A virtual arraignment is conducted at Criminal Court in New York. Photo: New York Unified Court System via AP

Amid tragedy, suffering and uncertainty brought on by the COVID-19 pandemic, a glimmer of positive news has come from the state's judiciary, which successfully implemented a statewide "virtual court" system this month, expanding quickly to all 13 of the state's judicial districts. However, representatives of poor and moderate-income communities across the state say they're concerned for underserved clients who may have trouble getting connected.

In a letter sent Wednesday to New York Unified Court System Chief Administrative Judge Lawrence K. Marks, attorneys from New Yorkers for Responsible Lending said they are concerned about representation for people in vulnerable communities, including low to moderate income, limited English proficiency, elderly and pro se clients who face technological obstacles, lack of computers and limited access to high-speed internet services. At the same time, limited legal assistance programs to assist pro se litigants have been suspended.

" [W]e encourage the judiciary to keep in mind the 'digital divide' that results from the economic inequality that pervades our society when expanding virtual operations to categories of cases with high numbers of unrepresented litigants," NYRL wrote. "Therefore, we recommend that cases involving pro se parties be excluded from virtual appearances for nonessential matters."

Recalling the state's e-filing system, which the group said "had a rocky roll-out" due to needs of unrepresented parties being neglected, NYRL wrote, "We recommend that there be a presumption that unrepresented parties are excluded from virtual appearances unless they specifically request to 'opt in' to virtual participation."

Comprising more than 170 organizations across the state, the group promotes economic justice as a matter of racial and community equity. Members include legal service providers, housing counseling agencies, unions, credit unions, AARP, Consumer Reports, and other community groups.

Christopher Newton, an attorney for Queens Legal Services and one of the letter's signatories, said Thursday the group's primary objective is to get the courts to allow pro se clients to opt out of virtual court if they experience problems. NYRL also asked Marks not to issue defaults for litigants who fail to appear for scheduled virtual appearances. "Instead, these virtual appearances should be rescheduled with the maximum amount of flexibility possible."

Newton said Legal Services NYC staff are often limited by the amount of technology—or lack thereof—their clients possess. "We work with low-income people who don't always have minutes on their phone," he said. "We need to be able to review documents and, if they don't have a way to scan or send them to us, that makes things more complicated. We're definitely doing the best we can, but it's challenging."

Just this week, the Appellate Division, First Department announced it is following the lead of the district courts by moving to virtual services, holding oral arguments via Skype and preparing digital calendars for May and June special terms. This will include criminal, civil and Family Court appeals from both Manhattan and the Bronx.

Newton said staff are already somewhat hamstrung by being forced to work from home, as opposed to the office where they typically bounce ideas around and solve problems together. "Our practice is very cooperative, so we regularly will brainstorm some ideas for each other's cases. It's much harder to have that happen now that people are all working separately," he said. "People are working at home with their kids, and it can be difficult having confidential calls with clients. I think most of us went into this line of work because we like working with other people. Being distant is something we're learning to do."

Newton said Marks acknowledged receiving NYRL's letter this week, but an official response has not come back. "I think the courts probably want to make sure they get this right, and we want to make sure they're thinking through these things," he said. Though NYRL has not received reports of serious problems with the virtual court system, Newton said he thinks difficulties with communications are inevitable. "This is new territory and we want to get ahead of any problems," he said.

Lucian Chalfen, public information director for the New York State Unified Court System, said Thursday that Marks had received the NYRL letter and had sent a reply. "We will be giving careful consideration to their concerns and will be having further discussions relating to the issues raised in the letter," he said.

Legal Services NYC Director of Communications Seth Hoy said the court system is not the only organization adapting to new technology. "I know that we've ordered a huge number of laptops for our folks, about 100 of them," he said, noting that workers are getting up-to-speed on Wi-Fi and software needed for virtual meetings. "We're trying to equip staff with all the equipment they need—printers and scanners—to work in the virtual world. We're doing the Zoom calls and meetings like the courts are doing."

Newton said he hopes the courts will develop a fair system of prioritizing cases, and that when the courts reopen for full service they will put limits on "bulk" filings that will likely come in for such matters as debt collections and foreclosures.

"We appreciate that these are unprecedented and difficult times and that the Office of Court Administration has moved swiftly and thoughtfully in its response to this crisis," NYRL's letter concluded. "We hope these suggestions for best practices are helpful as OCA moves forward."

Newton added that he thinks the courts are already adapting by seeing what works and what doesn't work. "We're optimistic that it will work in a way that is fair and equitable and gives everybody the best opportunity to achieve the right outcome."

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