On July 22, 2015, Chief Judge Jonathan Lippman made permanent a task force he created in 2010 to examine the unmet needs of low-income New Yorkers. According to the New York Law Journal, Chief Judge Lippman said this move “makes unequivocally clear that New York, as a matter of public policy and values, believes that every person who is faced with legal issues regarding the necessities of life gets legal representation or effective legal assistance to deal with those issues.” See, J. Shashenko, “Lippman Makes Permanent Panel on Access to Justice,” NYLJ, 7/23/15, p. 1.
The problem that the Chief Judge has recognized — the “justice gap” — is appalling. “More than 2.3 million litigants come into New York courts each year without legal representation.” See, J. Lippman, “The Judiciary as the Leader of the Access-to-Justice Revolution,” 89 NYU L. Rev. 1569, 1570 (2014). The poorest, most vulnerable litigants are particularly hard-hit: Approximately 90% of tenants appearing in Housing Court are unrepresented, and the situation is almost as bad in Family Court and Consumer Debt Parts in Civil Court. See, Jessica K. Steinberg, “Demand Side Reform in the Poor People’s Court,” 47 Conn. L. Rev. 741, 749 (2015). At a time when many law graduates are hustling for jobs, the absence of public funding has made it impossible to match the available supply of lawyers with this large, unmet demand. And pro bono efforts, however laudable, are not filling the void.
This article will examine the ethical and professionalism implications of three initiatives to bridge the “justice gap.” One, the NYS Court Navigator program (Navigator), already has been launched as a pilot program in Housing Court in Brooklyn, and in its Consumer Debt counterpart in the Bronx. Another, the Court Advocates program, is the subject of proposed legislation and has already garnered support from the NYS Bar Association. The third, and by far most controversial, is Jacoby & Meyers LLP’s thus-far unsuccessful federal lawsuit raising constitutional challenges to New York statutes and ethics rules prohibiting non-lawyer ownership of law firms. This lawsuit is fueled by a desire to use the public markets to expand the services the firm provides to middle-class litigants.
Though these various proposals raise different ethical issues — the first two involve the potential unauthorized practice of law, while the third involves non-lawyer ownership of law firms — they are united by their purpose in finding new and creative ways to bring legal services to those who need them.
Balancing Access to Justice with Professionalism
What ties these initiatives together is that all involve non-lawyers servicing low-income clients, either directly (as participating Navigators and Court Advocates) or indirectly (as shareholders of corporations practicing law). This use of non-lawyers raises serious questions under several New York statutes and ethical rules, most notably New York Rules of Professional Conduct (N.Y. Rules) Rule 5.4. I will discuss these in more detail below.
But equally important, the use of non-lawyers in such capacities raises questions of professionalism — a concept that includes, but sweeps more broadly than, the ethics rules. In New York, lawyer professionalism gets a bad rap, even among lawyers, who too often associate it with non-binding civility codes (“You mean I have to be nice to my adversary?”), workplace conduct (“You mean I have to be nice to my associates?”), and mindfulness programs (“You mean I have to be nice to myself?”). Indeed, while the NYS Bar Association and the New York County Lawyers Association have committees devoted to professionalism (one of them chaired by this author), the New York City Bar Association and other smaller Bar organizations throughout the state do not. Moreover, New York State funding of professionalism programs is minimal at best. New York’s situation stands in stark contrast with states such as Georgia, North Carolina, and Ohio, which have well-funded and professionally staffed professionalism offices run by the courts and/or the State Bar.
To understand the connection between the “justice gap” initiatives and professionalism, consider a broader connotation of professionalism. Dean Roscoe Pound’s oft-quoted definition, found in a 1986 Report of the ABA’s Commission on Professionalism, provides (at the very least) a useful starting point:
By professionalism we mean a group pursuing a learned art as a higher calling in a spirit that it is performing a public service, a service that is indispensable to a democratic nation founded on the rule of law. This calling is no less a public service because it may also be a means of livelihood. Pursuit of a learned art in the spirit of public service is the essence of being a lawyer. It implies obligations of dignity, integrity, self-respect and respect for others.
Although duties to their clients in particular matters are paramount, throughout their careers lawyers must remain conscious of and committed to the goal of improving the profession and the system of justice. This commitment includes taking personal and professional measures to increase the availability of legal services and abet even-handed and efficient application and administration of the legal system for all segments of society. “…In the Spirit of Public Service: A Blueprint for the Rekindling of Lawyer Professionalism,” (1986) (emphasis added.)
In sum, a comprehensive definition of professionalism should focus on lawyers’ actions not just in relation to each other, but to their clients and the public in general. See, N.Y. County Lawyers’ Assn. Response to the Draft Report of the NYSBA Task Force on the Future of the Legal Profession at 2–3 (3/14/2011); Ronald C. Minkoff, White Paper of ABA Standing Committee on Professionalism, “Reviving a Tradition of Service: Redefining Lawyer Professionalism in the 21st Century,” The Professional Lawyer at 1 (2009, Vol. 4).
Solving the “justice gap,” then, is not just a social or political problem, but an issue that goes to the very core of the legal profession’s role. If that role includes ensuring an effective, functional legal system governed by the rule of law for all parties, we must find ways for even those who cannot afford lawyers to navigate that system and feel they have been treated fairly. And where the marketplace or state funding does not supply the lawyers necessary — the current situation for millions of New York litigants — we have to experiment with other ways. At the same time, we have to ensure that any solution complies with statutory standards and ethical rules intended to protect the public. These three recent initiatives suggest real possibilities for closing the “justice gap,” but raise important ethical issues as well.
The NYS Court Navigators began as a pilot program in March 2014 under the auspices of the Chief Judge’s Committee on Nonlawyers and the Justice Gap. Navigator Snapshot Report, December 2014 (Nav. Rep.) at 1. It was intended to “explor[e] ways that non-lawyers can assist unrepresented low-income New Yorkers with legal problems in navigating the court system. Id. Set up in two Housing Court parts, in Brooklyn and in a Civil Court Debt Collection part in the Bronx, it used volunteers to “provide services free of charge” to help litigants “sort through the many papers and documents they may have,” provide litigants with information about available court services (including interpreters), “accompany [litigants] into the courtroom” and take notes of the proceedings. Id. The Navigators, all volunteers, also assist litigants in filling out forms; accompany litigants while they are before the judge, but without speaking directly to the court (unless asked by the court to do so); provide litigants with notes or reminders about issues they wanted to raise (which pro se litigants often forget under the pressure of standing before a judge); and explain to litigants in common English what occurred during the proceeding. Nav. Rep. Exec. Summary.
There are three Navigator programs in Brooklyn Housing Court. Housing Court Answers (HCA), an information and advocacy program, sets up tables in the Housing Court two days each week to help litigants, and screen them for the more comprehensive US Navigator program, described below. Nav. Rep. at 2. Working only on non-payment cases (not holdover proceedings), and only with tenants in rent-stabilized apartments, HCA assists litigants meeting these criteria to complete the “DIY (Do It Yourself) Answer” form approved by the Uniform Court System (UCS) Access to Justice Program, and obtain a court date. Id. at 3. The HCA Navigators do not accompany litigants into the courtroom, and there is no follow-up by the Navigators. Id. In the first six months of the program, HCA Navigators screened 2,368 litigants, assisted 329 unrepresented litigants, and referred 91 litigants to the US Navigator program. Id.
The separate University Settlement (US) Navigator program is administered by University Settlement House in Manhattan. Nav. Rep. at 3. It takes on “more complex” cases, which typically involve litigants who owe significant rent arrears, do not communicate well in English, have educational disadvantages, or otherwise need referrals for social services. Id. at 4. The US Navigators are social workers employed by US, and are supervised by a program supervisor. It is unclear from the report what training they receive, but based on judicial commentary, they “stay with litigants through the entire Housing Court process and provide the most comprehensive case assistance in the three Navigator programs.” Id. at 4. They do not provide legal advice, but accompany the litigant before the judge, answer direct factual questions if a judge asks them to, and provide necessary social services. [Id.] They assisted 91 litigants in the first six months of the program, and received by far the most favorable reviews from both litigants involved in, and judges overseeing, the program. Id. at 10.
The third Housing Court Navigator program, launched in 2014 in Kings County, was supervised by the UCS’s Access to Justice (A2J) Program. (A similar program was also started in a Consumer Debt Part in Bronx Civil Court.) In this program, UCS “employees train college students and other approved volunteers to improve unrepresented litigants’ court experience.” Nav. Rep. at 4. While they are permitted to help a broader group of litigants than the US Navigators (e.g., non-payment cases), they provide a more limited scope of services. For example, there are no social services referrals. But just like the US Navigators, in addition to helping litigants to fill out the DIY Answer, A2J Navigators also accompany them to, but do not participate in, court conferences, “hallway settlement negotiations,” and court appearances. Id. at 5. The A2J Navigators receive just two-and-a-half hours of training in the form of a seminar, and then volunteer to work 30 hours over the course of a semester. These Navigators appear in a specific courtroom, where the clerks make their availability known to the litigants appearing that day, and provide a sign-up sheet for those wanting the Navigators’ help. Id. at 5. Perhaps not surprisingly, while judges and litigants found A2J Navigators helpful at times, their relative youth and inexperience compared to US Navigators showed, and the evaluations reflect it. Id. at 9–10.]Nevertheless, the A2J Navigator Program has since been expanded to Manhattan, Queens, and the Bronx.
Navigator Programs and Unauthorized Practice of Law
Are Housing Court and Consumer Debt Navigators engaged in the Unauthorized Practice of Law (UPL)? On a practical level, the answer is no: New York courts are unlikely to find UPL is taking place in a UCS-sponsored program, especially if the supervisory mandates of those programs are followed and the Navigators stick to their limited roles. See, e.g., In re Collie W., 309 A.D.2d 611, 611–12 (1st Dept. 2003), lv. app. denied, 1 N.Y.3d 506 (2004) (finding an unadmitted law school graduate permitted to act as Assistant Corporation Counsel in Family Court proceeding under court approved program); Matter of Chemung County Neighborhood Legal Services, Inc., 42 A.D.2d 1016, 1016 (1973) (holding third-year law students and unadmitted law school graduates permitted to practice under supervision pursuant to court order).
But UCS also must follow the law, and New York’s UPL statutes are complex and confusing. The principal UPL statute, N.Y. Judiciary Law §478, makes it unlawful “for any natural person to practice or appear as an attorney-at-law … for a person other than himself in a court of record in this state, or to furnish attorneys or counsel or an attorney and counsel to render legal services, or to hold himself out to the public as being entitled to practice law as aforesaid … without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state. …” This provision is circular, and does not define “the practice of law” specifically, other than as appearing in court.
Another provision, N.Y. Judiciary Law §484, is a bit more specific, as it expands law practice to include such non-litigation tasks as “preparing deeds, mortgages, assignments, discharges, leases or any other instruments affecting real estate, wills, codicils, or any other instrument affecting the disposition of property after death, or decedents’ death, or any other pleadings. …” These statutes have been construed strictly. See e.g., In re Tomlinson, 343 B.R. 400, 405–07 (E.D.N.Y. 2006) (finding bankruptcy petition preparer engaged in UPL by taking information provided by customer in a prepared notebook and using it to complete forms); Parkchester Preserv. Co., LP v. Feldeine, 31 Misc. 3d 859, 863–66 (Civ. Ct. 2011) (holding non-lawyer subtenant may not appear on behalf of tenant in holdover proceeding, even with tenant’s power of attorney).
In the end, while the borders of UPL are sometimes hard to discern, UCS presumably believes that the Navigator Program does not cross them, as all decisions and judgments with respect to each litigant’s case are made by the litigant. The Navigator acts as guide and explicator, but it is ultimately the litigant who argues his or her own case, and decides on what defenses to invoke. But one fact, much touted in the Navigator Report, gives us some pause: “Respondents who received assistance from a Navigator raised a total of 205 defenses (averaging more than 4 per case), while in the unassisted 50 cases there were a total of 60 defenses (or an average of 1.3 per cases).” Nav. Rep., Exec. Summary at ii. Moreover, the defenses raised by Navigator-assisted litigants are much more detailed and specific than those raised by unassisted litigants. Id. These findings suggest that the Navigators may be exercising some level of legal skill and judgment. Still, as long as the Navigators do not speak in court, and remain under the supervision of UCS or US, it is wise to heed the words of the judge who stated, during the evaluation process, “that the Navigator program should be considered a ‘necessary’ program that should be expanded.” Id.
Housing Court Advocates
The success of the limited-scope Navigator programs has prompted UCS to seek to expand the role of non-lawyers to cover a broader array of services and a broader scope of cases. The UCS concluded this required a new statute, Article 22-A of the Judiciary Law, to create Housing Court Advocates and Consumer Court Advocates programs, as well as amending N.Y. Judiciary Law §478 to permit it. The proposed new statute — New York’s effort to emulate programs in Washington state and Canada to allow licensed non-lawyer professionals to help impecunious litigants — has been circulated and has already garnered support from several Bar groups, particularly the NYSBA House of Delegates. As of this writing, however, it has not yet been introduced in the legislature.
Under the proposed statute, the “judiciary shall implement and oversee” a program for the “free provision of certain services to unrepresented persons living at or below [200%] of the federal poverty level” appearing in Civil Court debt collection and certain Housing Court cases. See, Legislative Bill Drafting Comm. 09073-01-5 (Proposed N.Y. Jud. Law §855). These services “shall be provided by specially trained non-lawyers (certified as housing court advocates or consumer court advocates …) under the supervision of attorneys-at-law” admitted to practice in New York “in the employ of not-for-profit service providers … approved by the chief administrator of the courts.” Id. As with the Navigators, the services would be limited to certain Housing Court and consumer debt proceedings.
Housing Advocates would be allowed to provide the same services as Navigators, but also much more. They could: Provide “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,” or enforce or amend a stipulation; “negotiate with a party or his or her counsel or representative the terms of any stipulation or order to be entered into;” and — here’s the real kicker — “address the Court on behalf of any such person.” Id. Proposed N.Y. Jud. Law §858(2).
The fact sheet accompanying the bill is careful to note that Housing Court Advocates “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 other fashion, and any acts they do perform would have to be supervised by a lawyer.
This author’s attendance at Bar association meetings about the Housing Advocates proposal reveals three major objections. First, some argue that by using Housing Advocates, litigants surrender the various accommodations judges traditionally grant to pro-se litigants, meaning that pro-se litigants are better off without these minimally-trained Advocates. But this “nothing is better than something” approach ignores the positive results produced in the Navigator program, and perpetuates an untenable situation where poor, uneducated, and often non-English-speaking litigants square off unassisted against represented adversaries in court proceedings where they risk the loss of their homes or financial resources. Expecting judges to lean over backwards to level the playing field is unrealistic, and distorts the judge’s role as a neutral party in the adversary process.
Second, and on the other end of the political spectrum, are those who say that the Housing Advocates program will interfere with and delay the long-sought goal of a “civil Gideon” program, one where each poor litigant in civil court would be entitled to a lawyer. Such a program has already been the subject of a resolution, Int.-0214, before the NYC Council, and that resolution has received the support of the New York City Bar Association. See, e.g., Written Testimony on behalf of Debra Raskin, President, New York City Bar Assn., 4/15/15 at 2. But the limitations on public resources in general — and those for court services in particular — make civil Gideon more a dream than a near-term possibility. And with the current need so pressing, to give up on a program that will provide immediate help, and is more politically palatable, seems impractical and even callous.
Third, there are practical concerns. Which legal services agencies will implement the program? How will it be paid for? Will advocates be paid or volunteers? Who will train them, and how much training will they receive? Are non-lawyers really equipped to step into the judicial arena and help people in such dire circumstances? The proposed statute does not answer these questions, but it does put in place a 14-person advisory board to oversee the program and evaluate the proposals by not-for-profits wishing to participate. The simple fact remains: The justice gap is too big to ignore. Unless the legal profession finds a way to fill that gap on its own — and there is no indication that will happen, not without vast infusions of public money — a more creative solution is needed. The Housing Advocates proposal, with all its uncertainties, provides real hope.
Jacoby & Meyers Lawsuit
The Navigator and Advocates programs have another limitation: They only help poor people. What about non-indigent working class clients, who also have unmet legal needs and difficulty affording a lawyer? See, NYSBA Report on the Task Force on Nonlawyer Ownership, 11/17/2012. Other common-law jurisdictions, such as England, Australia, and New Zealand, have in recent years allowed law firms to raise funds in the public markets to help develop law firms that will serve these clients. But in the U.S., non-lawyer ownership of a law firm remains prohibited by N.Y. Rule 5.4, which states: “[a] lawyer or law firm shall not share legal fees with a nonlawyer,” and “a lawyer shall not practice with or in the form of an entity authorized to practice law for profit, if … a nonlawyer owns any interest therein.” (The New York version is virtually identical to that in every U.S. jurisdiction except Washington and the District of Columbia, which allows at least some non-lawyers to be owners of law firms). Moreover, N.Y. Judiciary Law §495 prohibits a corporation other than a professional corporation from practicing law — a prohibition, originally codified as N.Y. Penal Law §280, has been on the books in New York for more than 100 years. See N.Y. Judiciary Law §495 (McKinney).
There is certainly a degree of economic self-protection behind N.Y. Rule 5.4. As David Udell, then-Executive Director of the National Center for Access to Justice at Cardozo School of Law, suggested, corporations like Walmart, if allowed to hire lawyers as employees who could service customer/clients, could probably offer cheaper legal services to economically depressed populations. See NYSBA Report on the Task Force on Nonlawyer Ownership, A-16, 2012. But the organized Bar remains resistant to this argument, having repeatedly rejected attempts over the past 15 years to implement various forms of non-lawyer ownership of law firms. The concern is that non-lawyers with equity interests in law firms could apply pressure on lawyers to generate better economic returns, thus limiting the lawyer’s professional judgment and/or abandoning principles of legal ethics in favor of profits. See, NYSBA Special Committee on the Law Governing Firm Structure and Operation, Preserving the Core Values of the Profession: The Place of Multidisciplinary Practice in the Law Governing Lawyers, 379, 2012.
Jacoby & Meyers (J&M), a national law firm long known for servicing middle and working class clients, entered this debate with a bang in 2011. Wishing to raise money in the public markets to expand its business, it sued the Presiding Justices of the various Appellate Divisions, among others, claiming that N.Y. Rule 5.4(a)’s proscription is unconstitutional, violates the firm’s First Amendment rights to free speech and free association, violates the Fourteenth Amendment right to equal protection, and violates the Commerce Clause. Jacoby & Meyers LLP v. The Presiding Justices, 11 Civ. 3387 LAK, 2015 WL 4279720, at *5 (S.D.N.Y. July 15, 2015). U.S. District Judge Lewis Kaplan initially dismissed the case because J&M lacked standing, holding that the challenge was meaningless inasmuch as the firm failed to challenge the constitutionality of other New York statutes prohibiting non-lawyer ownership. Id. at 1–4. On appeal, J&M announced its willingness to amend its complaint to challenge the other statutes, and the Second Circuit, after rejecting the standing argument, remanded the case for that purpose. See 488 F. Appx. 526, 527 (2d Cir. 11/21/2012) (amended summary order filed 1/9/2013).
After J&M amended its complaint to encompass all relevant statutes, the defendants moved to dismiss for failure to state a claim. Jacoby & Meyers LLP, 2015 WL 4279720, at *4. Judge Kaplan granted the motion, dismissing each and every one of J&M’s constitutional claims. [Id. at 6–13.] As to the First Amendment claim, Judge Kaplan declared, “at worst, [this case] makes a mockery of the First Amendment” because it does not involve speech. Id. at 6, “The transaction that J&M proposes to undertake — that is, its plan to accept non-lawyer equity investment — is not speech at all.” “What J&M wants,” the Court went on, “is to engage freely with non-lawyers in conventional commercial conduct — conduct that ‘manifests absolutely no element of protected expression.’” Id. at 7, citation omitted. Moreover, because there were no ideas expressed in seeking non-lawyer investors, the firm’s freedom of association is not implicated. Id. at 9, “J&M — like other law firms — propose[s] to engage primarily in non-expressive commercial association undeserving of constitutional protection.”
Judge Kaplan tossed aside the Commerce Clause challenge, noting that New York’s laws against non-lawyer ownership of law firms are similar to those in virtually every other state, and thus J&M cannot show “that the burden those laws impose on interstate commerce is ‘clearly excessive’ relative to the benefits they have for New York.” Id. at 11, citation omitted. Finally, the due process challenge failed because the “fundamental right” supposedly being violated — the right of access to the courts — is not implicated: “The right of access to the courts inheres in individuals and entities seeking relief or defending themselves as litigants, not in law firms like J&M in their capacities as legal representatives.” Id. at 12.
There is little to object to in Judge Kaplan’s constitutional argument. He certainly is right that whether law firms should be owned in whole or in part by non-lawyers is a public policy issue, not a constitutional one. But what is significant about his opinion for our purposes is his uncritical acceptance of the notion that the prohibition on non-lawyer ownership “serve[s] New York’s ‘extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses.’” Id. at 5, citation omitted. Indeed, he repeats over and over again that the current rule is “‘rationally related to a legitimate state interest,’” Id. at 12, 13, even calling this “indisputable,” Id. at 8, without ever explaining why this is so, or why this can be determined on a motion to dismiss.
Assuming the veracity of his own conclusions, Judge Kaplan states that “New York legislators were entitled to conclude that laws like these would yield important benefits for the citizens of that state. They arguably ‘promote the independence of lawyers by preventing non-lawyers from controlling how lawyers practice law,’ and by, among other things, ‘attempt[ing] to minimize the number of situations in which lawyers will be motivated by economic incentives rather than their client’s best interests.’” Id. at 11, (emphasis added), citation omitted. Judge Kaplan fails to cite any facts in support of this contention, and too quickly dismisses the British and Australians’ experience to the contrary. Id. at 8.
Judge Kaplan, in fact, sees no public benefit at all to J&M’s attempt to expand its operations. As he acidly states:
J&M has no members. It is not an advocacy organization. It is a law firm with paying clients. Whether or not J&M receives a financial boost from non-lawyer equity investors will have no constitutionally problematic impact on the public’s right of access to courts. If anything, of course, laws that forbid lawyers from entering into financial arrangements with non-lawyers protect the public [for the reasons stated above]. Id. at 10 (emphasis in bold in original; emphasis in italics added).
Judge Kaplan’s opinion not only belittles the role private law firms play in providing legal services to the public, but it shows a troubling attitude towards non-lawyer ownership of law firms — an attitude all too typical of the organized Bar, which has resisted change in this area for decades. Although its lawsuit was poorly conceived, J&M has raised an important question: If the legal needs of working class and middle class people are not being met by lawyers — and the rise of services such as LegalZoom is evidence of that — then why not try other legal models? If England and Australia allow this, and their legal pillars have not crumbled, don’t we owe it to the public to at least give this experiment a chance?
In this instance, the efforts of UCS to help underserved indigent litigants by promoting the Navigator and Advocate programs shows that our profession is capable of reacting to the “justice gap” crisis, however tentatively. If our “commitment” as professionals “includes taking personal and professional measures to increase the availability of legal services,” we have to explore all alternatives or risk forcing large swaths of our society to use other options to resolve their legal problems (e.g., legal form services, religious courts, self-help, etc.).” …In the Spirit of Public Service: A Blueprint for the Rekindling of Lawyer Professionalism, (1986) (emphasis added). We must maintain a close watch on what is happening in England and Australia, and remain willing to consider other business models that can satisfy unmet legal needs while fulfilling professional obligations. We must, in short, keep an open mind. We owe the profession and the public no less.
Ronald C. Minkoff is co-Managing Editor of the New York Legal Ethics Reporter and the Head of the Professional Responsibility Group at Frankfurt Kurnit Klein & Selz, P.C He thanks David E. White Jr., Harvard Law School, J.D., 2017, for his assistance with this article.
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