Push for Right to Counsel in NY Civil Cases (MORE, CLICK HERE)

NY State Bar Promotes Right to Counsel in Civil Cases
The New York Law Journal by Vesselin Mitev - March 11, 2008

Low-income New Yorkers should have a right to counsel not only in criminal proceedings but also as civil litigants, Kathryn G. Madigan, president of the New York State Bar Association, told a packed auditorium at Touro Law Center in Central Islip last week.

Ms. Madigan made her remarks at a conference designed to raise awareness of the need for more attorneys who can represent disadvantaged clients in civil matters. Under the Sixth Amendment to the U.S. Constitution, the right to counsel is only guaranteed in a criminal prosecution.

But in an interview last week, Ms. Madigan compared a possible unfavorable outcome of a criminal prosecution, loss of liberty, to that of a civil litigation, which, she said, could be equally as devastating. "If you are a poor person facing a fundamental forfeiture like the loss of health care or the loss of a home, there is no guaranteed right [to counsel]," she said. "It is a similar forfeiture to the loss of liberty when you lose your health and home and your safety. These are really basic human needs."

A common misperception is that such a right already exists, said Ms. Madigan, making it even harder to convince policy makers that more public dollars should be spent on funding pro bono or reduced-fee counsel programs. "We have to come up with a strategic plan to go back to the governor and the Legislature with," she said. "New York is only one of seven states that does not have stable funding for civil legal services," she added, noting that statistic could change only through awareness. "Social change is never easy."

According to Governor Eliot Spitzer's budget office, for the fiscal year ending March 31, $29.6 million of the $118.3 billion budget was allocated to civil legal services. The governor's proposal for 2008-2009 includes $71 million for civil legal services in a $124 billion budget.

The conference, "An Obvious Truth: Creating a Blueprint for a Civil Right to Counsel in New York," attracted more than 100 people to a series of panel discussions and small-group workshops, and presentations by speakers, including Wade Henderson, president of the Leadership Conference on Civil Rights, Andrew Scherer, president of Legal Services for New York City, and Juanita Bing Newton, deputy chief administrative judge for justice initiatives.

Conference participants were referred to an August 2006 American Bar Association resolution that urged federal and state governments to provide legal counsel as a matter of right in those categories of adversarial proceedings where basic human needs are at stake, such as shelter, health and child custody.

According to a state bar committee report, only around 20 percent of low-income New Yorkers are able to obtain counsel to represent them in civil matters, a number that has stayed relatively constant since a 1990 study. Councilwoman Rosie Mendez of Manhattan, who sat on a panel, said a bill she sponsored, Int. No. 648, would allocate approximately $10 million annually to provide free legal counsel to low-income senior citizens facing eviction or foreclosures. The bill, which is awaiting a public hearing, is backed by 35 other council-members, rendering it "veto-proof," according to Greg Geller, legislative director for Ms. Mendez.

"We have seen this problem where low-income seniors come in too late in the game and they don't know their legal rights," said Mr. Geller. The bill would cover New Yorkers over 62 who have an annual household income of less than $27,000. New York courts also have the ability to appoint counsel for civil litigants who seek assistance as a poor person. But Judge Newton said more can be done. "I think this issue is both an obvious truth and an inconvenient one, how dramatically the lives of poor people are punctuated with legal issues," she told the crowd.

Judge Newton illustrated her point with an example of a man who had contacted her office recently seeking help with a "housing problem, a surrogates' problem, a civil courts problem and potential criminal court issues." Citing informal surveys by court personnel, a 2005 Office of Court Administration report estimated that approximately 75 percent of litigants in New York City Family Court and 90 percent in Housing Court appear without an attorney for critical kinds of cases: evictions, domestic violence, child custody, guardianship, visitation, support and paternity.

Two-thirds of the pro se litigants surveyed by OCA said that they could not afford an attorney. Eighty-three percent earned less than $31,000. The judge's office operates a Web site designed to help financially disadvantaged litigants, listing a glossary of legal terms as well as guides on how to litigate a case pro se and how to navigate through different courts (www.nycourthelp.gov). Judge Newton echoed Ms. Madigan's concern that general misperceptions and apathy may be the biggest obstacles toward a comprehensive solution.

"People just don't understand the issue," she said. Once policy makers recognize the problem, "the difficulty is you have to get them to care about what they understand." More lawyers would help state courts avoid an image problem that paints them as biased against poor and minority litigants, said the judge, as well as the eroding of public trust and the eventual loss of the courts' "moral authority." The state found in its survey that 48 percent of the self-represented litigants were black and 31 percent Hispanic.

"Lawyers really do matter in these cases," said the judge, adding that the challenge is "to develop an instrument that clearly demonstrates in practical terms" how litigants and society would benefit from more lawyers representing disadvantaged clients.

Monetary Solution

The ultimate solution would allocate more money to fund the venture and correct the "80 percent justice gap," said Ms. Madigan. One method is tapping into funds involving the cy pres doctrine. If the individual plaintiffs in class actions or tort cases cannot be identified or payment of the funds is impractical, then counsel and the court can recommend that the funds be directed to legal service programs.

Ms. Madigan pointed to last year's $1.9 million settlement paid by a national company that sold Housing Court data about tenants to landlords, as an example of the cy pres doctrine in action. About $1.2 million of the settlement, if approved by Southern District Court Judge Lewis A. Kaplan, is expected to be distributed to organizations that educate tenants about their rights, said Ms. Madigan. The organizations include the Legal Aid Society of New York and the Neighborhood Economic Development Advocacy Project.

But cy pres is "not a predictable source of funding," said Ms. Madigan. To provide a more dependable source of funding, the state bar supports a permanent $50 million-minimum legal justice fund maintained by taxpayers, created by 2010.