On Tuesday, Chief Judge Jonathan Lippman delivered a very important speech. While the whole speech is very valuable, two particular aspects stand out for me.
The first is the the very strong language, and examples, reflecting the speech title The Judiciary as the Leader of the Access to Justice Revolution. Since taking on the role, CJ Lippman has guided the New York courts to an unprecedented role as spur and leader in both access innovation and access funding. In this speech he lays out his clear view that this today this is a necessary part of the job desciption. In so doing, he has paid credit to many other Chiefs who are playing a similar role. This speech will surely help many of his colleagues take on this responsibility in their states. Some of the language:
I want to talk about how the Judiciary, conceptually and in practice, should be and is in fact the leader of the access to justice revolution that is taking place in our state andin our country. It is no secret that our nation faces a crisis in access to justice. The distressing lack of civil legal aid for the poor is one of the most daunting challenges facing the justice system today, but all of the players – – the profession, the providers, the academy, and in particular the Judiciary – – are increasingly and dramatically confronting this crisis and taking action to even the scales of justice, to guarantee the rights and liberties of all, and to preserve the rule of law. . . .
After describing the access crisis, he goes on:
But in the face of such challenges, beacons of hope are emerging, fueled in large measure by state judiciaries who, on access issues, are uniquely suited to be theconveners of the discussion, the deliverers of the message, and the generators of large- scale change and innovation. Given our pivotal role in government, society and the profession, the Judiciary can and should be the agenda builders, pushing the envelope for the entire legal community when it comes to the pursuit of justice – – our historical task and duty since biblical times.
After describing the astonishingly successful — and very well thought through — strategy to support funding for community based legal aid, the Chief went on:
Such funding from the public fisc is and must be a fundamental pillar of any state’s efforts to promote access to justice. It has been a catalyst for us in New York, sparking numerous other new approaches to the problem, many of which I will discuss tonight including: efforts to spur pro bono work by the bar, the use of aspiring lawyers to provide legal assistance to those most in need, harnessing the legal talents of baby boomers and corporate counsel, and exploring new, creative methods of delivering legal services including the use of non-lawyers to provide assistance in and outside of the courtroom. Ours is an analytical, multifaceted, incremental approach to closing the justice gap in our state, built around the leverage and credibility that the Judiciary and its leadership have, and utilizing all of the financial and programmatic resources available to the Judicial branch – – along with the great talents and energy of our partners in the legal profession, academia, and the legal services communities.
The Chief then lists other states in which judicial leadership has played the critical role in access to justice innovation.
Texas, under the leadership of its Chief Justice, negotiated an increase in IOLTA interest rates from banks to rescue that program financing legal service providers in the state. Last year, Connecticut’s Chief Judge brokered an agreement with large corporate sponsors to hire recent law school graduates as fellows to do pro bono work through the LawyerCorps Connecticut program. The State of Washington’s Supreme Court has approved a new category of low-bono legal technicians to help close the justice gap. Chief Justice Rabner in New Jersey boldly addressed the foreclosure crisis in his state that has so impacted consumers and people of limited means, while the Delaware Judiciary has focused heavily on addressing language interpretation issues that have barred access to the courts for so many. Montana is adopting a variation of New York’s 50 hour law student pro bono rule, and California is experimenting with civil Gideon pilots funded with state monies. And in the federal courts, my friend Chief Judge Bob Katzmann has put together a wonderful program to provide legal representation to those most in need in immigration cases, that so affects the lives of human beings and their families. And, on and on – – the examples of judicial leadership addressing the crisis in legal services for the poor abound. We get it – – access to the courts is a central ethical and constitutional responsibility of the Judiciary. If not us, who?
After an extensive discussion of the pro bono innovations, including the reporting, the easing of rules for corporate counsel, the Pro Bono Fellows, etc., the chief then came to the second area that I think will have the biggest impact — the exploration of non-lawyer practice. (Disclosure: I am a member of the Committee on Nonlawyers and the Justice Gap, established by the Chief last year — but views expressed here are obviously my own.) In this area, this one speech has moved the dialog forward both in New York and nationally. The speech stands for itself:
[N]ot every new idea receives a universally, warm welcome – – especially if we think more creatively about ways to solve the justice gap. And that’s exactly what we are doing when we venture into areas that seemed off limits in the past. One such area for the New York Judiciary is the work of non-lawyer advocates in our courtrooms to support unrepresented litigants. We know that there are many functions that only a lawyer is qualified to perform. Only lawyers have the education, training, examination standards, and ethical mandates that go hand in hand with full legal representation. But there are people without a law degree who nonetheless are more than capable of assisting unrepresented litigants. At a time when millions of litigants can neither afford to pay a lawyer nor are fortunate enough to have the services of a legal services provider, we need to look to others to step in. This is already done in the medical profession. There is no substitute for a medical degree, but that community has recognized for many years that people with health care needs can be served in some measure by practitioners with lesser qualifications – like midwives or home health care aides — providing specified services at lower rates.
While the concept of non-lawyer assistance is not yet widespread in the U.S., there is extensive precedent for it in the common law world. Non-lawyer advisers have an important role in England and Wales. They can accompany litigants to court, provide moral support, help to organize papers, take notes, and quietly give advice on any aspect of the conduct of the case which is being heard. Outside of court, Citizens Advice Bureaus in the UK staffed largely with volunteers provide free, independent, confidential and impartial advice and information on housing, immigration, debt problems, issues with benefits and tax credits, and employment problems – problems that we typically identify as legal ones.
Here at home, non-lawyers who work daily in a particular area often develop expertise and knowledge that equip them to help unrepresented litigants very effectively. Housing Counselors are a perfect example of how people with strong knowledge and skill in a narrow subject area can provide real help. Housing Counselors are funded and regulated by the United States Department of Housing and Urban Development. They provide tools for making informed choices about housing to current and prospective homeowners and renters – – including those involved in foreclosure proceedings or in Housing Court. They have been invaluable to litigants in New York. It is time to capitalize on that kind of knowledge and expand the valuable support that non-lawyer professionals can provide to safeguard due process and access to justice, a dynamic that has been recognized by the United States Supreme Court in the 2011 case of Turner v. Rogers.
Beginning this year, specially trained and supervised non-lawyers, called Navigators, will begin providing ancillary, pro bono assistance to pro se litigants in Housing Court cases in Brooklyn and consumer debt cases in the Bronx. They will provide one-on-one assistance and give information, help litigants access and complete court do-it-yourself forms and assemble documents, and assist in settlement negotiations outside the courtroom. The Navigators will accompany pro se litigants into the courtroom and provide moral support and information. They can respond to factual questions directed to them from the judge, though they may not volunteer information. For unrepresented litigants overwhelmed and intimidated by the process, the help of Navigators will come as a great relief – – especially in the context of today’s reality – – 98% of these people are unrepresented. This is shameful!
I’m proud to sponsor these incubator projects, that will help to demonstrate how much non-lawyers can accomplish without crossing the line into practicing law. They can serve a population who cannot hope to pay even modest legal fees. They are in dire need of help,and helping them in no way takes business away from lawyers. And providethat help we must – – even at the sacrifice of our professional mantra that only licensed lawyers can facilitate the legal process. That thinking is outdated and must be changed.
Building on the use of non-lawyers who do not, in a real sense, practice law, we must look at our legal regulatory framework, first, to see if our unauthorized practice of law rules should be modified in view of the crisis in civil legal services and the changing nature of legal assistance needs in society; and, second, to identify if, short of full admission to the bar, there are additional skill sets, separate in concept from our incubator projects, that can be licensed to provide low-bono or less costly services to help those in need of legalassistance. The high cost of legal services is a real barrier to a growing part of our population gaining access to justice. If lay persons with training in discrete subject areas can dispense legal information or assistance expertly and more cheaply, we should be exploring how best to accomplish that, without diminishing the great legal profession in our state. Fern Schair and Roger Maldonado, the heads of our Committee on Non-lawyers and the Justice Gap, will next take a look at the legal regulatory framework in our state to see if adjustments need to be made to enhance our access to justice efforts.
The endorsement of the incubator pilots is obviously important in signaling the commitment of the New York Judiciary; the discussion of practices in other countries is a powerful potential rebuttal to any anxieties that might develop in the profession; and, finally, the charge to the Committee to “take a look at the legal regulatory framework in our state to see if adjustments need to be made to enhance our access to justice efforts,” creates an opportunity for thoughtful analysis and changes that will serve access.
Perhaps most of all, I like the following language:, which I repeat for emphasis
Ours is an analytical, multifaceted, incremental approach to closing the justice gap in our state, built around the leverage and credibility that the Judiciary and its leadership have, and utilizing all of the financial and programmatic resources available to the Judicial branch – – along with the great talents and energy of our partners in the legal profession, academia, and the legal services communities.
I think we are only just beginning to realize the true potential of this the multifaceted approach. It is not just that the overall approach has many components, it is that done properly each component relies on and enhances progress with the others, and so should be deployed in a way that maximizes the leverage. Thus, for example, unbundling needs good forms, and judicial engagement is far better when there is a self-help center to which the most complex situations can be referred.
Please spread this speech around.
As a long time health care policy researcher, I was very struck by his use of “home health care aides,” along with midwives. In other words, not just highly trained professionals (if less highly trained than physicians), but people with little education who do very narrowly defined, but highly valuable, tasks. What legal tasks would be analogous?