Tuesday, March 30, 2010

Civil Right to Counsel / Civil Gideon News

Be sure to see at the end of this list of links, the entire text of the New York State Bar Associations "Civil Gideon Resolution"
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The ABA Supports a Civil Right to Counsel; http://www.civilrighttocounsel.org/advocacy/legal_professional_involvement/

The National Coalition for a Right to Civil Counsel; http://www.civilrighttocounsel.org/news/newsletter/

Chief Judge Calls on New York to Uphold Civil Gideon; http://legal-eaze.blogspot.com/2010/03/chief-judge-calls-on-ny-to-uphold.html

A Civil Right to Counsel for the Poor, By Paul Marvy and Debra Gardner; http://www.abanet.org/irr/hr/summer05/counsel.html

California First State to Enact a Civil Gideon Right; http://legal-eaze.blogspot.com/2010/03/california-first-state-to-enact-civil.html

Wyoming Takes First Step Towards a Civil Gideon; http://legal-eaze.blogspot.com/2010/03/wyoming-takes-1st-step-towards-civil.html

A Qualified Civil Gideon; http://legal-eaze.blogspot.com/2010/02/qualified-civil-gideon.html

New Head of Boston Bar a Civil Gideonite; http://legal-eaze.blogspot.com/2009/10/new-head-of-boston-bar-civil-gideonite.html

The Civil Gideon Club, DC Branch; http://legal-eaze.blogspot.com/2009/10/civil-gideon-club-dc-branch.html

Civil Gideon National Update #1; http://legal-eaze.blogspot.com/2009/06/update-on-civil-right-to-counsel-civil.html

Civil Gideon National Update #2; http://legal-eaze.blogspot.com/2010/03/towards-civil-gideon-litigation-update.html

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The New York State Bar Associations "Civil Gideon Resolution" --

TOWARD A RIGHT TO COUNSEL IN CIVIL CASES IN NEW
YORK STATE:
A REPORT OF THE NEW YORK STATE BAR ASSOCIATION


Laura K. Abel*

TABLE OF CONTENTS


INTRODUCTION ...................................................................................33


I. THE RIGHT TO COUNSEL IN CASES INVOLVING SHELTER..........41
A. Current Scope of the Right................................................41
B. Potential for Expansion .....................................................42
II. THE RIGHT TO COUNSEL IN CASES INVOLVING SUSTENANCE ...46
A. Current Scope of the Right................................................46
B. Potential for Expansion .....................................................47
III. THE RIGHT TO COUNSEL IN CASES INVOLVING CHILD
CUSTODY AND SAFETY .......................................................................50
A. Cases Involving Child Custody.........................................50
1. Current Scope of the Right.......................................... 50
2. Potential for Expansion .............................................. 54
B. Cases Involving Safety......................................................54
1. Current Scope of the Right.......................................... 54
2. Potential for Expansion .............................................. 55
IV. THE RIGHT TO COUNSEL IN CASES INVOLVING HEALTH...........57
A. Current Scope of the Right................................................57
* Deputy Director, Justice Program, Brennan Center for Justice at NYU School of Law.
Electronic copy available at: http://ssrn.com/abstract=1532848


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B.
Potential for Expansion .....................................................58
V. THE RIGHT TO COUNSEL IN CASES CONCERNING MEMBERS
OF SPECIAL OR VULNERABLE POPULATIONS.......................................60
A.
People With Disabilities....................................................60
B. Children.............................................................................63
C. Seniors...............................................................................64
D. Prisoners............................................................................65
E. Immigrants ........................................................................66
VI. OTHER CATEGORIES OF CASES .................................................66
A.
The Right to Counsel in Cases Involving Deprivation
of Physical Liberty ............................................................66
1.
Current Scope of the Right.......................................... 66
2.
Potential for Expansion .............................................. 69
B.
The Right to Counsel in Other Types of Cases.................70
Electronic copy available at: http://ssrn.com/abstract=1532848


2009] STATE BAR REPORT

TOWARD A RIGHT TO COUNSEL IN CIVIL CASES IN NEW
YORK STATE:
A REPORT OF THE NEW YORK STATE BAR ASSOCIATION


INTRODUCTION

A core goal of the New York State Bar Association
(“NYSBA”) is to ensure that the justice system works, and that it
works for all New Yorkers.1 To that end, NYSBA promotes several
measures aimed at ensuring that all New Yorkers, regardless of income,
have access to lawyers to meet their important civil legal
needs. Among other things, NYSBA works to obtain adequate federal,
state and private funding for civil legal aid attorneys; fights restrictions
that hamper the work of federally funded civil legal aid attorneys;
promotes pro bono; and advocates for the availability of
attorneys’ fee awards in appropriate cases.

However, NYSBA’s 1990 New York Legal Needs Study
found, and many more recent studies have confirmed, that despite all
of these efforts, the existing resources are unable to meet the vast majority
of the civil legal needs of low-income people. In fact, every
year, at least 80% of the civil legal needs of low-income New Yorkers
go unmet. Many of the unmet legal needs concern issues of the
utmost importance to people’s lives, including housing, child custody,
food, shelter, employment, and health.2

1 Among NYSBA’s purposes are “to facilitate the administration of justice” and “to apply
its knowledge and experience in the field of the law to promote the public good.” Bylaws of
the N.Y. State Bar Ass’n, art. II, at 3 (amended 2008).

2 NYSBA’s study found that among low-income people in New York State, “[n]ot more
than 14% of their overall need for legal assistance was being met.” N.Y. State Bar Ass’n,


34 TOURO LAW REVIEW [Vol. 25

This is an unacceptable state of affairs. A society is not truly
democratic, and its justice system not truly just, when its poorest citizens
have no access to the protection of its laws. When the result is
that families are unable to meet their basic human needs, it can fairly
be called an ongoing state of emergency. For this reason, the modern,
industrialized nations the United States generally views as our
peers in terms of governance systems provide for appointment of
counsel in many categories of civil cases as a matter of right.3

Expanding the right to counsel in civil cases is an essential
way to ensure that low-income people are able to access the justice
system in truly important cases. Without a right to counsel, most
low-income people with legal problems affecting their basic human
needs will never obtain legal representation and, as a result, will not
be able to receive a full and fair hearing of their case. Ironically,
most Americans already believe that a right to counsel exists for
these types of cases.4

Accordingly, NYSBA is joining other bar leaders around the
country to advocate for expansion of the right to counsel in civil
cases. In August, 2006, the American Bar Association (“ABA”)
passed the following resolution:

The New York Legal Needs Study (June 1990, revised and reprinted Dec. 1993), at 159. As
recently as 2005, the Legal Services Corporation, reviewing nine state legal needs studies
issued since 2000, reported that 20% is the upper limit of legal needs being met, and that in
most jurisdictions far fewer legal needs are being met. See LEGAL SERVICES CORP.,
DOCUMENTING THE JUSTICE GAP IN AMERICA 13 (2005).

3 See Raven Lidman, Civil Gideon as a Human Right: Is the U.S. Going to Join Step With
the Rest of the Developed World, 15 TEMP. POL. & CIV. RTS. L. REV. 769, 771-83, 787-88
(2006).

4 Andrew Scherer, Why People Who Face Losing Their Homes in Legal Proceedings Must
Have a Right to Counsel, 3 CARDOZO PUB. L. POL’Y & ETHICS J. 699, 716 (2006).


2009]
STATE BAR REPORT

RESOLVED, That the American Bar Association
urges federal, state and territorial governments to provide
legal counsel as a matter of right at public expense
to low income persons in those categories of
adversarial proceedings where basic human needs are
at stake, such as those involving shelter, sustenance,
safety, health or child custody, as determined by each
jurisdiction.5

The report accompanying the resolution makes clear that the ABA
defines the right as encompassing representation in adversarial proceedings.
It therefore applies to “both judicial and some quasi-
judicial tribunals, because many of the disputes involving the basic
human needs . . . are, in one jurisdiction or another, allocated to administrative
agencies or tribunals.”6

NYSBA and eleven other state or local bar associations were
co-sponsors of the resolution. In the eighteen months since its passage,
the resolution has prompted additional action by those and other
bar associations:


NYSBA Immediate Past President Kate Madigan
has created a subcommittee of the President’s
Committee on Access to Justice focusing
on the civil right to counsel. One of the
subcommittee’s projects was planning a conference
titled, “An Obvious Truth: Creating an
Action Blueprint for a Civil Right to Counsel
5 See ABA, Resolution on a Civil Right to Counsel, 15 TEMP. POL. & CIV. RTS. L. REV.
507, 508 (2006).

6 Id. at 521.


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TOURO LAW REVIEW [Vol. 25

in New York State.” The conference, which
was co-sponsored by NYSBA and the Touro
Law Center, was held on March 7, 2008.


The Minnesota State Bar Association and Boston
Bar Association have likewise created task
forces on the civil right to counsel.

The California Conference of Delegates of
California Bar Associations, Massachusetts
Bar Association, and Pennsylvania Bar Association
have all passed their own civil right to
counsel resolutions.
NYSBA’s current civil right to counsel work continues the
long-standing leadership role NYSBA, and New Yorkers in general,
have taken on this issue. Since the early 1970s, New York State has
had the broadest right to counsel in family cases of any state. New
York is the only state to provide counsel as of right for parents facing
loss of custody to a private party, and for people seeking domestic
violence restraining orders.7

New York law also provides judges with the discretion to appoint
counsel for civil litigants who have sought leave to proceed as a
poor person.8 Refusal to appoint counsel in an appropriate case may
constitute an abuse of discretion, particularly when the litigant is

7 See Laura K. Abel & Max Rettig, State Statutes Providing for a Right to Counsel in
Civil Cases, 40 CLEARINGHOUSE REV. 252-62 (2006).

8 N.Y. C.P.L.R. 1101, 1102 (McKinney 2008).


2009] STATE BAR REPORT

“faced with a ‘grievous forfeiture or loss of a fundamental right.’ ”9
Courts have exercised their discretion to appoint counsel in a case
concerning a large amount of money, in an eviction case where the
tenant was away performing military service, and in matrimonial
cases.10 Unfortunately, counsel is rarely appointed under this provision,
likely because there is no dedicated funding for the courts to use
to pay appointed counsel,11 and because the statute fails to specify
any standards for courts to apply when deciding whether to appoint
counsel.

Additionally, the courts in Orange, Putnam, and Westchester
counties, with assistance from Legal Services of the Hudson Valley
and Putnam Legal Aid Society, operate an assigned counsel program
in matrimonial cases. The attorneys who are assigned are not paid
but can apply for a fee award if one is available.

In the 1980s, NYSBA, the Association of the Bar of the City
of New York, and the New York County Lawyers’ Association all
actively supported state court litigation aimed at creating a right to
counsel for tenants facing eviction in New York City.12 Although the

9 Wills v. City of Troy, 686 N.Y.S.2d 154 (App. Div. 3d Dep’t 1999) (quoting Morgenthau

v. Garcia, 561 N.Y.S.2d 867, 868-70 (Sup. Ct. N.Y. County 1990)). See also Yearwood v.
Yearwood, 387 N.Y.S.2d 433, 434 (App. Div. 1st Dep’t 1976) (remanding for appointment
of counsel); Scherer, Right to Counsel, supra note 4, at 721.
10 Scherer, Right to Counsel, supra note 4, at 723; Application of Farrell, 486 N.Y.S. 130,
131 (Sup. Ct. Westchester County 1985) (denying attorney’s motion to vacate appointment
of counsel in a matrimonial matter).

11 See, e.g., Morgenthau, 561 N.Y.S.2d at 868-70 (declining to appoint counsel under

N.Y. C.P.L.R. Article 11, in part because of the lack of any funding to compensate appointed
counsel).
12 The vision behind the lawsuit is set forth in a series of law review articles authored by
Andrew Scherer, who is now Executive Director of Legal Services for New York City. See
Scherer, Right to Counsel, supra note 4, at 699; Andrew Scherer, Securing a Civil Right to
Counsel: The Importance of Collaborating, 30 N.Y.U. REV. L. & SOC. CHANGE 675 (2006);
Andrew Scherer, Gideon’s Shelter: The Need to Recognize a Right to Counsel for Indigent


38 TOURO LAW REVIEW [Vol. 25

litigation ultimately failed on procedural grounds, it led the New
York City Council to allocate significant funding for civil legal aid
for families facing eviction.

The right to counsel in Housing Court continues to be the goal
of advocacy in New York City. On November 15, 2007, New York
City Council Members Rosie Mendez and Alan Gerson introduced
the first piece of municipal, state or federal legislation aimed at creating
a right to counsel in eviction and mortgage foreclosure cases.13
The bill, which would apply to low-income seniors within New York
City, has the support of a veto-proof majority of the City Council,
and also of the New York County Lawyers’ Association (“NYCLA”)
and more than ninety housing, senior and other advocacy groups. In
2005, NYCLA issued a report urging New York State to recognize a
right to counsel “for individuals in danger of losing their homes due
to a legal or administrative proceeding.” 14

An early draft of the instant Report was circulated to participants
in the conference, called “An Obvious Truth: Creating an Action
Blueprint for a Civil Right to Counsel in New York State,”
which NYSBA and the Touro Law Center co-sponsored on March 7,
2008. At the conference, each participant attended one of five working
groups, focused on the right to counsel in cases concerning: 1)

Defendants in Eviction Proceedings, 23 HARV. C.R.-C.L. L. REV. 557 (1988).

13 N.Y. CITY COUNCIL, INT. NO. 648, PROVISION OF LEGAL SERVICES IN EVICTION,
EJECTMENT AND FORECLOSURE PROCEEDINGS (Oct. 24, 2007), available at http:// webdocs.
nyccouncil.info/textfiles/ Int%2006482007.htm?CFID=2547622&CFTOKEN=
83464359.

14 N.Y. COUNTY LAWYERS’ ASS’N, THE NEW YORK CITY HOUSING COURT IN THE 21ST
CENTURY: CAN IT BETTER ADDRESS THE PROBLEMS BEFORE IT? 30 (2005), available at
http://nycla.org/siteFiles/Publications/Publications195_0.pdf [hereinafter NEW YORK CITY
HOUSING COURT].


2009]
STATE BAR REPORT

shelter, 2) sustenance (including employment and government benefits),
3) health, 4) child custody and safety (including domestic violence),
and 5) the legal needs of special or vulnerable populations
(including seniors, people with disabilities, immigrants, youth, and
prisoners). This final Report incorporates feedback and suggestions
from the conference.

This Report describes the existing scope of the right to counsel
in each of these categories of civil cases in New York State, as
well as in several categories for which the conference does not have
working groups (such as cases concerning physical liberty), and suggests
areas for expansion of the right in each category.

The New York State Bar Association is fully committed to the
goal of an expansive civil right to counsel in legal matters affecting
basic human needs, as called for by the 2006 ABA resolution. We
recognize however, that fully achieving that broad goal will take
time. This Report calls for the implementation of some immediate,
relatively simple, yet enormously compelling incremental steps that
New York State can and should take to move us toward a civil right
to counsel in cases concerning basic human needs.

In the short term, the New York State Legislature should expand
the civil right to counsel in New York by adopting the following
two measures, each of which is described more fully in the body of
the Report:

1.
Shelter – In the area of shelter, as a next, important
step toward a meaningful right to counsel, we recommend
that the state adopt legislation to provide a right

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TOURO LAW REVIEW [Vol. 25

to counsel for vulnerable low income people who face
eviction or foreclosure from their homes. As discussed
above, legislation providing this protection for
low-income seniors has already been introduced in the
New York City Council, and Senator Liz Krueger intends
to introduce State legislation in 2009 that would
provide this protection for low-income seniors and
people with disabilities.15

2.
Sustenance – The existing right to counsel for unemployment
insurance claimants should attach earlier in
the appeals process, and the right should be implemented
in a more effective manner. Currently, only
claimants who have received a favorable decision
from the Unemployment Insurance Appeal Board and
are defending that decision in an appeal to the Appellate
Division or Court of Appeals brought by another
party have a right to counsel. That right should be extended
to claimants who have received a favorable determination
from an administrative law judge, and
who are defending against an appeal before the Unemployment
Insurance Appeal Board. Additionally,
the existing $500 cap on reimbursement for appointed
counsel should be raised to a level high enough to ensure
that attorneys will accept the cases.16
15 See discussion infra Part I.B.
16 See discussion infra Part II.B.


2009] STATE BAR REPORT

In the longer term, the legislature should adopt the other
measures discussed in this Report, to ensure that litigants are able to
fully participate in civil cases concerning their basic human needs.

I. THE RIGHT TO COUNSEL IN CASES INVOLVING SHELTER
A. Current Scope of the Right
According to the ABA, “ ‘Shelter’ includes a person or family’s
access to or ability to remain in an apartment or house, and the
habitability of that shelter.”17 The only currently recognized right to
counsel in civil cases involving shelter in New York is a federal right
to representation by an attorney secured by the Legal Services Corporation
for all people facing civil forfeiture of their primary residence.
18

There are a few types of cases concerning shelter in which
courts have discretion to appoint counsel.19 For example, New York
courts “may appoint any attorney” for members of the military facing
eviction who are unable to personally appear in the eviction proceeding.
20 Additionally, federal law gives courts discretion to appoint
counsel to “a person alleging a discriminatory housing practice or a
person against whom such a practice is alleged” in state or federal
court.21 It appears that New York courts rarely, if ever, appoint coun


17 ABA, Resolution on a Civil Right to Counsel, supra note 5, at 522.

18 42 U.S.C. § 2996f(a)(11) (2000).

19 These categories are in addition to the discretion courts have under Article CPLR 11 to
appoint counsel in any category of cases, as discussed above.

20 N.Y. MIL. LAW § 303(1) (McKinney 2008); 444 W. 54th St. Tenants Ass’n v. Costello,
523 N.Y.S.2d 374, 378 (N.Y. Civ. Ct. 1987).

21 42 U.S.C.A. § 3613(b) (West 2007).


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TOURO LAW REVIEW [Vol. 25

sel under these provisions.

Additionally, people living in mental health facilities can receive
legal services as of right from the Mental Hygiene Legal Service
related to their care and treatment, including some instances
concerning the conditions in which they are housed.22

B. Potential for Expansion
As discussed above in the Introduction, there is a bill pending
in the New York City Council that, if passed, will create a right to
counsel for low-income seniors facing eviction from their apartment
or foreclosure on their home. The bill, titled Intro. 648 of 2007,
would provide counsel to seniors sixty-two years old or older, whose
household income is low enough to quality for the Senior Citizens
Rent Increase (“SCRIE”) program, and who are facing eviction from
their home in a nonpayment, holdover, ejectment or foreclosure proceeding.
23

This bill resulted from a long-term consensus among advocates
for low-income people in New Yorkers that there is a pressing
need for expansion of the right to counsel to cases concerning the
eviction of low-income tenants. This agreement has manifested itself
in a number of ways over the years:

1.
In October 2005, stakeholders in the New York City
Housing Court attending a conference convened by
the New York County Lawyers Association issued a
22 N.Y. MENTAL HYG. LAW § 47.03(c), (e) (McKinney 2007).

23 See INT. NO. 648 § 21-1001(b)(i). The proposed amendment adds Article 10 to sec. 1,
tit. 21 of the Administrative Code of the City of New York, and would “provid[e] legal
counsel for certain tenants subject to eviction, ejectment or foreclosure proceedings.”


2009]
STATE BAR REPORT

report urging the State to recognize a right to counsel
“for individuals in danger of losing their home due to
a legal or administrative proceeding.”24 Subsequently,
in 2005 NYCLA passed a resolution “endors[ing], as a
matter of principle, a right to the appointment of free
counsel for all tenants in Housing Court unable to afford
counsel.”25

2.
In the 1980s, bar leaders, the legal services community
and others engaged in a massive litigation effort to establish
a right to counsel for low-income New Yorkers
facing eviction.26
In recent years, the mortgage foreclosure crisis has given rise
to increasing interest in establishing a right to counsel in mortgage
foreclosure proceedings in which homeowners risk losing their primary
residence.27 For this reason, the New York City bill discussed
above provides for a right to counsel in mortgage foreclosure cases as
well as in eviction cases.

The reasons for providing counsel are similar in eviction
cases and in foreclosure cases, and include: 1) the importance of decent
housing to a family’s life (as recognized by the New York State
Constitution) and the difficulty of replacing it once it is lost, 2) the

24 NEW YORK CITY HOUSING COURT, supra note 14, at 30.

25 N.Y. COUNTY LAWYERS’ ASS’N, RESOLUTION ON RIGHT TO COUNSEL IN HOUSING COURT
(March 14, 2005), available at
http://www.nycla.org/siteFiles/Publications/Publications34_0.pdf.

26 See supra note 12 and accompanying text.

27 See generally N.Y. REAL PROP. ACTS.LAW §§ 1301-1309.


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TOURO LAW REVIEW [Vol. 25

adversarial nature of the proceedings, 3) the complicated nature of
the substantive law and procedures, 4) the imbalance in power between
landlords and lenders on the one hand, who usually have representation,
and tenants and homeowner/borrowers on the other, who
usually do not, and 5) the many studies showing that representation in
eviction cases makes a huge difference in whether tenants are able to
stay in their homes.28 In mortgage foreclosure cases there are the
added factors that illegal practices are increasingly common in the
subprime mortgage market,29 and that it can be extremely difficult to
prove the fraudulent practices without the involvement of a lawyer.

There are many other types of proceedings involving shelter
to which a right to counsel should attach. They include:

1.
other cases in which tenants seek housing, seek improvements
in their living conditions, or contest eviction,
including:
a.
any cases in which tenants seek improvement
in their housing conditions;
b.
lawsuits in which prospective tenants allege
that they are being denied a lease on the basis
of race or for another reason that is unlawful
under federal, state or local law;30
28 See Scherer, Right to Counsel, supra note 4, at 704, 707, 709-10, 717-19; Laura K.
Abel, Make “You Have a Right to a Lawyer” a Reality in Housing Court,
TENANT/INQUILINO, Mar. 2005, at 1, available at
http://www.metcouncil.net/publications/march05.pdf; Scherer, Gideon’s Shelter, supra note
12, at 557, 558, 559, 570-72.

29 See ELLEN SCHLOEMER ET AL., CTR. FOR RESPONSIBLE LENDING, LOSING GROUND:
FORECLOSURES IN THE SUBPRIME MARKET AND THEIR COST TO HOMEOWNERS 5 (2006),
available at http://www.responsiblelending.org/pdfs/foreclosure-paper-report-2-17.pdf.

30 As noted above, New York courts have the discretion, but are not required to, appoint


2009]
STATE BAR REPORT

c.
administrative proceedings in which people
denied public housing contest their denials,31
or tenants residing in public housing contest
the terms or termination of their leases or seek
improvements in their housing conditions; and
d.
administrative proceedings in which tenants
who are denied Section 8 or other housing subsidies
contest those denials, or in which the recipients
of housing subsidies contest the terms
or termination of their subsidies;32
2.
cases in which a homeowner’s ability to remain in his
home are at stake, including:
a.
eviction proceedings brought by low-income
homeowners against tenants whose failure to
pay rent is placing at risk the landlord’s ability
to keep his home;33
counsel in such cases. See N.Y. EXEC. LAW §§ 291(2), 297(4)(a) (McKinney 2008) (outlining
the procedure for securing counsel in a housing discrimination action).

31 Due process does not require public and semi-public housing providers to hold a hearing
for every applicant who is denied shelter. Sumpter v. White Plains Hous. Auth., 278
N.E.2d 892, 894 (N.Y. 1972). However, statutes or housing authority rules may provide for
hearings to be held. See, e.g., 42 U.S.C.A. § 1437d(q)(2) (West 2007) (giving public housing
applicants the opportunity to dispute the accuracy or relevance of criminal record used to
deny housing); Frequently Asked Questions—City of Buffalo,
http://www.ci.buffalo.ny.us/Home/CityServices/Buffalo_Municipal_Housing_Authority/Fre
quentlyAskedQuestions (last visited Aug. 14, 2007) (informing rejected Buffalo Municipal
Housing Authority applicants of right to request an informal hearing with the Tenant Review
Board).

32 See, e.g., New York City Hous. Auth., Section 8 Tenant Questions,
http://www.nyc.gov/html/nycha/html/ section8/ lh_ten_faqs.shtml (last visited Aug. 14,
2007) (notifying Section 8 recipients of their right to a hearing if denied recertification by
the housing authority).

33 An assigned counsel program run by the New York City Department for the Aging provides
attorneys to senior citizen landlords involved in such cases, as well as those defending
against eviction. The program does not have nearly enough funding to meet the need, how



46
TOURO LAW REVIEW [Vol. 25

b.
proceedings to condemn a building;34
3.
lawsuits or administrative proceedings in which homeless
people challenge the denial of emergency shelter,
seek improvement in the conditions of emergency
shelter, or challenge their removal from an emergency
shelter;35 and
4.
cases in which involuntary residents of mental institutions,
drug treatment centers, prisons, juvenile detention
centers, foster care facilities or other government
institutions challenge the conditions in which they are
housed.36
II. THE RIGHT TO COUNSEL IN CASES INVOLVING SUSTENANCE
A. Current Scope of the Right
According to the ABA,

“Sustenance” includes a person or family’s sources of
income whether derived from employment, government
monetary payments or “in kind” benefits (e.g.,
food stamps). Typical legal proceedings involving
this basic human need include denials of or termination
of government payments or benefits, or low-wage

ever, and does not provide counsel as of right.

34 See generally N.Y. PUB. HOUS. LAW § 125 (McKinney 2008).

35 See, e.g., N.Y. COMP. CODES R. & REGS. tit. 18, § 397.8 (2008). See also Project FAIR,
Fair Hearing Information, http://www.projectfair.org/fairhearinginfo.html (last visited Aug.
14, 2007) (listing as a reason to seek an administrative fair hearing in New York City “[y]ou
have been denied emergency shelter”).

36 As noted above, people living in mental health facilities can receive legal services related
to their care and treatment from the Mental Hygiene Legal Service.


2009] STATE BAR REPORT

workers’ wage or employment disputes where counsel

is not realistically available through market forces.37

In New York State, there is a statutory right to counsel for unemployment
insurance claimants who have received a favorable decision
from the Unemployment Insurance Appeal Board and are defending
that decision in an appeal brought by another party.38 The
fees in such cases, which are capped at the low rate of $500, are paid
by the state.39 Despite the statutory language, it appears that few attorneys
are rarely, if ever, appointed under this provision. The Department
of Labor does not mention the right to counsel on its webpage.
40

Respondents in child support proceedings who face incarceration
for willful failure to pay are also entitled to counsel.41

B. Potential for Expansion
At the “An Obvious Truth” conference in March 2008, participants
in a working group on the civil right to counsel in cases
concerning sustenance identified Unemployment Insurance Appeal
Board proceedings as a prime candidate for an extension of the right
to counsel. In particular, they suggested that the existing right to
counsel for claimants who have received a favorable decision from
the Board and are defending that decision on appeal be extended to

37 ABA, Resolution on a Civil Right to Counsel, supra note 17, at 522.

38 N.Y. LAB. LAW § 538(1)(e) (McKinney 2008).

39 Id. § 538(1)(e)

40 See Department of Labor, The Hearing Process: Frequently Asked Questions,
http://www.labor.state.ny.us/ui/claimantinfo/hearingfaq.shtm#25.

41 N.Y. FAM. CT. ACT § 262(a)(vi) (McKinney 2008).


48 TOURO LAW REVIEW [Vol. 25

claimants who have received a favorable determination from an administrative
law judge and are defending against an appeal to the
Board.

Additionally, if the right to counsel in unemployment insurance
appeals is to be fully effectuated, the $500 fee cap must be
raised to a level that would provide attorneys with an incentive to
take the cases, and claimants must be informed of the right.

The executive directors of three New York civil legal aid programs
have identified child support proceedings as a category in need
of the right to counsel. Apart from respondents in such proceedings
who face potential incarceration for failure to pay, there is no right to
counsel in such cases.

With respect to cases involving sustenance, the ABA Resolution
pragmatically suggests focusing on a right to counsel in “lowwage
workers’ wage or employment disputes where counsel is not
realistically available through market forces.”42 Although there has
been some documentation of the difficulty low-wage workers face
finding attorneys to take their employment cases,43 there is a need for
research regarding what these cases are in New York. Possible candidates
include:

42 ABA HOUSE OF DELEGATES, RESOLUTION 112A 13 (Aug. 7, 2006), available at
http://www.abanet.org/legalservices/ sclaid/downloads/06A112A.pdf.

43 See, e.g., David Sherwyn et al., Assessing the Case for Employment Arbitration: A New
Path for Empirical Research, 57 STAN. L. REV. 1557, 1574 n.88 (2005) (noting that various
“actual and potential costs should convince plaintiffs’ lawyers either to refuse to take, or not
to actively pursue, cases involving low-wage earners unless the employer’s liability is so
clear to the lawyer, the defense, and the court that punitive and compensatory damages are
available,” and concluding that “[t]his harsh reality results in the unlikelihood of low-wage
earners ever seeing the inside of a courtroom”); Sharon M. Dietrich, When Working Isn’t
Enough: Low-Wage Workers Struggle to Survive, 6 U. PENN. J. LAB. & EMP. L. 613, 623-24
(2004) (“Private attorneys seldom take the cases of low-wage workers, despite the availability
of attorneys’ fees under most employment law statutes, for a host of reasons . . . .”).


2009]
STATE BAR REPORT

1.
wage disputes in which the amount at issue is too low
to provide an incentive for attorneys to take the cases,
even though an attorneys’ fee award may be avail-
able;44
2.
injunctive actions seeking reinstatement of an employee
or a change in the terms of the employees’ job
or working conditions; and
3.
cases or administrative hearings challenge the termination
or denial of unemployment insurance and workers’
compensation.
Additionally, suspension or revocation of a drivers’ license
may be tantamount to loss of employment, particularly for upstate rural
residents.45 Suspension may occur for criminal or civil reasons,
including nonpayment of child support, or an administrative determination
of physical or mental disability.46 There is, consequently, an
argument for providing a right to counsel in cases threatening suspension
or revocation. Indeed, in New Jersey the appointment of counsel
in such cases is required under the state constitution.47

The need for sustenance is also implicated in cases and administrative
hearings concerning denial, insufficiency or termination

44 See, e.g., N.Y. LAB. LAW §§ 663(1), 681(1) (permitting maintenance of a civil action
against an employer who pays less than the statutory minimum wage, and permitting the recovery
of reasonable attorney’s fees).

45 Aaron J. Marcus, Are the Roads a Safer Place Because Drug Offenders Aren’t On
Them? An Analysis of Punishing Drug Offenders With License Suspension, 13 KAN. J. L. &
PUB. POL’Y 557, 570-73 (2004).

46 N.Y. VEH. & TRAF. LAW §§ 510.3.b, 510.4-e.

47 Rodriguez v. Rosenblatt, 277 A.2d 216 (N.J. 1971).


50
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of government-funded subsistence benefits such as Food Stamps,
veterans assistance, emergency assistance for families with dependent
children and people with disabilities, and more.48

III.
THE RIGHT TO COUNSEL IN CASES INVOLVING CHILD
CUSTODY AND SAFETY
A.
Cases Involving Child Custody
1.
Current Scope of the Right
According to the ABA, “ ‘Child custody’ embraces proceedings
where the custody of a child is determined or the termination of
parental rights is threatened.”49 In New York State, the right to counsel
exists for individuals in the following categories of cases concerning
parental rights:

1.
Respondents (including parents, foster parents, or any
other person having physical custody of the child)
have a right to counsel in child protective and child
abuse proceedings, including permanency proceedings
for children placed in foster care or freed for adoption.
50

2.
Noncustodial parents and grandparents seeking visita48
See N.Y. SOC. SERV. LAW § 22 (McKinney 2005) (providing for administrative hear


ings); N.Y. C.P.L.R. 7803(4) (McKinney 2003) (providing for Article 78 appeals).

49 ABA, Resolution on a Civil Right to Counsel, supra note 5, at 522.

50 N.Y. FAM. CT. ACT § 262(a)(i) (McKinney 2006) (referring to proceedings under Articles
10 and 10-A of the Family Court Act). See also Indian Child Welfare Act, 25 U.S.C. §
1912 (2000).


2009]
STATE BAR REPORT

tion of minors in foster care have a right to counsel.51

3.
Respondents have a right to counsel in cases concerning
permanent termination of custody of minors.52
4.
Parents, foster parents, or any other people having legal
or physical custody of child have a right to counsel
in proceedings concerning:
a.
dependent children in foster care;53
b.
guardianship and custody of children not in
foster care;54
c.
guardianship and custody of destitute or dependent
children;55 and
d.
foster care.56
5.
Noncustodial parents or grandparents who have been
granted visitation rights with a child have a right to
counsel in cases where a government social services
agency is assuming custody of a child, and the agency
wants the ability to deny visitation to the parent or
grandparent.57
6.
Parents seeking child custody or contesting the infringement
of their right to custody have a right to
51 N.Y. FAM. CT. ACT § 262(a)(i) (referring to proceedings under part 8 of Article 10 of
the Family Court Act).

52 Id. § 262(a)(iii) (referring to proceedings under Article 6(3) of the Family Court Act).

53 Id. § 262(a)(iv) (referring to proceedings under § 358-a of the Social Services Law).

54 Id. § 262(a)(iv) (referring to proceedings under § 384 of the Social Services Law); N.Y.
SURR. CT. PROC. ACT § 407.1(a)(ii) (McKinney 2008) (same).

55 N.Y. FAM. CT. ACT § 262(a)(iv) (referring to proceedings under § 384-b of the Social
Services Law).

56 Id. § 262(a)(iv) (referring to proceedings under § 392 of the Social Services Law).

57 Id. § 262(a)(iv) (referring to proceedings under § 384.2(e) of the Social Services Law).


52
TOURO LAW REVIEW [Vol. 25

counsel.58

7.
Parents opposing adoption of their child have a right
to counsel.59
8.
Respondents in paternity proceedings have a right to
counsel.60
9.
Everyone listed above has the right to counsel in an
appeal of the action.61
When any of these cases is venued in Supreme Court, the parties
have the same right to counsel as they would if the case were venued
in Family Court.62

In some of these cases, the right to counsel stems from a constitutional
obligation recognized by the courts.63 In others, the right
to counsel stems from the legislature’s determination that providing
counsel is the right thing to do as a policy matter. In explaining the
motivation for legislating regarding the right to counsel in parental
rights cases, the Family Court Act states:

Persons involved in certain family court proceedings
may face the infringements of fundamental interests
and rights, including the loss of a child’s society and
the possibility of criminal charges, and therefore have

58 Id. § 262(a)(v); N.Y. SURR. CT. PROC. ACT § 407.1(a)(iv). See also N.Y. JUD. LAW §
35(8) (McKinney 2007) (extending the right to counsel to Supreme Court cases, such as divorce
matters, where Family Court might have exercised jurisdiction).

59 N.Y. FAM. CT. ACT § 262(a)(vii); N.Y. SURR. CT. PROC. ACT § 407.1(a)(iii).

60 N.Y. FAM. CT. ACT § 262(a)(viii).

61 Id. § 1120(a); N.Y. SURR. CT. PROC. ACT § 407.1(a)(v) (same).

62 N.Y. JUD. LAW § 35(8).

63 See, e.g., In re Ella B., 285 N.E.2d 288, 291 (N.Y. 1972) (constitutional right to counsel
for indigent respondent parents in child protective proceedings); Jennings v. Jennings, 344
N.Y.S.2d 93, 94 (App. Div. 2d Dep’t 1973) (constitutional right to counsel for respondent
spouses in proceeding to enforce a support order because of the possibility of incarceration).


2009] STATE BAR REPORT

a constitutional right to counsel in such proceedings.
Counsel is often indispensable to a practical realization
of due process of law and may be helpful to the
court in making reasoned determinations of fact and
proper orders of disposition. The purpose of this part
is to provide a means for implementing the right to assigned
counsel for indigent persons in proceedings
under this act.64

Children have the right to a law guardian in abuse and neglect
proceedings, foster care placement and review proceedings, and person
in need of supervision cases.65 Judges also have discretion, but
not the obligation, to appoint a law guardian for children in custody,
visitation, and adoption proceedings.66

Until last year, the governing statute and caselaw were unclear
whether law guardians should advocate for their own view of
the child’s best interests, instead of acting as attorneys for the children,
and law guardians generally did the former.67 In October 2007,
however, Judge Kaye issued a new court rule making clear that law
guardians should act as an attorney for the child. The rule states: “In
juvenile delinquency and person in need of supervision proceedings,
where the child is the respondent, the attorney for the child must
zealously defend the child. In other types of proceedings, where the
child is the subject, the attorney for the child must zealously advocate

64 N.Y. FAM. CT. ACT. § 261 (McKinney 2008).
65 Child Abuse Prevention and Treatment and Adoption Reform General Program, 42


U.S.C. § 5106a(b)(2)(A)(xiii) (2000); N.Y. FAM. CT. ACT § 249(a) (McKinney 2008); JULIA
VITULLO-MARTIN & BRIAN MAXEY, NEW YORK FAMILY COURT: COURT USER PERSPECTIVES
14 (2000), http://www.vera.org/publication_pdf/nyfamilycourt.pdf.
66 VITULLO-MARTIN & MAXEY, supra note 65, at 14.
67 N.Y. FAM. CT. ACT § 241 (McKinney 1998 & Supp. 2003) (practice commentaries).



54
TOURO LAW REVIEW [Vol. 25

the child’s position.”68

2. Potential for Expansion
It might be appropriate to expand the mandatory right to
counsel for children to cases involving custody, visitation, and adoption.


Additionally, some legal services program directors have suggested
that the right to counsel in abuse and neglect cases should extend
to kincare providers, such as grandparents, seeking a voice in the
placement and treatment of children for whom they are caring.

B. Cases Involving Safety
1. Current Scope of the Right
According to the ABA, “ ‘Safety’ includes protection from
physical harm, such as proceedings to obtain or enforce restraining
orders because of alleged actual or threatened violence whether in the
domestic context or otherwise.”69 The right to counsel exists for individuals
in New York in the following categories of cases involving
safety:

1.
Both parties have a right to counsel in proceedings in
Family Court resulting from acts of domestic violence,
including disorderly conduct, harassment, stalking,
menacing, reckless endangerment, and assault be68
N.Y. COMP. CODES. R. & REGS. tit. 22, § 7.2 (Rules of the Chief Judge effective on Oct.
17, 2007).

69 ABA, Resolution on a Civil Right to Counsel, supra note 5, at 522.


2009]
STATE BAR REPORT

tween members of the same family or household.70
The recent expansion of Family Court jurisdiction to
unmarried couples without children and to same-sex
couples seeking protection from domestic violence
means that they will receive the benefit of the right to
counsel, too.71

2.
Children have the right to an attorney in abuse and neglect
proceedings.72
3.
Adults who, because of mental or physical impairments,
are allegedly unable to protect themselves from
abuse, neglect, or other hazardous situations, have a
right to counsel in any proceeding regarding involuntary
protective services from the State.73
4.
Residents of mental health facilities are entitled to representation
by the Mental Hygiene Legal Service in a
legal action to protect them from abuse or mistreatment.
74
2. Potential for Expansion
By providing a right to counsel in the cases described above,
New York has recognized the importance of protecting physical

70 N.Y. FAM. CT. ACT § 262(a)(ii) (referring to proceedings under Article 8 of the Family
Court Act).
71 N.Y. CRIM. PROC. LAW §530.11 (McKinney 2008); Governor Signs “Fair Access to

Family Court” Law, THE SARATOGIAN, July 22, 2008.
72 See supra text accompanying notes 49-62.
73 N.Y. SOC. SERV. LAW §§ 473-a(5)(b) (McKinney 2008).
74 N.Y. MENTAL HYG. LAW § 47.03(c) (McKinney 2008).


56 TOURO LAW REVIEW [Vol. 25

safety. However, even within these categories, the right is incomplete,
leaving some individuals unrepresented when their personal
safety is in jeopardy.

Although Mental Hygiene Legal Services provides counsel
for people challenging abuse or mistreatment in mental health institutions,
there is no right to counsel for people seeking protection from
abuse and mistreatment in other kinds of public institutions, such as
prisons, juvenile detention facilities, or homeless shelters.

While most safety issues related to immigration and deportation
are handled federally, at least one state has sought to protect the
safety of abused or neglected immigrant children by providing them
with counsel to petition for special immigrant juvenile status.75 New
York could consider providing a right to counsel in these or other
immigration proceedings where the safety of New York residents is
endangered.

Finally, a right to counsel could be made available to plaintiffs
seeking injunctions to protect their safety from workplace hazards,
environmental dangers, or other hazards. A wide variety of tort
actions is available to people concerned with a nuisance, threat, or
ongoing harm in the workplace or in their homes.76 Although some

75 FLA. STAT. ANN. § 39.5075(5) (West 2007).

76 There is no statutory basis for workplace safety litigation by private parties in New
York. Courts have not recognized a private right of action under either the United States
Occupational Safety and Health Act (“OSHA”) or New York’s Public Employee Safety and
Health Act (“PESHA”). See, e.g., Am. Fed’n of Gov’t Employees v. Rumsfeld, 321 F.3d
139, 144-45 (D.C. Cir. 2003) (finding no private cause of action under OSHA); Hartnett v.
New York City Transit Auth., 657 N.E.2d 773, 776 (N.Y. 1995) (finding no private right of
action under PESHA). Although the Department of Labor does accept employee complaints
regarding workplace safety, a complaint typically results in an inspection of the workplace,
not an adversarial proceeding. N.Y. LAB. LAW § 27-a(5) (McKinney 2008). Most New York
workers whose safety is threatened must therefore rely on common law actions to protect


2009] STATE BAR REPORT

of these provide for recovery of attorneys’ fee awards, New York
could provide a right to counsel for all cases in which counsel is not
realistically available despite a potential fee award.

IV. THE RIGHT TO COUNSEL IN CASES INVOLVING HEALTH
A. Current Scope of the Right
According to the ABA, “ ‘Health’ includes access to appropriate
health care for treatment of significant health problems
whether that health care is financed by government (e.g., Medicare,
Medicaid, VA, etc.) or as an employee benefit, through private insurance,
or otherwise.”77 For people living in mental health care facilities,
New York’s Mental Hygiene Legal Service provides counsel in
cases involving treatment and care.78 There is no right to counsel for
any other New York residents seeking access to healthcare or a specific
medical procedure.

In describing health as an area of basic human need, the ABA
resolution focuses on the rights of individuals to obtain healthcare
and medical treatment.79 We discuss below in section V.A the right
to counsel for some individuals contesting mandatory medical treatment
or facing involuntary confinement for health reasons.

their personal safety in the workplace.

77 ABA, Resolution on a Civil Right to Counsel, supra note 5, at 522.

78 N.Y. MENTAL HYG. LAW § 47.03(c) (McKinney 2008).

79 ABA, Resolution on a Civil Right to Counsel, supra note 5, at 522 (“ ‘Health’ includes
access to appropriate health care for treatment of significant health problems.”).


58 TOURO LAW REVIEW [Vol. 25

B. Potential for Expansion
In New York State in 2004, approximately 2.4 million people
lacked health insurance.80 Individuals asserting an entitlement to
health insurance coverage could benefit from a right to counsel as
they seek to meet their basic human need for healthcare. For example,
applicants for and recipients of veteran’s benefits, Medicaid, and
Medicare have a right to a fair hearing when these benefits are denied
or terminated, 81 and a right to appeal the hearing result in court.82
New York could help qualifying individuals obtain medical coverage
by providing a right to counsel in fair hearings and appeals from fair
hearings denying these benefits. Additionally, individuals may seek
to obtain or restore private health insurance benefits, such as those
guaranteed under an employment contract or a private insurance contract.
They may also benefit from a right to counsel when their basic
human need for healthcare has been unlawfully jeopardized.

For individuals who have public or private medical insurance
coverage, the right to healthcare is at stake in proceedings where
payment, treatment types, or other coverage specifics are disputed.83
The right to a fair hearing and appeal for people receiving veteran’s,
Medicare, or Medicaid benefits extends to situations where the
“amount or manner of payment” is inadequate.84 New York could
provide a right to counsel in fair hearings where individuals seek to

80 U.S. Census Bureau, Current Population Survey, Annual Soc. and Econ. Supp., tbl.

HI06 (2005), available at http://pubdb3.census.gov/macro/032005/health/h06_000.htm.

81 N.Y. SOC. SERV. LAW § 22(3)(a) (McKinney Supp. 2008).

82 N.Y. C.P.L.R. 7803(4) (McKinney Supp. 2008).

83 People with private health insurance have a statutory right to file an external review
when their claims are denied. N.Y. INS. LAW § 4910 (McKinney Supp. 2008).

84 N.Y. SOC. SERV. LAW § 22(5)(c) (McKinney 2008).


2009] STATE BAR REPORT

obtain the full amount of their medical benefits, as well as in payment
and treatment disputes affecting privately insured individuals and
their basic human need for healthcare. In addition, New York law
provides special entitlements for people with certain medical conditions.
85 The State could consider providing a right to counsel for
people with those conditions seeking to obtain the treatment or benefits
guaranteed under law.

Finally, New York could extend the right to counsel for individuals
in mental health facilities to all residents of public institutions
seeking to meet their health needs. For example, prisoners in New
York are entitled to free medical and dental care from the State.86
There may be instances where an inmate needs representation to obtain
a medical service that the correctional facility did not deem necessary.
As another example, New York law currently allows for a
private right of action by patients of residential healthcare facilities,
including nursing homes, if they are injured as a result of being denied
a right or benefit to which they were entitled under statute, code,
regulation, or contract.87 New York may consider providing a right
to counsel in actions under this law, particularly when those actions
seek injunctive or declaratory relief which would have immediate effect
on a patient’s basic human need for healthcare. There could also

85 See, e.g., N.Y. PUB. HEALTH LAW § 2150 (McKinney 2008) (providing hospital care to
some patients with typhoid fever at the expense of the State); N.Y. PUB. HEALTH LAW § 2161
(McKinney 2008) (requiring counties, cities, and states to provide treatment to adult polio
patients “who cannot otherwise be provided for”); N.Y. PUB. HEALTH LAW § 2202 (McKinney
2008) (requiring cities and counties to provide tuberculosis care and treatment); N.Y.
PUB. HEALTH LAW § 2204 (McKinney 2008) (granting tuberculosis patients full transportation
expenses to state or country of residence at commissioner’s discretion).

86 N.Y. CORRECT. LAW § 500-h (McKinney 2008).

87 N.Y. PUB. HEALTH LAW § 2801-d (McKinney 2008).


60
TOURO LAW REVIEW [Vol. 25

be a right to counsel for institutionalized individuals not covered by a
special statute who seek to obtain medical treatment or secure the environment
that best protects their health.

V.
THE RIGHT TO COUNSEL IN CASES CONCERNING MEMBERS
OF SPECIAL OR VULNERABLE POPULATIONS
In New York State (as in the rest of the country), there is no
right to counsel across categories of cases for members of any special
or vulnerable population. Nonetheless, the fact that members of certain
groups may have a particular need for legal representation is well
recognized, as is evident from the many civil legal aid programs
dedicated to representing seniors, youths, and people with disabilities.
For this reason, it is worth considering whether certain categories
of litigants should have a broader right to counsel than members
of the general population do. Below is a discussion of the arguments
for carving out a right to counsel for some of possible categories.

A.
People With Disabilities
In New York, people with mental disabilities have a right to
counsel in several categories of cases.88 For example, for people living
in mental health care facilities, New York’s Mental Hygiene Legal
Services provides counsel in cases involving treatment and care.89
Individuals who are the subject of a petition to appoint a guardian for
them on incapacity grounds receive representation from Mental Hy


88 In addition to the examples given here, other categories of such cases are discussed infra
Part VI.A.1.

89 See supra text accompanying note 22.


2009] STATE BAR REPORT

giene Legal Services.90

The U.S. Supreme Court recognizes that mental disabilities
may make it impossible for a criminal defendant to represent himself,
stating: “ ‘[d]isorganized thinking, deficits in sustaining attention and
concentration, impaired expressive abilities, anxiety, and other common
symptoms of severe mental illnesses can impair the defendant’s
ability to play the significantly expanded role required for self-
representation even if he can play the lesser role of represented defendant.’
”91 These disabilities can make it equally impossible for a
civil litigant to proceed pro se. Nonetheless, apart from civil proceedings
concerning the treatment and care of people living in mental
health facilities, or concerning guardianship, the existence of a disability
precluding self-representation does not give rise to the right to
counsel in this state.

An article in the Seattle Journal for Social Justice argues that
for “people whose disabilities prevent them from understanding the
proceedings or vigorously participating in their cases, . . . the only
reasonable accommodation under Title II of the ADA, under the Rehabilitation
Act, and under state anti-discrimination statutes . . . is an
attorney.”92 The authors suggest that people with the following con


90 N.Y. MENTAL HYG. LAW § 81.10 (McKinney 2008) (requiring appointment of counsel
where alleged incapacitated person requests counsel, contests guardianship petition, requests
temporary guardian, or does not consent to move or major treatment requested in the petition,
or where court determines that appointment of counsel would be helpful). See also

N.Y. MENTAL HYG. LAW § 81.09 (McKinney 2008) (requiring appointment of a court
evaluator in all guardianship cases).
91 Indiana v. Edwards, 128 S. Ct. 2379, 2387 (2008) (quoting Brief for APA et al. as
Amici Curiae at 26).
92 Lisa Brodoff et al., The ADA: One Avenue to Appointed Counsel Before a Full Civil
Gideon, 2 SEATTLE J. SOC. JUST. 609, 611 (2004).


62 TOURO LAW REVIEW [Vol. 25

ditions might fall into this category: those that “prevent a person from
comprehending what is happening in the courtroom or mustering a
case,” for example “mental retardation, dementia, schizophrenia, and
severe depression,” and also those that “sap energy or vitality to the
extent that a person is unable to participate meaningfully in court,”
including “[s]ome individuals with brain injuries, terminal illnesses,
Parkinson’s disease, multiple sclerosis, AIDS, apraxia, and end-stage
alcoholism.”93 Likewise, participants in a New York County Lawyers’
Association conference focusing on the New York City Housing
Court concluded that a right to counsel in Housing Court “would
address and resolve many of the issues and problems presented and
faced by litigants with diminished capacity.”94

In September, 2007, Washington State became the first state
to explicitly provide by court rule that counsel may be appointed as a
reasonable accommodation for a litigant with a disability. The rule
requires each court in the state to accept requests for an accommodation,
to “make its decision on an individual- and case-specific basis
with due regard to the nature of the applicant’s disability and the feasibility
of the requested accommodation,” and to consider as an accommodation
“as to otherwise unrepresented parties to the proceedings,
representation by counsel, as appropriate or necessary to
making each service, program, or activity, when viewed in its entirety,
readily accessible to and usable by a qualified person with a
disability.” The rule does not, however, require the court to pay for

93 Id. at 610.

94 Conference Report: The New York City Housing Court in the 21st Century: Can It
Better Address the Problems Before It?, 3 Cardozo Pub. L. Pol’y & Ethics J. 601, 638
(2006).


2009] STATE BAR REPORT

an attorney appointed pursuant to this rule.95

New York should consider adopting a version of this rule,
with several modifications.96 First, the rule would be more effective
if it were accompanied by funding for appointed counsel. Second, it
would make sense for New York to consider litigants with certain
types of disabilities categorically eligible for the appointment of
counsel. Finally, the rule should require courts to provide counsel for
eligible litigants who have a disability that is so obvious that court
personnel know or reasonably should know about it, even if the litigants
themselves do not request the appointment of counsel as an accommodation.
97

B. Children
As a general matter, minors are permitted to appear in court
only through a parent or other guardian. So long as a child has a
guardian representing his wishes, he may not have a greater need for
an attorney than any other litigant does.

However, when the child’s interests are at odds with those of
the guardian, when there is no guardian, or when the guardian is not
permitted to proceed pro se, there may be a need for court-appointed
counsel for the child.

As discussed above, New York guarantees children the right

95 Wash. Ct. R. Ann. G.R. 33 (2008).

96 On November 1, 2008, there was a vigorous discussion in the House of Delegates concerning
this recommendation. At that meeting, the President’s Committee on Access to Justice
agreed to consider whether the recommendation should be amended in any way, and to
report back to the House of Delegates at the January 2009 meeting of that body.

97 See Brady v. Walmart Stores, Inc., No. 06-5486, slip op. at 13 (July 2, 2008) (holding
that employers must provide accommodations for employees with a disability about which
the employer knows or reasonably should know).


64 TOURO LAW REVIEW [Vol. 25

to an attorney in abuse and neglect proceedings, foster care placement
and review proceedings, and person in need of supervision
cases.98 However, appointment of counsel for the child in custody,
visitation, and adoption proceedings is an expansion of the right to
counsel worth considering.99

Public school suspension and expulsion hearings pursuant to
Education Law § 3214 are another category of cases in which it may
be appropriate to provide a right to counsel, given the high importance
the state constitution places on the right to an education.100 Although
there does not appear to be a right to the appointment of
counsel in such cases in any other jurisdiction, in Colorado courts
have the discretion to appoint counsel or a guardian ad litem for the
child.101

C. Seniors
As a group, seniors are more likely to have the sorts of physical
and mental disabilities that make it difficult for them to represent
themselves. Moreover, many are particularly vulnerable to exploitation
because they live in dire financial straits; rely for financial, emotional
and physical support on others; or live far from (or have no)
close family. For all of these reasons, many seniors have a particularly
pressing need for the appointment of counsel in categories of

98 See discussion supra Part III.A.1.

99 See discussion supra Part III.A.1.

100 See generally Campaign for Fiscal Equity v. New York, 655 N.E.2d 661, 666 (N.Y.
1995).

101 See, e.g., COLO. REV. STAT. § 19-1-105 (2006) (“[I]n all proceedings under the ‘School
Attendance Law of 1963,’ . . . the court may appoint counsel or a guardian ad litem for the
child, unless the child is already represented by counsel.”).


2009] STATE BAR REPORT

cases concerning their basic human needs.

The only pending response to this set of concerns is the New
York City senior right to counsel bill described above, which would
create a right to counsel for low-income seniors facing eviction or
foreclosure. It is worth considering, however, whether there are other
types of cases in which the appointment of counsel for seniors is
needed.

D. Prisoners
Prisoners frequently face serious violations of their civil
rights, and even severe physical injury or death.102 Although criminal
defendants facing incarceration have a right to an attorney to defend
them against the criminal charges facing them, there is no right to
counsel for people in prison with serious legal needs, such as seeking
protection from mistreatment. On the contrary, prisoners have less
access to lawyers than do any other civil litigants. They cannot obtain
representation with respect to any civil matter from any civil legal
aid programs receiving Legal Services Corporation funding.103
The federal Prison Litigation Reform Act of 1995 reduces the attorneys’
fees that prisoners can obtain, substantially reducing the incentive
for attorneys in private practice to represent prisoners in prison

102

See generally ALLEN J. BECK ET AL., BUREAU OF JUSTICE STATISTICS SPECIAL REPORT:
SEXUAL VIOLENCE REPORTED BY CORRECTIONAL AUTHORITIES, 2006 (2007), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/svrca06.pdf; HUMAN RIGHTS WATCH & AM. CIVIL
LIBERTIES UNION, CUSTODY AND CONTROL: CONDITIONS OF CONFINEMENT IN NEW YORK’S
JUVENILE PRISONS FOR GIRLS (2006), available at
http://hrw.org/reports/2006/us0906/us0906webwcover.pdf

103 Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104134,
110 Stat. 1321 (1996); 45 C.F.R. § 1637 (2007).


66
TOURO LAW REVIEW [Vol. 25

conditions cases.104 And without a lawyer the fact of their incarceration
may make it impossible for them to conduct factual investigation,
discovery or legal research, or even to appear in court instead of
on a video screen. There is, consequently, an argument for a right to
counsel for prisoners attempting to protect themselves from mistreatment.


E.
Immigrants
Like prisoners, many immigrants in immigration detention
have no way of participating in court proceedings in any meaningful
way without a lawyer. Language barriers, and a lack of familiarity
with the U.S. legal system create additional hurdles. Consequently,
some advocates have argued that there should be a right to counsel
for immigrants in detention, or at least for those who are children.105

VI.
OTHER CATEGORIES OF CASES
A.
The Right to Counsel in Cases InvolvingDeprivation of Physical Liberty
1.
Current Scope of the Right
In In re Gault, the U.S. Supreme Court held that juveniles facing
juvenile detention have a right to counsel.106 In Lassiter v. Department
of Social Services, the Court intimated that the right extends

104 42 U.S.C. § 1997e (2003).

105 See, e.g., Sharon Finkel, Voice of Justice: Promoting Fairness Through Appointed
Counsel for Immigrant Children, 17 N.Y. L. SCH. J. HUM. RTS. 1105 (2001).

106 387 U.S. 1, 36-37 (1967).


2009]
STATE BAR REPORT

to all cases in which “the defendant’s interest in personal freedom” is
at stake.107 Following these mandates, New York explicitly provides
for a right to counsel for individuals in the following categories of
proceedings which threaten an individual’s liberty:

1.
Individuals have a right to counsel when facing or
challenging involuntary commitment or hospitalization
because of mental illness,108 sex offender status,109
or communicable disease,110 or because they are allegedly
unable to manage their own resources, carry out
the activities of daily living, or protect themselves
from abuse, neglect, financial exploitation, or other
hazardous situations.111
2.
Individuals have a right to counsel when facing mandatory
outpatient treatment or programming for mental
illness.112
3.
People defending against an attempt to hold them in
contempt of court or willful violation of a court order
107
452 U.S. 18, 25-26 (1981).

108 N.Y. MENTAL HYG. LAW §§ 9.27(f), 939(a)(2); N.Y. CORRECT. LAW § 402(3) (McKinney
2008). See also People ex rel. Rogers v. Stanley, 217 N.E.2d 636 (N.Y. 1966) (“[A]n
indigent mental patient, who is committed to an institution, is entitled, in a habeas corpus
proceeding (brought to establish his sanity), to the assignment of counsel as a matter of constitutional
right.”).

109
N.Y. MENTAL HYG. LAW § 10.08(g) (McKinney 2008).

110 Rapoport v. G.M., 657 N.Y.S.2d 748-49 (App. Div. 2d Dep’t 1997) (“In a proceeding
pursuant to Public Health Law § 2120 to involuntarily hospitalize a person [who has a communicable
disease and who cannot or will not refrain from infecting others] there exists a
constitutional right to counsel because the outcome of the proceeding may result in that person’s
losing his or her physical liberty.”).

111
N.Y. SOC. SERV. LAW § 473-a (5)(b) (McKinney 2008).

112 N.Y. MENTAL HYG. LAW § 9.60(g) (McKinney 2008) (“The subject of the petition shall
have the right to be represented by the mental hygiene legal service, or privately financed
counsel, at all stages of a proceeding commenced under this section.”).


68
TOURO LAW REVIEW [Vol. 25

have a right to counsel (except in summary proceedings,
i.e. those punishing contempt committed in front
of a judge), and in proceedings in Supreme Court
where the right to counsel would exist were the case
venued in Family Court. There is, however, no right
to counsel in summary contempt proceedings (i.e.
those punishing contempt committed in front of a
judge).113

4.
Judges in other civil courts have a constitutional obligation
to appoint counsel in any civil contempt proceedings
that may result in incarceration.114 Pursuant
to statute, judges in those courts have discretion to appoint
counsel to people facing any other form of punishment
or commitment for civil contempt.115
5.
Children have the right to either self-selected counsel
or a court-appointed attorney in juvenile delinquency
proceedings; this right cannot be waived.116
6.
An individual has a right to counsel in a state habeas
corpus proceeding challenging a criminal conviction,
where the petition is not neither “baseless” nor “repeti113
N.Y. FAM. CT. ACT § 262(a)(vi); N.Y. JUD. LAW § 35(8).

114 See, e.g., Ullah v. Entezari-Ullah, 836 N.Y.S.2d 18, 22 (App. Div. 2d Dep’t 2007);
Dep’t of Hous. Pres. & Dev. of N.Y. v. Lamison, 462 N.Y.S.2d 109, 111 (N.Y. Civ. Ct.
1983).

115 N.Y. JUD. LAW § 770 (McKinney 2008) (“[T]he court shall inform the offender that he
or she has the right to the assistance of counsel, and when it appears that the offender is financially
unable to obtain counsel, the court may in its discretion assign counsel to represent
him or her.”)

116 N.Y. FAM. CT. ACT § 249(a) (McKinney 2008); VITULLO-MARTIN & MAXEY, supra
note 65, at 14.


2009] STATE BAR REPORT

tious.”117

2. Potential for Expansion
While statutory law guarantees a person counsel in all contempt
proceedings (other than summary contempt) in Family Court,
there is only a discretionary right to counsel under statute in civil
contempt cases in other courts where incarceration is not an option.118
New York could extend the right to counsel to all civil contempt proceedings
in all courts.

Presently, constitutional caselaw exempts current prisoners
from the right to counsel in cases that affect their liberty. Procedural
due process doctrine distinguishes between people who have lost a
right or privilege and those who did not have that right in the first
place. Because people in prison are already deprived of their liberty,
courts have found no constitutional right to counsel when they face
additional punishment or extended imprisonment.119 Under a current
New York statute, for example, an inmate facing disciplinary charges
can select a prison employee to represent him in some cases, but has
no right to actual legal counsel.120 Similarly, prisoners seeking parole

117 People ex rel. Williams v. LaVallee, 225 N.E.2d 735, 736 (N.Y. 1967).

118 Compare N.Y. FAM. CT. ACT § 262(a)(vi), with N.Y. JUD. LAW § 770.

119 See, e.g., Menechino v. Oswald, 430 F.2d 403, 408 (2d Cir. 1970) (“The type of interest
protected by procedural due process, however, is usually one presently enjoyed . . . . Appellant,
however, does not presently enjoy freedom of movement beyond the prison walls.”)
120 See N.Y. COMP. CODES R. & REGS. tit. 7, § 251-4.1 (2007) (guaranteeing an employee
assistant to inmates who are illiterate, non-English speaking, sensorially disabled, awaiting
superintendent’s hearing, or charged with drug use as a result of urinalysis, and providing
“absolute discretion” to hearing officers to allow employee assistance for other inmates).
See also Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993) (“The assistant is not obliged to go
beyond the specific instructions of the inmate because if he did so he would then be acting as


70 TOURO LAW REVIEW [Vol. 25

do not have a right to counsel, 121 and paroled individuals have only a
qualified right to counsel in a hearing to revoke parole or probation.
122

B. The Right to Counsel in Other Types of Cases
Although there is a right to counsel in the child custody portion
of matrimonial proceedings to the extent that right would exist
were the case in Family Court, there is no right to counsel in the portion
of matrimonial cases adjudicating whether a couple should be
divorced, or what the distribution of their assets should be. In Orange,
Putnam, and Westchester counties, the courts, with assistance
from Legal Services of the Hudson Valley and Putnam Legal Aid Society,
operate an assigned counsel program in matrimonial cases.123
The attorneys who are assigned are not paid but can apply for a fee
award if one is available. In response to our survey, one executive
director of a civil legal aid organization identified divorce proceedings
as being in need of a right to counsel.

counsel in a prison disciplinary proceeding, assistance to which a prisoner is not entitled.”).
121 McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000) (New York state prisoner not enti


tled to counsel in parole eligibility hearing).
122 See Gagnon v. Scarpelli, 411 U.S. 778, 790-91 (1973).
123 See supra text accompanying notes 8-11.

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