Lippman: Judges can’t be lawyers at the same time

The Daily Record highlighting last Thursday’s hearing in Buffalo before Chief Judge Jonathan Lippman on unmet civil legal services needs.

Judges feel their position as a neutral arbiter may be compromised when litigants appear before them without legal representation.
That is one of the challenges the judiciary faces because of a lack of funding for civil legal services for the state’s poor. A panel of three judges Thursday testified at a hearing in Buffalo before Chief Judge Jonathan Lippman on the Unmet Civil Legal Services Needs of Low-income New Yorkers.

Judge Paula L. Feroleto, administrative judge of the Eighth Judicial District and co-chair of its Pro Bono Committee, said she thinks all judges are very aware of how to deal with pro se litigants because they see them frequently.

She said in Erie County Supreme Court, more than 2,000 litigants were unrepresented last year and that the numbers are much higher in city and rural courts.

“What’s the judge’s role?” Judge Lippman asked. “Judges are supposed to be neutral. What do you do when one side has an attorney and the other side doesn’t? You’re not supposed to be the lawyer for the person who doesn’t have one. What’s the impact on the justice system on equal justice when the judge is kind of caught in this dilemma?”

Judge Feroleto said proceedings go much more slowly; that many times adjournments are granted for people to get an attorney or she “politely suggests” they do some research or consult with someone.

She said her district is lucky to have the cooperation of many legal services and pro bono programs, but that the network is not available to all counties and particularly, the rural areas where there are people willing to serve but don’t know how to go about it.

Judge Lippman said a core of funding is needed to support the partnership between the judiciary, bar, providers and academia — all of which had representatives testify.

He and Chief Administrative Judge Ann Pfau conducted four hearings, one in each judicial department, along with the respective department’s presiding justice and a representative from the New York State Bar Association.

Judge Feroleto also mentioned the criminal side, saying “it’s a shame” that many of the city courts in her judicial district do not have public defenders available when they are arraigned.

Judge Lippman said that was also discussed at some of the other hearings — how the justice system sometimes fails in its mission to provide criminal representation as a constitutional right. He noted on the criminal side, the loss of liberty is so severe a consequence that people have a constitutional right to representation, but that civil issues are also life essential such as housing, one’s livelihood, protecting one’s family and freedom from physical violence, that the consequences of not being represented can be just as great or greater.

Onondaga County Supreme Court Justice Deborah H. Karalunas acknowledged the state’s economy is poor and that funding for nonprofits is being slashed at the same time the state is imposing unfunded mandates, increasingly pressing the judiciary to solve social issues. She devoted many hours to representing poor clients in civil legal matters during the 20 years she practiced with the Bond, Schoeneck & King PLLC firm in Syracuse before being elected to the Supreme Court in 2002.

Judge Karalunas said the Hiscock Legal Aid Society, the Legal Aid Society of Mid-New York Inc. and the Legal Services of Central New York Inc. were funded by federal, state and local governments, private funds, the United Way and the Interest on Lawyer Account fund, all of which have been cut.

Judge Lippman also noted the IOLA fund has gone from $32 million to $6.5 million and that the Legal Services Corporation in Washington, D.C., is constantly under siege with respect to funding. Judge Karalunas said she supports access to legal services in civil matters involving the essentials of life, but has concerns about increasing the role of courts in funding and administering programs to meet that challenge.

“The judiciary is a separate and co-equal branch of government,” she said. “By taking on responsibility to fund and administer civil legal services, the judiciary assumes the policy making role of the legislative branch and the managerial role of the executive branch. When the judiciary pays for a lawyer to represent one of the two sides in a dispute, I believe our role as a neutral arbiter is severely compromised.”

Judge Karalunas said she understands the Task Force to Expand Access to Civil Legal Services in New York, which organized the hearings, is asking for ideas to ensure the needs of the poor are met in matters concerning the necessities of life. She said the legislative and executive branches can and should do more; recognizing many matters could be kept out of court if civil legal assistance is provided before a legal problem escalates into a court case.

She said the government could establish “Know Your Rights” community legal education and preventative legal assistance programs, mandate some form of pre-action alternative dispute resolutions, authorize fee shifting in various actions and provide a reliable dedicated source of independent funding.

Judge Karalunas said the judiciary can also do more and suggested simplifying forms, procedures and rules in family courts and landlord/tenant cases; dedicating staff to assist pro se litigants in understanding and completing forms; waiving registration fees for attorneys who devote 60 hours or more a year to pro bono service; mandating all attorneys provide a certain number of pro bono hours in such cases; work with law schools, bar associations and legal aid programs to train pro bono lawyers; and expand programs that allow retired lawyers to practice law and allow judges and law clerks to engage in pro bono work outside of court.

Then Judge Lippman, in a lighter moment, called Buffalo City Court Judge E. Jeannette Ogden his “clean-up hitter,” of whom Judge Eugene F. Pigott of Grand Island, his colleague on the state Court of Appeals, “has made sure that he’s here to hear your testimony because he expected great things from your testimony.”

Judge Ogden said the issue is very near and dear to her heart, sitting on the city court bench that has a very high volume of criminal and civil cases.

“The purpose of a judge is to ensure justice and fairness to everyone who comes into the courtroom,” she said. “So, when one party does not have access to an attorney, they don’t have access to justice, not really.”

Judge Pfau asked how that affects her role as a judge with so many cases and limited time.

“That compromises my position as a judge because I am required to be a neutral arbiter of the law,” Judge Ogden said. “It is very very difficult and I have to be mindful of the ethical ramifications that can result if I lean one way or the other.”

She said the amount of cases in city and urban centers are triple that of Supreme Court which creates an overall adverse impact to the court and compromises judges’ ability to do their jobs and be detached, neutral arbiters.

“You can’t be the judge and a lawyer for somebody at the same time,” Judge Lippman said.

“That’s correct,” said Judge Ogden. “You affect the perception of justice because people from the outside come in and they want to see the judge being in the middle. They don’t want to see the judge leaning because if you’re leaning in this instance, how will they know that you won’t lean in every other instance. The judge can never be the lawyer.

“I think that it is so important that people realize that every individual that steps into a court in New York state has an individual fundamental right to fairness and you achieve that when you allow equal access to an attorney because that’s the first step in equal access to justice.”

Judge Lippman said what is clear is that funding of civil legal services is a good investment with a $5 return on every $1 spent through reduced social services needs, homelessness and incarceration.

He said the task force will be completing its report on the hearings in a month or so. His budget for the Unified Court System is due to the state by Dec. 1.

Before introducing the judges panel, Judge Lippman acknowledged some of the task force members in the courtroom including Sheila A. Gaddis, executive director, Volunteer Legal Services Project of Monroe County Inc. and a partner at Hiscock & Barclay LLP; C. Bruce Lawrence, partner, Boylan Code LLP;  Robert N. Convissar, past president, Bar Association of Erie County; and task force chair, Helaine M. Barnett, president, Legal Services Corporation, 2004-2009.

Previous panels included clients, collaborations and shared costs, and law school dean, featuring Makau W. Mutua, dean and SUNY distinquished professor at the University at Buffalo Law School.