February 8, 2018
This article was originally published in the Government, Law and Policy Journal, A Publication of the New York State Bar Association, Volume 17, No.1, 2018.
I. What Rural Clients Face: A Case Study
In October 2015, John Doe1 called the Albany office of the Legal Aid Society of Northeastern New York (LASNNY) for help. He, his partner, and their five children were renting an apartment in Greene County, one of the rural counties within the office’s service area. They had complained to their landlord numerous times about the problems with the apartment, including a refrigerator which had stopped working, lack of heat, broken windows, and a broken light fixture. The landlord refused to replace the refrigerator unless Mr. Doe made payments toward the new refrigerator. Their rent was on voucher from the Department of Social Services, but they had complained to DSS, also without getting any results. They were not facing eviction at this point, but simply wanted to know what rights they had.
Mr. Doe was referred to a staff attorney who specializes in giving advice to clients who cannot (for whatever reason) be represented fully. The attorney explained the pros and cons of withholding rent, discussed the warranty of habitability, and advised the client to work through DSS and Code Enforcement to document the problems with the apartment. Mr. Doe’s case was closed as an advice-only case.
In July 2016, Mr. Doe’s partner called back. No repairs had been made, and they had withheld rent after having informed the landlord they were doing so. The situation was exacerbated because Mr. Doe had found part-time minimum wage work at McDonald’s and their DSS assistance had been reduced by far more than it should have been. While that was being straightened out, they had offered the landlord a partial payment, but it had been refused, and the landlord had subsequently begun an eviction proceeding for nonpayment in the city court.
There was still no attorney available, but between the first and second calls LASNNY had begun a program called Closing the Gap. LASNNY’s Closing the Gap coordinator matched Mr. Doe up with an attorney in Albany. She agreed to represent him in the limited capacity of drafting an answer; she then interviewed him by phone and drafted an answer to the eviction petition. As required by law, that answer carried a disclaimer specifying that Mr. Doe was a pro se litigant and that the attorney’s role was limited to helping with the answer. When Mr. Doe next appeared in court, however, the judge noted that he had been assisted by an attorney and refused to hear the case without that attorney being present in court, even though the client and the documents both explained that the attorney was not representing him. He adjourned the case. The volunteer attorney was willing to appear with Mr. Doe if necessary, but she was not experienced in landlord-tenant law and was not certain that would be for the best.
Fortunately, by then LASNNY had hired an attorney to handle landlord-tenant matters in the rural counties closest to the Capital District and was able to assign him the case. The attorney worked with Mr. Doe to amend his answer and began preparing to represent him in court. While the case was pending, an inspection by the county Department of Health found that the apartment was not habitable. DSS paid to relocate the family to a motel, nineteen miles away from the apartment. Because of the small space, they were forced to leave many of their belongings—including a severely disabled child’s wheelchair—in the apartment under dispute. They had to pay for taxis to travel back and forth, including to get to court and to show their attorney the apartment. The case went to trial in September 2016, with Mr. Doe filing cross-claims for monetary damages based on partial eviction and the warranty of habitability. Both Mr. Doe and the landlord filed written briefs; while the court was making its decision the landlord contacted Mr. Doe a number of times and offered to re-rent him the apartment if he would just drop the suit. The court issued a decision in March 2017, granting Mr. Doe a 100 percent rent abatement for three months (approximately three thousand dollars), three thousand dollars in consequential damages, and one thousand dollars in punitive damages.
Mr. Doe’s case provides an excellent snapshot of several barriers facing rural litigants in New York today, some of the ways in which LASNNY has tried to overcome those obstacles, and a testament to just why representation makes such a difference to litigants. In this article, I will briefly review the literature about the difference in outcomes for represented and unrepresented litigants, as well as the considerable body of literature about the problems with New York’s system of justice courts. Next, I will discuss the specific initiatives which LASNNY is using to attempt to close the justice gap for our rural clients or potential clients, as well as the barriers which we have encountered along the way. Finally, I will discuss the non-legal barriers which exacerbate, or cause, many of our clients’ legal problems, and the limitations of the justice system in dealing with them.
II. Why Representation?
Since the late 1960s, lawyers and scholars have been carrying out empirical research on the difference in outcomes for represented and unrepresented litigants.2 In New York, a famously progressive state where legal services receive $100 million per year from the judiciary and where the Chief Judge holds yearly hearings on access to justice, the outcome of these initiatives has been closely studied.3
In a 2016 survey of outcome-based studies, Emily Taylor Poppe and Jeffrey Rachlinski reviewed the types of laws or proceedings which had been studied over a period of years.4 They also looked at whether the studies performed were observational or (less common) randomized, using both types of data to determine what the research actually shows about the value of representation in a particular type of case.5 Of the types of cases or proceedings considered in this survey, LASNNY handles housing, administrative hearings/government benefits, family law, tax, and in certain circumstances, bankruptcy.6
Poppe and Rachlinski concluded that in virtually all these areas, and in studies performed from 1969 to 2013, the research overwhelmingly shows that having an attorney yields a better outcome in each of these areas.7 This is echoed by reports to the Legal Services Corporation (LSC) from judges across the country8 and by a 2013 report generated by the Conference of Chief Justices and the Conference of State Court Administrators.9 This report went a step further, finding that the court system itself functions more smoothly and efficiently when more litigants are represented.10
In New York, the 2016 Report of the Permanent Commission on Access to Justice noted that although the number of evictions filed in New York City housing courts had remained stable, increased legal services for low-income tenants had reduced the number of residential evictions by 24% and the number of Orders to Show Cause by 14%.11 Even the vice chairman of JP Morgan Chase testified before the Commission that his company believes that foreclosure defendants who are represented get fairer and more timely resolutions of their cases than unrepresented defendants.12
As the body of research confirming the importance of legal representation grows, however, the availability of legal assistance for those living in poverty has shrunk nationally. During the recent recession, the demand for legal services spiked as more families and individuals became eligible for legal assistance and faced problems such as unemployment, foreclosure, and eviction.13 While this was happening, LSC funding was cut, even when adjusted for inflation, and IOLA monies, a longstanding source of funds for many legal services organizations, were reduced because of dropping interest rates.14 This confluence strained the civil legal service infrastructure throughout the country and lessened the average amount available for each eligible resident.15 Demand for civil legal services has lessened somewhat from its peak in 2012, but there is still greater demand than there was before the recession, and projections suggest that this will be the case for some time to come.16 As I was finishing the first draft of this article in March 2017, President Trump proposed a federal budget for 2018-2019 with no money appropriated for LSC.17 While this does not, of course, mean that this will be the final figure, it seems highly likely that LSC will be funded at lower levels than it has been over the last decades.
New York mirrors these trends. Approximately one-third of New Yorkers live at or below two hundred percent of the federal poverty guidelines, and are thus eligible for civil legal services provided by LSC-funded organizations.18 New York’s judiciary has increased funding for the state’s civil legal services providers to $100 million per year; by comparison, in 2016 LSC funded all its recipient organizations in the country at $385 million.19 Despite this high level of funding for New York organizations, Former Chief Judge Jonathan Lippman testified to the Permanent Commission in September 2016 that more than half of the people who seek civil legal services in New York are turned away because the organizations simply do not have the capacity to serve them.20 This statistic, of course, does not capture those who have a civil legal problem, but for whatever reason, do not try to access services.
The widening gap between supply and demand has caused legal services organizations nationwide, particularly those in rural areas, to seek innovative and new ways to serve as many litigants as possible. LASNNY is no exception, and a later section of this article will describe our efforts in that area. However, these efforts and the barriers faced by our rural clients can only be understood in the context of the New York system of justice courts. A brief discussion of this system, therefore, is in order.
III. “An Obsolete and Antiquated Institution”
The town and village courts, which are collectively known as “justice courts,” are a carryover from British jurisprudence.21 The current system gets its structure from the Uniform Justice Court Act of 1966; the courts have been in existence in New York since the colonial era, and New York relies heavily on these courts in rural areas.22 The courts’ jurisdiction in civil cases is limited to claims of $3,000 or less23; they may hear equitable defenses but are otherwise courts of law rather than of equity.24 Justice courts also have jurisdiction over misdemeanors and violations, and they hold arraignments and preliminary hearings for felonies.25 The courts’ judges are not required to have any qualification other than to have been elected or appointed and to have undertaken the required training.26
Virtually any gathering of rural attorneys in New York includes eye-rolling stories about the problems with justice courts; I began practicing in very rural St. Lawrence County, and I certainly have my share of tales. Even so, I did not realize until I began to write this article that New Yorkers have continued to express their discontent with the justice court system since at least 1923. In an article published that year in the Journal of the American Institute of Criminal Law and Criminology, Bruce Smith summed up the findings of a year-long task force and legislative hearings: “The vigorous nature of the testimony adduced at the hearings, together with the striking degree of unanimity which was displayed, convinced the committee that the office of justice of the peace has almost outlived its usefulness in the State of New York.”27 Due to the constitutional nature of the justice of the peace and the “considerable body of public sentiment opposed to its abolition,” the committee ultimately compromised by recommending that each town be limited to one or two justices.28 In 1927, a state commission referred to the justice courts as an “obsolete and antiquated institution.”29
Fast-forward to 2006 and, despite fairly regular calls for reform and oversight of the system, not much had changed.30 New York Times reporters who spent an entire year reviewing and investigating the justice court system described local judges as individuals who had fewer licensing requirements than manicurists and hairstylists, and who routinely ran roughshod over the rights of the people appearing before them.31 Despite some changes in the wake of this report, such as the requirement that all local court proceedings be recorded, by 2010 the Times wrote that efforts to reform the justice court system had stalled under pressure from the State Magistrate’s Association and from local officials.32
The Times articles, and much of the research I have been able to find in this area, focus on criminal proceedings in the justice courts. This is not surprising, as criminal proceedings implicate issues such as personal freedom and a federal right to counsel; they are also far more stamped on the public imagination. In 2012, however, the Fund for Modern Courts examined summary eviction proceedings in the justice court system and presented its findings to the Task Force to Expand Civil Legal Services.33 The report found that local judges often did not properly understand or apply the law and that tenants were disadvantaged as a result.34 In coming to this conclusion, the authors of the report reviewed reports, training materials and similar memoranda, and the statutes governing summary proceedings.35 They also interviewed attorneys who regularly practice in the courts, representatives of the Magistrates’ Association, and representatives of the Office of Court Administration, and they reviewed the results of a survey of judges.36
Every major problem identified in the report hurt the tenants. For example, the authors of the report found that notice to tenants was often insufficient as a matter of law but also as a practical matter, with some tenants receiving literally no notice before a warrant of eviction was issued.37 Tenants and their attorneys were often refused access to court records, and judges as a whole tended to help landlords, but not tenants.38 Tenants who had attorneys sometimes received the protections afforded by the statute—but not always.39 The informal observations of LASNNY’s attorneys also suggest that at least some local courts afford more protection and due process to represented tenants than to unrepresented tenants in summary proceedings.
To sum up: virtually any client with a legal problem will get a better outcome if represented by an attorney. Both nationally and in New York, demand for civil legal services has gone up while funding has dropped, and this problem has only worsened since the recession. Finally, when civil litigants in New York appear before local court judges, they are often not afforded the protections or the due process to which they are entitled.
The practical effect of this is that legal services organizations must stretch their infrastructure and personnel to accommodate more clients, and needier clients, with less funding. They must simultaneously (and as tactfully as possible) do the extra work of educating the local court judges about what the law actually is.
IV. Specific Strategies the Legal Aid Society of Northeastern New York Employs in Rural Areas
“Unbundling,” also known as “limited scope representation,” refers to an agreement between an attorney and a client that the attorney will perform one or more discrete tasks which fall short of full representation. While this is not a new practice, it has gained new currency over the past decades, particularly in the legal services setting where advocates are continually trying to do more with less.40 Unbundled services range from pro se clinics, to telephone advice, to assistance with pro se pleadings and answers, and as the demand for legal services has increased, so has the use of limited scope retainers.
At LASNNY’s five offices, we have six attorneys and paralegals who specialize in giving clients telephone advice about their legal problems; this is generally the only legal service these clients will receive. On occasion, an intake specialist will refer a particularly difficult or meritorious case to a Legal Aid lawyer or private attorney for full representation. For the most part, however, the legal assistance ends when the call ends.
We also have a vibrant Attorney for the Day program in the Schenectady City Court, where a housing attorney appears on designated days to screen and represent eligible clients. This generally means representation in settlement negotiations, although the attorney will occasionally accept a case for further representation in a hearing or trial. We have begun to adopt this model in one or two rural counties’ Supreme Courts, where the attorney will screen foreclosure defendants on the spot and represent eligible clients in their settlement conferences. At times, we will sometimes enter into limited scope retainers to represent clients in foreclosure settlement negotiations only. Similarly, we will often assist clients with pro se answers, particularly in foreclosure and family law contexts.
LASNNY staff also offer self-help clinics in various areas of law. Some offices hold clinics that help clients fill out paperwork for uncontested divorces. The representation ends at the end of the clinic, and the client is responsible for filing and carrying out the remainder of the proceeding. Our staff also runs a clinic which helps consumers understand how to answer and defend against creditors’ lawsuits; the clinic includes an overview of bankruptcy and a discussion of the tax implications of forgiven debt.
The research on the efficacy of advice or brief services is difficult, in part because legal services do not lend themselves to randomized studies and in part because there is a certain amount of self-selection. In one of a very few randomized studies in housing court, clients who received only legal advice had no clear substantive advantage in court—in other words, they were unable to lower their financial liability or increase their time in their homes appreciably more than litigants who received no legal advice. However, they were measurably better off than pro se defendants in terms of raising procedural issues such as affirmative defenses and defective service.41 That said, a number of commentators have raised concerns that pro se clients are not adequately prepared for court by advice or brief service; they are also not equipped to object to inadmissible evidence, hearsay, or similar evidentiary problems. 42
To be clear, very few, if any, legal services providers believe that limited services are a first or best choice for most clients. Some problems can be solved with phone advice, a pamphlet offering information, or a letter to an agency or other authority, but the majority of the problems we see are more complex than that. When the scope of representation is limited to negotiating a settlement, if the parties cannot agree, the client faces the prospect of carrying out litigation without an attorney. In a perfect world, we would offer full representation for all clients who require it. Given the time and financial constraints upon legal services providers, however, advice is often all we can offer. We rarely have any way of knowing whether the advice helps the client, or whether the client was ultimately able to prevail, but we hope and believe that the advice was better than nothing at all. Mr. Doe’s case study is one of those rare instances where we can gain insight into how legal advice helped him through the remainder of his case. During his first contact with LASNNY, Mr. Doe received advice about calling the authorities, about how to properly withhold rent, and about the possible ramifications of withholding rent. He called the County Health Department, which inspected the apartment, documented the egregious problems, and ordered the landlord to fix them. He further informed his landlord that he would be withholding rent until the conditions in the apartment were fixed, and it was only after this that the landlord filed the summary proceeding. We cannot know what would have happened if Mr. Doe had appeared pro se, offered the judge the Health Department letter, and explained that he was withholding rent because of the conditions in the apartment. What we do know is that he had a much stronger case because he took these steps, and that he took these steps due to the advice he received.
B. Closing the Gap
There is a considerable body of literature hailing technology as the newest, best, most efficient way to close the justice gap for low-income and rural litigants. 43 For the last decade and a half, the Legal Services Corporation has offered grant funding specifically for technological innovations in the field the bulk of the funded projects helped pro se litigants with research or drafting, connected clients to a remote attorney (either a legal services attorney or a pro bono volunteer) who can advise them, or facilitated intra-agency communication over a large state or region.44 These projects are particularly attractive to programs which, like LASNNY, cover large and remote areas.
All our offices serve some rural clients, and the Canton and Plattsburgh offices in particular serve clients in some of the largest and least populated counties in the state.45 Public transportation in many areas is nonexistent or rudimentary, and this is a particular barrier to low-income clients who must sign legal papers, access services, and attend court or hearing dates. The reality of our grant funding also means that personnel who are funded by particular grants must perform certain kinds of work; they cannot cover for a colleague in a different area of law who is on family or medical leave, for example. Finally, private attorneys in rural areas are likely to be solo practitioners or in small firms, and they may not have the resources to meet the full demand for pro bono work.
Closing the Gap, a program which is funded through LSC’s Technology Innovation Grant and run in partnership with Legal Assistance of Western New York (LAWNY) and Volunteer Legal Services Project of Monroe County (VLSP), is intended to deal with all those problems. If a rural, income-eligible client comes to LASNNY with a consumer or housing problem which brief legal services (such as drafting an answer) could help with, and if we do not have staff available to work on that problem, some private attorneys are able and willing to work remotely with the client to provide representation. This does not generally involve full representation through litigation, but the Closing the Gap volunteers will enter into a limited retainer to assist with answers, discovery requests, and legal advice. The volunteers meet with the client via video, and when they interview the client they use an interactive form to turn the client’s responses into a pleading. This is stamped with the notation that an attorney helped the pro se client produce the document. While the client must still go to court alone, he or she will be armed with an answer that can raise or preserve defenses. The client will also have some idea of how to raise these defenses and what facts support them.
Since the program’s inception in 2016, a total of 81 clients who would otherwise have had no legal help have
received brief services through this program, 59 through LASNNY volunteers and 22 through LAWNY and VLSP. This one initiative offers a solution to many of the problems our rural clients face when seeking legal services: transportation, availability of staff, and availability of pro bono volunteers.
This program, while extremely helpful, is not a panacea. Particularly in local courts, some judges assume
that the attorney represents the client fully and will not accept the pleadings or move the proceeding forward
unless “the client’s attorney” is also present. The program coordinator has begun giving each client a letter for the judge, explaining the program and the rule which allows an attorney to assist with pleadings only. While this is helpful in some cases, in other instances, the judge will not accept the papers. Particularly where the opposing party is represented by counsel, the answer may not be enough to conclude the client’s case, and further litigation is required. Some volunteer attorneys are willing to help beyond the brief service of drafting an answer or similar documents, but others are not able to do so. This leads directly back to the conundrum discussed previously: while we believe that advice and brief service are better than nothing, there are some cases where the client demonstrably needs more help. Finally, at times the client’s inability to access internet services—whether because of poverty, lack of infrastructure, or lack of transportation makes
it hard to connect with a volunteer online. Many places that offer public internet services, such as libraries, do not offer enough privacy to discuss a legal problem. While it is possible to work over the phone, this is a second choice because it does not allow for either party to pick up non-verbal cues during the interview.
Mr. Doe had to deal with a number of these barriers with his Closing the Gap assistance. He had to speak with his attorney on the phone, as he had neither internet access nor transportation to a suitable place. Despite the disclaimers on the paperwork which the volunteer had prepared and Mr. Doe’s explanations, the judge would not accept or review the answer without “Mr. Doe’s attorney” present. Simply having the answer did not solve Mr. Doe’s problems or resolve his case, which ultimately moved forward to litigation. However, he went into the next phase with advice and with an answer which preserved some of the defenses and counterclaims he would ultimately raise and prevail upon at trial.
C. Systemic Advocacy
In 2015, LASNNY created the position of Advocacy Coordinator; our goal was to help case handlers identify recurring or systemic problems so that we could try to fix them at the source in addition to helping individual clients who are harmed by these problems. Systemic advocacy may include appellate litigation, affirmative litigation, informal advocacy or persuasion, Article 78 proceedings, in addition to requests in individual cases for punitive damages, retraining for officials, and similar broad-based relief. This type of advocacy is not specific to rural areas, of course, but given the scarcity of legal services and the barriers of distance and transportation in these areas, systemic advocacy is likely to be particularly important in our rural catchment areas.
Our systemic advocacy initiative officially launched in January 2016, so it is too early to generalize about the
results. However, Mr. Doe’s case is an example of an individual case which we believe will have far-reaching impact. The award of consequential and punitive damages in addition to a complete rent abatement should be an incentive for this landlord to maintain his numerous rental properties; we hope that it will also deter others from renting uninhabitable properties. Similarly, one of our advocates recently sought and received a ruling from the Greene County Court vacating a warrant of eviction issued by a local court. The town judge had denied a motion to dismiss based on an eviction petition that was so inadequate as to prevent our attorney and his client from forming any defense. In vacating the warrant, the county court judge reminded the town judge that an inadequate petition is jurisdictionally defective. Again, it is our hope and belief that this ruling will lead the town judge to follow the law more carefully, benefiting both represented and unrepresented litigants in that court.
As more fully discussed above, however, the justice court system has its own set of problems, and it would
be naïve to believe that every case of this kind will fix a recurring issue. It is also particularly important to find the right case and client for this type of advocacy; so while this is a useful tool in fashioning broad-based relief, it can only be one tool among many.
V. Non-Legal Problems in Rural Areas
Our client base, and particularly our rural client base, has serious problems and needs which are not legal but which seriously hamper their ability to navigate the court system, to win their cases, and to seek legal help in
the first place. While we try to suggest help or resources where we can, that is often beyond the scope of our representation, and often, of our competence. I am discussing the most common problems briefly—not because I think these are problems that we as legal service providers can or should necessarily solve, but because they have to be a part of any serious discussion about the problems facing rural litigants and the challenges of representing these litigants.
Transportation is the single biggest non-legal barrier our rural clients face. There is little, if any, public trans-
portation available in many of our rural service areas. If clients do not have cars or gas money, it can be virtually impossible for them to get to court, let alone to meet with their attorneys to prepare for court. Some grants require LASNNY to get extensive paperwork from clients before we agree to represent them. If the client does not have transportation and cannot use a fax machine or scanner, we may not be able to represent that person in court simply because we are missing the paperwork we need for the file Our attorneys will, when necessary, get the documents from the client at court before the scheduled appearance. However, this leaves no room for error. If a document is missing and the attorney only realizes the missing document a half hour before the client’s case is called, we will be unable to represent the client. Clients who are receiving public assistance can often get volunteer drivers to bring them to their medical appointments or to hearings such as Social Security Disability or SSI hearings, but these drivers are not able to bring them to their attorneys’ offi ces. Attorneys do, when feasible and necessary, meet clients at their homes or at public libraries or similar places. This, however, creates its own set of problems and concerns.
Public transportation is helpful, but can be prohibitively expensive for low-income litigants. For example, St. Lawrence County no longer has public transportation per se, but the local ARC chapter allows county residents to ride its buses for a very low fl at fee. If someone cannot get to the scheduled bus stop, the bus will come pick them up—with a per mile charge for the route deviation. One client who used this service lived several miles outside the closest village with no transportation to the bus stop and had to pay well over $30 for the round trip, twice what she was expecting. By comparison, as of spring 2017, a round trip Trailways ticket between her village and our offi ce costs $18—again, assuming a client can get to the bus stop. To be clear, I do not fault the ARC for needing to recoup their costs, and having any public transportation at all is better than nothing. However, $30 is a huge amount for anyone who falls within the federal poverty guidelines. Mr. Doe in our case study was forced to take taxis regularly as there was no other transportation available. Again, this is a huge expense for anyone living within the federal poverty guidelines and prohibitive for many.
Setting aside the cost for a moment, both finding transportation and working around the lack of transportation take a huge amount of time and energy. This can mean calls to DSS or a similar agency to find volunteers; it can mean finding a friend or family member who has a car and is willing to drive; it can mean rescheduling appointments or court appearances to coincide with SSI or disability or public assistance payments, when the client will have gas money. It can mean confirming and rescheduling these arrangements, once or twice or more times than that, and it can mean a default judgment against the client if the ride falls through and the attorney cannot successfully persuade the judge to adjourn the matter. Not every failure to appear or missed appointment is because of lack of transportation, of course, but this particular infrastructure barrier is common to every single one of our rural service areas, and it is one of the most problematic. It goes far beyond court, of course, affecting employment and standard of living. I have seen a client regularly hitchhike ten miles to work a minimum wage job—despite having been arrested more than once for hitchhiking—and walk that distance when no one would pick her up. I have seen a client without a driver’s license give up a ride to his job because he was on probation, the person he was riding with was using drugs, and the client faced the possibility of jail time if the driver was caught.
Solving this problem is something that is beyond any one agency or entity. But it is in the interests of federal, state, and local municipalities as well as their residents to work towards making reliable transportation available. One partial solution might be to expand volunteer driver programs to include legal services and court appearances, but that would mean finding and coordinating a vast number of volunteers with ample time to provide these services, not to mention the increased cost of mileage reimbursement. Another partial solution could be expanding and emphasizing “place-based services,” in which legal services and similar providers move closer to their client base. This is more difficult in rural areas, as the client base is so spread out and scattered; however, it might be possible to hold periodic clinics in remote areas to at least lessen the burden on clients.46 A model like this would require a number of structural supports, including internet access and a secure and private meeting place. There is also the possibility of “one-stop shopping,” so that one or two days per month civil legal services providers, victims’ advocates, law enforcement, and social services agencies would be available for possible clients. This model is particularly appealing in cases involving domestic violence, where a victim may need all these supports in place to leave her abuser but where her movements are tracked and questioned. However, this would require not only the same infrastructure and supports that a clinic would, but a tremendous amount of planning and coordination among all the agencies involved. Technology, such as our Closing the Gap program, can help; however, it is largely dependent on the clients’ own resources and may require them to travel to get to a site with Internet service. And, of course, none of these models fully addresses the absolute need to be present at a courthouse on a particular date and time.
B. Mental Health Services
Many of our clients want or are required to seek mental health treatment. This can be mandated through Family Court, as part of a disability or employment case, or for a variety of other reasons; it can also, of course, be something that a client wants to do for his or her health and well-being.
Unfortunately, mental health services in rural counties are both scarce and overwhelmed. In some of our rural areas, it is not uncommon for a client to have to wait six months to a year for a first appointment with a therapist and longer to see a psychiatrist or psychologist. This is particularly problematic when a client is waiting for a disability or SSI hearing, as administrative law judges tend to consider whether a client who alleges disability due to mental health problems is seeking and following through with treatment. The delay also causes difficulties in these cases because the Social Security Administration privileges the opinions of psychologists and psychiatrists over therapists,47 as well as the opinions of longstanding treatment providers over those of shorter duration. This is also a problem for parents who have been ordered to seek mental health treatment as part of a family court or similar case and for public benefits recipients who must show medical proof that they cannot work due to mental health conditions. This issue is magnified by the transportation problem, as many clients are simply not able to get to their treating professionals as often as they ought to.
As with the problems our client base faces with transportation, this is a huge issue that is beyond any one agency to solve. The bottom line is that the state and local mental health agencies in rural areas need more personnel. This requires more of everything, though: more money for salaries, more money for supervising staff, more incentives for practitioners to come to or remain in remote areas. Satellite offices for mental health clinics sound appealing in much the same way that place-based legal services do; while these might help with transportation problems, however, they would not improve overall access for the simple reason that the root problem is the lack of ample professionals in rural areas.48 To fix this problem requires advocacy and education on a scale that LASNNY cannot perform (both by regulation and in practical terms), as well as understanding by state and local officials that their constituents in rural areas are suffering due to mental health shortages. It also requires that state and local officials and their constituents understand not only the human cost but the financial cost which comes from these shortages, whether that is couched in terms of clients’ inability to get SSI, in terms of their inability to work, or through some other metric—and it requires political and community will that may not be present as we face continued economic uncertainty.
This article barely skims the surface of the barriers between our rural clients and access to legal services, and to do any more than that would require far more space and expertise than I have. LASNNY has been able to overcome some of these barriers by blending the traditional solution of pro bono attorneys with new and innovative technology in our Closing the Gap program, but this is not a full solution to our clients’ problems. Similarly, while unbundled legal services and systemic advocacy both allow us to spread scarce legal services out among a large and scattered client base, neither can possibly serve the needs of all clients. Until we hit on a more nearly perfect solution or set of solutions, we continue to rely on the commitment, flexibility, creativity, and understanding of our advocates, our organization, and our partners in the public and private sectors.
- Some details and the client’s name have been changed to preserve anonymity.
- Emily S. Taylor Poppe & Jeffrey J. Rachlinski, Do Lawyers Matter? The Effect of Legal Representation in Civil Disputes, 43 Pepp. L. Rev. 881 (2016).
- Permanent Comm’n on Access to Just., N.Y. State Unified Ct. Sys., Report to the Chief Judge of the State of New York (2016), http://www.nycourts.gov/accesstojusticecommission/PDF/2016_Access_to_Justice-Report.pdf.
- Poppe & Rachlinski, supra note 2.
- What We Do: Services, Legal Aid Society of Northeastern New York, https://www.lasnny.org/what-we-do/services/ (last visited April 9, 2017).
- See Poppe & Rachlinski, supra note 2, at 941-42. For outcomes in these specific areas, see supra note 2 at 900-09 (housing); 910-18 (administrative hearings and government benefits); 922-25 (family law); 928-30 (tax); and 930-31 (bankruptcy).
- Legal Servs. Corp., FY 2017 Budget Request (2017), http://www.lsc.gov/media-center/publications/fy-2017-budget-request.
- Conference of Chief Justices & Conference of State Court Adm’rs, The Importance of Funding for the Legal Services Corporation from the Perspective of the Conference of Chief Justices and the Conference of State Court Administrators (2013), http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Web%20Documents/LSC_WHTPR.ashx.
- Id. at 3-4.
- Permanent Comm’n on Access to Just., supra note 3, at 15.
- See Legal Servs. Corp., supra note 8, at 6.
- Times Union Editorial Bd., Editorial, New York’s Legal Dilemma, Times-Union (Oct. 3, 2012), http://blog.timesunion.com/opinion/new-york%e2%80%99s-%e2%80%a8legal-dilemma/22290/.
- See Legal Servs. Corp., supra note 8, at 2.
- Office of Mgmt. & Budget, Exec. Office of the President, America First: A Budget Blueprint to Make America Great Again 5 (2017), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/budget/fy2018/2018_blueprint.pdf.
- Permanent Comm’n on Access to Just., supra note 3 at 7.
- Id. at 5; Legal Servs. Corp., supra note 8, at 2.
- Permanent Comm’n on Access to Just., supra note 3 at 11; Legal Servs. Corp., supra note 8, at 7.
- Doris Marie Provine, Judging Credentials: Nonlawyer Judges and the Politics of Professionalism (1986). I am indebted to my childhood friend David Snow, Esq. for alerting me to Professor Provine’s book, which is still one of the most comprehensive studies of New York’s justice courts. Mr. Snow grew up in Virgil, New York, where Professor Provine served as a town justice for some years, and I grew up one township over in Lapeer, New York. See Bruce Smith, Rural Justice in New York State, 14 J. Am. Inst. Crim. L. & Criminology 284, 286-87 (1923).
- Judith Kaye & Jonathan Lippman, N.Y. State Unified Court Sys., Action Plan for the Justice Courts (2006), https://www.nycourts.gov/publications/pdfs/ActionPlan-JusticeCourts.pdf; Provine, supra note 21, at 84-85
- Uniform Just. Ct. Act §§201(a), 202, 204.
- Markese v. Cooper, 333 N.Y.S.2d 63 (Monroe Co. 1972).
- Criminal Procedure Law §§10.10, 10.30.
- N.Y. Const. art VI, §20(c).
- Smith, supra note 21, at 287.
- William Glaberson, In Tiny Courts of N.Y., Abuses of Law and Power, N.Y. Times (Sept. 25, 2006), http://www.nytimes.com/2006/09/25/nyregion/25courts.html?mcubz=1 (citing a 1927 state report saying the same).
- William Glaberson, Reform of New York’s Courts Stalls, N.Y. Times (Jan. 7, 2010), http://www.nytimes.com/2010/01/08/nyregion/08courts.html?mcubz=1.
- Amelia T.R. Starr et al., Task Force to Expand Access to Civil Legal Services, Summary Proceedings in New York’s Town and Village Courts: Ideas for Improvement (2012), http://moderncourts.org/wp-content/uploads/2013/10/Summary-Proceedings-in-New-York-Town-and-Village-Justice-Courts-Ideas-for-Improvement.pdf.
- Id. at 5-8, Exhibit. B.
- Id. at 1.
- Id. at 5-8.
- Id. at 13, Exhibit B.
- For an excellent overview of the history of unbundling, see Jessica Steinburg, In Pursuit of Justice? Case Outcomes and the Delivery of Unbundled Legal Services, 18 Geo. J. on Poverty L. & Pol’y 453 (2011).
- D. James Greiner, Cassandra Wolos Pattanayak, & Jonathan Hennessey, The Limits of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future, 126 Harv. L. Rev. 901 (2013).
- For a summary of the most common arguments made against unbundling, see Fern Fisher-Bradeveen & Rochelle Klempner, Unbundled Legal Services: Untying the Bundle in New York State, 29 Fordham Urb. L.J. 1107 (2002).
- Representative pieces include Raymond H. Brescia, Walter McCarthy, Ashley McDonald, Kellan Potts, & Cassandra Rivais, Embracing Disruption: How Technological Change in the Delivery of Legal Services Can Improve Access to Justice, 78 Alb. L. Rev. 553 (2015), and James E. Cabral, Abhijeet Chavan, Thomas M. Clarke, John Greacen, Bonnie Rose Hough, Linda Rexer, Jane Ribadeneyra, & Richard Zorza, Using Technology to Enhance Access to Justice, 26 Harv. J.L. & Tech. 241 (2012).
- Technology Initiative Grant Award 2016, Legal Services Corporation, http://www.lsc.gov/technology-initiative-grant-awards-2016 (last visited April 10, 2017). Technology Initiative Grants for 2009-2015 are available at http://www.lsc.gov/grants-grantee-resources/our-grant-programs/tig#Grants (last visited April 10, 2017).
- Based on the 2010 census, St. Lawrence County’s population density is 41.76, and that of Essex County is 21.94. Table 2: Population, Land Area, and Population Density By County, New York State-2010, N.Y. St. Dept of Health https://www.health.ny.gov/statistics/vital_statistics/2010/table02.htm (last visited April 10, 2017). For purposes of comparison, Albany County’s population density at that same period was 581.87, and that of Greene County was 76.06. Id.
- LASNNY’s Canton office for some time held a very watered down version of this model at a local technical college. Many of the students there are non-traditional students, first-generation college students, or both. Therefore, many of them qualified financially for our services, and we held monthly clinics to screen clients for eligibility and offer advice and brief service. Our offices similarly hold clinics at the Akwesasne reservation on the Canadian border and for our senior clients in various settings.
- Some federal caselaw explicitly recognizes that in Northern New York, disability claimants simply may not have access to a primary physician and rely instead on physician assistants or nurse practitioners, whose opinions are then afforded extra weight. Duell v. Astrue, No. 8:08-CV-969, 2010 WL 87298 at *6 (N.D.N.Y. Jan. 5, 2010); Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983). To my knowledge, however, this has not been broadened to include counselors in lieu of psychiatrists.
- A brief search of the Health Resources and Services Administration (HRSA) database, maintained by the Department of Health and Human Services, shows that every single rural county within LASNNY’s service area has been designated as having a shortage of mental health professionals, either globally or among Medicaid-eligible patients. Medicaid-eligible patients, of course, form a large part of our client base. https://datawarehouse.hrsa.gov/Tools/HDWReports/Filters.aspx?id=198, accessed April 9, 2017.
Victoria Esposito is the Advocacy Coordinator at the Legal Aid Society of Northeastern New York, where she works with attorneys throughout the organization’s 16-county service area to identify and solve systemic issues affecting low-income people. She is active in the New York State and Albany County Bar Associations and has previously served as an Assistant District Attorney for St. Lawrence County and taught paralegal students in various settings. Victoria lives in Albany with her husband and has two adult daughters.