Written Testimony Chief Judge’s Statewide 2024 Civil Legal Services Hearing September 16, 2024
Submitted by Lindsay Heckler Director of Policy Center for Elder Law & Justice 438 Main St., Suite 1200 Buffalo, NY 14202
Thank you for the opportunity to submit written testimony. The Center for Elder Law & Justice (“CELJ”) is an 80-person full service regional civil legal services organization with dedicated staff for outreach, training, and pro bono activities. Our work includes both policy advocacy and individual direct legal services. We have units dedicated to health care, housing, kinship care, public benefits, elder abuse & consumer scams, and more. Our mission is to use the legal system to ensure that our clients live independently and with dignity.
Incorporated in 1978, in Erie County New York, Judiciary Civil Legal Services funding enabled us to expand. We now provide outreach and brief services to all counties in the Fourth Department, full-service representation to 11 Western New York Counties and have four offices in the counties of Erie, Niagara, Chautauqua, and Cattaraugus, have three medical legal partnerships. and operate a state-wide free civil legal advice helpline.
CELJ is also part of the New York Legal Services Coalition, (NYLSC) a 501(c)(3) nonprofit organization formed in 2014 that consists of approximately 45 civil legal services organizations serving every county in New York State. Member organizations provide a full range of legal advocacy and assistance to address the needs of persons eligible for legal assistance in noncriminal matters and conflicts, such as family law, tenants’ rights, immigration, elder law, and a host of other areas. Member agencies ensure access to civil legal assistance for all New Yorkers in need, with a commitment to social justice and equal opportunity for all.
Access to Civil Legal Services is One of the Key Factors to Protecting and Increasing Access to Necessary Life Essentials.
One in every seven Western New Yorkers is considered impoverished,1 and poverty rates range from 9.6% to 16.3%, in the counties CELJ serves.2 The City of Buffalo is the third poorest city in the nation with concentrated urban poverty, 3 and has been an area of persistent poverty for well over a decade.4
Unmet social needs, environmental factors, and barriers to accessing health care contribute to worse health outcomes for people with lower incomes. 5 These factors are known as social determinates of health (SDOH).6 Residents of impoverished communities have much higher risks for severe health issues, including a 50% higher risk of heart disease and of type 2 diabetes, and are at increased risk for mental illness, chronic disease, higher mortality, and lower life expectancy.7 Low-income individuals often have more difficulty obtaining health insurance or paying for expensive procedures and medications.8 In Buffalo, 7.2% of city residents do not have health insurance.9 In addition, Buffalo has the oldest stock in the nation with 67 % of homes built before 1940, well before lead paint use was banned, leading to an increased number of lead poisoning cases in WNY.10 Given the difficulty that low-income individuals face in affording housing costs, many people living with poverty are living in substandard housing, more likely to be exposed to lead paint, disrepair, and low energy efficiency leading to higher utility bills.11
Access to civil legal services is one of the key factors to addressing SDOH and protecting, and increasing access to, the essentials of life. However, the demand for civil legal services outpaces that which CELJ can provide. This is in large part due to CELJ, and other legal services organizations, ability to pay attorneys on par with their government counterparts.
Pay Parity is Needed to Close the Justice Gap.
CELJ shares the NYLSC concerns regarding pay parity. Entry level pay for attorneys in civil legal services is 30% to 45% lower than their government counterparts doing substantially similar work.12 In order to be competitive in our local market, CELJ would need to increase attorney salaries by 35%. Pay disparity has created a barrier in the fight for access to justice as our programs cannot retain and hire staff to provide the services our clients need.
Over the last 1.5 years, CELJ has lost six attorneys, all of whom listed the primary reason as salary. Four of the six attorneys went to government roles, and the other two, private practice. When hiring new staff to meet client needs, the open attorney roles are the most difficult to fill. The average duration is 8 to 12 months; salary was the most cited factor for no further interest from applicants.
Most of CELJ’s 6 attorney open positions have been vacant for at least 8 months. These vacancies are leaving units short staffed, which in turn limits the number of clients we can serve due to our not being able to keep up with the demand. In the last 2 years we’ve had to occasionally close intake in multiple units due to staff turnover and/or vacancies. These vacancies have also caused transitions in workloads that lead to staff attorneys taking on additional workloads and increased risk of workplace burnout.
The impact of pay parity also limits our ability to bring impact litigation. The goal of bringing impact litigation is to benefit a population as a whole, and to prevent others beyond those who have already suffered harm from suffering similar injustices in the future. Two examples of such advocacy are below. However, more must be done to close the justice gap.
CELJ was the first law firm to bring a Real Property Actions and Proceedings Law, Article 7D action against a landlord in Erie County. The Tenant Dignity and Safe Housing Act was enacted in January 2024 as a mechanism for tenants to seek a judgment ordering landlords to make certain repairs of conditions that present dangers within the property. CELJ represented a tenant living in deplorable conditions in an Article 7D case against his landlord. A stipulation was reached in that matter, requiring the landlord to remedy all habitability issues in the apartment, with the tenant’s rent being abated for two months. CELJ continues to identify the most persistent offending landlords and will continue to bring these actions on behalf of tenants. Because CELJ was the first firm to file this new action, the Court had to create a set of procedures and protocols for accepting and handling these cases moving forward. CELJ’s filing has resulted in the creation of a process where countless tenants can bring these matters.
CELJ is working very closely with a statewide partner to address certain area nursing homes whose admissions agreements are in violation of the Federal Nursing Home Reform Act (NHRA). CELJ has seen a rash of cases where loved ones of a nursing home resident are being sued for that resident’s bill. The third party has no personal responsibility for a loved one’s debt, yet nursing homes aggressively pursue these individuals through litigation. In addition to representing these individuals throughout the course of litigation,we have also been in regular communication with the New York State Attorney General, who is looking to identify regular violators of the NHRA. Our litigation defense and collaboration with the Attorney General will continue into the coming year with the goal of ensuring a nursing home resident’s loved ones cannot be strong-armed into paying a debt they are not responsible for.
Increasing Volunteer Programs and Expanding the Roles of Allied Legal Professionals Can Reduce Unmet Needs
Civil legal services contracting with non-lawyer volunteers helps to reduce unmet needs. For example, in 2022 we partnered with Lifespan of Rochester to expand its Financial Management Program, beginning with Niagara County followed by Erie County.13 The Financial Management Program links older adults who need help with budgeting, bill paying, managing debt, and other financial wellness services. The program bolsters the economic security of older adults, a key component to aging with independence and dignity, and connects older adults with other assistance, including civil legal services.
For example, CELJ assisted a client who had to take over guardianship of her three grandchildren because her daughter is in a coma and was struggling to manage her finances. Her brother, now deceased, used to help manage her finances. After collaborating with a volunteer for several months, the client now has a better handle on what money is coming in and what bills she must pay. The program has helped her access SNAP benefits, receive home delivered meals, resolve past due medical bills, and helped her access a program that will allow her to receive care without paying any deductibles or copays when her care is provided through our local Catholic Health system. This is one example of how CELJ partners with non-lawyer volunteers to provide holistic services.
Expanding the roles of allied professionals also reduces unmet need. Experiencing challenging life events, such as the loss of stable housing, the loss of work or income or escaping domestic and family violence, often brings individuals in contact with both legal and social service professionals. Inextricably linked legal and social issues have been shown to be a common experience and CELJ has found by utilizing a team of integrated professionals, including social workers, paralegals and attorneys, we can better serve the client and competently address their intertwined issues. CELJ currently has 7 Social Work positions on staff. Social workers are available to assist with cases in all units, intervening when client needs are not traditionally legal, such as safety planning in an elder abuse case, or assisting with benefits applications in a kinship case. These interventions help keep people in their homes, address a multitude of SDOH, all of which reduces the need to utilize the already overtaxed court system.
Use of HUB Courts Helps Litigants in Summary Proceedings Overcome Barriers.
The Erie County Town and Village Landlord Tenant HUB Court has been effective at reducing some of the barriers that low-income litigants face in summary proceedings. The HUB Court is the first court in New York State to operate virtually with a presumptive Alternative Dispute 13. Resolution model. Under the model, any tenant who is income eligible receives legal representation furnished by a group of legal services providers, including CELJ, in one location. Without the HUB Court, it would be nearly impossible for eligible tenants to access civil legal services throughout the 36 different town and village justice courts.
The HUB court allows for easier access for individuals to their court appearances as they do not need to physically appear in court. Overall, this is a benefit; many of the clients CELJ serves have some form of disability that makes physically travelling to court difficult. HUB court’s virtual appearances lessen their burden. However, at times utilizing the technology associated with logging on to a HUB court appearance can be difficult for some of our clients. Additionally, several clients do not realize that their first HUB court appearance is virtual and make a lengthy and unnecessary trip to Buffalo City Court. More clear notification on the virtual nature of HUB court appearances as well as clearer instructions for tenants to log on to their appearances would mitigate this issue. CELJ has represented many clients who do not understand how to log on to court and therefore, without an attorney, would run the risk of a default judgment.
The Provision of Civil Legal Services Economically Benefits Individuals, Communities, the Courts, and the State.
CELJ utilizes a wholistic approach to serving our clients: legal and non-legal. As discussed above, this approach has resulted in a multitude of benefits to our clients. Regarding the economic benefits: between April 1, 2023, and March 31, 2024, CELJ prevented homelessness in 956 eviction, tax foreclosure and mortgage foreclosures cases; resulting in $3,616,880.00 in taxpayer savings. CELJ has also saved taxpayers $1,125,300.00 by representing family members in custody cases, thereby avoiding foster care costs to taxpayers.
Protect Interest on Lawyers Account (IOLA) Funding.
The SFY 2025 Adopted Budget transferred $55M from the IOLA Fund to support the Homeowner Protection Program (HOPP) and Emergency Rental Assistance Program (ERAP). While we support and participate in both the HOPP and ERAP programs, we are deeply concerned with the raiding of the IOLA Fund for other purposes. The transfer represents a net negative for civil legal aid overall at a time when every available dollar is needed to achieve pay parity, and ultimately close the justice gap. This action also undermines IOLA’s specific, statutory mission to provide grants to organizations that provide civil legal aid to low-income New Yorkers. A transfer, even to laudable programs such as HOPP and ERAP, also calls into question the ethical nature of IOLA accounts, which attorneys use under the guarantee that interest earned supports grants for civil legal help provided to the poorest residents.
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Investment in civil legal services to achieve pay parity and the use of allied legal professionals and volunteer programs in a holistic manner is needed to address the barriers low-income New Yorkers and vulnerable communities face in accessing the civil justice system. CELJ appreciates your consideration of this important issue and is available to answer any questions and provide any requested follow-up information.