[T] he Task Force recommends the implementation of a pilot program to permit appropriately trained non-lawyer advocates to provide out-of-court assistance in a discrete substantive area.
I include the full text of the discussion in the Report, bolding the most important points (also some reformatting):
AS RECOMMENDED IN ITS 2011 REPORT, the Task Force formed a Non-Lawyer Involvement Working Group to examine the role that non-lawyer advocates can play in helping to bridge the access- to-justice gap
Even without any regulatory or oversight process for non-lawyer advocates in New York, the Task Force’s Non-Lawyer Involvement Working Group found that a variety of non-lawyer entities provide advocacy assistance to low-income New Yorkers who have current or potential legal problems. Many of these entities provide help to prevent a problem from developing into a full-blown legal problem in court.
For example, many community-based organizations in the State help low-income New Yorkers with housing problems and difficulties obtaining subsistence benefits to which they are entitled. In fact, some legal services organizations in the State provide training and backup case consultation services to such non-lawyer organizations, which, in turn, play a role in enabling legal services providers to make triage determinations about which matters need immediate legal intervention and which might be resolved through non-lawyer advocacy. Other examples of non-lawyer entities already helping bridge the access-to-justice gap for low-income families and individuals include: non-lawyer courthouse-based information services that provide useful information to litigants but not individualized assistance, and non-lawyer organizations devoted to preventing domestic violence that help with obtaining orders of protection and with safety planning.
Again, without any regulatory process in New York State for non-lawyer advocates, the Task Force’s Non-Lawyer Involvement Working Group found, in addition, that non-lawyer advocates are currently providing assistance in the following areas:
Within New York, federal and State law currently allow non-lawyer advocates to participate in administrative hearings and proceedings involving certain kinds of public benefits, including: State public assistance benefits such as cash assistance and Medicaid; federal food stamps benefits; federal disability and Medicare benefits;unemployment insurance benefits; and workers’ compensation benefits.
In many areas of the State, non-lawyer advocates provide information and assistance in housing and foreclosure matters but not in-court representation.
Likewise, non-lawyer advocates provide out-of-court assistance in family law matters such as domestic violence but not in-court representation.
For immigration matters, federal law allows accreditation of non-lawyer advocates to provide representation in administrative proceedings before the United States Citizenship and Immigration Services and the Executive Office of Immigration Review, if they are employed by a non-profit, religious, charitable, social service or similar organization established in the United States that has been approved for recognition.
At the Chief Judge’s First Department hearing, Gillian K. Hadfield, Kirtland Professor of Law and Eco- nomics at the University of Southern California, presented extensive testimony concerning the potential role of non-lawyer advocates in helping low-income households in New York who are experiencing problems that are legal in nature.94 For example, Dr. Hadfield noted:
“Other professions do this in perfectly reasonable ways. Take medicine. Does a full fledged MD have to deliver every service needed to address every medical issue you face in order to receive quality care? No. Medical care is a team sport, provided by a wide variety of medical professionals: nurses, radiologic technologists, pharmacists, nurse practitioners, physical therapists, chiropractors, registered massage therapists, certified nurse midwives, certified registered nurse anesthetists, etc. Many of these providers are licensed and authorized to provide services directly to those with medical problems. They are not limited to working under the direct supervision of MDs. Thank goodness. Because if they were, we’d be paying MD rates for every sore throat and backache.
There is an urgent need for the judiciary to change the landscape of options available to those with legal needs: to exercise your ultimate authority to decide who can provide legal assistance by expanding that list beyond expensive JD-trained and bar-licensed attorneys. Of course we want some services delivered only by expensive JD-trained and bar licensed attorneys — we only want surgery performed by surgeons, too. But where are our nurse practitioners? Our legal systems desperately need the equivalent of nurse practitioners and other non-MD health care providers. We need non-JD legal providers who can perform simpler legal work at much lower cost and thereby fill an enormous part of the gaping legal need in this State. . . .
Think about one of the major sources of court burden: misunderstandings about procedures and requirements and forms by pro se litigants in housing or family court, for example. Your Task Force has heard (and surely experienced) the delays and complications created by the flood of people with no alternative but to represent themselves. Yes, it would be nice if every one of these people had a full-fledged JD licensed to practice in New York to represent them. But if we can’t do that — and we can’t — then think about how much improved the situation would be for all concerned if these people could at least obtain low-cost assistance from people with sufficient expertise to help them navigate the process: to tell the person facing eviction for unpaid rent that if she wants to argue that her apart- ment has no heating and the ceiling is falling down, then she should bring some pictures and other evidence to court. To help people to understand what a form is asking for and to explain what some of the arcane legal language in a court order or rule means. There is much that can be done that is very helpful here that does not require deep legal expertise.
Authorizing intelligent, trained and well-supported non-JD legal assistants does not involve entering into uncharted waters. The United Kingdom, for example, has a long history of allowing a wide variety of differently trained individuals and organizations to provide legal assistance. And fortunately some very fine legal scholars have studied how well this works. Their key finding: it works very well. . . .
The U.S. unfortunately has little experience with non-JD legal assistance — although that may be changing. Washington State has just this past month embarked on a plan to authorize what they call “limited license legal technicians” to perform carefully defined services for people, without direct supervision by an attorney. . . .
But New York should not wait to see how Washington turns out. It should act now to evaluate its options for expanding the supply of legal assistance to New York’s citizens. And it should do so in a firmly policy-oriented and evidence-based way. For too long this issue has been allowed to become buried under the intuition-based objections of existing members of the legal profession. (These are often sincerely held worries about the capacity to help those with legal trouble, although they are also, one must admit, sometimes plainly motivated by protectionist fears of competition.) If we treat this, as we absolutely must, as a matter of serious policy and we put our intuitions to the test of theory and empirical evidence, I guarantee we will find that the traditional fears are unfounded.”
As part of its review, the Task Force’s Non-Lawyer Involvement Working Group examined the recent rules changes enacted by the Supreme Court in the State of Washington that, as Professor Hadfield testified, created a new Limited Licensed Legal Technician certification that allows certified persons to provide a range of legal services within certain defined practice areas. These licensed individuals will be permitted to set up limited practices, establish fees for their services, operate independently (without attorney supervision) and provide a range of assistance, including individualized information regarding court procedures, reviewing documents and completing forms, performing legal research, drafting letters and pleadings, advising clients as to necessary documents and explaining how such documents or pleadings may affect the client’s case. These licensed technicians may not represent a client in legal negotiations, in court, in formal administrative proceedings or in other formal dispute resolution processes unless specifically permitted. This new non-lawyer licensing system became ef- fective on September 1, 2012.
The new rule in Washington establishes a Limited License Legal Technical Board to oversee imple- mentation of the new rules, recommend practice areas for licensed technicians, administer the new ex- aminations and licensure requirements, determine the continuing legal education requirements, establish and collect licensing fees, and undertake such other activities and functions as needed to establish the new system.96
In the Task Force’s view, particularly given the level of non-lawyer assistance that is already being provided with limited or no oversight and regulation, further development of the role of non-lawyer advo- cates can be an important element in helping to address the substantial access-to-justice gap in the State. Based on its own consideration of these matters, the Task Force recommends the implementation of a pilot program to permit appropriately trained non-lawyer advocates to provide out-of-court assistance in a discrete substantive area. Given the extent to which non-lawyer advocates and entities – such as housing counselors in the foreclosure area and credit counselors in the consumer credit area – are already providing help to low-income New Yorkers, the Task Force recommends that the pilot program be in an area such as housing assistance, consumer credit or, possibly, foreclosure.
To move forward, the Task Force recommends that the Chief Judge authorize implementation of such a pilot initiative. The Task Force further recommends that the Chief Judge appoint an Advisory Com- mittee to develop such a pilot initiative and make recommendations for an appropriate system for the expansion of the role of non-lawyer advocates in the delivery of legal services. This Advisory Com- mittee could function like the Advisory Committee on the New York State Pro Bono Bar Admission Requirement, which was appointed by the Chief Judge to implement his newly announced 50-hour pro bono rule for admission to the New York Bar. At the Chief Judge’s direction, that Advisory Committee developed the pro bono rule within a three-month period of intensive consultation with all interested parties.
The proposed Advisory Committee to focus on non-lawyer involvement would consist of representatives appointed by the Chief Judge from the various stakeholders involved, including Judges, law school Deans, legal services providers, representatives of the private bar, and other interested parties. The Advisory Committee can seek input from all interested parties and then design a pilot program involving non-lawyer advocates without attorney supervision, provided such non-lawyer advocates do not provide in-court representation. The Committee can evaluate such essential matters as: the regulatory scheme (e.g., licensing, certification and/or registration); the scope of work (what work other than in court representation the non-lawyer advocates will be able to perform); identification of a substantive area of need for the pilot program (taking into consideration the Task Force’s recommendation that the pilot program should be in an area such as housing assistance, consumer credit or, possibly, foreclosure where there is a great need and already a substantial level of non-lawyer assistance that is being provided); qualifications (e.g., education, training and/or experience requirements and/or potential law school sponsored diploma programs); consumer protection measures; and administration of the pilot program.
You really do not need this blog to tell you how potentially transformative this could be, particularly given the leadership that CJ Lippman has already shown.
The report includes as an important Appendix the Research Memorandum Prepared for the Task Force’s Working Group on Non-Lawyer Involvement (Appendix 17 at page 1087). This is particularly valuable in its detailed listing of current use of non-supervised non-lawyers (including in Canada) and its discussion of potential aspects of a regulatory framework (including the Washington State Scheme, with that state’s underlying documents).