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recent years .5 Thus, in 2006, the American Bar Association adopted a resolution urging “federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction .”6 Advocates have advanced a number of arguments for the establishment of a right to counsel in civil cases, including going so far as to ground the right in international human rights documents .7 Over the years, efforts to expand the right to counsel to civil cases have even achieved some limited statutory success .8
In New York State, consideration of the right to counsel in civil cases can begin with an examination of the number of civil cases in which the right would be provided . The numbers are daunting . In New York, there are 1 .8 million unrepresented parties annually .9 This reflects the sheer volume of litigation in New York, including consumer credit, foreclosure, housing, and divorce, custody, and child support cases . There are many more civil cases – many if not most of which have unrepresented parties – conducted before administrative tribunals each year . For example, annually there are close to 300,000 New York Office of Temporary and Disability Assistance fair hearing requests, which primarily concern cash assistance, Supplemental Nutrition Assistance Program (SNAP/food stamp), and Medicaid matters .10 And at the City level, there are even more legal proceedings, for example: 10,000 cases at the Tribunal at the Department of Consumer Affairs (DCA); over 700,000 cases at the Environmental Control Board; 40,000 cases at the Tribunal at the Department of Health and Mental Hygiene (DOHMH); 12,000 cases at the New York City Housing Authority- Impartial Hearing Office; and 100,000 cases at the Tribunal at the Taxi and Limousine Commission (TLC) .11 On top of this are all the times that people might want to consult with a lawyer when determining whether the courts are an appropriate forum to address a problem or even on what course of conduct to take without formal court involvement . For example, one survey that focused on broader civil legal services needs found that people experience on average 2 .1 civil justice situations per year .12 WiththetwomillionadultNewYorkerslivinginpoverty,13 asimilarfrequencyinNewYorkcould translate into over four million times per year in which impoverished New Yorkers could benefit from free legal services .
5 See, e.g., Engler, supra note 3, at 100-01.
6 See a.b.a. resoluTion 112A (2006). Thirty-four states have now established Access to Justice Commissions. See ATJ Commissions, Directory and Structure, A.B.A., http://www.americanbar.org/groups/legal_aid_indigent_ defendants/initiatives/resource_center_for_access_to_justice/atj-commissions/commission-directory.html.
7 Martha Davis, for example, argues that advocates should rely on the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”) when making the case for a right to counsel in civil cases. See Martha F. Davis, Race and Civil Counsel in the United States: A Human Rights Progress Report, 64 syracuse l. reV. 447 (2014).
8 See Laura K. Abel & Max Rettig, State Statutes Providing for a Right to Counsel in Civil Cases, 40 clearinghouse reV. 245 (July-August 2006).
9 See PermanenT commission on access To JusTice, rePorT To The chief Judge of The sTaTe of new york 24 (Nov. 2015), available at http://www.nycourts.gov/accesstojusticecommission/PDF/2015_Access_to_Justice-Report-V5.pdf.
10 See N.Y.S. office of The comPTroller, diV. of sTaTe goV’T accounTabiliTy, benefiT eligibiliTy assessmenT Process 4 (2014), available at http://osc.state.ny.us/audits/allaudits/093014/12s51.pdf.
11 See Tribunals, nyc admin. JusTice coordinaTor, hTTP://www.nyc.goV/hTml/aJc/hTml/Tribunals/Tribunals.shTml (last visited May 13, 2016).
12 See Rebecca L. Sandefur, Accessing Justice in the Contemporary USA: Findings from the Community Needs and Services Study, cited in Katherine Alteneder & Linda Rexer, Consumer Centric Design: The Key to 100% Access, 16 J. l. socieTy 7, 9 n.16 (2014).
13 See n.y.s. communiTy acTion ass’n, new york sTaTe PoVerTy rePorT 5 (2015), available at http://nyscommunityaction. org/wp-content/uploads/2014/03/2015-Poverty-Report-w-50th-logos-for-online.pdf.
Impact: Collected Essays on Expanding Access to Justice