Improving New York's Administration Of Justice In Difficult Times

Tuesday, October 4, 2011 - 01:00

The Editor interviews Hon. Jonathan Lippman , Chief Judge of the State of New York.

Editor: Thank you for taking the time to bring our readers up to date on important issues affecting the courts and the administration of justice in New York State. I understand that there has been a very important development in connection with judicial compensation. Can you fill us in on the latest?

Lippman: Well, first of all, I want to thank The Metropolitan Corporate Counsel for your interest in the New York State courts. Serving the justice needs of the business community is an important part of our mission as a court system, and we have taken various measures over the years, including the creation of our specialized business court, the Commercial Division, to make sure we are able to meet the needs of the business community and the corporate counsel bar. I'm glad you started out by mentioning judicial salaries. As you know, the presence of a highly qualified professional judiciary is one of the most important factors in deciding whether a state like New York is an attractive venue for doing business. In order to have an outstanding judiciary, the state has to offer fair and adequate compensation designed to attract and retain the best possible judges. For most of its history, New York did a great job in this regard, but not recently. In fact, the last time judges received a raise in this state was April 1, 1999.

I am pleased to report that this terrible situation is finally changing for the better. On August 26, a statutorily created Judicial Salary Commission approved salary increases for New York State judges that will begin taking effect next April 1. On that date, justices of the Supreme Court who are the judges who sit on our trial court of general jurisdiction will see their salaries increase to $160,000. That figure will then increase to $167,000 in 2013 and $174,000 in 2014. The bottom line is that by April 1, 2014, those judges will receive a total salary increase of 27.3 percent or $37,300, with the pay for all other judges increasing by the same percentage.

We are obviously happy that the long nightmare of the last 12 years is finally over, but at the same time there is a fair amount of disappointment. We felt that an approach based on increases in the cost of living since 1999 should have yielded a significantly higher salary level than that recommended by the Commission. The Commission used the $174,000 salary currently paid to federal district court judges as its template, and while we can argue the pros and cons of that approach, it has to be recognized that federal judicial pay has itself fallen well behind the rate of inflation in recent years. Moreover, after twelve years of frozen pay, it is difficult to understand why an additional three-year phase-in period was necessary to get us to that level.

That said, the fact remains that on April 1, 2012, judicial salaries in New York will once again have some rational relationship to the salaries of our colleagues on the federal bench and in other states. Our salaries this coming April will then be almost on a par with judges in northeastern high-cost-of-living states like New Jersey and Pennsylvania and higher than in Connecticut and Massachusetts. With just the first phase of the pay increase in April 2012, we will in raw numbers be paid more than our colleagues in 42 of the 50 states, although that can be misleading because of New York's very high cost of living.

The bottom line from our point of view is that we are finally moving in the right direction, and particularly so because we now have a Quadrennial Judicial Compensation Commission to address one of the most politically volatile issues for the judiciary. There is no doubt in my mind that without the Commission, judicial salaries would not have been on anyone's agenda in Albany for years to come due to the very difficult economic climate we find ourselves in.

The Commission is critical to preserving the long-term institutional health of the judiciary because it provides a regular and predictable system to ensure that salaries remain adequate and do not lose ground to inflation. I believe that the Commission system will ensure that we will never again allow judicial pay to stagnate the way it did over the last 12 years. That can't happen if we want to attract the best lawyers to the bench and continue to have a judiciary that is worthy of New York's status as the financial and commercial capital of the world.

Editor: The court system recently experienced deep budget cuts and even laid off personnel. Can you tell us how these developments have affected court operations in general and the Commercial Division in particular?

Lippman: Yes, this has been a very challenging year for the court system. We experienced a $170 million cut in our budget request for this current fiscal year, which required layoffs of about 400 nonjudicial personnel. The layoffs followed an early retirement incentive program and a hiring freeze, with the result being that we now have 1,150 fewer nonjudicial employees today than we had just two and a half years ago, despite the fact that our dockets continue to increase every year.

In addition to the layoffs, we have implemented many painful measures to reduce costs, including closing our courthouses at 4:30 instead of 5:00 in order to save on overtime, eliminating the valuable Judicial Hearing Officer program, which included hundreds of highly experienced former judges, closing or reducing the hours of child care facilities in our family courts, eliminating sessions of small claims court, and cutting back on the number of jurors called for service around the state.

We are carefully monitoring the impact of these cost-saving measures in all the different courts to make sure that litigants are not adversely affected by delays or backlogs. So far we have managed to stay relatively current, but there is no question that there are consequences to these budget cuts. Judges and court personnel are working harder than ever before to manage their dockets, and they are doing it with reduced resources and support staff.

In the Commercial Division, we face similar challenges. What it comes down to, quite simply, is that the Justices have no choice but to do more with less. In New York County, we are down one justice, and yet thanks to the hard work of the rest of the justices and their support staff, we continue to be an efficient and attractive forum for the resolution of business disputes. If anything, we are victims of our own success in the Commercial Division, because new filings continue to increase there year after year.

I think we are fortunate to have such a dedicated cadre of Commercial Division justices. Despite the growing caseload pressures, despite the inconvenience that comes with having to stop trials at 4:30, whatever the challenges may be, they continue to do a magnificent job. Not only that, but they continue to experiment with new ways to improve how we handle commercial litigation. For example, in Nassau County we have launched a pilot program to improve how we handle expert witness disclosures, and in New York County we are piloting new ways to handle electronic discovery in an effort to make it less burdensome and expensive for the parties.

Editor: The court system recently adopted new rules governing admission of corporate counsel. Can you tell us more about these rules and what they mean for the corporate counsel community?

Lippman: Earlier this year, the court system adopted new rules, codified at 22 NYCRR Part 522, that I think are very significant for the corporate counsel community. The new rules authorize out-of-state attorneys to register to practice law in New York on a limited basis and without formal admission to the New York bar. The attorneys who register as in-house counsel under the rule are authorized to provide legal services in New York to their clients and the clients' employees, officers and directors, but they may not provide legal services to the general public or otherwise appear in court.

The effect of these new rules was basically to incorporate into our legal community many thousands of lawyers who were serving here as in-house counsel but had never formally been admitted to the New York bar. In return for being permitted to serve their clients without formal admission to the bar, these lawyers now have certain responsibilities, including the duty to register with the Office of Court Administration and to pay a biennial $375 registration fee, comply with mandatory CLE requirements, and subject themselves to New York's attorney disciplinary rules.

For many years, we had a situation where many corporations were seriously concerned that their in-house counsel were practicing law here without a license. It was high time we addressed that problem. In today's business world, the practice of law is becoming geographically broader in scope: corporations routinely shift legal personnel between their offices in different states and countries. I think that these new rules remove what was an unnecessary impediment to the realities of modern legal practice, and they enable New York to attract corporations and businesses that in the past might have hesitated to locate here because of concerns over the unauthorized practice of law. I also think it's critical from an ethics and lawyer regulatory standpoint that we are bringing such a large and important group of lawyers under the jurisdiction of our attorney disciplinary authorities.

Editor: What are some of your other priorities these days in terms of improving the administration of the courts in New York?

Lippman: There are really so many vital issues that we're working on these days, but I'll mention just a few and then focus on one in particular. We adopted a new rule this year addressing judicial campaign contributions, which says that a case will not be assigned to a judge if the lawyers or parties in the case contributed $2,500 or more to the judge's campaign. I think the idea of identifying these cases ahead of time, before they can be assigned to a judge, is an innovative approach to a really difficult problem, and it has received a lot of positive attention nationally.

We also have an excellent task force made up of the state's leading criminal justice professionals that is studying the systemic causes of wrongful convictions and making recommendations to improve our criminal justice system. I think we are also making great progress to improve our state's indigent legal defense system, thanks to the legislature's creation last year of a new Indigent Legal Services Board, of which I serve as Chair, and a State Office of Indigent Legal Services. Further, we are excited about the recent legislation that greatly expands e-filing throughout the state courts and has the potential to bring about great time and cost savings for anyone who litigates in the courts.

But if there is one issue that I would single out these days, I think it would be the challenge of making sure that low-income people have access to legal assistance in civil cases involving the necessities of life. Our court dockets, particularly during this economic downturn, are surging with foreclosures, evictions, family offenses, and consumer debt cases. Last year alone, 2.3 million litigants appeared in the New York courts without a lawyer, including 98 percent of tenants in eviction cases, 99 percent of borrowers in hundreds of thousands of consumer credit cases, over 95 percent of parents in child support matters, and close to two-thirds of homeowners facing foreclosure who appear for mandatory court settlement conferences. These litigants are often the most vulnerable people in our society and they desperately need legal help, but, unfortunately, the poor economy has made it harder than ever for them to get free civil legal services.

For the judiciary, these are very troubling developments. Our constitutional mission, after all, is to provide equal justice for all, but that is extremely difficult to do when millions of litigants don't have access to legal advice or representation. That's why last year I formed a Task Force to Expand Access to Civil Legal Services, chaired by former president of the federal Legal Services Corporation, Helaine Barnett, and including judges, lawyers, business executives, and labor leaders from all over the state. In addition, I presided over four statewide public hearings in an effort to measure the extent of the unmet need for civil legal services in New York - something I will be doing again this fall.

Last November, the task force issued a report that has been described as the most comprehensive ever published on this issue. I won't go into all the details, but some of its findings were quite compelling. New York is, at best, meeting only 20 percent of the civil legals needs of its poor and working poor residents. Civil legal services, far from being a drain on the public fisc, actually save the state and local governments hundreds of millions of dollars a year by preventing unwarranted evictions, avoiding foster care placements, curbing costs for homelessness, incarceration and social services, and by bringing federal funds into New York, which have a multiplier effect when they are spent here and flow through our economy. In fact, for every dollar spent on civil legal services in this state, five dollars are returned to the state economy.

Providing civil legal services to our citizens is a good investment. That's why so many of the financial and banking institutions, business leaders, real estate owners, and hospitals that testified at the hearings made clear that civil legal services are beneficial to their institutional performance and their financial well being. Expanding civil legal services is a fiscally responsible move that not only strengthens the fabric of our society but also benefits the business community by keeping cases out of the courts and reducing litigation costs when cases do end up there. It takes a lot of extra time for judges and court staff to deal with unrepresented litigants, adjournments are much more frequent, and opposing parties represented by counsel - landlords, banks, businesses - end up with higher litigation costs.

The task force recommended that the judiciary include $25 million for civil legal services in our current budget as part of a four-year effort to increase funding for civil legal services by 50 percent in New York. We were not able to devote the full $25 million this year because of our budget problems, but we remain committed to following through on the task force's recommendations in the years ahead because we see access to civil legal services as being critical to our ability to carry out our constitutional mission of providing equal justice for all.

I want to make clear that what we're talking about is a measured approach to a very difficult problem. As much as we might like to, there's just no way we can provide a lawyer to every poor person with a legal problem. We have to prioritize our resources, particularly in light of today's fiscal realities, so that increased funding is used to provide legal representation to those New Yorkers who are struggling to access life's most basic necessities - shelter, food, and personal safety. That's what this is about. I'm pleased about the progress we've been able to make over the last year or two and energized over the prospect of working with so many caring lawyers and businesspeople to improve access to justice in New York State.

Editor: Judge Lippman, thank you for your time today.

Lippman: Thank you. It was my pleasure.