Following the Lead of CJ Lippman, City and State Officials Push Right to Counsel in Civil Cases
MONDAY, APRIL 06, 2015

Additional funding to provide legal counsel in civil matters such as eviction and immigration are being sought by City and State officials. In a Wall Street Journal story on the issue, a Legal Aid case where a family's home was saved was cited.

The case involved a working poor family who live in Section 8 housing. The family had never missed a rent payment, but unbeknown to them, the City had stopped sending rent subsidies because the wood floors were out of compliance. After they were threatened with eviction, the family reached out to The Legal Aid Society where Alan Canner in the Harlem Community Law office saved the day.

Wall Street Journal
New York Officials Push Right to Counsel in Civil Cases State, city seek more funding to provide poor with legal services in cases such as eviction and immigration
By Rebecca Davis O'Brien
April 5, 2015

New York officials are seeking to increase funding to provide poor people with free legal services in civil proceedings such as eviction and immigration matters, part of a broader national movement to establish a legal right to counsel in civil cases.

The newly approved state budget, allocated $85 million for indigent civil legal services at the request of the state judiciary, an increase of $15 million from the previous fiscal year.

New York City Mayor Bill de Blasio recommended in his preliminary budget proposal spending $36 million on free legal services in housing court, which would bring the city’s total spending on civil legal services up to about $50 million.

A majority of City Council members have signed onto a bill requiring free counsel for indigent defendants in eviction cases. If passed, it would be the first such mandate in the country. A separate bill introduced last week would establish the Mayor’s Office of Civil Justice to oversee the city’s civil legal services.

“We are talking about the necessities, or essentials, of life,” said Jonathan Lippman, New York’s chief judge, who has been pushing for indigent legal services in civil cases since taking office in 2009. “We mean the roof over someone’s head, we mean their physical safety, their livelihoods, the well-being of their families, entitlement issues.”

At least 90% of people in civil cases in New York, or 2.3 million, don’t have lawyers, and many are unable to advocate for themselves on complicated legal matters, experts and officials say, jeopardizing people’s immigration status and leading to a loss of benefits, housing and child custody.

Ana Jimenez and her husband, Jose, who works at a grocery store, were nearly evicted from their Washington Heights apartment last summer. They hadn’t missed a month’s rent, but unbeknown to them, city housing inspectors had declared their wood floors out of compliance, so Section 8 had stopped sending rent subsidies. The landlord, who was supposed to fix the floors, sued in housing court.

“I felt helpless,” said Ana Jimenez, 59, speaking through a translator, her eldest daughter Annie. “I would barely sleep.” Annie said her parents had no idea they were in violation until they got an eviction notice; after a traumatic first day in court, she called the Legal Aid Society. A lawyer got the landlord to fix the floor and had Section 8 support renewed, but it still took months to resolve.

The concept of subsidized defense services in high-stakes civil cases appears to have broad political support, though some warn of overstretched government budgets, a shortage of resources and space, diminished leverage for landlords and fears that a blanket right to civil counsel would encourage frivolous lawsuits.

Tenant advocates said providing civil counsel to people who can’t afford it is not only fair but could ultimately save taxpayers money by keeping court dockets lean and alleviating pressure on homeless shelters and other social services.

Some say the stakes are high enough in civil cases that an absolute right to counsel should exist, a movement known as “Civil Gideon,” a reference to the U.S. Supreme Court’s 1963 decision in Gideon v. Wainwright that established a universal right to counsel in criminal cases.

No such guarantee exists for civil matters. But in 2006, the American Bar Association urged states to provide counsel in civil cases where “basic human needs” are at stake, calling it a logical extension of Gideon’s push for equal justice under the law.

The rules governing free counsel in civil proceedings vary by state. New York requires counsel for parents facing loss of custody over a child, and judges have authority to appoint counsel in other cases.

“If you are going to lose your house, or if the state is going to take away your children, I think there is probably a good defense for a subsidy,” said Jim Copland, director of the conservative Manhattan Institute’s Center for Legal Policy. “The concerns here arise when effectively the state is subsidizing class-action lawsuits.”

Judge Lippman said his effort to expand civil legal services in New York wouldn’t extend to “trip-and-fall” lawsuits or class-action claims.

In 2009, California passed the Sargent Shriver Civil Counsel Act, which created several pilot programs, supported by court fees, free legal counsel in civil cases. In its third year, the program has succeeded despite a modest $8 million annual budget, its coordinators say. More than 15,000 people have been served so far, most in eviction cases.

“One of the big takeaways is that attorneys help settle cases,” said Bonnie Hough,managing attorney for California’s Judicial Council, the policy-making body for state courts. “They are able to help the client understand what’s likely to happen in court” and often push for mediation, which provides clients and landlords with stability, Ms. Hough said.

Mitchell Posilkin, general counsel for the Rent Stabilization Association, a property owners’ organization in New York City, said landlords have no fundamental objection to the right to counsel. But providing it, he said, would prolong cases. Officials must consider “whether there are an adequate number of judges, attorneys, clerks and courtrooms to handle what would unquestionably be a slower litigation process,” he said.

Others say the effort may be unrealistic financially. In most states, including New York, services that provide mandated counsel in criminal cases are underfunded and overwhelmed.

Officials in the New York City Council estimate the cost of providing free legal services to needy people in eviction cases at $117 million a year. That would be offset, officials say, by $171 million in annual savings by keeping families out of homeless shelters.

Councilman Mark Levine, the bill’s sponsor, said cost considerations and the logistics of finding lawyers and courtroom space will be constraints.

Still, he said, “These are life-changing judgments that nobody should have to face without legal defense.”