In his 2013 State of the Judiciary address, New York Chief Judge Jonathan Lippman spoke the unspeakable, announcing the formation of a committee to “ to study the feasibility of allowing non-attorneys to provide legal services to poor New Yorkers in “simpler” civil matters.” You’ve got to give him credit for using the fiat of his office to begin the process of making change, as he did with the 50 hours of pro bono as a requirement for admission to the New York bar.
That there are systemic problems is nothing new, at least to those of us paying any attention at all. So what pushed Lippman into the fray?
Right off the top, this smells like the same welfare-state rhetoric that gave rise to the current state of affairs, like the office in 111 Centre Street to help tenants fill out forms for landlord tenant court. While I’m sure they know the forms, does that make the non-lawyers who do it to help the poor expert advocates, capable of appearing in court on the behalf of tenants? And where are the bodies needed to bridge the gap going to come from? A few people may be sufficient to hand out forms to a long line of clueless tenants, but handling their cases in court is a different matter.
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.
The notion is to expand the authority of non-lawyer to allow them to advocate for the poor, but that is only a tiny and problematic piece of the puzzle. Who is charged with figuring this out?
Ah yes, the usual suspects, each with their own perspective, their own piece of the pie to promote. Aside from it taking six months to make the introductions around the table when 20 people are on a committee, what are the chances that civil legal services providers will promote ideas that spell the death of the very organizations they fought for years to promote? And will advocates for the poor concern themselves with the middle class? And will the same “official bar association” types do more than huff and puff, which is all they’ve ever done?
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 co-chair 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 co-chairs include private attorneys, civil legal services providers, bar association representatives, advocates for the poor and one judge, Jenny Rivera of the Court of Appeals.
Judge Lippman has made a bold move in taking the first step away from the lock lawyers have had on the practice of law, but made a horrible mistake by framing the solution in terms of legal welfare for the poor. There is clearly a need, but this isn’t the way to fill it.
I’ve offered an idea for a fundamental systemic shift, a market-based solution to provide competent and ethical low-cost services via an entirely new tier of legal services, what I call the Legal Practitioner. It’s not a matter of liberal noblesse oblige, but a self-sustaining concept that benefits all involved by providing a new niche of jobs designed to serve those who are underserved now. And that’s not just the poor. Washington State has come up with rules that follow along the same lines as my concept, but it’s nothing like what Judge Lippman is asking his committee to consider.
Ironically, NYU lawprof Stephen Gillers slams the practicing bar at Legal Ethics Forum for its failure to deal with the problem:
By throwing in the “organized bar,” Gillers picks at the low-hanging fruit. The “organized bar” is made up of official people who wouldn’t know a solution if it bit them in the ass. Their concerns are limited to giving each other awards and extolling their own virtues.
Meanwhile, the bar has categorically refused to investigate how educated and character-tested non-lawyers may participate in the delivery of legal services and how that participation will help make legal services available to those who cannot now afford them but can afford something. The fact that the near-poor are largely cut off from legal help in civil matters has been long decried and as long uncorrected.
Given the traditional bar’s new competitors (outsource companies; differently trained lawyers abroad in differently constituted firms; compliance officers who, after all, advise on compliance with law; companies selling computer-driven legal advice like Turbo Tax sells tax help; Axiom and its competitors), you’d think the organized bar would want a seat at the table, if only to help formulate adaption to the new world that technology and cross-border practice entail.
That doesn’t mean, however, that practicing lawyers have “categorically refused” to become involved. Some have and continue to be involved. And if you want to know who, I would be happy to tell you, but you won’t find them appointed to the Chief Judge’s blue ribbon, very official bar association leader-type committee, where very polite voices will advocate for more funding to expand what they’ve done in the past to serve the poorest among us by providing them with pencil pushers who are going to be rhetorically transformed into expert advocates.
To sum up, society needs race horses. The Chief Judge has formed a committee to design a draft horse. And the committee will eventually produce a design for a camel, for which practicing lawyers will be blamed and lawprofs can point at the failed outcome to show how only the virtue of the legal academy can fulfill the pressing cutting edge needs of society.
And the poor and middle class will continue to suffer the “justice gap” by lacking competent and ethical counsel at prices they can afford.