“But wait a second,” said the college kid, a bright young man with an inquisitive mind, “if you already got this old man the deal that anyone would have wanted you to get for him, why is this judge busting your balls? Is a judge allowed to just do that?”
I was impressed by how simply he stated this question of fundamental fairness.
“Well, actually, strictly, legally, no, not really, a judge can’t just randomly dance on a lawyer’s balls, beyond a certain point. It would be an abuse of discretion for the judge to give the lawyer more than a little bit of shit, even worse in the case where the lawyer had provided his client with the highest degree of professional service. So, the plain answer to whether a judge is allowed to just do that?’ is ‘no, not allowed.'”
The young man looked up at me quizzically, his expression confused, open-minded and ready to laugh.
“I understand,” I said, “I know that sounds confusing, because I am a lawyer, I’d done my job diligently, and I was getting random shit from some snippy young cloaca of a judge, something the judge is not allowed to give to an attorney for no real reason like that. Here’s the thing: as a Guardian ad Litem, even though I am a lawyer, I am in court in that instance not as a lawyer but as a friend of the Court, someone to advocate on behalf of the respondent who cannot adequately advocate for himself. Strictly speaking, I appeared in those cases as the tenant, not the lawyer for the tenant.”
“OK,” said mother and son in unison, neither of them grasping the fine, somewhat mad, legal distinction I was talking about.
“I have to give you a bit of history. Does the name Eleanor Bumpurs mean anything to you?” It didn’t, the young man hadn’t been born when the tragic New York City story had been in all the papers, his mother had been living in California at the time.
I told them the terrible 1984 story about the agoraphobic Brooklyn woman with severe mental problems shot to death in the front hall of her NYCHA apartment by the law enforcement officers who were trying to evict her. She’d been summoned to court for nonpayment of something like $100 in monthly rent. She may have missed two or three months rent by the time they summoned her to court. She never appeared in court, so she lost automatically and they sent her the paperwork telling her she had to leave or be evicted. She’d been refusing to pay because, among other things, Reagan’s people were leaving cans of human feces in her bathtub.
After Ms. Bumpurs was killed, and the settlement paid to her family, the city brass put their heads together. There is no legal allowance for a right to free court-appointed counsel in eviction cases. This is based on a peculiar, legally attenuated, definition of the word ‘jeopardy’. Jeopardy, for purposes of a constitutional right to counsel, is when you face the possibility of imprisonment for a year or more. Homelessness is considered a bad roll of the dice, constitutionally, not ‘jeopardy’ for purposes of triggering the right to court-appointed counsel.
“That’s very fucked up,” said the young man.
Yes, but they found a work-around, in the wake of the Eleanor Bumpurs shooting. The Chief Administrative Judge summoned the wisest minds of the new New York City Housing Court, bastard step-child of the New York City Civil Court. They came up with an excellent work-around for the usual right to counsel business that would protect tenants like Ms. Bumpurs from her arbitrary and capricious state killing under cover of law, or at least from homelessness that could be prevented. It was an excellent decision.
They created the deeply flawed Guardian Ad Litem (“protector for the suit”) program, a good program that had a series of distracted, part-time, ineffective administrators. The judge would appoint a “GAL” to stand in the shoes of a person not able to adequately defend themselves against an eviction attempt. In the early years, lawyers did most of the Guardian ad Litem work and it saved Housing Court judges from a great deal of grief, dealing with lawyers instead of mad tenants. The program also had the effect of providing capable court-appointed lawyers for indigent, vulnerable tenants facing eviction.
Initially most of the Housing Court GALs were lawyers, but I believe that presently no GALs are lawyers. There is no requirement that a GAL be a lawyer, and as time went by, and GALs were treated by the court with less and less respect, and paid a modest flat fee for an often enormous amount of work, sometimes including multiple Orders to Show Cause and a dozen court appearances, it became untenable for lawyers to act as Housing Court GALs. A list of modestly trained free-lance citizen GALs took over for the lawyers, and problems with the program began multiplying.
“Yes, OK., but, in court, aren’t you still a lawyer?” said the college boy with a smile.
I tell the boy that I am, indeed, but that de minimis non curat lex, as they say — the law shits on your little troubles. I then recount the story my mother told me of a man she had some business with. She’d asked my legal advice, and I’d given it to her firmly and simply as I could. I told her exactly what she needed to tell him. She somehow told him exactly the opposite of what I’d coached her to say. She protested that her son the lawyer had told her to say exactly what she had said. “Your son must be the dumbest lawyer in New York,” said the man, not unreasonably. Now, in the context of that story it’s up for debate, in the context of my life story, he has a pretty strong case.
I described how virtually all of my work was standing in the shoes of tenants deemed unable to adequately defend themselves against eviction. I am in court not as their lawyer, but as them. They have already appeared in court and the judge has decided, or an inept agency called Adult Protective Services has moved the court that the tenant cannot effectively advocate for themself. It may be because of some mental problem, or a strong personality quirk, or physical infirmity, advanced age– it just has to be an articulable suspicion that the person needs someone else to play the part of them for the legal proceeding that could render them homeless.
So, at any given time, I am standing in the broken backed, smelly, perforated shoes of twenty or thirty such poor devils. I’d say 75% truly need the help, and appreciate it, 15% are too crazy or otherwise debilitated to connect with and the other 10% are professional grifters who get thousands in back rent paid on their behalf every few years so they can spend all their money on booze, or prostitutes, or whatever it is that makes their lives worth living.
One crazy old guy, who loved cocaine, lived with a crack addicted hooker and the two of them, for whatever reason, moved their bowels into plastic bags that were left all over the vermin-infested apartment. In court, the part of this insane bastard, who was not required to show up in court at all, was played by me, over the course of many months. My pay for this court-appointed role play was a flat $600, whether I appeared once or a dozen times. Most often I had to show up at least four or five times.
As a result of this quirky system that required me to do an ongoing tap dance in front of judges while the overwhelmed agency dithered, and the interminable delays in Adult Protective Services providing services, which caused me to appear month after month after month on most of these sad cases, some judges regarded me with a certain distaste. Articulate, capable and despicable. In the way that certain bitter people come home after a bitter day and kick their cringing dog, lawyers that were in my line of court-appointed work were available for booting, whenever the pressure mounted on certain of these judges, those least endowed with what we think of as judicial temperament.
“So you’re telling me that you are unwilling, are refusing, to go see the tenant, to meet and consult with your ward?” demanded the judge, at 12:42, as the clock was running out on my poor mother’s plans for lunch.
This was right after he asked me why I took the case if the tenant only spoke Spanish and I spoke almost no Spanish. He didn’t it like him when I told him his court attorney had assured me the language issue was not a problem. At any rate, I had to speak to his worker at Adult Protective Service to work on his case plan anyway. Whatever I did for him in court was based on what APS would be able to eventually do on his behalf. There were only so many ways these cases turned out: pay the money, cure the nuisance, get an Article 81 guardian.
He didn’t like any of that at all, that I kept having all the damned answers to everything he threw at me. He could not afford to look bad in front of those two law students, I suppose. He told me he would not sign the stipulation and that he was adjourning the case to allow me to go visit with the tenant and then report back to the Court, which is how he referred to himself, with legal precision if not humility. This is the way a judge did it, he demonstrated to the law students. Josh put a hand on my sleeve, regarded me sympathetically, urged me quietly to remain calm as snarls began forming on my lips. He put his hand on my shoulder as we walked out of the courtroom at 12:45.
It was at best 50/50 that I’d make it down to the NYCHA Part in time to find who I needed to adjourn that last case. By 12:40 people started heading off for an early lunch, though the courtroom was technically open until 1:00. I had visions of not getting out of court until 3:00 or later, because this immature weasel of a judge had made me wait ninety minutes to force me to do something unnecessary, something that could not help my client in any way. It would, of course, show that he covered his ass with the letter of the law, which is no small thing I suppose, and there was nothing I could do about it anyway.
The top of my head blew off just as I reached the door of the courtroom. Shoving the door to the hall open I snarled to Josh, not using my inside voice at all, “why is he being such a fucking dick?!!!” Josh, a man built like a bull, quickly pushed me into the hall and pulled the door closed behind us.
(to be continued, as tempus fugit)