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NYC Housing Court Memo On Atty Shortages Meets Pushback

By Emma Whitford · Apr 1, 2022, 6:18 PM EDT ·

New York City tenants who are unable to match with a lawyer on their first court date due to staffing shortages will be assigned counsel promptly with help from a city government office, according to new guidance that has been met with skepticism from advocates.

A court memorandum circulated Thursday said city officials will help match unrepresented tenants with counsel within weeks of their first appearance. The update comes after service providers said they are stretched thin, and tenants facing eviction are not getting adequate representation under the city's Right to Counsel law.

Expanded citywide in June, the 2017 law gives tenants access to free legal representation if they earn 200% of the federal poverty guideline or less, or $55,500 for a family of four. 

The March 28 memo from Supervising Judge Jean T. Schneider directs judges and staff to take down a tenant's information "in real time" if the legal service provider on hand can't pick up their case.

The tenant's name, phone number and email will then be sent to New York City's Office of Civil Justice to be matched with an "alternate provider" before their next court date.

Adjournments between a tenant's first and second appearance will be "no more than three weeks," according to the memo, though judges will have some discretion for an additional adjournment so long as a lawyer has been assigned within that window. 

If a tenant misses their first court date and arrives at the second without a lawyer, they too will be referred to the OCJ for assignment.

A representative of New York City's Right to Counsel Coalition, composed of tenant groups and legal service organizations that advocated for the law, confirmed Friday that the coalition did not play a role in formulating the courts' new guidance, which it deems unsatisfactory.

The group has been demanding that the courts only move cases in which tenants are represented and allow for lengthy adjournments. 

"It doesn't do it for us," Randy Dillard, a leader with the tenant group Community Action for Safe Apartments and a member of the Right to Counsel steering committee, said in a Friday phone call. "What we want them to do is slow down the cases. To put a cap on the cases."

Rohit Chandan, a tenant lawyer in Queens and member of the Association of Legal Aid Attorneys — the Legal Aid Society's staff union — said three-week adjournments are a step in the wrong direction. 

"A three-week adjournment isn't enough time because I have so many … cases as it is that between court, motion writing, etc., I don't have time to call new clients and prep[are] for it," Chandan said via text message.

Claire Gavin, another ALAA member in Queens, told Law360 Friday that she currently has 75 cases, up from a pre-pandemic load of about 40.

"You send [an unassigned case] to [the Office of Civil Justice] and it goes where?" Gavin asked. "You're not providing extra attorneys. I don't see how that would help. Either they're going to also say no, or they're going to get the short end of the stick and be even more over-capacity."

The Legal Aid Society, a major citywide service provider, declined to comment on the new Right to Counsel guidance, focusing instead on a second March 28 memo clarifying which types of court appearances are now expected to take place in person.

The courts should maintain a virtual option to "ensure that our clients and the communities we serve … take part in their cases without compromising their health, employment or their children's wellbeing," Adriene Holder, attorney-in-charge of the civil practice at the Legal Aid Society, stated Friday. 

Courts spokesperson Lucian Chalfen confirmed the authenticity of both memos Friday, saying they have been approved by Chief Administrative Judge Lawrence Marks and are effective immediately. 

Responding to skeptical attorneys, Chalfen said that "their inability to manage their operations should not be offshored to the court system." 

New York City housing court officials initially declined to address service providers' capacity concerns in March, directing them to the OCJ. But the courts confirmed late last month that conversations were underway with the city.

A spokesperson for New York City's Department of Social Services, which contains the OCJ, said by email Friday that the office began working "as soon as we learned that a few of our legal service providers were facing case-management issues" and started receiving information on unrepresented tenants from the courts last month.

"We continue to work with the concerned providers, requesting key information to accurately convey their concerns to the courts and find ways to best support these providers' role in the implementation of the [Right to Counsel] program," the spokesperson added.

Court data show that current eviction filings in New York City are well below pre-pandemic levels.

Yet advocates have pointed to a confluence of factors driving up caseloads, including the expiration in January of a pandemic-era law that stayed most eviction cases. Service providers said they are also facing staffing shortages, even as the Right to Counsel program expands.

Lisa Faham-Selzer, a landlord attorney with Kucker Marino Winiarsky & Bittens LLP, told Law360 Friday that her clients are already facing case delays thanks to a provision in state law that pauses eviction cases for tenants with pending rent relief applications.

"I don't see it moving faster or slower," she said. "We still have Legal Aid coming in on almost every single case, asking for that first adjournment. They're not looking to settle cases. They are literally filing [Emergency Rental Assistance Program] applications."

It was not immediately clear Friday how many tenants have had their eviction cases advance on days that the assigned counsel provider did not have the capacity to take on more cases. 

According to Chalfen, Legal Services NYC declined two days' worth of cases in the past week in the Bronx. 

The provider did not immediately reply to a request for comment Friday. Late last month, its executive director, Raun Rasmussen, told Law360 that his team was down 15 attorneys in the Bronx and had to scale its load accordingly. 

--Editing by Janice Carter Brown.

Update: This story has been updated with comments from the New York City Department of Social Services.

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