concurring in the judgment only:
I.
I concur in the judgment essentially for the reasons set forth in Part V of Judge Kern’s plurality opinion. The trial court did not abuse its discretion in declining to vacate the judgment of possession for the landlord. The tenant-appellant — who had counsel — had never opposed a protective order in the amount of existing rental payments, had failed to make payments for November, December, and January, took no timely step to request permission for late payment or to seek modification of the protective order, and thus made no timely effort to relate her defaults to her eventually proffered excuse for nonpayment: an injury from falling down the apartment stairs in November or December.
Under the circumstances, moreover, the judgment does not appear harsh, for under the doctrine of Trans-Lux Radio City Corp. v. Service Parking Corp., D.C.Mun.App., 54 A.2d 144 (1947), appellant — despite the court’s order here — still could effect a stay of eviction by tendering to the landlord “all accrued rent to date of tender, interest on all accruals from date of accrual to date of tender, and all costs.” Id. at 148. At the last hearing in this case, appellant did *832tender all the accrued rent. Trans-Lux, of course, would have required an additional payment of interest and costs, and appellant would have had to remit all payments to the landlord, not to the court registry. But these additional requirements are not inequitable, in view of appellant’s inaction during the first few months of the tenancy.1
II.
I do not concur in the plurality opinion primarily because it does not articulate procedures for the trial court that clearly and equitably balance landlord and tenant interests. Most critical is the failure to note that, at the time the level of payments into the registry is set, the tenant is entitled to “an adequate opportunity to be heard,” McNeal v. Habib, D.C.App., 346 A.2d 508, 514 (1975), coupled with a corresponding finding, as to whether there is evidence of code violations sufficient to warrant payments of less than the full monthly rental. As stated in Bell v. Tsintolas Realty Co., 139 U.S.App.D.C. 101, 111, 430 F.2d 474, 484 (1970):
[I]n the ordinary course of events, if prepayment of rent is required, the tenant will be called upon to pay into the court registry each month the amount which he originally contracted to pay as rent. However, there are circumstances likely to arise which, in our judgment, require that the trial court consider imposition of a lesser amount. Certainly a lesser amount would be desirable when the tenant makes a very strong showing that the condition of the dwelling is in violation of Housing Regulation norms.
If the trial court did not afford a tenant the opportunity to make such a showing at the time the court set the payment level, the court may have imposed an excessive security requirement. Realistically, moreover, a fair opportunity to make such a showing may depend on whether the tenant had counsel available to assist. Accordingly, at the hearing on the landlord’s motion for judgment of possession, the trial court’s evaluation of the tenant’s default on payments into the registry should include a careful consideration of the equities — and possible inequities — in the initial establishment of the landlord’s security.
In response to this concern, my colleagues simply assert it is irrelevant for the following reason:
[A]t the time the court originally determines what the tenant should pay into the registry, pendente lite, the tenant had ample opportunity to make full presentation on the condition of the premises and other equities in his favor. In addition, at all times, subsequent to the court’s entry of the protective order, the tenant has ample opportunity to seek modification of that original order so far as minor changes in the scheduling of payments are concerned on the ground of temporarily changed circumstances, such as a personal emergency affecting his earnings. [Ante at 826 (footnote omitted).]
This generalization of an “ample opportunity to make full presentation” at the outset *833or “to seek modification” thereafter is too casually made. The majority altogether ignores the fact that, according to studies conducted under the auspices of the Superi- or Court Executive Officer for 1979, 1980, and 1981,2 “in the Landlord and Tenant Branch of Superior Court, 99% of the actions have at least one party who is not represented by counsel — almost always the tenant.” Davis v. Bruner, D.C.App., 441 A.2d 992, 999 n. 4 (Perren, J., dissenting) (citation omitted), vacated and reheard en banc, decision pending, 441 A.2d 1000 (1982). Undoubtedly, the percentage of pro se tenants will be lower once these statistics are adjusted for defaults, dismissals, failure to serve process, and settlements, leaving the category we are concerned about: contested cases set for trial. But given the fact that substantial numbers of tenants cannot afford to pay for counsel,3 and that federally subsidized civil legal services for the poor, including law school programs, are being severely cut back,4 there can be no question that many tenants whose cases are continued for trial become subject to protective orders without the help of a lawyer.
It is therefore questionable, at best, to assume that all tenants have an “ample opportunity” to litigate the equities of a protective order at the time it is set, let alone thereafter. In order for a tenant to make “a very strong showing” in busy landlord-tenant court “that the condition of the dwelling is in violation of Housing Regulation norms,” Bell, supra at 111, 430 F.2d at 484, a lawyer’s help is ordinarily required. Thus, it is even more questionable, and may be grossly unfair, to permit the ultimate sanction — striking a tenant’s pleadings for default on payments under a protective order — without requiring the court first to review the equities of that order.
Because appellant, unlike many tenants, did have counsel throughout these proceedings and thus had an opportunity, at the outset and thereafter, to challenge the level of payments into the registry, my concerns about the plurality opinion are not strictly relevant to the outcome of this case. But my colleagues have decided to “set forth certain considerations which [they] deem appropriate for the trial court to weigh,” ante at 822, in all situations where “the tenant has failed to abide by the terms of the court’s order that the monthly rental be paid into the court’s registry pending determination of the landlord’s right to possession.” Id. I agree that such guidelines are desirable, but I also believe it is important, in providing guidelines, not to omit a significant equity clearly established in prior law. My colleagues have generalized from the facts of this case — including the availability of counsel — to provide guidelines with a material omission likely to foster unconscionable results in other cases.
In sum, it is important to stress the following rule of thumb: Before granting judgment of possession to a landlord for a tenant’s default on payments into the court registry under a protective order, the trial court must review the equities of the protective order itself as applied to the period of default. The less attention the trial court paid to the condition of the premises in initially setting or subsequently reviewing the level of payments into the registry, the more likely it is that the equities eventually will cut against a landlord who seeks possession, rather than a lesser remedy, *834when the tenant defaults on those payments.5
. For the sake of complete analysis it is important to note that, given the plurality view (in which I join) that a damage remedy for code violations is not foreclosed by a trial court judgment granting possession to the landlord, ante at 829, it follows that a damage remedy for code violations would not be foreclosed by a tender under Trans-Lux.
Another aspect of the damage remedy is important. In preserving a tenant’s counterclaim attributable to housing code violations during the period of default, the plurality opinion states, ante at 830:
We leave to the discretion of the trial court the determination of how to treat in its docketing process any complaint which might be filed by appellant in the future seeking recovery of some portion of rent paid. Whether this kind of complaint should be accorded priority on the Civil Division calendar and treated as if filed on the date of the counterclaim in the suit for possession brought by landlord in the Landlord and Tenant Branch, see Management Partnership, Inc. v. Garris, 109 D.W.L.R. 789, 795 (No. 97570-79, March 17, 1981), is a matter we deem best determined by the trial court.
I perceive no basis for assigning a later priority to such a claim that the one that would have been assigned in the absence of the default.
.Pro Se Report 1981, Prepared by Superior Court Division of Research, Evaluation and Special Projects 4, 6 (April 30, 1982); Report of the Standing Committee on Civil Legal Services of the Judicial Conference of the District of Columbia 11, App. E (May 21, 1981); Report of the Committee on Civil Legal Services of the Judicial Conference of the District of Columbia 37 (May 15, 1980).
. Report of the Committee on Civil Legal Services, supra at 2-15.
. Memorandum to Members of the District of Columbia Bar from the Standing Committee on Civil Legal Services, Judicial Conference of the District of Columbia, re Federal Cutbacks in Civil Legal Services to the Poor, January 14, 1982, at 1-3.
. The inequity of a particular protective order will be greater if that order is not appealable. The plurality opinion states that in Dameron v. Capitol House Associates, Ltd., D.C.App., 431 A.2d 580 (1981), “we held that a protective order was not appealable as a ‘final order’ nor was it an appealable interlocutory order .... ” Ante at 824 n. 2. Dameron appears to be inconsistent with Blanks v. Fowler, 147 U.S. App.D.C. 215, 455 F.2d. 1283 (1971), in which the United States Court of Appeals for the District of Columbia Circuit allowed an appeal of a protective order. Because the federal circuit court issued the Blanks decision on January 12, 1971, it is binding on this court. M.A.P. v. Ryan, D.C.App., 285 A.2d 310 (1971). Thus, I do not consider Dameron (or my colleagues’ dicta in this case) to be the final word on the appealability issue.