When Tamara Steckler started as an attorney in charge at New York’s Legal Aid Bureau, her marching orders were clear: reduce the crushing caseloads that weighed on the bureau’s attorneys

New York Legislation Lowers Caseloads for Children’s Attorneys

by Claire Sandt Chiamulera

When Tamara Steckler started as attorney-in-charge at the New York Legal Aid Society’s Juvenile Rights Practice (JRP), her marching orders were clear: reduce crushing caseloads that weigh down children’s attorneys.

“Overloaded attorneys is a virus that once it kicks in affects everything,” said Gary Solomon, JD, director of legal support for the New York Legal Aid Society’s JRP. “So many things cannot happen when caseloads are high. When Tamara came on, I pretty much told her she would fail unless she turned the caseloads around. That’s how bad it was.”

That was the spark that fired Steckler’s efforts to jumpstart legislation to cap New York children’s attorneys’ caseloads. The legislation, the result of seven months of relentless advocacy, was signed by New York Governor Eliot Spitzer on August 28, 2007 (S-4025, A-6847-B).

Steckler, Solomon and Karen Fisher Gutheil, a staff attorney in the special litigation and law reform unit of the JRP, shared the story behind this legislative reform at the National Association of Counsel for Children’s 30^th National Conference in Keystone, Colorado, August 18, 2007.

Rising Caseloads

To understand the need for the legislation, it helps to step back in time. According to Solomon, the New York Legal Aid Society started in the 1960s as a model organization that was funded adequately by the state Office of Court Administration (OCA). Solomon enjoyed an enviable caseload of 50 to 70 cases (100 – 140 clients). The office functioned effectively, with social workers assisting in a substantial percentage of the cases, said Solomon.

In the 80s, the child welfare climate shifted and court filings rose. This was due in part to the crack cocaine epidemic that swept the city and caused record levels of children to flood the child welfare system.

The growing sophistication of the child representation field also played a part in rising workloads. “Standards for children’s attorneys were going up and more was being demanded of them,” said Solomon. Where many children’s attorneys once played a more passive role in legal proceedings, allowing the child welfare agency to take the lead, attorneys were increasingly being expected to do more for their child clients and to advocate more aggressively for their interests. Higher expectations led to more duties in cases, adding to workloads.

Despite a hiring push in the late 80s, Legal Aid struggled to manage the growth in work. “We were hiring attorneys all the time and our staff increased, but it wasn’t enough to keep up with the cases,” said Solomon. “We were in a crisis phase.”

At one point in the 1980s, OCA became disenchanted with Legal Aid and solicited proposals from other legal services providers. However, Legal Aid preserved its contract. Since then, the relationship with OCA has developed in a positive way, but there was a sense that OCA was not sufficiently concerned about rising caseloads, said Solomon. This may have been because OCA feared that if it increased Legal Aid’s funding, it would create an infrastructure that would be hard to tear down when the crisis was over.

Legal Aid struggled to “look good” and put on a positive face, despite its structural problems. “We put band aids in place,” said Solomon. Supervising attorneys were taking cases to divert them from staff attorneys, and attorneys started putting in longer hours to do quality work.

Band aids were never enough. The percentage of abuse and neglect filings in 2006 rose 147 percent higher than in 2005, according to OCA data. The attorneys’ union was always upset about caseloads, said Solomon. This prompted a slew of attorney grievance filings, but the fear of losing jobs and questions over the fate of clients prevented attorneys from taking their grievances to arbitration or going on strike, said Gutheil. In a field in which self-sacrifice is the norm, putting clients and jobs on the line didn’t come easily, she said.

The decision not to arbitrate took a toll. Gutheil compared her daily routine to an Olympic event. “The bell would go off at 9:30 a.m. and I would go to nine different court parts for court hearings throughout the day. Prep work was done before the bell, at lunch or after hours,” she said. The number of kids Gutheil was representing was enormous.

Then, the federal Adoption and Safe Families Act passed in 1997. The act’s push for greater court oversight over child welfare proceedings and strict permanency timeframes led to more required permanency hearings, and more petitions to terminate parental rights. Additionally, New York legislation enacted in 2006 required attorneys to be in court every six months post-disposition to review each child’s case.

The clincher came in January 2006, according to Solomon, with the highly publicized death of seven-year-old Nixzmary Brown, who was allegedly beaten to death by her stepfather. The child’s fatality caused a public outcry and boosted abuse and neglect filings throughout the city. The overwhelming negative attention the case drew to child welfare created the right environment to instigate change.

Acting through Legislation

With caseloads skyrocketing, it was time to act. In Spring 2006, the union president persuaded Brooklyn Senator Diane Savino to draft a bill to reduce caseloads. The original legislation provided that law guardians appointed to represent children in New York could decline any new court appointments when their caseloads exceeded 100 active cases. The 2006 bill did not pass and Senator Savino planned to reintroduce it in 2007.

In January 2007, the union drafted an amended version of the bill. This version permitted attorneys to decline appointments once they reached 125 clients and required them to do so once their caseload reached 150 clients.

Steckler’s strategy for gaining support for the bill focused on how children were being failed. “We were concerned about the services we were providing children,” she said. “We stopped saying, `We’re terrific and we’re doing a great job’ and changed our message to how we were not serving kids.” While a huge risk, Steckler said it was important for the legislature to know why the attorneys couldn’t do their jobs effectively. Steckler stressed the need for better funding so that Legal Aid could serve children well. “We doubled our budget request,” said Steckler, and justified the request by spelling out how kids were not being served.

Finding Allies

Fortunately, the chairs of the judiciary committees in both houses, Helene Weinstein (assembly) and John DeFrancisco (senate), signed on as a bill sponsors, providing key advocates for the legislation. Steckler also informed New York’s chief administrative judge that Legal Aid was submitting a bill in Albany and told him that as management they had to support not oppose it. The chief judge understood their position.

Looking back, Steckler realized that the bill moved forward so quickly that there wasn’t enough time to contact and speak with those who should know about the bill and who would be affected by it. Steckler stressed the need to identify all allies when working on such legislation. Although the chief administrative judge was informed, Steckler would have appreciated having more time to have conversations with OCA and to do the preliminary work needed before the bill started moving forward so quickly.

Sticking it Out

As they went about getting legislators to sign on to the bill, Steckler experienced firsthand the politics behind moving a bill through the legislative process. Not all of it was pretty. “It was a frustrating process. It was all about politics,” said Steckler. While legislators initially looked at the bill and said it was something they wanted to attach their names to, Steckler said the overarching goal of helping kids was sometimes overshadowed by the political atmosphere. “While you can’t underestimate the power of children, when you’re up there, they’re not talking about kids,” she said.

To help navigate the legislative politics, Steckler engaged Legal Aid’s lobbyist. This proved to be critical to getting the bill passed in both houses. The lobbyist was at the legislature all the time, and had good connections in both parties. He knew who to contact, how to speak the language, when to back away, and when to try different approaches. With Steckler’s help, the lobbyist quickly learned the issues, became committed to them, and worked to persuade the legislators to support the bill.

While the bill received widespread support, there were concerns that New York City’s caseloads were not representative of all jurisdictions throughout the state and that providing uniform caps statewide was unnecessary. As a result, the bill was changed. Instead of capping caseloads once attorneys exceeded a set number of clients, the bill was changed to require the development of workload standards that set maximum numbers of children who could be represented at once. These workload standards were based on several factors, including case type, stage of proceeding, availability of support staff, differences in local practice, and representation type. The bill also required the chief administrator of the courts to issue court rules with guidelines for developing the workload standards.

Success at Last

The revised bill passed the assembly in June 2007, and the senate in July 2007. With the governor’s signature in August 2007, it became law. Steckler, Solomon, and Gutheil can consider their efforts a success. The children they represent will soon benefit from the quality representation they deserve. And practitioners throughout the country can learn from their efforts to use legislation to bring change to their daily practice. “We underestimated for a number of years how we could go to the legislature and make this issue attractive,” said Steckler. If New York can make it happen, perhaps other states can too.

To view a copy of this legislation, visit the New York Assembly web site: http://assembly.state.ny.us/leg/?bn=A06847