‘National model to national embarrassment’: BPs call on city to fully fund Right to Counsel
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Queens Borough President Donovan Richards called on the city to quadruple funding for the Right to Counsel program in a letter co-signed by three of the city’s other borough presidents. Photo via the Queens borough president’s office
By Jacob Kaye
Four of the city’s five borough presidents, including Queens Borough President Donovan Richards, said in an open letter this week that the city must do more to fund its Right to Counsel program.
In their letter to acting Department of Social Services Commissioner Molly Parks, the borough presidents called on the city to divert over four times as much funding to the struggling program, and to reform the city’s contracting procedures to allow funds to get to legal services providers representing tenants more quickly.
“Our city has been a national model for supporting people in need within the legal system,” said Richards, Manhattan Borough President Mark Levine, Bronx Borough President Vanessa Gibson and Brooklyn Borough President Antonio Reynoso. “What’s astonishing is the city has achieved this success despite continued underfunding of public defenders and civil legal services.”
“But we’ve hit a breaking point, when our nation-leading model will become a national embarrassment as more and more New Yorkers are denied access to critical legal defense because providers are dramatically underfunded,” the borough presidents added.
The Right to Counsel program, which guarantees tenants of a certain income facing eviction proceedings are given a free attorney, has struggled in its first year and a half of citywide implementation. The program expanded from just a few zip codes, including five in Queens, to citywide at the start of 2022, just as the city’s eviction moratorium was set to expire. What followed was a crush of eviction filings against a number of low income New Yorkers. Legal services providers struggled to keep up with the cases, which were not slowed by court leadership.
In addition to the influx of cases filed post-moratorium – from both new cases and cases that were paused during the pandemic – staffing shortages in public defender firms has put a strain on the program. Several times last year, public defender firms halted intake for the program, which only accepts tenants whose income is within 200 percent of the federal poverty level.
Since March 2022, which marked the two-month point for the program’s citywide implementation, legal services providers have declined over 10,000 Housing Court cases, citing insufficient staffing levels which have been made worse by increasing caseloads, attorneys say.
At the Legal Aid Society, there are currently 35 vacancies for Right to Counsel positions. The city’s largest public defense firm also has an attrition rate of 30 percent “due to insufficient compensation and extremely high caseloads, coupled with rising rents, student loan debt and New York’s exorbitant cost of living,” the borough presidents said.
Similar attrition rates can be found at Legal Services NYC and the New York Legal Assistance Group, which have attrition rates of 39 and 22 percent respectively.
“RTC providers not only are hemorrhaging staff, they also can’t fill open positions,” the borough presidents wrote in their letter to Parks.
The borough presidents called on the city to up funding of the program and the providers who represent tenants to $461 million. Currently, there are around $110 million in current Right to Counsel contracts and the borough presidents are urging the city to keep that funding and pour on an additional $351 million.
The City Council proposed sending $195 million to the program in their budget proposal released at the start of April.
Mayor Eric Adams more recently proposed increasing the current funding for the program by a little more than $50 million.
"Helping New Yorkers facing eviction stay in their homes is a critical tool to prevent homelessness and reduce housing instability,” said a spokesperson for the Department of Social Services. “We continue to strengthen tenant protections and invest in our first-in-the-nation Right to Counsel initiative that was implemented citywide last year and are working to increase legal services providers and launching a pilot at Brooklyn Housing Court to connect at-risk tenants to emergency rental assistance.”
The spokesperson also said that the agency is “supportive of any efforts which would help slow down the calendaring of cases by the courts,” which legal services providers have been calling for the past several months.
“At-risk tenants remain our top priority and we continue to work to ensure that we are connecting anyone who may have been impacted to appropriate legal services and supports,” the spokesperson added.
The borough leaders say that the increased funding will help legal services providers meet the demand the city currently has for Right to Counsel attorneys and fund salary increases for staff, which would help lower attrition rates and potentially entice new attorneys to join legal services firms.
Richards, Levine, Gibson and Reynoso also called on the Adams Administration to alter the way it pays legal services firms contracted with the city to implement Right to Counsel.
Current contracting processes “only further hamstring RTC providers and many other non-profits who contract with the city,” they said.
The Legal Aid Society’s contract with the city, which mirrors contracts with other legal services providers, is flat-funded, and has not increased in years, according to Tina Luongo, the chief attorney of the Criminal Defense Practice at the Legal Aid Society.
The top attorney recently told the Eagle that the contract structure quickly becomes untenable. Each year, the Legal Aid Society's contract with their attorneys’ union increases by around 3 percent, while their funding from the city remains the same – current contract negotiations with the union are ongoing.
“That actually is not flat – every year we lose 3 percent,” Luongo said. “And that hurts our ability to resource the clients in the way that we should.”
Additionally, delays in the city’s contracting registration creates “cash flow challenges that make it extraordinarily difficult to make payroll, purchase critical services and pay vendors on time,” the borough presidents said.
“The result is late fees, higher vendor prices and problems accessing lines of credit,” they added. “To avoid a complete financial spiral amid delayed payments from the city, providers are often forced to take out loans, resulting in interest payments that only further squeeze organizations.”
As an alternative, the borough presidents said that the city must establish new procedures and protocols that allow for firms to be paid ahead of their contract registrations and additionally provide a 25 percent contract advance.
Though the city and providers have struggled to implement the program, it has prevented a large number of tenants from being evicted when working the way it is supposed to.
In cases where tenants were represented by an attorney, cases ended without an eviction around 84 percent of the time, since the start of the program.
But the percentage of tenants connected with an attorney has only decreased since the start of the program.
In January 2022, when the program was expanded citywide, around 65 percent of tenants facing eviction proceedings had an attorney within the first week of proceedings, according to data collected by the Right to Counsel NYC Coalition.
Nearly every month since, that number has dropped. By December 2022, around 35 percent of tenants had representation within the first week of their case, Right to Counsel NYC Coalition data shows.
“Our city prides itself on being a leader in the fight against injustice and for human rights for all,” the borough presidents said. “Supporting this additional funding and contract flexibility is an opportunity to further that leadership at this critical moment.”
