IOLA and THEFUTURE OF CIVIL LEGAL SERVICESIN NEW YORK STATE

Testimony before the New York StateSenate Standing Committees onCrime Victims, Crime and Correction, Judiciary, Codes,and Veterans and Military Affairs

Jonathan E. GradessExecutive DirectorNew York State Defenders Association January 7, 2009 Albany, NY

The primary mission of the New York State Defenders Association is “toimprove the quality and scope of publicly supported legal representation to low income people.” Our focus is on publicly-funded, mandated representation that todate does not include civil legal services outside of adult respondent representation infamily court. But NYSDA is and has long been committed to solving the problems of civil legal services as well. We work with public defense lawyers for the ultimate goodof clients, and those clients are the same people, from the same communities, whoneed civil legal services. The systems allegedly designed to help all our clients – people in crisis whoneed legal assistance and cannot afford to hire a lawyer – are bifurcated, trifurcated, orjust plain fragmented. Multiple lawyers may be involved in aspects of a single client’slegal morass. Too often, none of those lawyers have time to talk to the others. As aresult, advice in a criminal case may be given without information about a relatedfamily court matter that will be critically affected by the criminal disposition. A civillegal services lawyer receiving IOLA funds to represent someone in an evictionproceeding may not talk to the public defense lawyer representing another member of the household on a criminal matter. Absent collaboration that might have helped leadto a bail reduction, the incarcerated family member loses a job, cannot contributetoward the rent, and the eviction case is lost. At the root of these problems are artificial boundaries between areas of law andbetween geographic areas. The separate development of civil and criminal legalservices for those unable to hire counsel has no rational basis. Rather, as we wrote in a1985 article for our magazine,

The Defender

, the separation began largely by happenstance. Funding has been a primary divider, as was the fact that criminal caserepresentation was held in 1963 to be constitutionally mandated. Measurable

differences evolved in lawyers’ approaches to the work in the two fields, and in therelationships between client communities and the two fields. A study in the early 1970s found that the absence of criminal defense representation by legal servicesdiminished credibility in the client community; yet often there had been greaterintegration of civil offices into client communities than was true of defenseorganizations. We proposed a new public advocacy model that would maximize theinteraction between civil and criminal units of offices offering legal services to thepoor. We also proposed giving to the client community rather than to political or legalentities the choice of whether such model should be adopted.Much has happened since 1985, and yet much has remained unchanged.Funding-driven barriers between civil and criminal legal services and between politicaljurisdictions cause lawyers to turn over “extraneous” parts of their clients’ legal livesto other offices, catchment areas, or providers. Yet, as we noted nearly 25 years ago,“civil and criminal problems [are often] inextricably tied, with one often acting as thecatalyst for the other.” The existing system is the antithesis of the holistic legal servicethat clients need and that, long term, would best serve individual clients, theircommunities, and society at large.In certain areas of the law, the Judiciary has recognized the problem and triedto ameliorate it, with mixed results. Specialty courts are intended to deal with somecore problems such as drug addiction or mental illness that impact every aspect of clients’ lives. When a range of services are available – not just treatment, but help withemployment, housing, and health care beyond the addiction or mental illness, clientsmay benefit. But full legal services should be available also. Lawyers should beempowered to appear on behalf of their clients, or associate with other lawyers inareas outside their expertise, in any proceeding regarding their clients, from