The Simon Exercise -- Part 1

General Background Information

The Simon Exercise is based on an amalgam of actual cases from New York City that a Columbia Law School clinic, Morningside Heights Legal Services ("MHLS") handled. The Simon case was originally developed as a discussion problem by Professor Andrew Schepard, at the Columbia Law School.  It was converted into a simulation of a client meeting by Professor David Chambers at the University of Michigan Law School and further modified by Professor Clark Cunningham, initially while teaching at the University of Michigan and subsequently for teaching purposes at the Washington University School of Law and the Georgia State University College of Law.

Assume that the interviews take place in January 1987 in New York City.  (A calendar for December 1986 appears at the end.)  The lawyer role is that of a lawyer working in a governmentally supported legal services office in New York City providing free legal services to low-income persons.  The client is Mr. (or Ms.) Simon, a low-income tenant living in a public housing project, the Ravenwood project at 108th Street and Madison Avenue.  Simon is 39, a high school graduate and the single parent of one boy, Gordon, 17.  (The other parent died of cancer when Gordon was two years old.) Simon works part-time as a private security guard and is attending community college to complete an associate's degree.  The Housing Authority of New York City (HA), a city agency,  has served a notice of termination of tenancy against Simon, alleging that Gordon attempted to rob another tenant, Mrs. Lucy Montez, on December 14, 1986.  The notice specifies that Gordon attempted to rob Mrs. Montez at the corner of 107th Street and Madison Avenue (on project grounds) at 8:00 p.m. on December 14th.  The administrative hearing date on the notice is 15 days after the date of the initial client interview.  There is no further information on the notice, which the lawyer has seen prior to the interview.  (Simon left a copy of the notice at the legal services office when making the  interview appointment.)

LAWYER INSTRUCTIONS

You will have 15 minutes for the initial interview. Explain to Simon that you must leave for a court date in 15 minutes but that you have already scheduled time for a follow-up interview in two weeks (the day before the hearing). Use the 15 minutes as you think best, but be as realistic as possible and stay in role at all times. The only requirement is that at some point during the initial interview you must explain to Simon about the confidentiality of the interview. The explanation should be accurate, complete and comprehensible to the client. Assume that at this point in time the applicable ethical rules were the "New York Rules of Professional Conduct (NYRPC)" and that NYRPC 1.6 and NYRPC 3.3 that were identical to Georgia Rules 1.6 and 3.3.. Simon is a high school graduate and has a good understanding of the Housing Authority rules and procedures governing eviction, just from living in the "projects" for a number of years. Use language you can expect he or she will understand but do not "talk down" to Simon.

RELEVANT LEGAL STANDARDS AND PROCEDURES

Termination of Public Housing Tenancy Procedures
MHLS represents tenants whom the Housing Authority seeks to evict from their state-subsidized apartments on various grounds, including the ground of "non-desirability."  Often, as in the Simon simulation, the charge of non-desirability is based on the alleged criminal conduct of one member of a family residing in the public housing apartment. Nonetheless this is a civil, not a criminal proceeding.  (A non-desirability charge can also be based on non-criminal, nuisance type conduct.)

 MHLS represents the tenant named on the public housing lease, usually the mother or father in the family.  However, the charges of non-desirability, as in the Simon case, are often based on the alleged conduct of a child. The non-desirability charges are tried in an administrative proceeding before a hearing officer.  At the hearing, the Housing Authority must prove its non-desirability charges by a "preponderance" of the evidence.  The Housing Authority is represented at the proceeding by an attorney.  All testimony is taken under oath, the witnesses swearing "to tell the truth, the whole truth and nothing but the truth."  A person who lies is subject to prosecution for perjury, a felony, although no one has ever in fact been prosecuted for lying at a Housing Authority hearing. 

 If the Hearing Officer finds the non-desirability charges sustained by the evidence, he or she can impose one or more of the following dispositions on the tenancy of the family:

a) Termination -- The family has to move out of public housing.  Termination is a very serious sanction because public housing is heavily subsidized and other housing in New York at the same price is either unavailable or likely to be in very bad condition.
b) Probation -- The family is watched closely by the Housing Authority for a year.  Any violation of authority rules, or non-desirable activity by any member of the family (whether the original offender or not), will result in another hearing and likely eviction.
c) Permanent Exclusion . The family remains eligible to live in public housing but the offending family member must reside elsewhere permanently.  Under case law, the offender is allowed to visit, but not live, in the family's apartment.  (The line between visiting and living is a source of continuing controversy.)  If the Authority finds the offending family member around the projects too much, they can bring a charge of violation of a permanent exclusion order which, if sustained, will result in the entire family's eviction.

 The files of termination proceedings are confidential, though there are occasional leaks.  Decisions of the Hearing Officer can be appealed to the state courts under a statutory procedure for review of administrative determinations.

 In preparation for a hearing involving "non desirability," tenants' lawyers (or investigators working for them) typically review the charges, review the material in the tenant's file (which usually contains a police report on the underlying incident), and interview witnesses.  The lawyer often tries to negotiate a settlement with the Housing Authority to avoid eviction. In a typical settlement, the tenant must agree to a "no contest" response to the charges. (Often tenants settle with a "no contest" to charges that they still deny committing to their attorney.)    If a "no contest" agreement is entered and accepted, the Hearing Officer can and often will impose either Probation or Permanent Exclusion as listed above, just as he or she could if she found that there were grounds to evict the tenant.

DECEMBER 1986