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

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

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