Council proposes more funds for legal services
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The City Council’s budget negotiating team, led by Speaker Adrienne Adams, proposed sending $195 million to legal services providers on Monday, April 3, 2023. Photo by John McCarten/NYC Council
By Jacob Kaye
Leadership of the New York City Council and its budget negotiating team proposed boosting funding for legal services providers by $195 million on Monday.
The funding boost comes as part of the council’s budget response to the mayor’s preliminary budget, which was released in January. In addition to sending additional funds to legal services providers in New York City, the council also detailed plans to restore funding to libraries, parks, sanitation and food assistance, all of which were subjected to cuts under Mayor Eric Adams’ proposed budget.
The $195 million in proposed funding for legal services providers comes about a week after public defense attorneys told the council that their contracts with the city have proved to be inadequate. In addition to recent legislative changes that have put a greater demand on the public attorneys, their flat-funded contracts with the city have contributed to an attrition issue that has resulted in larger caseloads and fewer attorneys to handle them, they say.
According to the budget document, the funds would come from a portion of their adjusted revenue projections and would only serve as a “fraction of the need.”
“Legal service providers, including public defenders in criminal court and civil legal service providers, are a critical component of the City’s justice system and at a breaking point,” the City Council’s budget response reads. “City contracts are not covering the actual costs of services, fixed cost increases, and equitable pay rates, and the City’s procurement practice imposes costs on providers.”
Two major legislative changes implemented in the past several years have resulted in increased work loads for legal services providers both on the criminal and civil side of the law.
Public defense attorneys working in criminal courts have had to deal with the 2019 changes to the state’s discovery laws, which were changed to prevent prosecutors from dumping mounds of evidence on public defenders just before the start of a trial.
While district attorneys’ offices have seen increases in funding from the state to fund the increases their offices have seen in discovery work, similar increases have not been seen in public defenders’ budgets.
“Public defender organizations require significant funding to have the capacity to fulfill their duties, fund the costs associated with implementing discovery laws, hire additional staff, and provide pay parity for retention, and secure technology improvements to collect, store, organize, and share evidence for criminal cases,” the City Council’s budget response says.
Tina Luongo, the chief attorney of the Criminal Defense Practice at the Legal Aid Society, told the Eagle last month that the city’s largest public defense firm has seen its attrition rates skyrocket in recent years, partially as a result of discovery reform, while attorneys have seen their wages remain relatively stagnant.
“We’re at a breaking point right now,” Luongo told the Eagle in March.
“Our rate of attrition, the workload and staff are stretched really thin to the point where some are really struggling to continue to do the work that they love and others have had to give it up,” Luongo added.
The Legal Aid Society, which currently employees around 2,000 people, has around 300 open positions and an attrition rate of around 17 percent. At some points last year, the public defense firm was losing around 10 employees per month.
The nonprofit’s contract with the city is flat-funded, and has not increased in years, according to Luongo.
The top attorney said 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.”
“The city can change that,” Luongo added. “They should do something similar to what they do with the DAs’ offices or court counsel or any of their other agencies, they should be including those automatically in our contracts every year so that we can stabilize the money we have to hire staff, so it does not harm the clients.”
Also adding to legal services providers’ workload is the city’s Right to Counsel laws.
Contracted legal service providers in the RTC program have been experiencing untenably high caseloads, limited ability to take on new cases, hiring and retention issues, pay parity concerns, and issues related to delayed payment of contracts,” the council’s budget response reads. “This leaves many eligible low-income tenants unable to obtain an RTC lawyer to assist them with their eviction proceedings.””
The Right to Counsel program was passed by the City Council in 2017 and phased in over the following five years, expanding citywide in 2022, just as the city’s eviction moratorium expired.
In addition to the influx of cases filed post-moratorium – both new cases and cases that were paused during the pandemic – staffing shortages in public defender firms have put a strain on the program, which has been unable to meet demand.
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.
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.
In their budget proposal, the City Council called on state lawmakers and the governor to increase funding to both the Right to Counsel program and to public defender firms struggling to meet the demands of discovery.
Recognizing the extent of the need for these vital legal services, the Council advocated in Albany for the State Budget to provide New York City’s legal services providers with significant funding to bolster their operations,” the budget proposal reads. “However, should the State Budget fail to provide support for the City’s legal services providers, it will be imperative for the city budget to prioritize resources to address this major funding need.”
The state’s budget, which was originally due on April 1, is not expected to be passed until at least April 10.
