Under the U.S. Constitution, defendants in criminal cases are entitled to an attorney; if a defendant cannot afford an attorney, the state must provide one.
But there’s no guarantee of an attorney in civil cases, and poor New Yorkers often go without legal representation when facing eviction, dealing with foreclosure, applying for disability or Social Security or otherwise battling government bureaucracy.
“These are basic needs — food, clothing, shelter,” said Anne Erickson, president and CEO of the Empire Justice Center, a nonprofit law firm that serves poor and low-income New Yorkers.
The civil legal needs of more than 80 percent of New Yorkers go unmet each year, according to the Empire Justice Center and New York State Bar Association. That’s why the groups were hoping that the 2008-09 state budget would increase funding for civil legal services. Instead, the state reduced the record amount of money provided for civil legal services in this year’s budget; next year’s funding will be on par with what it was during the final year of the Pataki administration, according to the groups.
Last year, the state more than doubled funding for civil legal services, to about $15 million, and the groups had hoped funding would continue to increase, to $25 million this year and $50 million by 2010.
“The budget is now back to where it was in 2006,” said Kathryn Grant Madigan, president of the New York State Bar Association. “We’re pleased with that but disappointed it couldn’t go further.”
One reason the state believes it can cut funding for civil legal services is because it plans to rely more heavily on interest earned in special accounts, called Interest on Lawyer Accounts, that law firms use to temporarily hold clients’ fees.
Income from IOLAs has long been one of the primary sources of funding for civil legal services for the poor, but until last year, the interest rate was far lower than rates for corporate accounts. Then, in 2007, Spitzer made a regulatory change that required banks to pay competitive interest rates on IOLAs; by Dec. 30, 2007, revenue for the final quarter of the calendar year exceeded the previous year’s earnings by over $7 million. The jump in income has enabled the state to award $25 million in grants to organizations that provide civil legal services, up from $13 million in 2007. That money is being distributed right now.
Originally, the state assumed that the IOLA money would continue to grow, and at one point, it was estimated that the accounts would bring in about $72 million. But that figure has since been revised due to the slumping economy and the Federal Reserve’s decision to cut interest rates three times in recent months. At one point, the state expected $31 million next year through IOLAs; now, it expects about $25 million.
“[IOLA money] is not going to be the engine of expansion we had hoped,” Erickson said.
Searching for support
In New York, civil legal services receive funding from a variety of sources. Initially, this year’s budget eliminated $4.6 million in general operating support from the Department of State budget, $2 million from the Legal Services Assistance fund, $8 million in new funding contained in last year’s budget and $1.25 million for the provision of domestic violence-related services, while instead providing a single undefined appropriation of $1 million. But some of that funding — the Legal Services Assistance and Department of State monies — was restored by the state Legislature.
“We’re back to where we were two years ago,” Erickson said. “All of the new funding in last year’s budget is gone.”
New York, Madigan said, is one of seven states in the country that does not provide a stable source of funding for civil legal services.
“We were very hopeful that with [former] Gov. Eliot Spitzer, we would have a more structured approach, and then things completely unraveled,” Erickson said.
The New York State Bar Association had also wanted the state to fund the creation of an Independent Indigent Defense Commission, but that project — which would have required about $3 million — did not receive funding. The purpose of such a commission would be improving the quality of criminal defense for the poor in New York; it would be part of a new, statewide office to oversee the state’s county-based indigent defense system.
The main problem with the county-based system, according to Vincent Doyle, a Buffalo attorney who chairs the New York State Bar Association’s Special Committee to Ensure Quality of Mandated Representation, is that there’s no central mechanism providing oversight.
“There are problems across the state,” Doyle said. “In different parts of the state, there are different problems. If you look at the system as a whole, it’s overworked and underfunded. That’s not to say the attorneys aren’t adequate. They’re excellent attorneys. But in almost every part of the state, the system is overloaded. Caseloads are too high.”
There are national standards for caseloads, but “those standards aren’t enforced,” Doyle said. “Almost every county in the system is in violation of those standards.”
Chief Judge Judith Kaye’s Commission on the Future of Indigent Defense Services examined New York’s county-based system of providing criminal defense for the poor; in a 2006 report, the commission concluded that there is “a crisis in the delivery of defense services to the indigent throughout New York state and that the right to the effective assistance of counsel, guaranteed by both the federal and state constitutions, is not being provided to a large portion of those who are entitled to it.”
“Access to justice, especially for the poor, is fundamental to our mission,” Madigan said. “We recognize that the state is trying to balance the budget in a fiscal crisis, but we believe this is where the need is.”