Testimony Submitted for the Chief Judge’s Statewide 2024 Civil Legal Services Hearing

2025 NYS Legislative Agenda Item

WRITTEN REMARKS

SUBMITTED FOR THE CHIEF JUDGE’S 2024
CIVIL LEGAL SERVICES HEARING

 New York City Bar Association
By Muhammad U. Faridi, President

September 16, 2024
Court of Appeals
Albany, N.Y.

Click here for the abbreviated oral testimony delivered at the hearing in-person by President Faridi.

The New York City Bar Association (“City Bar”) appreciates the opportunity to submit remarks today and thanks Chief Judge Wilson, Chief Administrative Judge Zayas, the Presiding Justices, and all our court leaders for their steadfast support for civil legal services. Our testimony will be in three related parts: first, an urgent plea to support increased civil legal services funding, especially to ensure New York can preserve the socioeconomic diversity vital to its historical identity and continued competitiveness; second, a discussion of why access to justice efforts must continue prioritizing access to safe and affordable shelter; and third, a reminder that the civil legal services ecosystem has a unique role to play in bridging the digital divide.

I. INCREASED CIVIL LEGAL SERVICES FUNDING IS ESSENTIAL TO ENSURE NEW YORK CAN PRESERVE THE SOCIOECONOMIC DIVERSITY VITAL TO ITS HISTORICAL IDENTITY AND CONTINUED COMPETITIVENESS

A. Civil Legal Aid Is Critical, and Need for It Is Increasing

The City Bar knows firsthand how important it is that civil legal services programs continue receiving robust funding. Many City Bar committees work on substantive areas of law impacting New York’s poorest and otherwise most vulnerable residents; the City Bar’s policy arm advocates for law reform to increase access to justice; and the dozens of professionals who power the work of the City Bar’s civil legal services affiliate, the City Bar Justice Center, leverage the pro bono time and talent of the private bar to provide free, high quality civil legal services that each year benefit over 25,000 New Yorkers who desperately need but cannot afford counsel to address civil legal problems.

Collectively, these City Bar constituencies’ daily work and experience confirm, first, that funding for civil legal services should remain robust and, indeed, should be increased. It translates into an individual or family moving from a homeless shelter to their own home, or avoiding eviction or foreclosure to stay in their home; accessing public benefits, medical care, or other vital life essentials; or, in the case of the burgeoning community of asylum-seekers arriving in New York, starting a new life away from the threat of persecution. To cite some specific examples of the difference that having a lawyer makes: representation significantly boosts the chances of securing legal immigration status, with analyses having found that detained immigrants with representation were nearly 11 times more likely to seek asylum or other relief than those without it,  and that represented, non-detained immigrants were nearly 5 times more likely to obtain relief than those who were unrepresented.[1] Implementing right to counsel in housing court (addressed at greater length in Part II of these remarks) has been shown to reduce evictions by 30%[2] and to help up to 84% of represented tenants remain in their homes.[3] Another recent report found that Unified Court System funding for representation in both housing and foreclosure-related matters saw a 55% increase in persons benefited by such legal services in just one year.[4] Client testimonials also speak to the difference having a civil legal services lawyer can make – a Spring 2024 client of our affiliated City Bar Justice Center remarked how Justice Center services provided “answers to my legal questions” and made the client “feel more empowered in dealing with my legal issues … relieved some of the stress and/or anxiety I felt about my legal issues,” and made the client “underst[an]d the legal system better.”

At the same time, the need for civil legal services is increasing as New York moves further from pandemic aid programs that lifted many of our neediest neighbors. Studies by the Legal Services Corporation (“LSC”) and, especially and more locally, by the Poverty Tracker Research Group at Columbia University and Robin Hood highlight persistent and even growing forms of poverty and disadvantage that far too many of our neighbors endure, particularly coming out of the pandemic. Both studies also not only highlight the consequences of economic insecurity on access to justice, but also make clear that these problems disproportionately impact communities of color.[5]

• LSC’s April 2022 Justice Gap Report, the fourth in a series and the first since the pandemic, found that an estimated 15% of U.S. households were below 125% of the Federal Poverty Line (FPL) in 2022.[6] For perspective, 125% of the Federal Poverty Level in 2024 for the 48 contiguous states and the District of Columbia is $18,825 for a single person, $25,550 for a two-person household, or $32,275 for a three-person household.[7] These figures understate the level of poverty for New Yorkers given the high cost of living in the area. LSC’s 2022 Justice Gap Report highlights the fact that 74% of individuals below 125% FPL experienced at least one civil legal issue in the prior year; 39% experienced more than five such issues; and the most common problems reported were those that go to the heart of personal well-being and economic security: consumer issues (50%), health-related problems (39%), housing instability (33%), and custody disputes (26%).[8] That is concerning in its own right, and what this body focuses on – “the Justice Gap” – means that those great many individuals at 125% or below FPL did not receive assistance for 92% of substantially impactful legal problems, compared to 86% of those between 125% and 400% of the FPL and 78% of those at 400% or above the FPL.^[9] And in what should be of concern to all invested in access to justice, LSC’s 2022 findings represented an increase in the justice gap compared with its 2017 report, which had found that 71% of low-income households experienced at least one civil legal problem in the previous year, and 86% of low-income Americans’ civil legal problems were insufficiently assisted.^[10]
• Statistics from the Columbia-Robin Hood Poverty Tracker Report document these issues closer to home, finding that poverty rates in New York City in 2022, the most recent year for which comprehensive data is available, were almost double the national average for adults (23% vs. 12%), and more than double for children (25% vs. 12%). The report highlights that government policy during the COVID-19 pandemic had helped stabilize poverty relative to prior years, but that with the phase-out of these programs, poverty has spiked to its highest level in recent years.[11] The Poverty Tracker Report also found that poverty is unequally distributed across demographic groups. Latino New Yorker poverty rates were twice that of white New Yorkers (26% vs. 13%); poverty rates among Black and Asian New Yorkers were also higher (at 24% and 23%, respectively, vs. 13% for white New Yorkers); across metrics, women experienced higher rates of disadvantage than men; and New Yorkers born outside the U.S. experienced higher poverty and hardship rates than U.S.-born New Yorkers.^[12] Moreover, making clear the relevance of the Poverty Tracker findings to the justice gap, 29% of adults and 31% of children faced material hardship related to areas that closely intertwine with legal issues affecting the essentials of life, including housing, medical assistance, general finances, and food access.[13]

Much of this data is similar to what the City Bar Justice Center sees, with the top six legal areas most frequently addressed in its most recently completed reporting year being housing and family issues (at roughly 24% and 21%, respectively, of all matters the Justice Center handled), followed by consumer and income maintenance issues (at roughly 12% and 5%, respectively), and then employment and immigration (each at nearly 5%).[14] The City Bar Justice Center’s services data also highlight the growing need for legal services. Assisting nearly 26,000 New Yorkers in need in the past year, the City Bar Justice Center closed 6% more cases than the prior year, saw 17% more use of its online resources and information, and its redoubled community outreach efforts resulted in a 168% increase in people assisted through those efforts.[15] Meanwhile, despite increased staffing and increases in staff efficiency, data for the City Bar Justice Center’s free civil legal hotline (the “Hotline”), which is in many ways the gateway to the Justice Center’s dozen access to justice projects, showed that in recent months its staff did not have the time or resources to reach 8 out of 10 Hotline callers – a concerning but consistent trend that is about 33% higher than historical rates. And that is despite the fact that Hotline staffing as well as staff efficiency have gone up, and the Justice Center has expanded the platforms that the public can use to secure legal information and advice. Quite simply, existing resources do not meet the need for civil legal services.

B. Need Is Particularly Acute for the Most Vulnerable – Youth, Seniors, and Immigrant New Yorkers

Both data and news-grabbing headlines also make clear the need for access to justice support particularly for our most vulnerable communities – children and youth, seniors, and immigrant New Yorkers.

As detailed above, poverty rates among children in New York City are more than double the national average (25% vs. 12%). This represents a steep increase since the pandemic, when it had dropped to about 15%, and the figure represents the Columbia/RobinHood Poverty Tracker’s highest observed annual poverty rate for children in New York City since 2015.[16] The City Bar Justice Center’s own data is consistent with this trend, with its services benefiting households with children and youth under the age of 25 having increased 19% from 2020 to 2023, and with the figure from 2023 also exceeding the measurement from 2019, the last year prior to the pandemic.

At the other end of life’s spectrum, there is continued need for legal services for the growing senior population, which is experiencing increased poverty. The senior population in New York City (individuals aged 65+) increased by about 363,000 between 2011 to 2021, going from about 1.01 million to 1.37 million – a 49% increase in one decade.[17] Unfortunately, poverty rates among NYC seniors also increased, hitting 24% in 2022.[18] Meanwhile, the Legal Services Corporation’s Justice Gap Report has documented that over 70% of low-income senior households had at least one legal problem in the past year, and over 91% of that cohort received insufficient or no legal help for these problems, with the greatest numbers reporting legal problems associated with consumer issues (43% reported having such issues), health care issues (37%), and income maintenance issues (29%). Other significant issues facing seniors included housing, kinship care, public benefits, elder abuse, and consumer scams – also topics that civil legal aid programs squarely address.[19] The City Bar sees these issues firsthand as well. City Bar Justice Center Legal Hotline services assisting those aged 60 and over not only also have increased each year since 2020, but also have increased as a percentage of total Hotline services in each of those years; and the 2023 case count is 33% higher than the pre-pandemic, 2019 case count for Hotline services assisting those aged 60 and over.

Finally, none of us can ignore the headlines focused on the crisis with asylum-seekers in our city, with well over 200,000 “new New Yorkers” having come to New York City alone in just the past two years, and tens of thousands more to the rest of New York State.[20] This phenomenon is imposing staggering costs on state and local governments. It is testing and precipitating substantial changes in safety net policies. And it is straining legal and human services provider capacity to the breaking point. In short, providing adequate immigration legal assistance to the many who cannot afford it remains deeply challenging in a state long a haven for immigrants. City Bar committees that examine immigration and social welfare issues will remain attuned to these issues, and the City Bar Justice Center continues its own efforts to leverage pro bono partnerships and collaborate with other stakeholders to address this crisis. This has been essential, with the Justice Center’s immigration caseload having increased 30% from 2019 to 2023, and its caseload six months into 2024 representing a 39% increase over the same period in 2023. Absent substantial shifts in immigration legal policy at the federal level, increased resources for those providing on-the-ground legal services are critical to meeting these complex needs and ensuring that New York remains a place where immigrants can find a new home and build a new life.[21]

C. Increased Civil Legal Aid Funding Makes a Difference for New Yorkers in Need

There can be no credible dispute that increased civil legal services funding not only helps those in need but also helps our economy, and we offer a few observations of what increased funding concretely might do and why it is critically important.

First, civil legal services funding is a sound investment. In its most recent fiscal year, City Bar Justice Center services realized $14.4 million in measurable direct financial benefits for clients, representing nearly a 300% return on investment relative to its budget – yet those benefits stemmed from less than 3% of total matters handled. Numerous successful matters – e.g., securing asylum, resolving a landlord/tenant or family law dispute – may not have a cognizable financial value, but have tremendous human value in freedom secured, rights vindicated, and stresses alleviated.[22] In short, civil legal services funding both “does good” and is a good investment.

Second, civil legal services funding brings great value to New York’s economy.  By now, the civil legal services community is well familiar with the 2019 report of the Permanent Commission on Access to Justice detailing an analysis conducted by Neil Steinkamp finding that Judiciary Civil Legal Services funding resulted in a return of $10 to our state’s economy for every $1 of funding.[23] Given this data, and the goal of extending and deepening New York’s post-pandemic recovery, further increasing each dollar of that funding remains imperative. That is especially true as the safety net effects of pandemic assistance funding and the eviction and foreclosure moratoriums fade, and providers like the City Bar Justice Center and so many others see a rise in the demand for free civil legal assistance, as documented above. It is also important to bear in mind that heeding requests for increased civil legal services funding also will keep New York economically competitive.

Third, why is funding civil legal services organizations important and what can increased funding help accomplish? Apart from its moral value in addressing profound human need, there are basic economic reasons. A member of the New York Legal Services Coalition (the “Coalition”), the City Bar Justice Center is among legal services organizations benefiting from the recent inclusion of a cost-of-living (“COLA”) adjustment in Judiciary Civil Legal Services funding. That helps with some catch-up after years of rising need and escalating costs but minimal, if any, funding increases. But the COLA adjustment does not fully address the need. By virtue of its own experience working to support compensation structures necessary to recruit and retain the best possible talent to support civil legal services clients’ complex needs, the City Bar Justice Center shares the Coalition’s concerns regarding pay parity shared in the Coalition’s recent report on the subject, which observed that “[e]ntry level pay for attorneys in civil legal services is 30% to 45% lower than their government counterparts doing substantially similar work,” that such inequities “only grow” across the arc of civil legal services professionals’ careers, and that, “after ten years of civil legal services employment, the chasm between civil legal services attorneys and the attorneys in the Attorney General’s office can be as high as 75% in some parts of the state.”[24] In short, addressing pay parity is the first in many ways that increased civil legal services funding can address systemic vulnerabilities in the civil legal aid ecosystem – vulnerabilities that, at the end of the day, ultimately impact the most vulnerable whom this aid is intended to assist.

Finally, a few words about what concrete increases in funding might accomplish. We previously noted that despite staffing increases and increased staff efficiency, the City Bar Justice Center’s Legal Hotline does not have the resources to connect with up to 80% of those seeking its assistance – what, in Hotline parlance, is called an “abandonment rate.” In years past, the Hotline’s abandonment rate was consistently 25% lower than where it stands today – quite simply, because need has increased. Using very rough estimates, just $163,000 in additional annualized funding could result in an additional 2,000 Hotline matters being addressed each year (a cost of $81.50 per matter), translating to an additional 4,050 low-income New Yorkers benefiting from free civil legal assistance.[25] Given that the City Bar Justice Center’s Legal Hotline closed nearly 11,000 matters in 2023 assisting nearly 22,000 New Yorkers in need, each $163,000 in additional funding could incrementally boost Hotline services by over 18%. Put another way, an additional $500,000 in funding could support 6,135 more case services and benefit nearly 12,500 more New Yorkers in need in just one year. And an additional $1 million could support over 12,000 more legal Hotline cases benefiting roughly 25,000 more New Yorkers in need in one year – exceeding the capacity of Madison Square Garden with individuals assisted via critical legal services at a time of need.[26]

II. ACCESS TO JUSTICE EFFORTS MUST CONTINUE TO PRIORITIZE LEGAL SUPPORT NECESSARY TO SAFE AND AFFORDABLE HOUSING ACCESS

Our testimony in prior years focused on safe and affordable housing access, and we reiterate how crucial such access is as an “essential of life” component of access to justice more broadly. Our testimony today will emphasize some key points and the state of play with respect to how New York City’s Housing Court Right to Counsel Law (RTC) is working and should be bolstered and enforced as well as how updates to New York’s 2019 Uniform Partition of Heirs Property Act must continue to be properly applied to help preserve inter-generational wealth especially among homeowners of color.

First, it is clear that legal representation of tenants in Housing Court that meets the highest standards of our profession is a powerful response to evictions, racial discrimination, and the challenges identified in Secretary Jeh Johnson’s October 2020 Equal Justice report.[27]  Similarly, it is clear that legal representation of tenants in Housing Court provides for a fairer, more efficient, and a better understood judicial process, the benefits of which also inure to court personnel and judges and strengthen the rule of law.

NYC’s RTC law was enacted in 2017 and has shown promising results, demonstrating that disturbing trends could be reversed.[28] Prior to passage of RTC, we saw the court and a high-stakes legal process being used to the consistent disadvantage of unrepresented litigants: that is, high numbers of eviction filings and unacceptably high numbers of default judgments against largely unrepresented litigants of color living in rent-regulated housing in New York City. Proceedings were conducted in quick order, or settlements were “negotiated” and produced in hallways between unrepresented tenants and landlord lawyers. We cannot go back to that system of injustice and, yet, legal services providers are reporting that we are at risk of doing just that if we do not effectively address the current situation in NYC Housing Court, where more and more tenants are being forced to appear pro se in proceedings in which the loss of their homes is a very real possibility. It seems that the collective commitment to RTC is faltering.

Where other courts have continued virtual proceedings and taken measures learned from the pandemic to integrate technology and procedures to preserve the dignity and efficiency of the court process, the Housing Court has moved backward. Despite the existence of the biggest rent crisis ever experienced, housing court calendars are as long as they were pre-pandemic. In the midst of a shortage of court personnel and clerical staff, the Housing Court is flooded with cases in an ad hoc fashion which creates chaos. The courtrooms and hallways are crowded with people and more and more tenants are being forced to proceed without counsel. Providers simply cannot keep up with the demand and are forced to refuse representation. Despite being the first municipality to enact a landmark and groundbreaking RTC law, and despite all of its early promise, we are now allowing outdated and dysfunctional processes to plunge blindly forward.

We must do better. The consensus cannot be in favor of returning to the “cattle call” culture of the past.  We respectfully suggest the following in the short term: (1) court calendars should be temporarily modified by first scheduling cases that already have two attorneys; then, adjourned cases that now have two attorneys can be added back to the calendar[29]; (2) RTC attorneys should be given a sufficient amount of time to establish the attorney-client relationship and research and investigate complex cases; (3) requests for virtual proceedings to accommodate a disability should be routinely honored in accordance with the law; (4) the use of virtual appearances should be re-integrated into the system for administrative and non-hearing appearances; and (5) judges should offer RTC at every stage of the proceeding, not just at the initial appearance.  In the long term, to assure that the number of attorneys meets the demand for representation, two key additional steps should be taken.  The City should provide sufficient funding so that legal services providers can pay salaries and benefits to RTC attorneys that are comparable to salaries for prosecutors, corporation counsel and other government attorneys.  This would greatly assist RTC providers in recruiting and retaining staff.  In addition, New York State should fund the development of law school clinics in the NYS law schools that can train and prepare students for the growing number of RTC jobs.

In sum, we must do more to support New York City’s Housing Court Right to Counsel law, and assure that all tenants who are entitled to counsel are able to obtain counsel and are connected with their lawyers as early in the eviction process as possible and that the legal services providers have sufficient resources and a pipeline of qualified attorneys to assure that all who are entitled are able to obtain representation. Moreover, tenants throughout New York State, not just tenants in New York City, should have a right to legal representation when they face eviction.  The City Bar supports the passage of statewide RTC legislation, which has been pending before the state legislature for three years.

Second, our testimony in each of the past three years has detailed how both the City Bar and the City Bar Justice Center took leading roles in a law reform movement, culminating in New York’s passage in 2019 of the Uniform Partition of Heirs Property Act (UPHPA),[30] which established significant state legal protections for heirship property owners. Armed with the tools of this reform, the Justice Center’s Homeowner Stability Project increasingly engages in direct representation, public education, and law reform work to advocate for individuals and families of limited economic means who possess heirship interests in intergenerationally-owned homes, often in areas of New York City with rapidly increasing home values.^[31] Updates to New York’s UPHPA made effective this summer provide additional protections for family members owning heirs property that is subject to partition, oftentimes following the purchase of fractional family member shares by outside investors, in a process that can dislodge New Yorkers from their longtime family homes and eviscerate home equity built up over generations.[32] It remains a concern, however, that many attorneys handling these cases on both sides have no idea about the existence of this now five-year-old law, nor the recent updates that further strengthen its homeowner protections. Moreover, courts’ handling of requirements under the law are at times uneven. We continue to engage in outreach and collaboration with elected officials, the courts, and community groups in order to increase awareness of the new law, as well as programming and training at the City Bar and elsewhere for judges, law enforcement, and other key stakeholders in the UPHPA’s implementation, including to combat deed theft and other equity-stripping schemes that often involve heirs property. This work is also important to advancing racial justice because the vast majority of New Yorkers served by City Bar Justice Center Homeowner Stability Project advocacy belong to communities historically denied equal access to homeownership benefits due to structural racism in housing and lending policies. Without services like those provided by this program and several other legal services organizations, many members of our community, especially in communities of color, face the loss of longtime family homes (and often substantial home equity) following mortgage and tax lien foreclosure – or, especially, predatory partition actions brought by third-party investors who purchase heirs’ often quite minimal partial interests in the homes and then sue to force a sale, displacing the heir occupants. As the civil legal services community continues to focus on access to safe and affordable housing as an essential component of closing the justice gap, we urge that this attention also consider the related issue of how we can preserve socioeconomic diversity in homeownership in New York.

III. THE CIVIL LEGAL SERVICES ECOSYSTEM HAS A UNIQUE, CONTINUING ROLE TO PLAY IN BRIDGING THE DIGITAL DIVIDE

The City Bar reiterates its suggestion, also outlined in prior testimony, that the civil legal services ecosystem has a unique and continuing role to play in bridging the digital divide that can further complicate access to justice on the part of New Yorkers of limited means or who experience other vulnerabilities.

The “digital divide” presented significant obstacles to our most vulnerable communities even before the pandemic, and in many ways became worse because of it.[33] Researchers have shown how “stark” this divide is across both rural/remote as well as urban areas even in countries like the United States with otherwise high connectivity rates.[34] Moreover, the digital divide both “fall[s] along other disparities such as income and gender-based inequality,” and “can deepen other divides and inequalities,” including healthcare access and outcomes, and economic and educational opportunities.[35] In this respect the digital divide’s pervasiveness is particularly relevant to the broad topic of access to justice, given the focus of access to justice initiatives and civil legal services programming on those among us with the least resources and the fact that the digital divide is a significant characteristic of poverty: a 2021 Pew Research Foundation study found that 43% of adults with lower incomes lacked home broadband services and 41% lacked a desktop or laptop computer, whereas such technology is “nearly ubiquitous” for those in households earning over $100,000.[36]

Both the City Bar and the City Bar Justice Center have worked together and with other legal and nonprofit organizations and community groups to highlight the impacts the digital divide has particularly on New Yorkers experiencing homelessness. The Justice Center first documented in May 2020 how access to the internet in shelters is as necessary as other basic utilities, so that individuals and families experiencing homelessness can search and apply for permanent housing and jobs, participate in remote schooling, when necessary, apply for government benefits, or obtain necessary medical care.  In the absence of reliable internet connectivity, many shelter residents are unable to effectively participate in critical services needed for their well-being and that could ultimately help them transition into stable, permanent housing.^[37] Building on the Justice Center’s findings, the Legal Aid Society, along with Milbank LLP and Coalition for the Homeless, Inc., secured a major victory with a settlement with New York City in April 2021 that ensured that over 240 shelters housing school-age children were equipped with internet access.^[38]

Statewide efforts followed, but this issue must remain front-and-center to ensure accessibility and affordability for all in New York, especially our most vulnerable neighbors, whether in cities or rural areas. The City Bar will continue to press this issue through grassroots, collaborative campaigns, by issuing reports and supporting legislation, as well as through efforts of the City Bar Justice Center representing the needs of individuals experiencing homelessness.  Sustained investments by the State in enhancing access to the internet in housing facilities could lead to a reduction in the overall homeless population and a reduction in other costs associated with housing New York’s homeless population.

***

The City Bar very much appreciates your consideration of these important issues.  I am happy to answer any questions and provide any requested follow-up information once the hearing has concluded.

The City Bar thanks the following individuals from the City Bar Justice Center for their significant contributions to this testimony:  Kurt M. Denk, Executive Director; Kyla James, Operations and Program Associate; Cheryl Lopez, Director of Operations; Caitlin Miner-Le Grand, Director, Immigrant Justice Project; Edward Mostoller, Director, Homeowner Stability Project; Makedah K. Salmond, Director, Veterans Assistance Project; and Libby Vazquez, Director of Legal Services and Director, Legal Hotline and Planning & Estates Law Project. Likewise, the City Bar thanks Alison King, Andrew Scherer and Sara Wagner, co-chairs of the City Bar’s Task Force on the Civil Right to Counsel.

Contact

Mary Margulis-Ohnuma, Senior Policy Counsel | 212.382.6767 | mmargulis-ohnuma@nycbar.org