Keynote Remarks by the Honorable Jonathan Lippman, Chief Judge of the State of New York.

The New York Community Trust Biennial Attorneys' Luncheon  |  November 4, 2010  | Hilton New York, Manhattan
    
I am honored and delighted that the New York Community Trust has invited me to address you today at your biennial attorneys luncheon—delighted because I've been asked to discuss a subject—access to justice—that is near and dear to my heart . . . and honored because there is no Foundation more committed to supporting access to justice for the poor than The New York Community Trust.

Before I begin, I want to thank your Chair, Charlynn Goins, and the members of your Distribution Committee, for this invitation, and your General Counsel, Jane Wilton, for facilitating my participation.

I think it is fair to say that the New York State Courts and The New York Community Trust are both on the front lines of the current economic crisis that is hurting so many of our neighbors.  The state courts have become, by any standard, the emergency room for society's worst problems.  If you want to know what those problems are at any given time, just take a look at our dockets—skyrocketing home foreclosures, evictions, consumer debt cases, family violence and dysfunction, and so many others.

These problems are compounded by the record number of people, many of them newly indigent, who can’t afford a lawyer to help them navigate our legal system.  The courts in New York closed last year with 4.7 million new cases filed - the highest ever.  And a noticeably larger share of those cases reflect the human fallout from the recent economic collapse—bad debts, bad business deals, broken lives, broken families, people who lost jobs and homes.  A record 2.3 million people—and this is a conservative estimate—appeared in our courts last year without a lawyer.  These are often the most vulnerable people in our society—the elderly, families with children, the disabled and mentally ill, abuse victims, and so many more.

At the same time, funding for civil legal services in this State has never been more threatened, and the availability of free and affordable legal representation for the indigent has never been more scarce.  The state's leading funding source in this area, IOLA, has seen its revenues plummet to less than a quarter of what they were just a few years ago—from $36 million to $8 million.  It was this critical situation that led us to put $15 million in the judiciary's current budget for civil legal services—something we had never done before but which I concluded was necessary as a moral obligation of our judiciary and our profession, and in order to keep the doors of our legal service providers open.  We are proud of providing this funding, but it remains just a band-aid on a gaping, open wound.

From my perspective as Chief Judge, no issue is more fundamental to the constitutional mission of the courts than providing equal justice for all.  But how can we fulfill our mission when so many of our fellow citizens cannot afford the most basic legal representation?  Even when the economy was strong, civil legal services programs were chronically underfunded, serving only a fraction of those in need—well less than 20% according to every study ever conducted.  We know that for every person lucky enough to be represented by a legal services provider today, eight to ten others are turned away because of a lack of resources.

Last month, the World Justice Project, which focuses on promoting the rule of law in countries around the world, released the results of a world-wide survey which found that the United States ranks lowest among the 11 developed nations surveyed when it comes to providing access to justice to its citizens—and lower than some third-world nations.  With regard to the affordability of legal counsel in civil disputes, the United States ranks 20th out of the 35 nations surveyed, below Mexico, Croatia and the Dominican Republic.  Hard to believe!

There is no question that there needs to be a much greater commitment toward truly equal access to justice, so that the day will finally come when all New Yorkers, no matter their station in life, can get the legal assistance they need to deal with life’s most daunting problems—which sooner or later are reflected in the cases coming to our courts.

Almost 50 years ago, in 1963, the United States Supreme Court in Gideon v. Wainwright said that:


Nearly half a century later, isn't it an equally obvious truth that there are certain types of civil cases, reflecting fundamental human needs, like shelter, income, health care, child custody, family violence and abuse, where it is extremely difficult, if not impossible, for a person to obtain due process—to get his or her day in court—without a lawyer’s help?  Yet, in 2010, this is the sad reality facing hundreds of thousands of our fellow citizens.

New York can do better.  Equal access to justice is one of the most fundamental obligations we owe our citizenry.  The time has come to make sure that all New Yorkers are provided with counsel, at least in those types of cases where basic human necessities are at stake, like shelter, sustenance, safety, health, and children.

Of course, we all know that these are tough times and that the State is in terrible fiscal shape at the moment, but I don't believe that access to justice is a luxury, affordable only in good times.  And I don't believe we can allow funding for that purpose to fluctuate according to the ups and downs of the economy—what a counterproductive approach that is.  It could not be more apparent, particularly today, that the need is the greatest when the economy is weakest.  One doesn't need a Ph.D. in economics to figure that out.  We don't stop funding schools or hospitals because the economy is weak.  Civil legal services for the poor is every bit as important as a priority for our society and for state government as all of these other critical areas.

That is why we have held public hearings around the state—in Manhattan, Brooklyn, Albany and Rochester—to assess the extent and the nature of the unmet civil justice  needs in this State.  I presided over each hearing, along with Chief Administrative Judge Pfau, the Presiding Justice of the Appellate Division in each Judicial Department, and the State Bar President.  Assisting us with the hearings was The Task Force to Expand Access to Civil Legal Services in New York, a blue-ribbon panel of professionals, including your own Lorie Slutsky, who I appointed to do the hard work of developing a comprehensive blueprint for how New York can provide counsel to low-income New Yorkers in the future.  Chaired by Helaine Barnett, the recently retired president of the Legal Services Corporation in Washington, D.C., the Task Force is reviewing the evidence from the public hearings, conducting research and analysis, and preparing a report and recommendations to the Legislature and the Governor.

Based on that report, which will be submitted no later than December 1 with the Judicial Budget, we will make a specific dollar amount request to the Legislature to begin closing the gap in funding for civil legal services, and to start building the infrastructure we need in this state to ensure a consistent, substantial and dependable state funding stream in the future.  The Legislature has endorsed these hearings in a joint resolution, and asked me to provide them with the amount of monies we will need—and that is exactly what we are doing, on December 1, when we submit the Judiciary's budget.

These monies must come out of the public fisc, the State's general fund, and not through unreliable funding streams like IOLA's dependence on lawyers' interest-bearing accounts which are subject to the vagaries of market forces; and it is not discretionary funding but rather absolutely necessary funding—like the other priorities of state government—because it is essential to meet our constitutional obligation to provide equal justice to all, because it is the moral and ethical obligation of civilized societies going back to biblical times—"justice, justice shall you pursue for rich and poor alike" is the exhortation of the Old Testament; and because every dollar we spend on civil legal services is returned to our state five times over in reduced costs for social services, incarceration, and homelessness, as well as increased jobs and federal benefits coming to New York.

So, more funding is absolutely critical, but make no mistake, money alone will not solve the access to justice problem.  We need a comprehensive, multifaceted approach to the problem, with lawyer pro bono services being one of the lynch pins of that approach.

In this regard, New York's lawyers don't get enough credit for serving the less fortunate.  They provided well over two million hours of free legal work last year.  And we have so many wonderful pro bono programs in this state—the bar has done a terrific job—and I am very proud of the court system's own volunteer "Lawyer For a Day" program that is working so well in our New York City courthouses.

And yet, so much more needs to be done.  We have to find new and innovative ways to direct legal help to the needy.  In this regard, I want to mention a new program that I'm very excited about -- the Attorney Emeritus Program.  

Last August, I got a visit from Fern Schair, the Co-Chair of the Feerick Center for Social Justice at Fordham Law School, who is here today.  I know she is well known to many of you for her good works on behalf of our legal profession.  She brought some interns from the Feerick Center and they had what I thought was a fabulous idea for how we could increase lawyer pro bono.  As they pointed out, there has never been a truly concerted effort targeted at older lawyers— those who are retired or looking forward to retirement—to encourage them to use their legal experience to assist indigent litigants.  They urged the court system to change our attorney registration rules to recognize a special category of lawyer—an Attorney Emeritus—a retired lawyer at least 55 years of age with 10 years of experience, who would be given certain privileges in return for pledging to provide at least 30 hours of free legal assistance to low-income New Yorkers.  It was a great idea—an idea that deserved the full support and leadership of the court system and certainly the Chief Judge.  

And I'm not the only one who thought it was a great idea, because from the moment it was first announced in the New York Times on January 7th it has captured the imagination of many in the legal community.

First of all, it’s an ambitious undertaking in that no other court system in the country has tried to do anything on this scale . . . not only recruiting thousands of senior lawyers to do pro bono, but also connecting them to the providers who are out there, ready and able to put these volunteers to work on behalf of low-income clients.

And timing is everything.  With more of our neighbors than ever in desperate need of legal assistance, lawyers had a genuine desire to respond to the crisis, but sometimes it's hard to know exactly where to go or how to get started.  This program makes it easy by matching lawyers with clients, according to the lawyers' areas of interest and expertise.

Speaking of timing, we’ve all heard about the impending “Silver Tsunami," the aging baby boomer generation, which includes hundreds of thousands of lawyers who are fast approaching their retirement years.  In fact, the ABA estimates that 40% of all lawyers practicing in the U.S. today will either retire or begin transitioning out of full-time practice within the next decade.  

Many of these experienced lawyers are already planning, or would love to find ways, to practice law on a reduced basis—often in the form of public service.  What a tremendous resource, if only we could mobilize them and put their experience and skills at the service of the less fortunate.

So, in designing our Program, we focused on eliminating the obstacles to senior lawyer pro bono, like the difficulty in obtaining malpractice insurance, which now under the Program is provided by the legal services program the senior attorney volunteers with.  

Similarly, we made clear that retired lawyers who register as Attorneys Emeritus will remain exempt from CLE obligations and the $350 attorney registration fee.  Necessary training is provided free of charge by the court system or the sponsoring program.

And, because we want them to feel that this is a special status, they will receive, beyond the personal satisfaction derived from aiding someone in need, a joint recognition from me, as the Chief Judge, and from the State Bar President.

It’s clear that the idea struck a chord.  About 200 retired lawyers have volunteered and are being linked to over 50 different pro bono programs all over the State, contributing to the public good by representing and counseling clients in family, housing, benefits, consumer debt, health, employment, and countless other areas.   

A lot of the credit goes to Deputy Chief Administrative Judge Fern Fisher, who oversees the court system’s access to justice programs.  She and her staff have done a great job of getting the Program off the ground in short order, including a dedicated homepage on the court system's website where there is an online application system that quickly and conveniently links volunteers to pro bono programs.

A lot of the credit also goes to Fern Schair and John Feerick, and the members of the Advisory Council I established in May to map out a blueprint for the future of this program.  I am very much counting on the Council to help us build the kind of infrastructure we need to vastly increase the number of experienced lawyers who can assist poor New Yorkers with their legal problems.

Thanks to assistance we received from The Trust, the Council has been meeting with national organizations that manage large numbers of volunteers, so that we are conversant with the best practices in how to use these people as effectively as possible.  In fact, The Trust has been tremendously supportive from day one, providing us with important technical assistance and even co-hosting a meeting at their offices last March that really helped galvanize the support of the State's legal services community.

The Advisory Council is also hard at work studying how we can devise strong recruitment and matching systems; make sure volunteers receive solid training and supervision; and establish reliable record keeping systems.  The bottom line is that we want each Attorney Emeritus to find the right match for his or her interests, have a satisfying experience, and provide meaningful legal help to those in need.      

As you may know, last week was national Pro Bono Week.  In order to kick things off here in New York, I announced that we are expanding the Program's reach to include non-retired attorneys who are over 55 years of age.  This was done upon the recommendation of the Advisory Council, and in response to an outpouring of letters and comments I received from experienced attorneys who wanted to participate in the program but couldn't do so, because they weren't ready to retire from the practice of law, which would mean their giving up all for-profit legal practice opportunities.

I couldn't be more optimistic and excited about this expansion because it will allow us to better leverage the demographic shift that is bringing so many experienced lawyers to the verge of retirement.  For example, there are approximately 45,650 attorneys age 55 or older in New York who are registered as active, with another 22,000 expected to hit age 55 over the next five years. These numbers dwarf the number of attorneys 55 or older who are currently registered as "retired"—about 17,000.

While retired Attorneys Emeritus are exempt from the attorney registration fee and mandatory CLE, nonretired Attorneys Emeritus will still to have to comply with these requirements.  But it is clear to us that there are plenty of nonretired attorneys who will not in any way object to meeting these requirements, in return for being designated Attorneys Emeritus.

Finally, I want to mention that in September the Program won a prestigious "Bright Ideas Award" from Harvard's John F. Kennedy School of Government.  The Bright Ideas Program spotlights exemplary models of government innovation around the country that are advancing efforts to address the nation’s most pressing public concerns.
 
Again, lawyer pro bono can’t solve the legal services crisis in this State all by itself—just like money alone, no matter how much, can't do it.  The legal needs of the poor are just too overwhelming.  But at the same time, programs like this one are a very important piece of the overall puzzle. In the end, it's going to take a much stronger financial commitment on the part of the state—and I intend to do everything in my power to make that happen on a permanent, ongoing basis; and increased lawyer pro bono efforts by all of us; as well as the continued assistance of foundations like the New York Community Trust to ensure that all of our neighbors—rich and poor alike—can get their day in court, and to ensure that our justice system fulfills its mandate of providing equal justice for all.  

This is not a new right that we have just discovered.  For as long as there have been civilized societies, again going back to biblical times, equal access to justice has been recognized as a fundamental right of all human beings.

I want to thank the Trust and its donors for being a beacon of strength in this area, for providing emergency financial support for civil legal services during the toughest times, and for supporting and fostering creative solutions with your expertise and connections.  All New Yorkers should be extremely grateful for what you are doing on a daily basis to confront society's ills, from simply feeding the hungry to addressing the most intractable problems facing our schools, housing, health care, and so many more.

In particular, I want to thank the Trust for supporting our funding efforts, and for believing in the potential of the Attorney Emeritus idea, in the potential for experienced lawyers to make a positive difference in the lives of our less fortunate neighbors.  

I look forward to continuing to work together with all of you to make the ideal of equal justice for all a reality in this State.

Thank you.