The Chief Judge’s 2024 Hearing on Civil Legal Services in New York

Presented by: Kristin, President and CEO

9/16/2024

Introduction

Good afternoon. My name is Kristin Brown, and I am President and CEO of Empire Justice Center. We are a statewide, not-for-profit law firm and advocacy organization with seven offices across the state: in Albany, Rochester, Yonkers, White Plains, Central Islip, and Hempstead.

Empire Justice focuses on areas of law where we can have the most impact, with the goal of addressing the root causes of injustice through our 360-degree approach to systems change. We center client experience to identify barriers, and we break them down using targeted training, legal intervention, and policy advocacy. In this way, we practice, teach, and change the law to make it work for all New Yorkers.

I am also the President of the New York Legal Services Coalition, the statewide association representing the interests of civil legal services organizations and the communities we serve. Our 45 members collectively provide legal services in family law, housing, immigration, public benefits, and many other areas of poverty law in every region of New York State. 

Thank you, Chief Judge Wilson; Presiding Justices Renwick, LaSalle, Garry and Whalen; Chief Administrative Judge Zayas; and New York State Bar President Napoletano. We are deeply grateful for the Office of Court Administration’s ongoing commitment to civil legal services. The Judiciary Civil Legal Services (JCLS) funding is a critical revenue source for Empire Justice Center and our peers and is a key element in our ability to help our clients access justice under the law.

Throughout the day today, you will hear from leaders in the state and nation about why civil legal services are essential to a society that values fairness and provides a level playing field to low-income and marginalized New Yorkers. You will hear about ways New York can innovate to do more, and you will hear from my peers and their clients, who will illustrate how impactful civil legal services attorneys and staff can be when we get involved in people’s lives.

In my comments, I will be focusing on why JCLS funding must be increased, and why the initial focus must be on addressing the civil legal services community’s acute recruitment and retention challenges that are undermining our ability to serve clients and causing burnout, as well as the importance of investing in basic infrastructure needs. While it may seem counterintuitive to focus on current staff and infrastructure rather than expanding services, these steps are essential to the sustainability of the field and to our progress in closing New York’s civil justice gap - the difference between the civil legal needs of low-income individuals and the resources available to meet those needs.

Background

New York has a proud history of leading the nation in legal protections and supports for low-income and marginalized New Yorkers as well as investment in civil legal services in our efforts to close the civil justice gap. Thanks to the support of our Chief Judge and the Permanent Commission on Access to Justice, we have an estimate of the cost to close this gap – approximately one billion dollars. This is an astronomical number – the gap is wide. But it is important that we not be overwhelmed by the number. We understand that it will take steady investment over time to close the gap. Steady progress will improve people’s lives, even if it takes a long time. Critically, in addition to the dollars needed, there are a variety of ways we can make progress that you will hear about throughout this hearing today.

When we talk about closing the civil justice gap, we think about client needs, areas of law where the most individuals go unrepresented, focusing first on the essentials of life – housing, food, safety, education. We think about how we can increase resources so we can represent more people, provide more services.  What we don’t think about enough, and what we need to shift our entire sector’s view on, is how do our organizations responsibility scale up to be able to expand and provide more services? What does the civil legal provider system need to be able to meet the challenge of narrowing the justice gap? Why are we still trying to do more with less when it’s resulting in attrition, burn out, and stress for our employees? Without thoughtful planning to support organizational infrastructure and align with the systems we are working with and within, our efforts will falter. I can tell you from my experience running a civil legal services organization that salary and infrastructure are the keys to being able to invest in long-term sustainability and consistent services. From my conversations with colleagues and in my role as President of the New York Legal Services Coalition, I can tell you that this is consistent across the sector.

Most civil legal aid organizations are 75 to 100 percent government-funded, making the sector essential partners in the provision of government services. However, civil legal services organizations are at a distinct disadvantage in recruiting and retaining staff, particularly attorneys, because we are competing with other public sector and public interest jobs that pay significantly more for substantially similar work. In fact, civil legal services organizations often act as a pipeline – some might say a training source – for government agencies. Some providers report that 100% of attorneys who resign leave for government jobs. At Empire Justice Center within a one-month period this summer, three of our long-term attorneys resigned to take jobs as Administrative Law Judges at a state agency. All three expressed appreciation for their experience working at Empire Justice Center, but economics – significantly higher pay and a state pension – drove their decisions. Another upstate provider reported having recently lost seven attorneys within 6 months to government agencies.

As outlined below, multiple studies reflect my experience leading an organization and what I’m hearing from my peers: salary and infrastructure are the keys to addressing the recruitment and retention of civil legal services lawyers.

ABA survey identified salary as driver in shortage of civil legal aid lawyers nationally

The American Bar Association (ABA) identified the major driver behind a shortage of civil legal aid lawyers across the nation as salary. In their 2023 Profile of the Legal Profession, the ABA notes, “Legal aid lawyers are among the lowest-paid attorneys in the country. The median salary for entry-level lawyers at civil legal aid organizations was $57,500 a year in 2022, according to a survey by the National Association for Law Placement. [As an aside, this is approximately the same starting salary as Empire Justice Center.] Even with 11 to 15 years of experience, legal aid lawyers earn a median salary of $78,500 a year, the survey says. That’s half of the average lawyer’s salary nationwide, among all practice types, $163,770 in 2022, according to the U.S. Bureau of Labor Statistics. That doesn’t include profits for law firm partners and shareholders.”[i]  

Permanent Commission study of recruitment, retention challenges among JCLS grantees

In August of 2024, the Permanent Commission surveyed JCLS grantees to gain a detailed understanding of the recruitment and retention challenges facing providers. Of the responses, approximately half were in New York City, the rest from outside New York City. The major takeaways included:

·       Salaries are currently inadequate to recruit and retain staff and need to be increased

When asked what percent increase in salaries would be needed to have competitive salaries for three different categories of staff, the answers ranged from 11% to 45%. 

--To make attorney salaries competitive, there needs to be an average of an 18 percent increase in salary. Outside New York City (ONYC), the average was twice that of New York City (NYC) (24% vs. 12%) and as high as 45%.

--To make paralegal salaries competitive, the statewide average percentage increase needed was 15%, with a smaller gap between ONYC and NYC (19% vs. 11%) and as high as 45%.

--For non-program staff, the overall average percentage increase needed was 15%. Once again, ONYC providers projected needing approximately twice the NYC provider increase (19% vs. 10%) and as high as 45%.

Responses from the survey:

A director-level employee left for another job at higher salary, and when we were hiring to replace this person, we interviewed a few very strong candidates who were interested in the position but when we told them the salary range, they withdrew from consideration because the salary was too low for them to take the job. Ultimately, we couldn't find a great candidate and so we had to reorganize within the program.

We have open medical-legal positions that have not been filled for over a year. When interviewing, it is the salary that is the biggest problem.

·       Civil legal services lose attorneys to public sector positions because of salary, pension

Knowing anecdotally that a high rate of attorney staff leaves for government jobs, the Permanent Commission looked at what percentage of attorneys were leaving for these positions. Here the data was stark. ONYC, the average was 42% with some providers responding that it is as high as 100%. In NYC, the average was 25%, with some as high as 100%. Once again, the analysis was that the lower average for NYC is likely correlated with the narrower gap between current and competitive wages indicated above.

While salary was listed as the primary reason for departure, the public pension was also a major factor.

Response from the survey:

During the last six months we have lost seven attorneys to government agencies. This was heavily impacted by the Office of Temporary and Disability Assistance’s Office of Administrative Hearings opening a significant number of Administrative Law Judge positions.

We have recently lost two excellent supervising attorneys, both of whom were taking more responsibilities and we were hoping would eventually take a larger leadership role in the organization. Both left because there was no pension. IF THERE IS ONE THING WE NEED IT IS A PENSION SYSTEM.

·       Positions stay vacant for long periods of time due to salary

Grantees are facing an inability to fill positions due to low salaries as providers compete directly with government agencies with significantly higher salaries and public-funded pensions. To better understand the impact on providers and provision of services, the Permanent Commission asked about the vacancy rate – how many positions remain unfilled, undermining the ability to provide services, the length of time those positions remain open, and the turnover rate; how often staff are leaving for other jobs. 

For both ONYC and NYC, grantees reported that positions can remain open as long as 12 months, sometimes longer. The survey found that the average length of time positions are vacant is 5.5 months for ONYC and 4.2 for NYC. In their analysis, the Permanent Commission equated the shorter period to the narrower gap between current and competitive wages as noted above.

The vacancy rate for ONYC averaged 13%, and was as high as 34%, and for NYC averaged 13%, and was as high as 30%.

Staff turnover rates and vacancy rates are consistent between ONYC and NYC.

Excerpt from a response from the survey:

A main difficulty in filling a position that’s been vacant for a long time is that over that time period of vacancy, other staff have had to pick up the extra work, tasks, cases, etc. and that can negatively impact employee morale. It can be perceived that HR and/or recruitment efforts or strategies aren’t being done at all, or be assumed that they’re not being done correctly, or not enough is being done to take the extra burden off the staff that’s without the vacant position.

·       Dropping the state average vacancy rate would mean 30,000 more clients accessing justice annually

The estimated impact of the average statewide vacant position rate equates to approximately 426 vacant attorney positions. If we assume approximately 120 cases per year per attorney, that means that there are approximately 50,000 people who are not served every year due to the inability to fill vacant positions.

That also means if the civil legal services sector could drop the vacancy rate from 13% to the standard vacancy rate of 5%, approximately 30,000 more clients would receive assistance annually.

New York Legal Services Coalition survey also identifies the need to address low salaries  

The New York Legal Services Coalition has identified the need for pay parity with government attorneys as a top priority, having heard from members that sector attorneys are leaving legal services agencies for government jobs at an alarming rate because legal services organizations statewide are unable to achieve pay parity with those attorney counterparts working in government positions. The Coalition conducted a survey on this issue, which found that “experienced civil legal services attorneys are paid 62% less than their counterparts in the AG’s office in some parts of the state”[ii]

For more information about this and recommendations, I respectfully direct your attention to the written testimony submitted by the Coalition, where you will find more detail.   

Infrastructure must be a priority

In addition to the need to increase salaries, as illustrated in the surveys listed above, I also want to use this testimony to note that it is critical that JCLS funds are flexible enough to support investments in the business functions that help organizations run efficiently and effectively. From human resources, finance office, and information technology staffing to cloud-based software, case management, communications, and marketing to basic administrative support, without a strong infrastructure, these tasks fall on already overburdened and overstretched attorneys and other staff. Across the non-profit sector there is a culture of doing more with less. Capable, mission-driven staff are wearing multiple hats – way too many hats. Not only does this contribute to their burnout, if, or rather, when these employees move on, the organization is plunged into chaos.

The solution to this problem is for funders to encourage organizations to plan for growth. A strong example of this is the Interest on Lawyers Account (IOLA) Fund, which has a long history of actively encouraging and funding Information Technology investments as well as allowing flexible use of funds for all forms of operations.

We urge you to embrace this model of encouraging grantees to think about and plan for expansion of services, so we will be prepared for the next phase of closing the justice gap – expansion of services.

On that note, we must also have an eye on broadening and deepening the bench, notably with succession planning. It should be a standard practice to ensure that practice areas have sufficiently experienced attorneys and staff to plan for events like retirements and illnesses without a disruption in client services, particularly in smaller organizations like Empire Justice Center, where the loss of one or two attorneys can wipe out an entire practice area.

Conclusion

Our goal must be to build toward a day when public interest careers in civil legal services are a viable lifelong career for those who choose them, just like a career in government. Mid-career civil legal services attorneys and staff should have no question about whether they can afford to send their kids to college (and law school) and they should also be confident in their ability to retire when they are ready. By focusing on creating a baseline for salaries and building our infrastructure, looking at pensions, we will be able to confidently expand services to more broadly address the essentials of life.

If we can make progress in doing this, I am confident that the number of civil legal services attorneys for New York reported in the ABA’s profile the legal profession will grow and our state’s civil justice gap will narrow.

In conclusion, we ask that OCA increase JCLS funding each year in a significant, steady, and ongoing way to make progress closing New York’s access to justice gap and to ensure the sustainability of the civil legal services sector as a whole. We must address recruitment and retention, including by closing the pay gap between civil legal services staff and their government counterparts.

Thank you so much for your ongoing commitment to the civil legal services, and your time and attention today. I am happy to take any questions.

[i] American Bar Association, Profile of the Legal Profession, 2023, https://www.abajournal.com/files/POLP.pdf

[ii] New York Legal Services Coalition, Pay Parity: New York Needs a Shared Vision to Achieve Pay Parity for All Attorneys Working to Close the Justice Gap, DRAFT report to be released.