by J.D. Smeallie
At a dinner last March, I sat next to the Editor in Chief of American Lawyer. I told him that I would soon be the president of the Boston Bar Association and that one of the perks was the opportunity to create an initiative for my year as president. I then ran by him some of the initiatives I was considering. When I got to the topic of civil legal aid, he stopped me and said there is nothing more important that a bar association can do than to fight for civil legal aid for those in need. His passion on this point resonated with me, and I knew then that the advancement of civil legal aid would be my cause during my upcoming term as president.
Shortly thereafter, the Chief Judge of the State of New York gave a speech at Harvard. He spoke of a task force that he had created to expand civil legal aid. The task force was comprised of a statewide group of lawyers, judges, business leaders, academics, union leaders and legal aid attorneys. What struck me most about their effort was how they demonstrated that increased state funding for civil legal aid actually saved the state money, while bringing in increased federal aid. The New York task force’s report was so persuasive in this regard that the state legislature there agreed to increase legal aid funding from $200 million to $300 million over a four year period.
For the past several months, I have visited with state legislators, bar leaders, legal aid attorneys, business leaders and other stakeholders to discuss the creation of a similar statewide initiative in Massachusetts. Without exception, those with whom I met acknowledged the problem. With federal funding of the Legal Services Corporation constantly shrinking, and IOLTA funding all but drying up, overall funding for civil legal aid has been on the decline in Massachusetts for years. At the same time, the need for representation in matters involving basic human needs like housing, prevention of domestic violence, and health care has been on the rise. In 2012, fully half of the people eligible for civil legal aid in Massachusetts had to be turned away because staffing at legal aid agencies had been slashed. As a result, poor people have to navigate our judicial system without the benefit of counsel. The situations in our Housing Courts and Probate and Family Courts are particular bleak. 95% of those who appear in the Housing Court are unrepresented. The percentage is not much better in the Probate and Family Courts. There, 80% of the litigants do not have a lawyer.
All of those with whom I have met agree that a statewide initiative to examine the unmet need for civil legal aid across the state and to determine the most cost effective way to meet that need is a good idea. We are lucky to have the benefit of the good work already undertaken by our Access to Justice Commission, and we do not intend to repeat their efforts to provide help to unrepresented litigants. We do expect to follow the lead of the New York task force and examine whether increased funding for civil legal aid can save the state money in the costs of homelessness, domestic violence prevention and various forms of aid which can be replaced by federal benefits, as was found to be the case there.
So, a BBA task force, named the Statewide Task Force to Expand Civil Legal Aid in Massachusetts, is now taking shape. Among those who have agreed to serve on the task force are the general counsels of five major Massachusetts based companies, a former president of one of our major universities, our Attorney General, the Governor’s Chief Legal Counsel, the managing partner of one of our largest law firms, and the current President of the Massachusetts Bar Association. We anticipate adding leaders from the legal aid community, state Representatives and Senators, and a union representative. We expect to complete our work and present a report in the spring of 2014.
Our system of justice is measured by how we treat those most in need, but we are not measuring up at the moment. If the experience in New York is indicative of what we may find and recommend here, the hope is that we can to reverse the trend and to begin to expand civil legal aid for our state’s poorest citizens, while saving the state money in the process.
By James D. Smeallie
In March of this year, the Boston Bar Foundation (BBF) released a groundbreaking study assessing the practical impact of legal representation in eviction cases. The data indicated that without representation by counsel, many vulnerable tenants forfeit important rights, often lose possession of homes they could have retained, and sometimes forego substantial financial benefits. Conducted under the auspices of a Boston Bar Association (BBA) Task Force on Expanding Civil Right to Counsel, the study involved two different pilot projects, one in the Quincy District Court, and one in the Northeast Housing Court.
Meanwhile, a study conducted by the Task Force to Expand Access to Civil Legal Services in New York found that “the unmet need for civil legal assistance in New York State is profoundly impacting vulnerable New Yorkers and costing taxpayers millions of dollars by increasing homelessness, failing to prevent domestic violence, and increasing poverty.”
This is not a new problem. In 1999, the BBA’s Real Estate Section partnered with the Volunteer Lawyers Project of the Boston Bar Association (VLP), Greater Boston Legal Services (GBLS), the WilmerHale Legal Services Center, and the Boston Housing Court (BHC) to establish a Lawyer for the Day program. The goal was to prevent evictions resulting in homelessness. At the request of the BHC, the program has two different legal information tables, one for unrepresented tenants, and another for unrepresented landlords. The Herbert W. Vaughan Fund of the BBF helps support the operations of this program.
During the 13 year history of the Lawyer for the Day program at the BHC, 1,200 volunteers have donated their time to assist more than 14,732 individuals. In just the past year alone, 443 volunteers helped 991 tenants and 181 landlords.
About 95 per cent of tenants at the BHC are unrepresented. According to Chris Saccardi, a solo practitioner from Somerville and a frequent volunteer, tenants, the bulk of whom are low-income and frequently minorities, are usually opposed by a landlord represented by counsel. The issue before the court is typically whether the tenant can stay in his or her home. Were it not for the Lawyer for the Day program, the imbalance in power would be profound.
Chris reports that it is not uncommon to see families with young children, families with elderly parents sharing their home, as well as elderly people living alone — all of whom are facing eviction. But he also sees tenants who have slipped below middle class status because of job loss or illness.
For tenants living in subsidized housing or Boston Housing Authority developments, the stakes can be especially high. Take for example a grandmother raising grandchildren. Should one of those kids get in trouble, the entire family can face eviction. Should they be evicted “for cause,” the impact can be devastating — with the family being required to split up, move in with relatives, or live on the street. Collateral consequences may follow.
GBLS is well-known for having housing attorneys second to none. Yet the demand for their services by poor people overwhelms the supply.
The BHC, which hears anywhere between 200 and 225 evictions weekly, considers the Lawyer for the Day program a godsend. Thanks to Lawyer for the Day volunteers, some 80 per cent of the cases can be resolved successfully through mediation provided by BHC staff — without a judge having to get involved.
“The program has been successful beyond our wildest dreams,” says Robert Lewis, Chief Clerk Magistrate of the BMC.
A word about unrepresented landlords. . . they are frequently immigrants with limited English proficiency who depend on the rent to pay mortgages on owner occupied two or three family homes. Missed rental payments can put them at risk of foreclosure. Indeed, there are situations where landlord owners of small multi-family homes can be in a tighter financial situation than their tenants.
Often times this population of landlords need to be advised about what steps they must take to bring their property to the minimum state sanitary code, and assisted in determining the difference between a tenant complaint and what the law requires them to do.
This month, the Lawyer for the Day program will expand its services to low income landlords, starting with one Monday a month dedicated specifically to those cases. As Joanna Allison of the VLP points out, the mistakes that unrepresented landlords make on a procedural basis make it impossible for them to prevail in their cases — resulting in wasted filing fees for people who can least afford them and inefficiency for a busy court.
The Lawyer for the Day program is a model for legal services organizations to leverage the contributions of committed volunteers to preserve housing for a very vulnerable population and to conserve precious judicial resources. If we consider the fact that the cost of placing a family in a shelter is on average three times higher than the average government subsidy for families in Massachusetts, the program is also saving taxpayers money.
The program also illustrates the concept that lawyers can do well by doing good. Mary K.Y. Lee, a lawyer whose paid work involves both immigration and landlord/tenant matters, is another dedicated volunteer. She says that were it not for her volunteering for Lawyer for the Day at the BHA, she might not have gotten litigation experience so early in her career, and credits the program with helping her become “a better person and a better lawyer.”
We should all applaud all those involved for making the Lawyer for the Day program a continued success. That being said, we still confront the painful reality of overburdened courts and underrepresented litigants.
As the Task Force to Expand Access to Civil Legal Services in New York concluded, “private lawyers cannot fill the gap in services as the sheer numbers of needy and unrepresented litigants overwhelm the capacity of volunteer lawyers.” In response to that Task Force’s recommendations, the New York Legislature dramatically increased legal aid funding to provide for counsel in eviction and other cases involving basic human needs.
So while I say “keep up the good work” to all our volunteers, I look forward to the BBA expanding beyond its civil right to counsel study and pursuing new paths to assuring counsel to all those involved in cases involving basic human needs such as housing. Stay tuned.