Non-Lawyers May Be Given Role in Closing 'Justice Gap'

Feerick Center Board Chair Fern Schair in The New York Law Journal, May 29, 2013

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Chief Judge Jonathan Lippman yesterday announced the makeup of a committee to study the feasibility of allowing non-attorneys to provide legal services to poor New Yorkers in "simpler" civil matters.

Roger Maldonado, a partner at Balber Pickard Maldonado & Van Der Tuin in Manhattan, and Fern Schair, chairwoman of the Feerick Center for Social Justice at Fordham University School of Law, will cochair the Committee on Non-Lawyers and the Justice Gap. Lippman said the committee will make preliminary recommendations for pilot programs by November.

The 20 members of the committee in addition to the two cochairs include private attorneys, civil legal services providers, bar association representatives, advocates for the poor and one judge, Jenny Rivera of the Court of Appeals.

Despite the pro bono contributions made by attorneys and the courts' funding of civil legal services, Lippman said the state "simply cannot keep pace" with the growing need for legal services among low-income New Yorkers.

Some civil legal services providers say they turn away as many as seven in eight people who seek services because of insufficient resources.

The new committee will examine to what extent "non-lawyer advocates" who are expert in certain areas "can help the most vulnerable and the most disadvantaged," Lippman said in an interview.

"Are there certain niches in which non-lawyers can provide legal assistance without running afoul of the statutes against the unauthorized practice of law?" Lippman said. "I think we would be missing the boat to fail to explore this area."

Maldonado said the committee at first will focus on the creation of pilot programs both inside and outside New York City that would use non-lawyers to help poor clients in housing, elder law and consumer credit matters.

There are existing programs in all three areas where non-lawyers have effectively aided clients without providing them with what the law defines as legal services, Maldonado said.

For instance, the housing assistance agency BronxWorks has successfully used non-lawyers to help clients apply for financial assistance and help the agency fend off eviction actions on their behalf, according to Maldonado.

He said properly trained individuals also can become expert in providing assistance with some Family Court proceedings or helping those embroiled in consumer debt.

Lippman said it is not that unusual to find non-lawyers who are more expert in some social programs than attorneys who would provide them with direct legal representation.

"You could have a non-lawyer who is an expert in a particular area who may be even more helpful to a person in need than a lawyer who isn't expert in that area," Lippman said.

The chief judge acknowledged that there may be suspicion among some attorneys about enlisting non-lawyers in such roles. But he said the state would be sensitive not to overstep the boundaries of the authorized practice of the law and he does not believe any duties envisioned for the "non-lawyer advocates" would require changes to the canons or statutes concerning the practice of law.

"I think there are issues that we need to be careful about and address, but I see absolutely no reason why this cannot be a significant piece of the puzzle" of providing more civil legal services for the poor, Lippman said.

Carey Dunne, president of the New York City Bar, said yesterday that he would like to see more details of the committee's plans before saying whether he had worries about the non-lawyer advocates.

"It is always a concern about the unauthorized practice of law and concern about qualifications and training, depending on what people are being asked to do," said Dunne, of Davis Polk & Wardwell."That's why we very much hope to be able to make recommendations on what they come up with."

Lippman announced his plans for the Committee on Non-Lawyers and the Justice Gap during his 2013 State of the Judiciary address (NYLJ, Feb. 6).

The committee grew out of recommendations in a November 2012 report by Lippman's Taskforce to Expand Access to Civil Legal Services.

The taskforce noted that non-lawyers have been used effectively in New York to aid clients in administrative proceedings, for unemployment and Workers' Compensation benefits, in housing and foreclosure actions and in some family law matters, such as preparation of applications for orders of protection.

Federal law provides for the accreditation of non-lawyer advocates to give representation in administrative proceedings before the U.S. Citizenship and Immigration Services and the Executive Office of Immigration Review.

In addition, the taskforce noted that non-lawyers have been used to successfully handle some forms of legal assistance in Great Britain and that the state of Washington is now developing rules for certification of a new Limited Licensed Legal Technician for non-lawyers.

Helaine Barnett, chairwoman of the civil legal services taskforce, was also named by Lippman to the new committee.

Maldonado said the committee's proposals for pilot programs are likely to include scenarios where the advocates provide services pro bono and what Lippman refers to as "low bono," meaning at low rates.