Cultivated Compendium

Here's a freelance piece I did today for the New York Law Journal about New York City's ground-breaking plan to use city funds to ensure that tenants earning less than 200 percent of the poverty level will have lawyers when facing eviction:

New York City's plan to offer free counsel to low-income Housing Court tenants facing eviction doesn't mean tenants who fail to meet income requirements won't receive any help.

City leaders this month agreed to allocate an extra $93 million to expand representation for tenant with incomes below 200 percent of the poverty level, or $50,000 for a family of four. According to City Councilman Mark Levine, two-thirds of tenants in Housing Court fall into that category.

However, city residents who make more than the income threshold will still be entitled to legal guidance if they need it—although how exactly they would receive that guidance remains unclear..

Beth Goldman, president and attorney-in-charge of New York Legal Assistance Group, said that the opportunity to help higher-income tenants with advice—even though they won't get a lawyer to represent them in court—is extremely meaningful. That will mean no one is "going to be completely left on their own" in Housing Court, she said.

Goldman said she hopes the increase in legal services will cause judges to start asking tenants if they have consulted with legal counsel before they proceed with eviction cases.

The proposal expands on the city's previous investment in providing representation for lower-income tenants facing evictions. The city's funding already had increased more than tenfold, from $6 million to $62 million, in the past two years. With the new allocation, the total city spending for Housing Court representation will be $155 million.

According to city officials, the expansion of tenant legal aid since 2014 has led to 27 percent of tenants being represented in court—compared to just 1 percent before—and evictions dropping by 24 percent.

Raun Rasmussen, executive director of Legal Services NYC, said that the city's commitment to funding tenant legal aid already has allowed his organization to hire 120 additional lawyers and paralegals. The "creation of an effective right to counsel is just a stunning development in the justice system," he said.

Rasmussen said Housing Court will have to change how it operates as a result of the $93 million agreement. With more lawyers involved in defending tenants, there will be an increase in motion practice and trials, he said.

The increased spending will be rolled out over five years, in part to give the city's legal aid organizations time to ramp up recruitment and training for a large number of new attorneys, Levine said.

"It was not long ago that barely 1 percent of tenants facing eviction in the city were represented by counsel," Chief Judge Janet DiFiore said in a statement on the additional spending for representation. "Building on funding that the state court system has provided for civil legal services, this landmark agreement will ensure that tenants at risk of losing the roof over their heads receive invaluable legal assistance when they appear in court."

Here is my piece just published by the Connecticut Law Tribune about a new pro bono program aiming to help close the access to justice gap:

The power of the internet is being harnessed to make it easier for low-income Connecticut residents to access legal advice, and to make it easier for pro bono attorneys to volunteer to help people who can't afford to pay for attorneys.

Statewide Legal Services of Connecticut is one of the legal aid law firms in eight states which are partnering with the American Bar Association on a virtual law advice clinic that allows low-income clients to ask questions about civil law and for attorneys to answer their questions online whenever convenient for them.

Instead of dropping into a legal aid clinic to talk to a lawyer in person, clients can type their questions and submit them on a computer.

Judge Elliot N. Solomon, deputy chief court administrator and co-chairman of the Connecticut judiciary's Access to Justice Commission, said this new program is unique because it makes it more convenient for people with low to moderate incomes to access legal advice and more convenient for lawyers to be able to provide pro bono service to people who need it.

"It's a win-win both from the perspective of the client and the lawyer," Solomon said.

For clients, the program enables them to access legal advice if they can't afford to take time off from work or if they have some kind of disability that makes travel more difficult, Solomon said.

Clients can get quick responses to their questions with this program, Solomon said. For people who are overwhelmed because they are facing an eviction or debt collection, "sometimes the easiest course of action is to ignore it, which is the least effective" way, he said.

For lawyers, this program makes it easier to do pro bono work whenever they have free time, whether it's at "airport terminals, their offices or late at night," Ashleigh Backman, SLS' pro bono attorney manager, said.

"We saw this as a great way for busy associates, busy solo practitioners, to be able to do pro bono work and accept legal questions they feel most competent answering," Backman said.

Starting six years ago, Tennessee was the first state to run the virtual pro bono clinic. Connecticut and six other states launched their own a few weeks ago. The program will be in 75 percent of the country by November.

Connecticut's version of the program, ct.freelegalanswers.org, is still in beta testing, Backman said. The client feedback so far is "that it was really easy to get an answer for free," she said.

People can ask questions about such civil legal issues aslandlord-tenant problems, consumer debt, employment, workers' compensation, family law, wills, and health law, Backman said.

The program also could be used to send out mass legal information if there is a disaster in Connecticut, Backman said.

There are between 30 and 35 attorneys actively volunteering in the program, Backman said, and SLS would like to recruit more attorneys to participate.

Backman explained that the program is not a live chat but a "virtual space to ask questions."

Clients have to meet requirements for income eligibility, Backman said. Clients also have to sign a retainer agreeing that their attorney-client relationship will end after their questions are answered, she said.

As the site administrator, SLS is providing some quality control by making sure the volunteer attorneys do not have any disciplinary issues with their law licenses and provide legally accurate answers, Backman said.

Attorneys can ask further questions of clients through the computer program, Backman said.

"The attorney is in the driver seat," she said.

SLS will steer complex questions that would benefit from more in-depth legal services to its own staff, she said.

SLS hired Jonathan Caez as the site administrator. Caez sends out clients' questions to attorneys and encourages attorneys to respond to questions in the queue, Backman said. Cindy Fernandez, a paralegal as well as SLS' executive assistant, also will be supporting the project.

Providing a legal answer is going to empower clients and give them hope that there is someone on the other end who cares, Backman said.

The judiciary is going to assist the program by marketing it to potential pro bono volunteers and to potential clients, especially through the court's outreach program in the state's libraries, Solomon said.

The program also has been launched in Louisiana, Mississippi, New York, Oklahoma, Virginia and Wyoming.

Software developers at Baker, Donelson, Bearman, Caldwell & Berkowitz built the Free Legal Answers website.                     

Here's a recent piece I wrote for the Connecticut Law Tribune about reforms to that state's power of attorney law:

Sweeping changes have been made to Connecticut's power-of-attorney law, including making it harder for banks to upend the wishes of people who do estate planning by rejecting power-of-attorney forms.

Reforms to the law came into effect Oct. 1. Leaders in the Connecticut field say this is the first time the law has been updated for decades.

Paul Knierim, probate court administrator for Connecticut, said it has been commonplace for banks to frustrate the purpose of estate planning by rejecting power-of-attorney forms (POAs) at a stage when a senior citizen or a person with disabilities no longer has the competency to execute a form that would meet the bank's liking.

"The whole purpose of a durable power of attorney is to plan ahead … but [when] a bank won't accept the power of attorney the very purpose of the power of attorney gets frustrated," Knierim said.

The law will ensure that people will not have their "long-term estate planning upended by the whim of a bank teller," said Deborah Tedford, an estate attorney with the Tedford Law Firm in Mystic who was involved in drafting the new POA forms.

With the law change, family members can now go to probate court to enforce POAs and be awarded attorney fees and other costs if a bank or another third party is not following the law, Knierim said. The probate courts have been granted new authority to compel financial institutions to accept POAs.

On the other hand, bank personnel can also ask the court to review the actions of a person who has a POA if they have concerns that the person who granted the POA is being exploited, Knierim said.

The law also provides safe harbors to financial institutions who accept POAs, Tedford said.

There is now a POA long form and a POA short form that have been put into the law, said Tedford and Suzanne Brown Walsh, a partner at Murtha Cullina who focuses on trusts and estates and also helped shape the statutory forms.

Connecticut adopted a model law promulgated by the Uniform Law Commission, but further tweaks were made this year because the 2015 law was enacted in a hurry by Connecticut legislators, Tedford and Walsh said. The 2015 law envisioned one long form, but the revisions have resulted in a short form and a long form, they said.

The short form can be used to grant a power of attorney for real estate transactions and is signed at the end, Tedford and Walsh said.

The long form allows the person doing estate planning to initial certain types of powers they want to grant on the POA to their agent, including things such as making gifts, changing beneficiary designations and creating and terminating trusts. There is a third option under the law for attorneys to draft their own forms, Tedford and Walsh said.

The new law also is important because Connecticut is joining 20 other states that have enacted the model law, Walsh said. This means that it should be easier for elderly people, who relocate to be closer to their caregivers in other states, to have their POAs recognized, she said.

Another big change in the law is the expansion of the authority of Connecticut's probate courts to deal with people who are abusing the POA they have been granted, Knierim said.

"Powers of attorney are a double-edged sword," Knierim said. "They are an excellent tool for planning for incapacity. On the other hand, they are a very powerful instrument that a person who wants to do mischief can exploit. In the probate courts, we see, unfortunately, instances where agents under powers of attorney have abused the trust" placed in them.

As a result of those type of abuses, the category of people who can raise concerns about POA abuses has been expanded. For example, the law now states that a caregiver or a person who "demonstrates sufficient interest in the principal's welfare" can petition the court to review the actions of a POA agent.

Agents who abuse the POAs they have been granted also now can be ordered to reimburse for financial losses.

Connecticut's new POA law also has changed it so that POAs are assumed to be durable.

Attorneys should be aware that the new law does not address whether agents should be granted control in a POA over someone's email, social media accounts and other digital assets, Walsh said. Attorneys will have to add that authority in their own POA forms, she said.

The new law also is attempting to synthesize POAs with when courts authorize a conservatorship and appoint a guardian to manage the financial affairs of an elderly person or a person with disabilities, Knierim said. It used to be that the appointment of a conservator automatically terminated a POA.

Now, if someone has appointed a POA, the court has to determine if the POA can work in tandem with the conservator, Knierim said. This honors the first choice of people on who they wanted to have manage their affairs, Knierim said.