NY state ATJ commission report for 2022

2022 annual report focusing on civil legal services funding, court process simplification, and rural attorney shortage.

Item details

Focus organization: NY Permanent Commission on Acccess to Justice
Publisher: NY state ATJ Comm
Date (approx.): Nov 30, 2022
Actual title: 13th Annual Report to the Chief Judge of the State of New York
Creator: Barnett, Helaine M., Chair
Collection: ATJ Commission reports
Format: Report
State: NY
Law type: Civil
Topics: Access to justice
Content availability: Full text: PDF here
File: Download
External link: https://www.nycourts.gov/LegacyPDFS/accesstojusticecommission/22_ATJ-Comission_Report.pdf
Last modified: 2023-02-01 09:35


Executive Summary

During 2022, the Permanent Commission on Access to Justice (Commission) focused on a wide-ranging agenda of longstanding subjects of concern (such as civil legal services funding and court process simplification) and new areas of attention (such as the attorney shortage in rural areas and expansion of local access to justice committees districtwide). When the COVID-19 pandemic began in 2020, the Commission’s work was dominated by the urgent need to respond to the access to justice crisis wrought by the pandemic — including the effects of new virtual proceedings on the courts, legal services providers, and litigants; the inequities created by the digital divide for low-income New Yorkers in virtual courts; and the increased need for legal assistance in, for example, housing matters. With the worst of the pandemic receding, any remaining pandemic-related issues are now embedded in the Commission’s broader agenda.

Of course, the pandemic crisis sparked many innovations, especially regarding technology. The Commission has benefited from one of the more notable, positive innovations in the pandemic response: the wider acceptance of virtual meetings, conferences, and proceedings. For example, despite the many pandemic-related strictures for in-person attendance in courthouses, the 2022 Civil Legal Services Hearing at the Court of Appeals, presided over by Acting Chief Judge Anthony Cannataro, was held both virtually and in person. The Commission assisted in preparation for the Hearing and learned that the virtual option not only made appearances by out-of-state and in-state presenters much more convenient, but also made possible a national bar leader’s participation from a location in Europe.

Acting Chief Judge Cannataro noted that the annual Civil Legal Services Hearings conducted over the past 12 years were a “driving force behind the significant progress” made in expanding the availability of civil legal assistance. He acknowledged the critical importance of both collaboration among stakeholders and support from judiciary partners in the executive and legislative branches.

Hearing presenters included judiciary, bar, business, and charitable institution leaders, in addition to Judiciary Civil Legal Services (JCLS) grantees and their clients. They documented the continuing unmet civil legal needs of low-income New Yorkers, recent innovations designed to help close the justice gap in New York, and the critical importance of JCLS funding.

During 2022, the Commission opted once again to conduct its signature events virtually: the Statewide Civil Legal Aid Technology Conference in April, the Law School Conference in June, and the Statewide Stakeholders Meeting in October. All were well attended, became rich sources of ideas and innovations, and led to many of the Commission’s recommendations in this Report. In addition, the Commission’s Working Groups identified and addressed several key access-to-justice issues. Established in 2020, the Future Access to the Courts Working Group continued to explore innovative approaches to expanding future access to the courts. The Race and Gender Equity Working Group, created in 2021, began bringing together major law firms and civil legal services providers to exchange information and protocols to enhance and maintain a diverse workforce. The Funding Working Group began the process to arrive at a realistic estimate of the resources needed to close the justice gap. The Housing Working Group explored a wide range of issues affecting litigants in housing matters.

The Technology Working Group continued to have responsibility for the Commission’s annual Technology Conference and began considering a technology survey of legal services providers. The Law School Involvement Working Group planned the annual Law School Conference, with the 2022 theme of addressing the structural challenges of poverty, injustice, and inequality.

The Working Groups’ high level of productivity is reflected in many of the Commission’s recommendations for 2023 outlined in this Report.

Of critical importance, as always, is the continuation of JCLS funding. The Commission recommends that funding continue at the level of $112.6 million, which includes last year’s cost-of-living adjustment, but with an additional cost-of-living increase for the coming fiscal year.

Summary of Recommendations for 2023

Based on the annual Civil Legal Services Hearing and the Commission’s work over the last year, the Commission is making the following recommendations for action:

A. Judiciary Civil Legal Services Funding

Funding Study: The Commission will continue its study to develop a realistic current estimate of funding needed to provide effective assistance to all low-income New Yorkers facing civil legal problems to achieve the goal of closing the justice gap. Funding Cost-of-Living Adjustment: The Commission recommends continued Judiciary Civil Legal Services funding for FY 2023-2024 at last year’s level of $112.6 million with the addition of a cost-of-living increase to account for inflationary pressures, the increased demand for services, and the staffing and infrastructure needs of legal services providers. The Commission recommends that the increase be in the maximum amount deemed feasible by Judiciary leadership.

B. Local Access to Justice Committees: Expansion and Support

Districtwide Expansion: Given the successes of the local access to justice committees, the Administrative Judges outside New York City should endeavor to expand their access-tojustice efforts districtwide.

Administrative Support: The court system should support efforts to expand local access to justice committees and initiatives by creating a position in each Judicial District to act as liaison between the local access to justice committees and the District Administrative Judge.

C. Housing

Protection for Defaulting At-Risk Tenants: The court system should require all petitioners seeking default judgments in residential eviction proceedings to inform the court if they have knowledge of any at-risk respondents or occupants living in the premises. In cases where a petitioner discloses the existence of an at-risk respondent, the court should be required to notify the local adult protective services agency.

Specialized Housing Parts: All counties outside New York City should replicate the Eighth Judicial District’s consolidated housing part to increase access to justice, ensure uniform application of State and federal protections, prevent evictions, and maximize access to legal and social services. The Commission recommends that the court system pursue any required statutory or constitutional changes necessary to facilitate the establishment of these consolidated housing parts.

Strengthen the Pipeline of Housing Lawyers in Law Schools: Law schools should bolster the pipeline of housing attorneys by, among other ways, expanding doctrinal course offerings and supporting student engagement in tenant organizing work. Housing Answer DIY Form Program: The Office for Justice Initiatives, in collaboration with the Division of Technology, should continue to pursue efforts to update the New York City Tenant Nonpayment Answer DIY Form program to reflect recent changes in the law and re-launch the program in English and Spanish for the benefit of unrepresented court users, and for lawyers, law students and non-lawyers to use as a tool to assist unrepresented tenants. Furthermore, the Office for Justice Initiatives should create a Tenant Nonpayment Answer DIY Form program for tenants to use outside New York City.

Right to Counsel in Housing Matters: Because the right to adequate housing accommodations is fundamental, the Commission supports the right to counsel in eviction proceedings for all New Yorkers who cannot afford counsel.

D. Process Simplification

Fee Waiver Statute: CPLR Article 11 should be amended to establish an equitable, simplified and uniform process that includes: (1) renaming the statute to remove the stigmatizing categorization of litigants seeking relief; (2) establishing automatic eligibility for individuals who currently are receiving means-tested public assistance or whose annual household income is at or below 200% of the Federal Poverty Guidelines; and (3) allowing for judicial determination of eligibility for all other individuals pursuant to rules adopted by the court system.

Uniform Fee Waiver Court Procedures: Upon amendment of the statute, court rules should be enacted that: (1) set forth a short list of uniform documentation that courts can require litigants to provide in support of their fee waiver request; and (2) permit the delegation of authority to court clerks to decide fee waiver requests submitted by individuals who are deemed automatically eligible for relief.

Affirmations in Place of Affidavits: The court system’s proposal to amend CPLR 2106 to permit the use of affirmations, subject to penalty for perjury, in place of affidavits in civil proceedings should continue to be a legislative priority for the court system. The Commission urges that the prescribed affirmation text included in the statute be in plain language.

Check Boxes in Place of Signatures: To further simplify online filing of affirmations, e-filing, and the filing of court forms generated by the DIY Form programs, check boxes in place of signatures should be deemed sufficient for online filings.

E. Technology

Technology Survey of Legal Services Providers: The Commission should conduct a technology survey in 2023 of the New York State legal services community as a follow-up to the surveys conducted in 2013 and 2018, to obtain a new snapshot of the providers’ technology status post-pandemic. The results should be analyzed and disseminated to educate stakeholders and support continued improvements of the civil legal aid delivery system. To assist with the survey, the Commission should consider collaborating with an access-to-justice partner with expertise in survey design and quantitative analysis.

Make NYSCEF Accessible to Unrepresented Litigants: The court system should continue to expand New York State Courts E-Filing (NYSCEF) to all courts, including Town and Village Courts, and should make NYSCEF more accessible and user-friendly for unrepresented litigants.

Expanding Courthouse Services Beyond the Clerk’s Office: The Commission recommends that the virtual clerk model used in Suffolk County be replicated in other courts, beginning with Family Courts around the State. Courts should consider installing the virtual clerk one-stop shopping model in public libraries, public access law libraries, and other community locations to create additional access points for services.

Equipping Law Students with Technology Skills to Expand Access to Justice: Law schools should expand digital and remote clinical and pro bono opportunities for students through collaborations with other law schools and legal services organizations. Partnerships that incorporate technology have the potential to increase access to legal services in historically underserved communities while offering students practical experience that informs culturally sensitive lawyering.

Addressing Digital Equity in Emergency Preparedness: The court system and other accessto-justice stakeholders should consider partnering with digital inclusion organizations to make technology assistance available to disadvantaged communities to ensure access to justice during emergencies.

Technology Continuing Legal Education Credits: The Commission should endeavor to offer New York State Continuing Legal Education sessions at the annual Technology Conference so that attorneys can fulfill the new requirement to complete at least one Continuing Legal Education credit in cybersecurity, privacy, and data protection.

F. Role of Lawyers, Law Students, and Non-Lawyers

Attorney Shortage in Rural Areas: Urban-to-rural pro bono projects should be developed: Innovative pro bono initiatives that connect lawyers practicing in New York’s urban centers with rural legal services providers can be a valuable way to expand access to effective assistance in rural areas. The Commission supports the continued development of an urban-to-rural pro bono initiative under consideration by the Business Council on Access to Justice.

Law schools should promote rural practice: Law schools should elevate instruction on rural legal practice and establish related internships and clinical programs, leveraging technology to expand access to effective assistance to rural communities.

The Role of Pro Bono in Responding to Civil Legal Needs in Emergencies: Attorney Emergency Response: Providers should be prepared for emergencies by establishing a framework for leveraging the services of pro bono attorneys. Providers also should consider establishing partnerships with other stakeholders to assist with resources and support for pro bono efforts.

Law School Emergency Response: Law schools should support student groups that assist in disaster recovery, emergency preparedness, and crisis management. Law schools are encouraged to participate in their local Volunteer Organizations Active in Disaster.

Strengthening the Pro Bono Scholars Program: A comprehensive review of the Pro Bono Scholars Program should be undertaken, with reference to insights of former and current Scholars, supervisors, and court administrators, to consider modifications to the program rules and proposals for expansion.

Law Schools and Students Expand Immigration Assistance: Law schools should continue to address the civil legal needs of immigrants in New York State, while helping to bridge the digital divide in immigrant communities.

Replication of Legal Hand Virtual Model: The Legal Hand Call-In Center model that provides telephonic, text, and online informational assistance from specially trained community non-lawyer volunteers, who are supervised by attorneys, should be established in additional geographic areas of New York State, in partnership with local legal services providers, community organizations, and/or law schools.

G. Consumer Debt

Exploring Solutions to the Barriers in Consumer Debt Matters: To address the significant unmet need for effective assistance in consumer matters, the Commission and the court system should work together to study the barriers to justice faced by low-income defendants and propose solutions.