Two very exciting steps forward in the movement to allow non-lawywers to do more to help with access to justice. First, I can now post the promised OCA proposal which is in the process of being formally submitted to the legislature. I understand that the number OCA 2015-21, is the best way to refer to the bill until is formally introduced and gets the right kind of number.
Second, I can report that the House of Delegates of the New York State Bar Association has voted to support the bill. Obviously, one can not overstate the importance of these steps for access to justice, or praise enough the NYSBA and NY Chief Judge Lippman. (Disclosure and disclaimer: I am on the group that initially proposed the bill, but any opinions here are strictly my own. The language speaks for itself.)
As to the bill, in one sense it is very carefully limited. While authorizing a significantly expanded list of activities that may be performed by nonlawyers, it does so only in a small range of contexts, which should enable us to learn more in a low risk context.
Specifically, the key part of the statute would read:
. . . [T]he judiciary shall implement and oversee a program for the free provision of certain services to unrepresented persons living at or below two hundred percent of the federal poverty level who must appear in the proceedings specified in this article in the civil court of the city of New York and in the housing part thereof (“program”). Under this program, these services shall be provided by specially trained non-lawyers (certified as housing court advocates or consumer court advocates as provided herein) under the supervision of attorneys-at- law admitted to the practice of law in this state in the employ of not-for-profit service providers, including but not limited to legal services provider organizations, approved by the chief administrator of the courts.
The not for profit organizations have to have plans and programs specifically approved by,and those who wish to play such roles also have to be individually certified by, the chief administrator, provided the individuals meet the educational, training and other standards to be established by the chief administrator.
The authorizations, even within the limited listed courts, are also constrained to certain actions.
(i) for a housing court advocate, the provision of such services may not be authorized other than in (A) summary proceedings brought pursuant to 22 NYCRR 208.42(d), and (B) actions described in subdivision (n) of section two hundred three of the New York city civil court act, and (ii) for a consumer court advocate, the provision of such services may not be authorized other than in actions and proceedings in relation to a consumer credit transaction as defined in subdivision (g) of section two thousand one hundred one of the New York city civil court act.
However, and this is the good part, while the advocates are not broadly authorized to practice law, they will be able to do enough to make a big difference. (Compare the much more limited roles in the already functioning Navigator program which did not require a change in law.) Specifically, the advocates will be able to provide:
(a) advice, counsel or other assistance in the preparation of pleadings;
(b) advice, counsel or other assistance in the preparation of an order to show cause to vacate a default judgment, prevent an eviction or restore an action or proceeding to the calendar to amend or enforce provisions of a stipulation or order previously entered into; provided this shall include authority to sign an answer or order to show cause;
(c) negotiate with a party or his or her counsel or representative the terms of any stipulation or order to be entered into; and
(d) address the court on behalf of any such person.
There will be a fourteen person advisory board. Finally, four years after the start of the authorization, the courts are to submit an evaluation which might include recommendations as to expansion as to courts and areas of practice.
It is also important that the Fact Sheet that goes with the bill (and which lays out the case for the innovation with great if restrained force) says:
Except as expressly authorized by this measure, HCAs and CCAs would be prohibited from performing any other acts or providing any other services that would constitute the practice of law or from holding themselves out as being entitled to practice law in any way, and would remain subject to all the restrictions and civil and criminal penalties prescribed by law for the unauthorized practice of law. As all advice, counsel and other services provided by HCAs and CCAs will be rendered under the supervision of an attorney, the requirements of confidentiality and evidentiary privileges, including the attorney-client privilege, shall continue in effect.
Of course, with the support of the NYSBA, I am highly optimistic that this will pass and will be a great model for the country, particularly in its demonstration of the role that consultation and collaboration can play in moving forward. These are turning points on which we will look back.
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