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IOLA and THE

FUTURE OF CIVIL LEGAL SERVICES


IN NEW YORK STATE

Testimony before the New York State


Senate Standing Committees on
Crime Victims, Crime and Correction, Judiciary, Codes,
and Veterans and Military Affairs

Jonathan E. Gradess
Executive Director
New York State Defenders Association

January 7, 2009
Albany, NY
The primary mission of the New York State Defenders Association is “to
improve the quality and scope of publicly supported legal representation to low
income people.” Our focus is on publicly-funded, mandated representation that to
date does not include civil legal services outside of adult respondent representation in
family 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 good
of clients, and those clients are the same people, from the same communities, who
need civil legal services.

The systems allegedly designed to help all our clients – people in crisis who
need legal assistance and cannot afford to hire a lawyer – are bifurcated, trifurcated, or
just plain fragmented. Multiple lawyers may be involved in aspects of a single client’s
legal morass. Too often, none of those lawyers have time to talk to the others. As a
result, advice in a criminal case may be given without information about a related
family court matter that will be critically affected by the criminal disposition. A civil
legal services lawyer receiving IOLA funds to represent someone in an eviction
proceeding may not talk to the public defense lawyer representing another member of
the household on a criminal matter. Absent collaboration that might have helped lead
to a bail reduction, the incarcerated family member loses a job, cannot contribute
toward the rent, and the eviction case is lost.

At the root of these problems are artificial boundaries between areas of law and
between geographic areas. The separate development of civil and criminal legal
services for those unable to hire counsel has no rational basis. Rather, as we wrote in a
1985 article for our magazine, The Defender, the separation began largely by
happenstance. Funding has been a primary divider, as was the fact that criminal case
representation was held in 1963 to be constitutionally mandated. Measurable

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differences evolved in lawyers’ approaches to the work in the two fields, and in the
relationships between client communities and the two fields. A study in the early
1970s found that the absence of criminal defense representation by legal services
diminished credibility in the client community; yet often there had been greater
integration of civil offices into client communities than was true of defense
organizations. We proposed a new public advocacy model that would maximize the
interaction between civil and criminal units of offices offering legal services to the
poor. We also proposed giving to the client community rather than to political or legal
entities 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 political
jurisdictions cause lawyers to turn over “extraneous” parts of their clients’ legal lives
to 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 the
catalyst for the other.” The existing system is the antithesis of the holistic legal service
that clients need and that, long term, would best serve individual clients, their
communities, and society at large.

In certain areas of the law, the Judiciary has recognized the problem and tried
to ameliorate it, with mixed results. Specialty courts are intended to deal with some
core 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 with
employment, housing, and health care beyond the addiction or mental illness, clients
may benefit. But full legal services should be available also. Lawyers should be
empowered to appear on behalf of their clients, or associate with other lawyers in
areas outside their expertise, in any proceeding regarding their clients, from

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administrative hearings regarding licenses to school disciplinary proceedings regarding
the clients’ children. These proceedings all affect the client and therefore – directly or
indirectly – the case in which the public defense lawyer represents them. But the
barriers between mandated public defense services and other legal services for the
poor prevent this.

Our clients – those who need the services of public defense lawyers and civil
legal services attorneys – live in marginalized communities. These clients and
communities need “corporate counsel” that can identify and address a range of legal
needs. Those needs include not only help in individual cases, but help in giving voice
to legal rights. They include advocating for legislative and regulatory reforms that
would release members of poor communities from unintended (and intended) fiscal,
environmental, political, governmental, and physical shackles.

Securing a “civil Gideon” will be but a pyrrhic victory until “Gideon” means
provision of adequately funded, high-quality, holistic representation in every case. And
that’s not what “Gideon” means in the criminal context today.

Ever since the U.S. Supreme Court issued Gideon v Wainwright in 1963, reports
and articles have proliferated showing that the Gideon right-to-counsel holding was a
hollow victory. Their titles evoke the problem: “Gideon’s Broken Promise,” “Gideon
Undone,” “Gideon’s Muted Trumpet,” “Gideon's Promise Unfulfilled,” and “The
Silencing of Gideon's Trumpet.” Too often today, across New York State, only rote
plea offers or silence issue from Gideon’s trumpet. I would not wish this “Gideon”
on colleagues and clients in the civil realm any more than I want it to continue for
defenders and those we represent.

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What New York needs is not another unfunded mandate but a broad, robust
program that ensures quality legal services for poor people over time. Fifteen years
ago I and others tried to envision such a thing. Looking at existing funding streams,
we imagined a funnel into which money poured from a variety of scattered,
haphazard, sometimes overly-politicized sources. Those sources included legislative
member items, federal funds, focused issue grants and appropriations (homeless
prevention grants, protection and advocacy funding), IOLA and similar accounts,
general fund appropriations, and other sources both existing and yet-to-be- created.
The funds would be collected in one Corporation for Public Legal Services (CPLS)
account. This CPLS would be a stable, state-level entity that could function as an
advocate for poor people’s legal services in criminal and civil matters, oversee delivery
of such legal services, and be the conduit for disbursing funds (to legal services
programs, legal aid offices, volunteer lawyer programs, etc.) with real client
accountability.

I thought of the CPLS when contemplating some of the questions posed for
this hearing. Such an entity could be the answer to “What is the most efficient and
effective structure in which to distribute and administer civil legal services funding?”
Creation of a CPLS as a fund-collection entity would address the best way(s) of
funding civil legal services and ensuring that such funding is stable.

Stability could be ensured by continuing and expanding a variety of funding


sources, from direct legislative appropriations to legislatively created revenue streams
including IOLA. As we know too well, reliance on one source such as IOLA will not
do. Interest rates can plummet; the balances available in accounts on which interest
can be collected for this purpose may also drop. No amount of adjusting can ensure

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that IOLA alone would support civil legal services needs. And we urge the State to
restore the level of funding civil providers lost from IOLA funding.

Nor can political vagaries be predicted or controlled. The desire of elected


officials to please constituents, and the desire of some constituents to have money
earmarked for specific issues, will almost certainly continue. But funneling all monies
designated for specific issues within legal services into a single entity for distribution
could bring some equilibrium to the amount of state money local programs receive
over time. Foreclosures may be a primary problem in given communities at one point
and then subside. The number of active military, veterans, and military families who
need legal assistance may continue to increase, or may also subside if combat
deployment drops. If one entity received for disbursement both money earmarked for
specific issues and more general revenues, it could ensure that clients who needed a
particular type of service received it while also ensuring that other clients were not
deprived of help just because their issue was not the issue de jour.

What I bring you today is not a new idea, but it is one that New York has yet to
try. It has been discussed informally at least since the time of Governor Carey’s
administration, and outlined in a formal memo from the Backup Center to all state
leaders back when Ralph Marino was Senate Majority leader. The Independent Public
Defense Commission that NYSDA and many others have supported for several years
could, with little difficulty, be broadened to include civil legal services.

You may not be ready to go that far. But I ask you not to dismiss it out of
hand. The questions you posed indicate that, as you seek to staunch the fiscal bleeding
that currently threatens civil legal services in New York, you are also considering what

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you can do that will lead to a permanent cure to the ongoing lack of access to justice
that plagues our client communities.

As we all look at how the State can improve access to justice in civil and
criminal courts, we can take note of local efforts. In Rochester, several agencies have
been brought literally under one roof in an effort to break down barriers among civil
legal services for the poor. Just as I was preparing this testimony, a local press item
appeared touting the fact that the Empire Justice Center, The Legal Aid Society of
Rochester, Monroe County Legal Assistance Center, and Volunteer Legal Services
Project all now have offices in the same building, and share a receptionist. The
Monroe County Bar Association is housed there too, with the hope that synergy will
exist between the four agencies and the Bar to the betterment of legal services to
those with limited financial means. It is the same venue in which we, together with the
Appellate Division, Fourth Department, have been annually training assigned criminal
and Family Court appellate counsel.

In addition to illustrating the value of cooperation among disparate entities, this


project also provides one model for helping finance legal services: a fundraising
campaign through the Monroe County Bar Association Foundation raised about $1.8
million, which helped pay for the moving costs of the legal service operations; some
of the money has been set aside to be divided among them later.
http://www.democratandchronicle.com/article/20091228/NEWS01/912280325/Le
gal-services-unite-at-Four-Corners. While equal protection concerns arise when clients
in one region have better access to legal services than those in neighboring vicinities,
the value of local investment – fiscal and social – in area legal services should not be
dismissed.

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At the same time, unregulated charity and local efforts to break down barriers
between providers of legal services to the poor are not enough. The State’s monopoly
of judicial dispute resolution proceedings requires the State to ensure that everyone
has genuine access to those proceedings. Therefore, the State should commit to
annually provide from the general fund a level of funding – $40 million – for civil
legal services statewide. That is not enough, but it would be a base that would help
ensure continuity of services during fluctuations in money from other sources,
including IOLA, private partnerships, local monies, and federal funding.

You are no doubt learning about many models, and taking a variety of
suggestions during these hearings. In this economic crisis, you face hard choices. They
may not be as personally hard as the choices that legal services clients must make
every day – you are not choosing between using the last of your money to hire a
lawyer and going pro se to fight foreclosure on your modest home, or between
ancillary costs of a court case and the rent. But your choices will impact many people,
and I thank you for holding this hearing and allowing me to speak. I thank you for the
seriousness with which you take the need to ensure that people of limited financial
means have access to justice. And I thank you for considering the broad changes I
have outlined; there may be more than one good answer to each of the questions you
posed for this hearing, but “keeping things as they are” is not among them.