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‘Pro se’ not OK

Legal struggles compounded by inability to afford help

iStock image used with permission.

iStock image used with permission.

The economic downturn is creating an uptick in the need for legal representation.

More and more people need help with their financial problems, but the state is suffering fiscal issues of its own, resulting in an increasing number of people going unrepresented in court.

Criminal defendants constitutionally are guaranteed the assistance of a public defender, but those facing civil matters who cannot afford a lawyer are trying to handle them on their own.

“The courts are being overwhelmed with litigants who are attempting to represent themselves,” Sheila A. Gaddis, executive director of the Volunteer Legal Services Project of Monroe County Inc. said recently. “It’s very difficult to represent yourself in court without an advocate.”

She said the current economy is seeing an ever-increasing number of people being denied unemployment benefits or seeking representation at foreclosure settlement conferences.

“Those are the two areas in which we’ve seen an increase and we are unable to serve the numbers that are coming in,” Gaddis said. “We’re essentially unable to serve them and having to turn them away. Self-represented litigants do not generally have the same rate of favorable outcomes as if you were represented by an attorney.”

She said that, as a result, more people are turning to pro bono services for assistance programs, like Pro Bono Action Now, a statewide initiative sponsored by the New York State Unified Court System, hosted locally through VSLP with assistance from several community partners.

Linda J. Kostin, coordinator for the Seventh Judicial District’s program, said VSLP has seen a 63 percent increase in the number of unemployment insurance benefits denial cases from 2005, when 150 were opened, to 2009, when there were 245.  The foreclosure program is new so older figures are not available.

Kostin agreed that demand for legal assistance is sky rocketing, and people are being turned away.
“What happens is we provide them with a manual that they can use to represent themselves as best they can, but obviously that’s not a replacement for being represented by an attorney,” she said.

Gaddis said VSLP is charged with increasing pro bono participation by recruiting, training, recognizing and supporting attorneys who accept pro bono work in the eight counties of the Seventh Judicial District.
“In order to do that, we need to recruit more and more attorneys,” she said. “We’re very lucky in Rochester. The legal community is very giving, but that doesn’t mean we don’t need more.”

Monroe County Supreme Court Justice Evelyn Frazee said the lack of representation also is slowing down the legal process, making it difficult for judges who must be impartial and cannot tutor an unrepresented party. She said unrepresented parties also are at a disadvantage against a party that has representation because they simply do not know what they are doing, or are attempting to learn as they go along.

“I think, nationally, there’s been a trend in people representing themselves more,” Justice Frazee said. “It’s a difficult situation. It is a problem and something needs to be done.”

That’s exactly what New York State Chief Judge Jonathan Lippman intends. In May he announced the appointment of a task force to “Expand Access to Civil Legal Services in New York.”

Chief Judge Lippman, who addressed a Monroe County Bar Association-hosted forum June 10, calls the problem one of the greatest challenges the justice system is facing today. He said 2 million people, at last count, have no choice but to go to court without the help of a trained legal professional.

The effects of the problem also were highlighted in a report released earlier this week by the American Bar Association, which showed that a lack of representation in civil matters is hurting individual cases and impacting courtrooms negatively.

The ABA’s findings, detailed in its “Report on the Survey of Judges on the Impact of the Economic Downturn on Representation in the Courts,” were announced July 12 at the National Press Club in Washington, D.C.
“I’m not the least bit surprised,” Boylan, Brown, Code, Vigdor & Wilson LLP attorney C. Bruce Lawrence said last week. “It’s exactly what Judge Lippman has been talking about.”

Lawrence is serving on Chief Judge Lippman’s task force with Gaddis and several others, and leads the five representatives from the Appellate Division, Fourth Department, including one each from Erie, Onondaga and Oneida counties.

“The system was barely working,” Lawrence said. “It wasn’t meeting all of the needs of the people prior to the recession, but the recession destroyed the funding mechanism, which in New York, is the Interest on Lawyer Account Fund.”

Interest from real estate transactions in particular was the major funder, and has since all but dried up. The Federal Reserve also lowered the interest rate to less than 1 percent, leaving little in the account to help low-income clients with civil matters.

“What Judge Lippman wants is this new task force to find a new funding source,” Lawrence said,” one that would be steady and wouldn’t be subject to market forces.”

He said the Fourth Department members of the task force have met twice so far, including last week, and are preparing for the public hearings to be conducted by the chief judge this  fall — the Fourth Department’s hearing is set for Sept. 29.

Lawrence said the task force also is considering a new survey to gauge which areas of law are in most need of representation.

“We are looking for a funding solution that would provide stable funding for civil legal services for the indigent and would expand the number of lawyers that would be available to do that,” Lawrence said. “One of the things that we’re noticing now is that there are more middle class people who are unrepresented. It’s not just the indigent. We have a lot of people who have lost employment and are in financial difficulties and paying for legal representation is a real problem.”

Tenants facing eviction and debtors being sued by credit card companies are also areas hurting for legal assistance, he said.