‘Cri­sis point’ ap­proaches as ru­ral N.Y. loses its lawyers

State Bar calls for ac­tion in light of over­whelm­ing caseloads, strapped clients

Albany Times Union (Sunday) - - FRONT PAGE - By Robert Gavin

Prac­tic­ing law in the coun­try can make for a nice life.

Small-town lawyers know their clients as friends and neigh­bors. They make a dif­fer­ence in tight-knit com­mu­ni­ties where their chil­dren go to school. The com­mute to work is a breeze.

It sounds like the world of a Nor­man Rock­well paint­ing. But if so, it is a world few young lawyers in New York state ap­par­ently want to be part of — a sober­ing re­al­ity that threat­ens to dev­as­tate ru­ral jus­tice in com­mu­ni­ties from the out­skirts of the Cap­i­tal Re­gion to west­ern New York, ac­cord­ing to a re­cent sur­vey of hun­dreds of

lawyers.

The sur­vey con­ducted by Albany Law School found most of the ru­ral law prac­tices that were sam­pled had no more than five at­tor­neys, were over­whelmed by caseloads and lim­ited money, faced trou­ble re­fer­ring clients to qual­i­fied lawyers, ar­gued be­fore non-lawyers serv­ing as town jus­tices and dealt with nag­ging tech­nol­ogy and In­ter­net is­sues.

Three-fourths of the at­tor­neys said ru­ral clients of­ten can­not af­ford to pay for lawyers, forc­ing the clients to choose be­tween feed­ing their fam­i­lies and pay­ing for a le­gal bill.

And more than half of the lawyers sur­veyed were ei­ther at re­tire­ment age or fast ap­proach­ing it, stated a re­port on the sur­vey by the law school’s Gov­ern­ment Law Cen­ter.

“We’re go­ing to be reach­ing a cri­sis point,” said Taier Perl­man, a staff at­tor­ney at the Gov­ern­ment Law Cen­ter, who leads its Ru­ral Law Ini­tia­tive and au­thored the re­port.” There’s no viable suc­ces­sors. There’s no new at­tor­neys com­ing to take over th­ese prac­tices.”

The trend will only widen the ac­cess-to-jus­tice gap in ru­ral com­mu­ni­ties, she said.

“If we don’t do some­thing about it now, it’s only go­ing to get worse,” she said.

Asked what could be done, Perl­man said the prob­lem in­volved forces — in­clud­ing the mar­ket, pol­i­tics and pop­u­la­tion trends — far big­ger than work­force short­ages in the ru­ral le­gal in­dus­try.

“It has to be a mul­ti­fac­eted so­lu­tion,” she said, not­ing the trend is na­tion­wide. “It’s not like a ‘one size fits all’ so­lu­tion.”

Ask­ing ru­ral lawyers to rep­re­sent more clients free of charge was not a viable so­lu­tion, she said. Perl­man said ru­ral at­tor­neys al­ready do ex­ten­sive pro bono work, of­fer re­duced rates and have clients not cov­er­ing bills. Mean­while, many clients fall into a cat­e­gory in which they make too much money to be as­signed a pub­lic de­fender but can­not af­ford to hire a lawyer.

The dearth of young le­gal blood has not gone by un­no­ticed by pros­e­cu­tors in ru­ral coun­ties, one of whom was alarmed.

“I am very con­cerned that we are not bring­ing in young at­tor­neys,” said Schoharie County Dis­trict At­tor­ney Su­san Mallery, in her sec­ond year as the ru­ral county’s first fe­male pros­e­cu­tor.

Her fa­ther, Roger Mallery, who served as the county’s dis­trict at­tor­ney for 11 years and is now in his 80s, is still prac­tic­ing — one of only two bank­ruptcy at­tor­neys in the county, she said.

“When my fa­ther started, it was at­tor­neys who did a lit­tle bit of ev­ery­thing and they had a very broad gen­eral prac­tice of law,” Mallery told the Times Union. “The prac­tice of law has changed over the years and it’s much more spe­cial­ized and so it is much more chal­leng­ing for an at­tor­ney to come to a ru­ral area where you need to have that vast knowl­edge on mul­ti­ple ar­eas.”

The study found that 85. 5 per­cent of all lawyers sam­pled were in pri­vate prac­tices — with 62 per­cent hav­ing a gen­eral prac­tice, 38 per­cent be­ing spe­cial­ists. The top ar­eas of prac­tice in­cluded real prop­erty (52.2 per­cent), fam­ily law (37.7 per­cent), trust and es­tates (31.4 per­cent), crim­i­nal law (26 per­cent), busi­ness (20.6 per­cent) and mu­nic­i­pal law (18 per­cent), among oth­ers.

“In a ru­ral set­ting it is harder to be suc­cess­ful, be able to sup­port your fam­ily, pay off your law school and stu­dent loans if you are spe­cial­iz­ing in just one area,” Mallery said.

Mallery, who grew up in Schoharie, grad­u­ated from Syra­cuse Univer­sity and Albany Law School and, as a fre­quent trav­eler, has vis­ited more than 30 coun­tries. She ended up back in her home county where she ran a pri­vate gen­eral prac­tice that han­dled ar­eas of law that in­cluded bank­rupt­cies, mat­ri­mo­nial, trusts and es­tates, real es­tate and civil ac­tions. She worked 20 years in the dis­trict’s at­tor­ney of­fice, and took of­fice in Jan­uary 2018.

Mallery said it was hard enough to at­tract lawyers to be pros­e­cu­tors in ru­ral coun­ties. She said that task will be only be­come harder with new state laws re­quir­ing pros­e­cu­tors to de­liver dis­cov­ery ma­te­rial to the de­fense ear­lier than ever be­fore. An­other re­cur­ring prob­lem is the po­ten­tial for con­flict, she said.

“It’s one thing in New York City when you may not run into any­body you know. But when you have ru­ral ar­eas, you have con­flicts and you have a lim­ited num­ber of at­tor­neys ,” she said. “Our de­fense at­tor­neys are very much pressed.”

The Albany Law School sur­vey, funded by SUNY Cobleskill’s In­sti­tute for Ru­ral Vi­tal­ity, used data sci­en­tists from the State Univer­sity at Albany’s Cen­ter for Hu­man Ser­vices Re­search. It was done be­tween Au­gust 2018 and Oc­to­ber 2018. The school sur­veyed 573 at­tor­neys in ru­ral coun­ties (11 per­cent of the to­tal num­ber reg­is­tered statewide)

At­tor­neys sur­veyed re­vealed their chal­lenges:

“I have only taken one day off, in­clud­ing week­ends, all year. Tough to find of­fice help, and I’m over­worked.”

“It re­ally sucks! Many clients can­not pay for the ser­vices they need, then

“We’re go­ing to be reach­ing a cri­sis point. There’s no viable suc­ces­sors. There’s no new at­tor­neys com­ing to take over th­ese prac­tices.” — Taier Perl­man, a staff at­tor­ney at the Gov­ern­ment Law Cen­ter

fail to pay af­ter you have helped them in their time of dire need, of­ten fac­ing crim­i­nal con­vic­tion and in­car­cer­a­tion. I work 65-80 hours a week on a reg­u­lar ba­sis.”

An­other lawyer sam­pled said that half their prac­tice was night work and not to “bother com­ing if you limit yourself to 40 hours a week. “

An­other at­tor­ney sur­veyed ad­mit­ted tak­ing on cases that were a “stretch” for their level of ex­per­tise and re­quired a high learn­ing curve. Dif­fer­ent ar­eas of law have dif­fer­ent ter­mi­nol­ogy, pro­ce­dure and ex­pec­ta­tions and some older lawyers in a lo­cal­ity may have “their way” of do­ing things whether it was right or not, the lawyer re­ported.

So­lu­tions could be in the works.

On July 2, new State Bar As­so­ci­a­tion Pres­i­dent Henry Greenberg launched a 27-mem­ber panel to ex­am­ine of the state of ru­ral jus­tice in New York. The Task Force on Ru­ral Jus­tice, which in­cludes judges and lawyers from the Cap­i­tal Re­gion to ev­ery ru­ral area of the state, is co-chaired by Perl­man and Ap­pel­late Jus­tice Stan­ley Pritzker.

“Re­search con­firms what many at­tor­neys in up­state New York al­ready know — that there is an ac­cess to jus­tice cri­sis in ru­ral ar­eas through­out New York and across the coun­try,” Greenberg stated.

The panel is ex­pected to in­ves­ti­gate the im­pact of ru­ral at­tor­ney short­ages on ac­cess to jus­tice and make rec­om­men­da­tions for changes in law and pol­icy and pro­mote greater ac­cess to jus­tice.

One task force mem­ber, re­tired Ap­pel­late Jus­tice Thomas Mer­cure, now in his 50th year as an at­tor­ney, said in Wash­ing­ton County, where he lives and once served as dis­trict at­tor­ney and county judge, the short­age of lawyers is not a huge prob­lem be­cause of the close­ness to Glens Falls, where there are many lawyers. But other ar­eas, he noted, are not so for­tu­nate.

The work of the task force, he said, was in an early stage.

“We’ve got to hear from a num­ber of ex­perts and look at a lot of is­sues and see if we can pin just what the prob­lem is,” Mer­cure said.

An­other pan­elist, Willa Payne, an at­tor­ney with the Oneonta-based Le­gal Ser­vices of Cen­tral New York whose group rep­re­sents peo­ple liv­ing at or be­low the fed­eral poverty level, said her clients face many of the same is­sues as sim­i­lar clients around the state and coun­try.

“But there are ad­di­tional bar­ri­ers that are I think unique to clients in ru­ral ar­eas that of­ten makes ‘jus­tice’ even less ac­ces­si­ble at times,” Payne told the Times Union, not­ing “the lack of easy ac­cess to trans­porta­tion, trav­el­ing dis­tance be­tween courts or pop­u­lated ar­eas, lack of re­li­able cell phone

ser­vice, fi­nan­cial bar­ri­ers and lack of ac­cess to broad­band in­ter­net” as just a few.

She said the same is­sues pose bar­ri­ers for at­tor­neys try­ing to make a liv­ing in ru­ral ar­eas.

“I think it is likely they also are part of why it is ap­par­ently hard to at­tract prac­ti­tion­ers to the ru­ral ar­eas of the state,” she said. “On the other hand, I think this task force is the first con­certed ef­fort that I am aware of to take this is­sue head on and ad­dress it.”

She said she was in­spired and hope­ful that she and fel­low panel mem­bers could cre­ate viable so­lu­tions and rec­om­men­da­tions “that can both sup­port ru­ral prac­ti­tion­ers and make jus­tice more ac­ces­si­ble for my clients which will serve to change the tra­jec­tory and up­lift our ru­ral prac­ti­tion­ers and the com­mu­ni­ties they serve.”

Perl­man ex­plained many other states have ad­dressed the is­sue in an ad hoc ap­proach. She said the bar as­so­ci­a­tion task force rep­re­sented a “golden op­por­tu­nity for us to craft a per­sonal so­lu­tion for New York state.”

The Albany Law School study, cit­ing the Amer­i­can Bar As­so­ci­a­tion’s sur­vey of lawyers in ev­ery state, said as of 2017 New York was home to 179,600 reg­is­tered lawyers with in-state ad­dresses, the high­est con­cen­tra­tion in the coun­try. It said the ma­jor­ity of those lawyers — 97 per­cent — are in ur­ban and sub­ur­ban ar­eas.

“Ru­ral at­tor­ney needs are not pri­or­i­tized,” the study said, “adding to the dif­fi­cul­ties of ru­ral prac­tices gen­er­ally.”

“Re­search con­firms what many at­tor­neys in up­state New York al­ready know — that there is an ac­cess to jus­tice cri­sis in ru­ral ar­eas through­out New York and across the coun­try.” — Henry Greenberg, State Bar As­so­ci­a­tion Pres­i­dent

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