Written testimony on behalf of the
Women’s Bar Association of the State of New York (WBASNY)
to the
Chief Judge of the State of New York
Hearings on Civil Legal Services
by
Irene V. Villacci, WBASNY President
The Women’s Bar Association of the State of New York (“WBASNY”), thanks you on behalf of its approximately 4,100 members for the opportunity to submit this testimony regarding access to civil legal services. WBASNY’s membership is diverse and is distributed throughout the State of New York. Our members are private practitioners, law professors, public interest attorneys, and State and Federal judges and legal staff. Since our formation in 1980, the mission of our association continues to be the advancement of women in the legal profession and of women in society, and support for the equal administration of justice.
For the thousands of clients served annually by members of WBASNY, civil legal services is often the only option available for those who would otherwise never get to court, even as an unrepresented or pro se litigant. Civil legal services (CLS) provides not only avenues to representation and to alternative dispute resolution, but also provides access to services that unlock gateways to a safety net that the least able among us, many of them women and children, would never otherwise find.
A significant number of WBASNY members work for organizations that provide civil legal services, and the majority of the clients served by CLS practitioners are women. In fact, an informal telephone survey conducted in 2009 by The Legal Project, Inc. revealed that more than 70% of attorneys working at the major civil legal services programs across the state are women. The Legal Project is a private, not-for-profit organization that was founded by the Capital District Women’s Bar Association in 1995. It provides a variety of free and low cost legal services to the working poor, victims of domestic violence and other underserved individuals in the Capital District of New York State. The Legal Project reports that support from the Judiciary Budget has made a tremendous difference in their ability to serve their target clients in the Capital Region. The number of clients assisted since the Judiciary funding began in 2011 has increased by approximately 26% and the civil legal services provided have broadened to include bankruptcy, foreclosure, affording housing, wills and end of life planning, immigration and veterans’ services clinics. The Project assisted 71 victims of domestic abuse in 1999, but assisted 1,013 such individuals in 2013.
In addition, The Legal Services Funding Alliance1 estimates that more than two-thirds of its legal services clients are women, many of them mothers with young children.
The increase in funding for civil legal services is not felt equally in all sectors. While WBASNY supports and commends the Chief Judge’s leadership and the work of the Task Force to Expand Access to Civil Legal Services, and while we recognize the extreme effort that succeeded in obtaining $55 million for the provision of Civil Legal Services for the current Fiscal Year, members of the civil legal services provider community still reach out to us regarding the need for funding. For example, a practitioner in Suffolk County states:
Although Nassau Suffolk Legal Services does the best they can with tenants, often there are people in the lower income brackets who do not qualify. This can be a problem when they ask for an adjournment to go find an attorney, and invariably come back saying they couldn’t find one (or couldn’t afford one), but it delays the cases significantly. If a mediator or two (or more in Hempstead) could be utilized, maybe the cases which are delayed can be sped up and wouldn’t languish in the system to the detriment of both parties.
This view is seconded by a provider:
Many people in and out of the court system remain unaware of mediation as an option to resolve their disputes, hence more cases proceed through an already burdened court system. Slashing the number of hours the courts are open for business has limited the number of cases we are able to mediate which in turn affects our case numbers required from our funders. We are also severely limited in our abilities to offer our services to non-English speaking clients as we do not have funding for interpreters.
A provider of civil legal services for children reports, surprisingly, that no funding is received from the Judiciary Budget.
Additionally, while the achievement of funding is of paramount importance, funding is, in itself, not the only issue. Policy and planning regarding the directing of funds are also important. WBASNY commends Chief Judge Lippman and the Governor for their commitment to funding for civil legal services, but we believe that the legal profession shares an equal responsibility to participate in seeing that the funding is directed so that it does the most good in the most efficient manner. Issues that need attention now include the preparation for disaster, or disaster planning; the use, non-use and misuse of technology in providing access to civil legal services; and the need to further explore the good that can be done through the institution of public/private partnerships.
Superstorm Sandy and Hurricane Irene made it clear that natural disasters do not respect persons, regardless of their mandate. Business institutions and State and local government entities are much more cognizant now of the need for preparedness for disasters of all types. For the myriad of non-profit organizations that provide access to civil legal services for the citizens of New York State, however, disaster planning may not be a line item on the funding application, and thus, not a fully funded concern, as it should be. It is important that disaster preparedness be a mandatory component of any state-wide plan for funding of both criminal and civil legal services in the future.
The State of New York has experience in administering programs that offer broad support for disaster planning and preparedness: The NYS Department of Education supports such a program for local governments as a component of its NYS Archives and Records Administration Program. Funding has been successfully provided throughout the State from a set-aside funding source using a competitive grant application process.
For more information see:
http://www.archives.nysed.gov/a/records/mr_disaster.shtml (disaster assistance: planning for disaster avoidance and responding to a disaster)
http://www.archives.nysed.gov/a/grants/grants_lgrmif_disasterguide.shtml (disaster recovery grant program)
http://www.archives.nysed.gov/a/workshops/workshops_handouts_disaster.pdf (disaster planning and response workbook)
With proper funding, a comparable program could be created to assist legal services programs. It is certain that the NYS Archives, the Local Government Records Advisory Council and the Records Management Office of the OCA Division of Court Administration could develop such a program.
CAMBA Legal Services in Staten Island was lucky — their landlord responded promptly and efficiently to their Sandy-related issues, expeditiously pumping out the water that flooded their basement and making other repairs. Legal Services-NY did not suffer effects beyond the fairly standard week without electricity and telephone service. However, that week of absence did delay establishment of the Disaster Assistance program that Legal Services-NY created to help Staten Island residents who suffered storm damage. Since Sandy struck in 2012, Legal Services-NY has been counseling Staten Islanders six days per week, operating legal clinics, and helping clients make hard choices, such as whether to accept a buy-out or elevate their home; how to protest the amount being offered in response to an insurance claim, or what offers to accept or reject from the “Build It Back” program.
Neither CAMBA nor Legal Services-NY has a disaster preparedness plan in place to prevent interruption of their services should another natural or man-made disaster occur. They both have an awareness that such a plan is needed, but both are totally focused on assisting their clients at this time. Both would welcome the availability of coordinated disaster preparedness planning program for civil legal service providers as described above. The provider of legal services to children has a business continuity plan that includes some disaster preparedness planning. This may be another opportunity for public/private partnership. Businesses and law firms who have disaster preparedness plans in place could share their experience in developing a plan with legal services providers and offer support for planning.
Using technology to enhance access to justice is another very important initiative. It should be noted, however, that smaller programs with less administrative and support staff, such as the afore-mentioned Legal Project created by the Capital District Women’s Bar Association, may have some unique needs to address in order to make the most effective use of alternative ways to provide service. The Legal Project suggests that smaller programs with less infrastructure be provided technical assistance and funding to develop more internal support, which will enable them to use innovations in technology more effectively. These programs generally do not have technology personnel on staff, for example, thus managing social media or developing web-based outreach, training or services can, unfortunately, be very challenging. We believe that it is important to use the funds for technology to increase the capacity smaller programs to develop their technology infrastructure in order to encourage innovative responses and programs across the state.
Some programs take the position that the choice is often between installing technology or adding staff members. This was the conundrum voiced by Legal Services-NY. The Executive Director felt that the need of Staten Islanders for legal consultation is so great now that it would be a crime to devote time and attention to the purchase and installation of technological components. Of course, however, if a grant was provided that paid for an expert to examine the work of the organization and recommend technology that would improve the client outcomes and make the work of the legal service providers more effective, they would, of course, be all for it, especially if the expert were to then select the technology and supervise its installation and the training of all parties to efficiently make use of the new resource. This type of needs analysis is often carried out by consultants for various government functions, so there is no reason why it could not be done here with the correct funding and oversight. See, for example, the discussion regarding separate funding for planning grants and implementation grants as discussed by the New York State Archives at:
http://www.archives.nysed.gov/a/grants/grants_lgrmif_faq.shtml
As the Task Force’s 2010 Report recognized, civil legal assistance can reduce litigation costs and relieve court congestion. Although not appropriate for every circumstance, where appropriate, Alternative Dispute Resolution programs can be effective in this regard, as they can offer parties the opportunity to frame their dispute in a constructive manner and to work together, with a mediator, to resolve the dispute, clarify rights and responsibilities or restructure relationships. Increased emphasis on alternative dispute resolution in appropriate matters can resolve more disputes at lower cost and with higher participant satisfaction. Even when matters are not fully resolved in the alternative dispute resolution process issues are often identified and narrowed so as to facilitate swift resolution by the courts. Increased funding might be used to provide earlier training for judges regarding the value of alternative dispute resolution.2 In Western New York, for example, the Community Dispute Resolution Centers, run by Child and Family Services’ Center for Resolution and Justice, offers a cost-efficient, consumer friendly program that mediates disputes involving divorce, special education, landlord tenant relationships, and contracts. Farther downstate, the Richmond County Community Dispute Resolution Center notes that since budget cuts made an already tight budget even leaner it has significantly impacted in their ability to provide additional hours of service. Decreased funding has drastically affected the Center’s ability to recruit and train new volunteer mediators, which is highly significant, given their volunteer-based model of operation. Lack of funding has also severely curtailed the service’s outreach to the community and the courts. This issue, reported in 2013, remains a priority.
A representative of the mediation community continued on to say:
In addition to funding for our current programs, we are interested in funding for new and different programs. We have provided Peer Mediation Trainings to several schools on Staten Island, which we would like to continue to do so. Additionally, we would like funding to bring Restorative Practices to several different environments, such as the schools and police programs. Lastly, we recently went to an Urban Agricultural Conference and we are excited about the prospect of bringing our mediation skills to the widespread urban-agricultural community in NYC.
Perhaps alternative dispute resolution models could be developed here that would assist in providing civil legal services to rural and agricultural communities throughout the State. For example, the use of technology combined with alternative dispute resolution would offer access to parties on rural areas that may not have established alternative dispute resolution programs.
Governments have long used public/private partnerships to crowd private sector resources – both financial resources and know-how, into building large-scale infrastructure projects. Think toll roads, airports, or power plants. Yet public/private partnerships do not need to be limited to building large, physical infrastructure projects. Public/private partnerships can also be used to tackle development issues like limiting the spread of disease, improving educational opportunities for the world’s poor, and preventing the devastating effects wrought by a warming global climate. Creating successful public/private partnerships that develop large-scale solutions to the world’s most pressing social problems is a growing preoccupation of many today. Development assistance organizations are all interested in creating such public/private partnerships.3
Author and thought-leader Deborah Burand4 explains that much of the growing interest in public/private partnerships is concentrated on a social finance innovation that is beginning to be used in New York York State called the social impact bond (“SIB”). SIB is designed to transform how government does business while serving vulnerable New Yorkers and providing additional resources for social service programs. The projects are public-private partnerships where the State sets performance goals and private and philanthropic investors provide the funds for the program. The State repays investors based upon the program’s performance, and only makes payments if the goals are achieved. The Intensive Community Assist Program at Hillside Children’s Center is one such program approved earlier this year and provides diversion alternatives to probation officers and family court judges for placement and detention of high risk youths. The program plans to serve about 800 youth in Onondaga, Monroe and several other counties. Other programs approved this year include delivery of health care services to high risk populations for diseases such as diabetes.5
Legal Services NY – Staten Island has formed a partnership with the Richmond County Savings Foundation. The Foundation grants SILS $25,000 to support its important work helping survivors of domestic violence navigate the legal process. A sincere thank you to the foundation for its support.
WBASNY commends this Task Force for its continuing efforts to address the need for expanded access to civil legal services, and offers its continued support for adequate and stable funding to achieve the fundamental ideal of justice for all.
1 The Legal Services Funding Alliance was formed to enhance advocacy for increased civil legal services funding. Its members are the primary providers of civil legal services in rural, urban and suburban communities of New York State. They provide a full range of civil legal services to low-income and disadvantaged people and communities throughout Upstate New York and Long Island.
2 “The Role of Law Schools in Educating Judges to Increase Access to Justice”. Pacific McGeorge Global Business & Development Law Journal, 2011, Volume 24, Number 1, pp 161 – 199.
3 NYU Journal of Law & Business, ARTICLE AND COMMENT ARISING FROM THE 2012 FALL CONFERENCE: THE LAW & FINANCE OF SOCIAL ENTERPRISE: GLOBALIZING SOCIAL FINANCE: HOW SOCIAL IMPACT BONDS AND SOCIAL IMPACT PERFORMANCE GUARANTEES CAN SCALE DEVELOPMENT, Deborah Burand, 16500 words. 9 N.Y.U. J. L. & Bus. 447.
4 Deborah Burand is a clinical assistant professor of law. She directs the International Transactions Clinic that she cofounded at the Law School in 2008. She also teaches in the area of impact investment lawyering. Prof. Burand writes and lectures on issues related to international finance, microfinance and microfranchise, impact investing, social finance innovations such as social impact bonds and crowdfunding for social enterprise, and developing sustainable businesses at the base of the economic pyramid.
5 9 N.Y.U. J. L. & Bus. 447