‘Underpaid and overwhelmed’: Funds for family court legal help at stake in NY budget | Govt-and-politics

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In the upstate New York community of Schenectady, the fate of low-income parents who have lost their children to foster care often comes down to a rapid-fire thread of text messages.

Last week was no exception. Nine attorneys on the group chat pinged each other with frantic messages looking for back-up in the Family Court. As often happens, one lawyer was double-booked for the next day. Could anyone else represent a parent client at an afternoon hearing?

Karen Crandall would normally answer the plea. Over three decades, the family law attorney has almost never declined a case involving a parent accused of child maltreatment, or a kid taken from home into foster care. She is one of a small group of parent lawyers who keep the upstate court running. But the next day, she was having cataract surgery on both eyes.

“If you get desperate and can’t find anyone else I think I should be home by 2:30 p.m.,” Crandall wrote. She warned that she “might be a little out of it,” but added: “if no one else can cover, I’ll suck it up.”

Finally, that evening, another attorney stepped in to pick up the case. He was taking some unpaid time off following the birth of his first child three weeks before, but said he could make the one appearance virtually.

The harried text message exchanges reflect a Family Court where poor compensation has decimated the ranks of lawyers willing to advocate for low-income parents, who often come from Black and brown communities. But last-minute budget negotiations between the New York statehouse and governor’s office this weekend could produce industry-changing news: Legislative leaders want to double the attorneys’ pay from $75 to $150 an hour, the first increase in 18 years.

If the proposal doesn’t make it into the final budget, the system will continue to muddle along — despite the “statewide mass exodus of qualified assigned counsel” recently described by Chief Judge Janet DiFiore. The current situation, she said, has left attorneys “overworked and hard-pressed to devote adequate time and resources to the clients they are representing.”

Pushes for change

Hundreds of New York attorneys work under these conditions to represent thousands of children and parents in the Family Courts each year. Many carry caseloads that are double or triple the standards set by national legal organizations and by the state itself, diminishing their ability to provide high-quality representation.

Two weeks ago, both the state Senate and Assembly wrote pay raises for Family Court attorneys into budget proposals their leaders carried into final negotiations with Gov. Kathy Hochul. The governor’s spending plan, released in January, did not include the wage increases. Under the Senate’s budget plan, new rates would take effect in January and be regularly updated to keep pace with inflation. The Assembly’s proposal, if approved, would be adopted immediately but would not be updated thereafter.

The Legislature has proposed allocating $210 million in state funding to cover the cost of doubling pay for these contract attorneys — as well as for those representing indigent defendants in criminal court.

While the figure would represent a significant recurring cost, the state is now in the strongest financial position it has been in over a decade, due in large part to billions of dollars in federal pandemic relief. And Sen. Brad Hoylman, who chairs the judiciary committee reviewing the attorney pay proposal, voiced strong support.

“New York’s assigned counsel rates have been far too low for far too long, and correcting this injustice is one of my top priorities in the budget,” he wrote in a statement to The Imprint. “This will be a significant ongoing investment by the State, but it’s one that will pay serious dividends for our constituents and the justice system.”

The official deadline for the governor to sign a budget deal was the end of the day on Friday, March 31, but sources indicated it won’t be finalized for several days, due in part to intense ongoing discussions over proposals to scale back justice reforms that took up most of the past week.

A deepening crisis

In Schenectady County, the limited pool of lawyers shrunk further during the pandemic: Among those who left, two former members of the text message group chat took government jobs, two retired, and one returned to private practice.

The problems are apparent in varying degrees throughout the state.

“The rate is so low, this is pro bono work,” said Lorraine Silverman, a partner in an Albany family law firm who also works as a court-appointed attorney for children. While psychologists and physicians are paid hundreds of dollars an hour for their work on Family Court cases, she said, “the attorneys who work to prevent child abuse and reunite kids with their families are paid pennies.”

Silverman earns nearly all of her income from private cases, given the low pay for Family Court cases. Last week, she appeared in court to settle a two-year old custody case involving drug abuse, domestic violence and mental health issues. She billed for 21 minutes of work, earning $26.25.

In criminal court, low-income defendants are typically represented by public defenders, who receive government benefits and salaries that increase with inflation. But in the 57 Family Courts serving each of New York’s counties, most parents are represented by private contract attorneys selected from what’s known as the “18-b panel” provided by a local bar association pursuant to County Article 18-b. New York law also guarantees free counsel to income-eligible parents.

The 18-b attorneys are paid $75 per billable hour, with no benefits or paid time off. Many are solo practitioners, meaning they must pay self-employment and income taxes on their earnings, in addition to purchasing health and malpractice insurance; covering office space, technology and transportation and hiring a secretary or paralegal. Those costs fall on top of student loan payments, housing costs and living expenses. The same rate applies to the private practice attorneys, like Silverman, who are contracted to represent children in Family Court through the state-run Attorneys for Children program.

The $75 rate has not been updated since 2004, though federal data shows inflation has since driven the cost of living up by roughly 50%. In contrast, in federal court, paralegals make the same $75 an hour, while attorneys who represent indigent clients earn $158 per hour. That rate has increased almost every year since 2004, when attorneys in federal court were paid $90 per hour.

Multiple hard-hitting reports by state authorities have documented the problem with New York’s poor support for court-appointed attorneys, which have also been detailed in a lawsuit filed last summer on behalf of 10 state bar associations. The rock-bottom pay for attorneys has led to repeated violations of “the constitutional right of children and indigent adults to meaningful and effective legal representation,” according to the suit.

Legislative proposals and advocacy efforts to increase attorney pay stretching back to at least 2015 have also called for pay raises, including from both the city and state bar associations, the state Office of Indigent Legal Services, two chief judges and a special Commission on Parental Legal Representation.

Little public opposition to the pay raises is readily apparent. But in 2016, former Gov. Andrew Cuomo vetoed a bill that would have required the state to fully fund the costs of representation for the indigent. In his veto message, Cuomo described efforts to include pay for Family Court attorneys in the legislation as a “backdoor attempt” to shift costs from county governments to state taxpayers.

It’s unclear if Hochul’s administration will take a different position.

“If the former governor was still here, my expectations would be low, and there would be tons of animosity and anger and yelling back and forth,” said Assemblymember Andrew Hevesi, a Democrat who chairs the committee on children and families. “That’s not what I’ve been experiencing this year — I think it’s going to make all the difference to have an executive who’s smart, who listens, and who cares about kids and families.”

A 2004 wage

Since 2018, the number of attorneys willing to represent children has fallen 30%, Chief Administrative Judge Lawrence Marks testified at a Judiciary budget hearing in January. In the judicial division that covers the Albany area, for example, the number of Attorneys for Children fell from 491 to 368 over that time frame.

The low pay has been a significant deterrent for new lawyers graduating with hundreds of thousands of dollars in student loan debt, numerous court professionals told The Imprint. Although 18-b attorneys and public defenders both do the work of representing parents in Family Court, only lawyers employed full time by the government are eligible to have their debt wiped away through the federal Public Service Loan Forgiveness program. Only children’s attorneys working for nonprofits can have their loans forgiven.

“A lot of people are leaving because they simply can’t afford to do the work they love and that’s meaningful to them,” said Patricia Warth, director of the state Office of Indigent Legal Services. “They’re not making a living wage.”

The impact is also felt by teenagers who face serious charges in the Youth Part of criminal court, which was created by the 2018 Raise the Age reform to offer a more age-appropriate venue for 16- and 17-year olds accused of felonies. The legislation requires that teens be represented by attorneys who have been trained to work with young people whose capacity for emotional regulation and decision-making has not fully developed.

Recently, Schenectady attorney Crandall was shopping at Walmart with a neighbor on a Saturday evening when she got a call from a judge in the town of Rotterdam. He had to arraign a teenager that night, and he couldn’t do that unless one of five qualified attorneys in the county could appear to represent the young man. With no time to drop off her neighbor, Crandall drove 45 minutes to the small brick courthouse. They arrived home that night at 11 p.m.

Crushing caseloads

Life-altering consequences of the rickety court system also fall heavily on the stressed, desperate parents trying to prove their parenting abilities under court scrutiny — and on the confused, conflicted children denied the stable homes while a judge decides their fate. With just a handful of 18-b attorneys juggling a deluge of cases, parents are afforded little time to build relationships with their legal advocates, delaying critical calls, texts and emails, despite clients’ desperate circumstances.

“From a litigant’s point of view, you can feel alone and unrepresented, and sometimes you give up,” said attorney Warth. “As a parent, you might acquiesce to an agreement you don’t feel is in the best interest of your family or your child, because you don’t believe you’ll get an attorney who has the time, energy and resources to do what really needs to be done for your case.”

Under state law, attorneys cannot represent more than 150 child clients at a time. For attorneys representing parents, there is no hard cap.

Yet in the Capital Region, multiple attorneys told The Imprint they represent hundreds of parents and children at time, in cases varying from child abuse and neglect to guardianship to custody and visitation. This week, one Schenectady attorney reported they have 244 open cases; another estimated 250 to 300.

Last summer, the state Office of Indigent Legal Services issued caseload guidelines for how many additional cases a parents’ attorney should take on in a given year. Due to the complexity and length of abuse and neglect proceedings, the office recommended taking no more than 33 new cases annually.

By contrast, Crandall said she had already taken 55 new cases in the first three months of this year, almost half of which involved abuse or neglect.

The Imprint consulted Angela Burton, the director of quality enhancement for parent representation at the Office of Indigent Legal Services: Was there any way attorneys who primarily take custody and child maltreatment cases, like those in Schenectady, could carry caseloads in the hundreds while still keeping to the recommended limits?

“My short answer is NO,” Burton said in an email. “There’s no way that an attorney could be in compliance with our standards carrying 250 cases, under any combination of case types.”

California makes changes

About seven years ago, California was forced to grapple with a similar crisis. A state Judicial Council study found that in some places, a single attorney represented as many as 500 to 800 children and parents at once, according to a 2020 report by the American Bar Association’s Center on Children and the Law. At the time, the National Association of Counsel for Children recommended that a full-time attorney represent no more than 100 children at a time, the same cap endorsed by the federal Children’s Bureau and the bar association.

In 2019, California leaders budgeted additional $54 million for legal representation for children and parents. The goal of that boost, Gov. Gavin Newsom said, was to bring caseloads down from an average of 214 clients to a goal of 153.

Today, attorneys representing kids in Los Angeles County haven’t quite hit that number, said Sue Abrams, director of policy and training at the Children’s Law Center of California. But caseloads have decreased dramatically at the firm, which represents roughly 35,000 children statewide.

As a result, Abrams said, attorneys now have time to collaborate with social workers to figure out how to advocate for their clients outside of the courtroom, and to get to know the children whose futures rest in their hands. One current teenage client struggling with substance abuse disorder needs daily check-ins. A case manager employed by the firm has done intensive research to identify the best treatment options for him, and to find trusted adults who can join the boy’s recovery support network, Abrams said.

That’s exactly the kind of holistic work the national association of children’s lawyers called for in its updated professional standards released last year.

“An attorney cannot fulfill their ethical obligations by merely focusing on the allegations in the immediate legal matter,” the document states. “Instead, they should endeavor to develop a ‘360’ understanding of their client’s life — ‘enter the child’s world.’”

Such work is a “core function” of an attorney’s duty to advocate for a child’s best interest at home, at school and in their relationships with their parents, siblings and other family members, the National Association of Counsel for Children states. The organization now recommends attorneys represent only 40 to 60 children at a time, about half the previously suggested limit.

The American Bar Association encourages lawyers who represent parents in abuse and neglect cases to consider all of their client’s needs, not just their legal concerns. Parents’ attorneys should be responsive to the client’s situation and needs, and help navigate challenges related to finances, mental health, substance abuse, domestic violence, immigration status, criminal charges and incarceration.

An attorney representing parents must serve as “a counselor as well as litigator,” the guidelines state.

Ongoing problems

Three years ago in New York, a top judge recommended doubling the hourly rate for parents’ attorneys in a special report commissioned to address the statewide “crisis” in representation. The report also called for the state to set caseload limits for attorneys representing parents, and to assume responsibility for the costs of parent representation rather than leaving the funding to the counties.

Still, the 2019 state budget included no increase, and legislative efforts planned the following year were derailed by the pandemic. Ultimately, COVID-19 could become the catalyst for the long-sought raises.

After months-long courthouse closures and a halting transition to virtual court appearances, the current backlog of cases may be too great to ignore. Some custody and visitation orders, child support cases and other issues deemed to be non-emergencies have been delayed for as long as two years, depriving parents of both time with their children and the resources needed to care for them.

“As long as assigned counsel for parents and children remain underpaid and overwhelmed by caseloads,” Legal Aid Society attorney Dawne Mitchell wrote in an open letter to Hochul and legislative leaders last month, “the second-class status of the Family Courts, the attorneys who serve there, and the litigants who appear there, cannot be overcome.”

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