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Empire Justice Center Testimony at Senate Hearings on IOLA Crisis

Senate Standing Committee on Crime Victims, Crime and Correction and Senate Standing Committee on Judiciary

December 16, 2009


Prepared by:


Good afternoon, Thank you for the opportunity to testify today. 

My name is Bryan Hetherington and I am Chief Counsel of the Empire Justice Center.  We are a statewide legal services organization with offices in Rochester, Albany, White Plains and Central Islip on Long Island.  Empire Justice provides support and training to legal services and other community-based organizations, undertakes policy research and analysis, and engages in legislative and administrative advocacy.  We also represent low-income individuals, as well as classes of New Yorkers, in a wide range of poverty law areas including foreclosure prevention, government benefits, special education, disability and other civil rights and many other areas of the law.

I would like to begin by thanking the Senate Majority for joining with the Assembly to for the first time, in providing legislative funding from both houses for the provision of civil legal services and for making civil legal services providers eligible for the newly expanded District Attorney and Indigent Legal Services Loan Forgiveness Program.  

I’d also like to thank Senators Sampson and Hassell-Thompson for their ongoing leadership role in the Senate Conference in this area and for calling these important hearings on the IOLA crisis.  We appreciate being able to work with you and your staff to search for both immediate and long terms solutions to ensure that access to justice remains a consistent state priority in times of strife and in times of prosperity. 

Finally, I’d like to thank the other Senators who have joined us here today who have also in their own ways supported civil legal services – Senators Thompson, Stachowski and Volker.  We appreciate your participation and look forward to continuing to work with you in Albany.


In addition to the traditional consumers of civil legal services - low income families and individuals who remain in a constant state of financial insecurity, providers have been inundated by individuals who are now unemployed, or whose wages have been reduced.  This “new” clientele encounters multiple and critical legal problems they need help as a result of their reduced income. 

Since you have already heard much about the crisis in funding, and how civil legal services both achieves successful outcomes for our clients on their most important issues, and saves the state and local governments money, I would like to spend my time discussing the fourth and fifth issues on which you have solicited testimony for this hearing - the issues that focus on the potential solutions. 

Civil Gideon – Expansion of Civil Right to Counsel:

I would like start with the final question you raised: whether New York should follow California’s example and enact a statutory right to counsel in civil cases involving critical quality of life issues. 

In addition to maintaining the funding currently provided for civil legal services, we believe that New York should expand the categories of civil cases in which publically funded legal representation is available.  It should do so in a way that low income people are ensured quality representation. New York should not repeat the mistakes that have occurred on the criminal side where staggering caseloads and the lack of quality standards have led to calls for reform of the criminal assigned counsel system.

Both the American Bar Association and the New York State Bar Association have endorsed the concept that legal counsel should be available as a matter of right at public expense in those categories of cases in which the most basic human needs are at stake.  They have identified five categories of cases where providing publically-funded counsel is warranted: cases involving shelter, sustenance, safety, health, or child custody.  New York already provides publically funded counsel in two of those five areas - in cases involving child custody, and those involving victims of domestic violence who need protection from abusers - so the question is whether we should expand to the remaining areas of critical need.  

Those states that provide publically compensated counsel in some of the five critical areas identified by the ABA do so because it is necessary to achieve just results for all the parties in civil cases.  That is, they do it so that the justice system can actually deliver justice to all parties. They understand that we have an adversary system of justice in America.  A core premise in an adversary system is that the truth (and thus justice) will emerge from the presentation of evidence and arguments by the lawyers for both parties in litigation.  When only one party is represented, the other party is at such a profound disadvantage that the justice seeking function can be completely impaired. 

The Supreme Court recognized this truth in the criminal law context in the middle of the last century.  As a result of its decisions beginning with Gideon, all individuals facing criminal charges that can theoretically lead to even a single day in jail are guaranteed an attorney to defend them. 

States, including New York, have come to recognize that there are also civil justice issues in which the interests that are at stake are as important, or perhaps even more important, than the possibility of spending a night in jail.  Most of us, certainly all the parents in the room, would quickly agree that we would prefer to spend a night in jail then to lose custody of our children.  New York has responded to this shared belief by enacting a broad right to counsel when parents are threatened with loss of custody of their children either to the state, or to the other parent. 

However, there are other areas of civil justice in which interests at stake are as important as not spending a short time in jail are,  but in which counsel is currently not guaranteed, and current levels of civil legal services funding leave many unrepresented whose cases could be won by good lawyers.  A prime example is the potential loss of housing.  Don’t you think that most of us would prefer to spend a night in jail than to lose our homes?  I don’t think it matters whether that loss is through mortgage foreclosure or through eviction.  The prospect of becoming homeless is truly a catastrophic loss for any family.  It is for this reason that the New York State Bar Association has recommended that the right to counsel should be expanded to cover loss of housing. 

In moving to expand the right to counsel, New York could take the next step by adding categories of cases like housing cases, or cases involving access to health care, or access to core public benefits that provide the very means to survive as funding is available. 

Providing lawyers in cases involving the most critical legal harms is important to reaching a just result because of the role that lawyers play in the litigation system.  We are able to analyze the facts of the case and determine whether our client has defenses; we gather documents and interview witnesses whose testimony might be helpful or essential to our client, and we present that information in court or at an administrative hearing under the complex rules of evidence.  Without those steps in case preparation there is a huge possibility that unjust results will be reached because the judge or jury will only hear one side of the story.

Lawyers pay an equally important role in ensuring just results in a civil justice system in which virtually all civil cases result in some sort of settlement. If only one side knows the law, knows what might occur if the case is tried, and is trained in advocacy skills, it is very hard to reach just results in settlement negotiations. When there are lawyers on both sides cases can fairly be settled and judges can be sure there was no overreaching by the party who was represented.  As a result, trials are avoided and public funds are saved. 

While we certainly would want New York to provide publically funded counsel for the remaining three critical civil legal needs, we recognize the difficult financial position of New York State at this time, so I will now turn to the question of how New York should fund civil justice expansion. 


We face an immediate short term crisis caused by an over 70 percent decline in IOLA revenue and a longer term issue of how to fund a civil justice system that actually delivers justice to all our citizens.  We are grateful to Chief Judge Lippman for including a 15 million dollar request to shore up the IOLA fund in the Judiciary budget and are grateful to the Legislative leaders who requested that he do so. However, in the short term, it is clear that we need to find a revenue source that will permit additional state funding for civil legal services at a time when general funds are simply not available because of the current fiscal crisis.

We believe that a promising approach is the one chosen by California in funding its civil Gideon pilot project.  California imposes a modest filing fee for civil judgments.  Therefore, it is only after a litigant is successful that a fee is imposed.  Thus, the fee does not act as an impediment to access to justice.

New York already imposes surcharges on criminal judgments to carry out public purposes, so this approach would be consistent with current practice.  The amount of the fee to file a judgment or settlement in a case should probably differ based on the level court in which the case is filed - with lower fees being charged in City, Justice, and District Courts, and in the Civil Court of the City of New York, and higher fees charged in Surrogates and Supreme Court.  This approach would be consistent with the differing filing fees among the courts. 

We note that other states use a variety of other fees to provide funds for access to civil justice.  Others have testified about the potential to use filing fees, motion fees, attorney registration fees, or other types of miscellaneous fees to fund civil justice. 

Clearly, it is important to avoid, to the extent possible, choosing revenue streams that would impair access to justice.  To make informed choices about which direction to take, we believe that a small group, including the Office of Court Administration, should be convened to look at the alternatives and to calculate the amount of revenue that could reasonably be raised through them so that quality decision making can occur about the best short and long term financing choices for New York. To do this, we believe that all financing options should remain on the table.

As we move forward, we believe that it is critical to recognize that that a litigation fee based system alone will only help us get through the current IOLA crisis.  Litigation based fees will not raise sufficient revenue to provide access to justice in all five critical areas of human need identified by the ABA and the New York State Bar Association, nor will they provide adequate support for the general delivery of civil legal services. Nor should litigation fees be expected to do so in the long run. 

Providing access to justice for all citizens is one of the core functions of our government.  We spend hundreds of millions of dollars on our civil justice system, but we fall short when it comes to the critical area of representation. New York rightfully did not tie the publically funded provision of counsel to parents facing loss of their children, or to domestic violence system in need of assistance with orders of protection, to a specific fee based funding source.  Instead, we wisely recognized that in order to do justice in cases involving these critical human needs, general state funding would be required, as it already is to provide for the other parts of a civil justice system.

We do not insist that the other elements of the justice system: the judges, clerks and other court personnel, or our courthouses, be fully funded by user fees.  Nor do we expect that taxes on health care will fully fund Medicaid and other medical services for vulnerable populations.

If we wish to live up to the promise of democracy, including the promise of providing liberty and justice for all, we need to develop a longer term vision that moves beyond fee based funding.  If we believe that expansion of right to counsel into the remaining critical civil areas is necessary to provide justice for all our citizens we will need to act when the state comes out of the current fiscal crisis to ensure that general funds are used to expand a right to counsel beyond custody and domestic violence. 

At the same time, it is also essential that we do not lose sight of the need maintain the alternative revenue sources identified through our current investigations to ensure that the full range of civil legal services, from individual representation in non mortgage consumer or education matters to providing critical training and support to legal services attorneys and systems change advocacy are preserved and expanded.

Thank you once again for the opportunity to testify today. 

Please feel free to contact me at: (585) 295.5809 or should you have any questions.