenting implementation of the State's right to counsel for indigent tenants in eviction cases. Here are some highlighted findings:

 

• "Since commencing operations in October 2021, RTC attorneys have been appointed for all tenants screened and found eligible for appointed counsel in every case in every judicial district in the state." (An important caveat made in the report is that not every tenant is yet aware of the right to counsel).

• Court-appointed attorneys represented close to 3000 tenants between January 1 and May 30, 2022.

• Tenants remained in their homes in more than 50% of closed cases where the result is known. In the other cases where a different outcome is known tenant attorneys have helped expand tenant time to move, obtained orders of dissmissal and limited dissemination, provided relief from future back-due rent claims, and helped achieve "other outcomes that significantly benefit the tenant and reduce the long-term negative impact on their ability to find rental housing."

• Court processes are  changing, as "...courts are routinely informing tenants of their rights to appointed counsel, providing them time to be screened for eligibility, appointing attorneys for indigent tenants, and respecting the new and enhanced role of tenant defendants’ court-appointed attorneys."

 

UPDATE: statewide right to counsel goes live!

 

The Seattle Times and KGW News recently reported on the rollout of the Washington State eviction right to counsel program.

 

UPDATE: statewide implementation plans released

 

Washington State’s Office of Civil Legal Aid has publicly released the implementation plan for the newly-enacted statewide right to counsel for tenants facing eviction.  Other reports related to implementation can be found on the OCLA website.

 

Background

 

In April 2021, Washington State Governor Jay Inslee signed SB 5160, which makes the state the first to guarantee counsel for indigent tenants in eviction cases.  It specifies that "Subject to the availability of amounts appropriated for this specific purpose, the court must appoint an attorney for an indigent tenant in an unlawful detainer proceeding under this chapter and chapters 59.12 and 59.20 RCW."   The bill has a flexible definition of "indigent" and routes the funds through the Office of Civil Legal Aid.

The passage of the bill was covered by the Seattle Times, Oregon Public Broadcasting, The Olympian, Business Insider, and ABA Journal.