Guarantee Civil Legal Aid

Section 1. This act shall be known and may be cited as the "New York Civil Gideon act".

§ 2. The county law is amended by adding a new article 18-C to read as follows:

ARTICLE 18-C

REPRESENTATION OF PERSONS IN CIVIL MATTERS Section 723. Legislative findings.

723-a. Civil right to counsel commission.

723-b. Lead agency for civil right to counsel.

723-c. Assigned counsel for civil matters review panel.

723-d. Compensation and reimbursement.

§ 723. Legislative findings. The legislature hereby finds and declares as follows:

1. Every year, at least eighty percent of the civil legal needs of low income New Yorkers go unmet.

2. These legal needs often concern matters pertaining to the essentials of life including shelter, food, employment, health, and family sustainability.

3. The lack of available civil legal assistance undermines comprehensive assistance for crime victims.

4. The lack of civil legal services to resolve a family's legal problems often disrupts the children and young adults' education, frequently with a permanent impact.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

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5. The lack of civil legal services can worsen chronic health problems often increasing the cost of medical care.

6. The lack of civil legal services can result in homelessness not only affecting the individual families but also destabilizing entire neighborhoods.

7. In light of these trying economic times, the need for civil legal services has increased beyond individuals below the federal poverty guidelines to homeowners and other middle income New Yorkers that provide the foundation for New York's economy.

8. The substantial number of unrepresented litigants in civil legal matters adversely impacts the quality of justice for all parties in the courts of New York state, increases the amount of litigation, and undermines the rule of law.

9. It has been found that when a society is unable to meet their basic human needs it is in an ongoing state of emergency.

10. The unmet need for civil legal assistance in the state is profoundly impacting vulnerable New Yorkers and costing taxpayers millions of dollars by increasing homelessness, failing to prevent domestic violence, and increasing poverty.

11. In order to address this emergency, this legislature finds that a right to counsel in certain civil matters is imperative.

§ 723-a. Civil right to counsel commission. 1. There is hereby established the civil right to counsel commission. The commission shall be composed of eleven members.

2. a. The members of the commission shall be appointed as follows:

(i) one member shall be appointed by the governor and shall be an attorney with expertise in civil legal services;

(ii) one member shall be appointed by the temporary president of the senate;

(iii) one member shall be appointed by the speaker of the assembly;

(iv) one member shall be appointed by the minority leader of the assembly;

(v) one member shall be appointed by the minority leader of the senate;

(vi) two members shall be appointed by the chief judge of the court of appeals;

(vii) one member shall be appointed by the association of counties;

(viii) one member shall be appointed by the mayor of the city of New York and shall be an attorney who has provided civil legal services for at least five years;

(ix) one member shall be appointed by the governor, from a list of no more than two nominees submitted by the chief administrator of the courts, each of whom shall be a judge or justice, or retired judge or justice, who was elected to the supreme, county or family court, or appointed to the criminal court or family court in the city of New York, and has substantial experience presiding as such a judge or justice in trial matters before such court; and

(x) one member shall be appointed by the New York state bar association.

b. All members of the commission shall be residents of the state of New York.

c. The members of the commission shall serve terms of four years. All members shall serve until their successors are appointed. Vacancies on the commission shall be filled for the remainder of the term in the manner provided for by the original appointment.

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d. The members of the commission shall receive no compensation for their services, but shall be allowed their actual and necessary expenses incurred in the performance of their duties.

e. Notwithstanding any inconsistent provisions of law, no officer or employee of the state or any civil division thereof shall be deemed to have forfeited or shall forfeit his or her office or employment by reason of his or her acceptance of membership on the commission.

f. The commission shall meet at least once per year.

g. A majority of the members of the commission shall constitute a quorum.

h. The chief judge of the court of appeals, or his or her designee, shall serve as a non-voting ex-officio member of the commission.

i. Appointment to the commission shall be filed by the chief judge of the court of appeals, who shall convene the first meeting of the commission following the filing of the majority of appointments. At the initial meeting the members shall elect officers.

3. The commission shall submit to the governor, temporary president of the senate, speaker of the assembly and the chief judge of the court of appeals an annual report on or before the anniversary date of the commission's first meeting. Such report shall contain all pertinent data for the prior twelve months on the operation of the commission including the number of assigned counsel in each county, the number of cases assigned, the number of cases resolved, recommendations for additional attorneys, if necessary, the cost of operation and financial assistance to localities. Such report shall also include the proposed budget for the succeeding twelve months including funds for financial assistance to localities.

§ 723-b. Lead agency for civil right to counsel. 1. Representation for persons in civil matters shall be a partnership between the courts and all qualified legal services providers, bar associations and private organizations.

2. The legal services providers shall serve as the lead agency for case assessment and direction under this article and furthermore shall:

a. be the central point of contact for receipt of referrals for legal representation;

b. make determinations of eligibility based on uniform criteria;

c. be responsible for providing representation to the clients or referring the matter to one of the organizations or individual providers with whom the lead legal services agency contracts to provide the service; and

d. to the extent practical, identify and make use of pro bono services in order to maximize available services efficiently and economically.

3. Recognizing that not all indigent parties can be afforded representation, even when they have meritorious cases, the court partner shall, as a corollary to the services provided by the lead legal services agency, be responsible for providing procedures, personnel, training, and case management and administration practices that reflect best practices to ensure unrepresented parties meaningful access to justice and to guard against the involuntary waiver of rights, as well as to encourage fair and expeditious voluntary dispute resolution, consistent with principles of judicial neutrality.

4. The participating legal services agency shall be selected by the judicial council.

a. The judicial council shall be made up of one administrative judge from each judicial district. There shall be at least one legal services agency chosen for each judicial district.

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b. The judicial council shall assess the applicants' capacity for success, innovation, and efficiency, including, but not limited to, the likelihood that the agency would deliver quality representation in an effective manner that would meet critical needs in the community and address the needs of the court with regard to access to justice and calendar management, and the unique local unmet needs for representation in the community.

c. Agencies approved pursuant to this section shall initially be authorized for a three-year period, commencing on the effective date of this section and subject to renewal for a period to be determined by the judicial council, in consultation with the participating agency in light of the agency's capacity and success. After the initial three-year period, the judicial council shall distribute any future funds available as the result of the termination or nonrenewal of an agency pursuant to the process set forth in this subdivision.

d. Agencies shall be selected on the basis of whether, in the cases proposed for service, the persons to be assisted are likely to be opposed by a party who is represented by counsel. The judicial council shall also consider the following factors in selecting the agencies:

(i) the likelihood that representation in the proposed case type tends to affect whether a party prevails or otherwise obtains a significantly more favorable outcome in a matter in which they would otherwise frequently have judgment entered against them or suffer the deprivation of the basic human need at issue;

(ii) the likelihood of reducing the risk of erroneous decisions;

(iii) the nature and severity of potential consequences for the unrepresented party regarding the basic human need at stake if representation is not provided;

(iv) whether the provision of legal services may eliminate or reduce the potential need for and cost of public social services regarding the basic human need at stake for the client and others in the client's household;

(v) the unmet need for legal services in the geographic area to be served; and

(vi) the availability and effectiveness of other types of court services, such as self-help.

e. Each applicant shall do the following:

(i) identify the nature of the partnership between the court and the other agencies or other providers that would work within the project;

(ii) describe the referral protocols to be used, the criteria that would be employed in case assessment, why those cases were selected, the manner to address conflicts without violating any attorney-client privilege when adverse parties are seeking representation through the project, and the means for serving potential clients who need language assistance within the court system; and

(iii) describe how the project would be administered, including how the data collection requirements would be met without causing an undue burden on the courts, clients, or the providers, the particular objectives of the project, strategies to evaluate their success in meeting those objectives, and the means by which the project would serve the particular needs of the community, such as by providing representation to limited-English-speaking clients, the elderly and the disabled.

5. To ensure the most effective use of the funding available, the lead legal services agency shall serve as a hub for all referrals, and the point at which decisions are made about which referrals will be served and by whom. Referrals shall emanate from the court, as well as from the

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other agencies providing services through the program, and shall be directed to the lead legal services agency for review. That agency, or another agency or attorney in the event of conflict, shall collect the information necessary to assess whether the case should be served. In performing that case assessment, the agency shall determine the relative need for representation of the litigant, including all of the following:

a. case complexity;

b. whether the opposing party is represented;

c. the adversarial nature of the proceeding;

d. the availability and effectiveness of other types of services, such as self-help, in light of the potential client and the nature of the case;

e. barriers to access due to language;

f. barriers to access due to disability;

g. barriers to access due to literacy;

h. the merits of the case;

i. the nature and severity of potential consequences for the potential client if representation is not provided; and

j. whether the provision of legal services may eliminate or reduce the need for and cost of public social services for the potential client and others in the potential client's household.

6. The decision and level of representation should be made at the sole discretion of the lead agency, organization, or attorney based on the factors set forth above.

7. If both parties to a dispute are financially eligible for representation, each proposal shall ensure that representation for both sides is evaluated. In these and other cases in which conflict issues arise, the lead legal services agency shall have referral protocols with other agencies and providers, such as a private attorney panel, to address those conflicts.