STATE OF NEW YORK ________________________________________________________________________ 3306 2021-2022 Regular Sessions IN ASSEMBLY January 22, 2021 ___________ Introduced by M. of A. EPSTEIN, FRONTUS, CRUZ, ENGLEBRIGHT -- Multi- Sponsored by -- M. of A. CAHILL -- read once and referred to the Committee on Judiciary AN ACT to amend the county law and the real property actions and proceedings law, in relation to providing representation to veterans for certain civil matters The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The county law is amended by adding a new article 18-C to 2 read as follows: 3 ARTICLE 18-C 4 REPRESENTATION OF VETERANS IN CIVIL MATTERS 5 Section 723. Lead agency for civil right to counsel. 6 723-a. Compensation and reimbursement. 7 § 723. Lead agency for civil right to counsel. 1. Representation in 8 civil matters shall be provided to veterans, regardless of discharge 9 status, who are at or below four hundred percent of the federal poverty 10 guidelines. For the purposes of this article, such representation shall 11 include, but not be limited to: 12 a. real property proceedings including sections seven hundred eleven, 13 seven hundred thirteen, seven hundred thirteen-a, five hundred one, one 14 thousand ninety-three, thirteen hundred three and article thirteen of 15 the real property actions and proceedings law; 16 b. cases involving sustenance including sections one hundred ninety- 17 six-a, five hundred thirty-eight, six hundred twenty, six hundred twen- 18 ty-one, six hundred twenty-four, six hundred sixty-three and six hundred 19 eighty-one of the labor law, section twenty-two of the social services 20 law and rule three hundred five and article seventy-eight of the civil 21 practice law and rules; and 22 c. cases involving children including article four of the family court 23 act. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02153-01-1A. 3306 2 1 2. Such representation shall be a partnership between the courts and 2 all qualified legal services providers, bar associations and private 3 organizations. The legal services providers shall serve as the lead 4 agency for case assessment and direction under this article and further- 5 more shall: 6 a. be the central point of contact for receipt of referrals for legal 7 representation; 8 b. make determinations of eligibility based on uniform criteria; 9 c. be responsible for providing representation to the clients or 10 referring the matter to one of the organizations or individual providers 11 with whom the lead legal services agency contracts to provide the 12 service; and 13 d. to the extent practical, identify and make use of pro bono services 14 in order to maximize available services efficiently and economically. 15 3. The court partner shall, as a corollary to the services provided by 16 the lead legal services agency, be responsible for providing procedures, 17 personnel, training, and case management and administration practices 18 that reflect best practices to ensure meaningful access to justice and 19 to guard against the involuntary waiver of rights, consistent with prin- 20 ciples of judicial neutrality. 21 4. The participating legal services agency shall be selected by the 22 judicial council. 23 a. The judicial council shall be made up of one administrative judge 24 from each judicial district. There shall be at least one legal services 25 agency chosen for each judicial district. 26 b. The judicial council shall assess the applicants' capacity for 27 success, innovation, and efficiency, including, but not limited to, the 28 likelihood that the agency would deliver quality representation in an 29 effective manner that would meet critical needs in the community and 30 address the needs of the court with regard to access to justice and 31 calendar management, and the unique local unmet needs for representation 32 in the community. 33 c. Agencies approved pursuant to this section shall initially be 34 authorized for a three-year period, commencing on the effective date of 35 this section and subject to renewal for a period to be determined by the 36 judicial council, in consultation with the participating agency in light 37 of the agency's capacity and success. After the initial three-year peri- 38 od, the judicial council shall distribute any future funds available as 39 the result of the termination or nonrenewal of an agency pursuant to the 40 process set forth in this subdivision. 41 d. Agencies shall be selected on the basis of whether, in the cases 42 proposed for service, the persons to be assisted are likely to be 43 opposed by a party who is represented by counsel. The judicial council 44 shall also consider the following factors in selecting the agencies: 45 (i) the likelihood that representation in the proposed case type tends 46 to affect whether a party prevails or otherwise obtains a significantly 47 more favorable outcome in a matter in which they would otherwise 48 frequently have judgment entered against them or suffer the deprivation 49 of the basic human need at issue; 50 (ii) the likelihood of reducing the risk of erroneous decisions; 51 (iii) the nature and severity of potential consequences for the unrep- 52 resented party regarding the basic human need at stake if representation 53 is not provided; 54 (iv) whether the provision of legal services may eliminate or reduce 55 the potential need for and cost of public social services regarding theA. 3306 3 1 basic human need at stake for the client and others in the client's 2 household; 3 (v) the unmet need for legal services in the geographic area to be 4 served; and 5 (vi) the availability and effectiveness of other types of court 6 services, such as self-help. 7 e. Each applicant shall do the following: 8 (i) identify the nature of the partnership between the court and the 9 other agencies or other providers that would work within the project; 10 (ii) describe the referral protocols to be used, the criteria that 11 would be employed in case assessment, why those cases were selected, the 12 manner to address conflicts without violating any attorney-client privi- 13 lege when adverse parties are seeking representation through the 14 project, and the means for serving potential clients who need language 15 assistance within the court system; and 16 (iii) describe how the project would be administered, including how 17 the data collection requirements would be met without causing an undue 18 burden on the courts, clients, or the providers, the particular objec- 19 tives of the project, strategies to evaluate their success in meeting 20 those objectives, and the means by which the project would serve the 21 particular needs of the community, such as by providing representation 22 to limited-English-speaking clients, the elderly and the disabled. 23 5. To ensure the most effective use of the funding available, the lead 24 legal services agency shall serve as a hub for all referrals, and the 25 point at which decisions are made about which referrals will be served 26 and by whom. Referrals shall emanate from the court, as well as from the 27 other agencies providing services through the program and shall be 28 directed to the lead legal services agency for review. That agency, or 29 another agency or attorney in the event of conflict, shall collect the 30 information necessary to assess whether the case should be served. In 31 performing that case assessment, the agency shall determine the relative 32 need for representation of the litigant, including all of the following: 33 a. case complexity; 34 b. whether the opposing party is represented; 35 c. the adversarial nature of the proceeding; 36 d. the availability and effectiveness of other types of services, such 37 as self-help, in light of the potential client and the nature of the 38 case; 39 e. barriers to access due to language; 40 f. barriers to access due to disability; 41 g. barriers to access due to literacy; 42 h. the merits of the case; 43 i. the nature and severity of potential consequences for the potential 44 client if representation is not provided; and 45 j. whether the provision of legal services may eliminate or reduce the 46 need for and cost of public social services for the potential client and 47 others in the potential client's household. 48 6. The decision and level of representation should be made at the sole 49 discretion of the lead agency, organization, or attorney based on the 50 factors set forth above. 51 7. If both parties to a dispute are financially eligible for represen- 52 tation, each proposal shall ensure that representation for both sides is 53 evaluated. In these and other cases in which conflict issues arise, the 54 lead legal services agency shall have referral protocols with other 55 agencies and providers, such as a private attorney panel, to address 56 those conflicts.A. 3306 4 1 8. Each lead agency, organization, or attorney shall be responsible 2 for keeping records on the referrals accepted and those not accepted for 3 representation, and the reasons for each, in a manner that does not 4 violate any privileged communications between the agency and the 5 prospective client. Each lead agency, organization or attorney shall be 6 provided with standardized data collection tools to be determined by the 7 judicial council, and required to track case information for each refer- 8 ral to allow the evaluation to measure the number of cases served, the 9 level of service required, and the outcomes for the clients in each 10 case. In addition to this information on the effect of the represen- 11 tation on the clients, data shall be collected regarding the outcomes 12 for the trial courts. This data shall be compiled in a report to be 13 submitted to the judicial council on a quarterly basis. 14 § 723-a. Compensation and reimbursement. 1. Compensation for legal 15 services providers shall be based upon deliverables as described in the 16 contracts with those providers. Compensation for all counsel assigned 17 in accordance with a plan of the court, other organization, or a bar 18 association conforming to the requirements of this article whereby the 19 services of private counsel are rotated and coordinated by an adminis- 20 trator shall at the conclusion of the representation receive: 21 a. for real property proceedings no less than fifty dollars per hour; 22 b. for cases involving sustenance no less than sixty dollars per hour; 23 and 24 c. for cases involving children no less than sixty dollars per hour. 25 2. For all representation, compensation and reimbursement shall 26 include reimbursement for reasonably incurred expenses. 27 3. Compensation for representation in such cases shall be guided by 28 the minimum amounts set forth above. The compensation minimums are set 29 for counsel only, not support or administrative staff work. Work for 30 support or administrative staff should be set by individual counsel, 31 firm, or organization and should be set at a lower rate than compen- 32 sation for counsel. 33 4. There shall be no differential in compensation rate for out of 34 court time expended and in court time expended. Rates should be set at 35 the minimum stated above or higher based on the complexity of the case 36 and expertise of the attorney. Such rates shall be subject to the 37 approval of the court of jurisdiction based on the complexity of the 38 case, expertise of the attorney, the market, and any other factors the 39 court deems just and appropriate. 40 5. There should be no cap on the amount of compensation or reimburse- 41 ment received for representation. The amount of compensation and 42 reimbursement is subject to court approval as described above. 43 6. Compensation and reimbursement for appeal shall be fixed by the 44 appellate court not to be below the rates set forth in this section. 45 7. In extraordinary circumstances a trial or appellate court may 46 provide for payment of compensation and reimbursement for expenses 47 before the completion of the representation upon application. 48 § 2. The opening paragraph of section 722 of the county law, as 49 amended by chapter 7 of the laws of 2007, is amended to read as follows: 50 The governing body of each county and the governing body of the city 51 in which a county is wholly contained shall place in operation through- 52 out the county a plan for providing counsel to persons charged with a 53 crime or who are entitled to counsel pursuant to article eighteen-C of 54 this chapter, section two hundred sixty-two or section eleven hundred 55 twenty of the family court act, article six-C of the correction law, 56 section four hundred seven of the surrogate's court procedure act orA. 3306 5 1 article ten of the mental hygiene law, who are financially unable to 2 obtain counsel. Each plan shall also provide for investigative, expert 3 and other services necessary for an adequate defense. The plan shall 4 conform to one of the following: 5 § 3. Subdivision 3 of section 1303 of the real property actions and 6 proceedings law, as amended by section 5 of part Q of chapter 73 of the 7 laws of 2016, is amended to read as follows: 8 3. The notice to any mortgagor required by paragraph (a) of subdivi- 9 sion one of this section shall appear as follows: 10 Help for Homeowners in Foreclosure 11 New York State Law requires that we send you this notice about the 12 foreclosure process. Please read it carefully. 13 Summons and Complaint 14 You are in danger of losing your home. If you fail to respond to the 15 summons and complaint in this foreclosure action, you may lose your 16 home. Please read the summons and complaint carefully. You should imme- 17 diately contact an attorney or your local legal aid office to obtain 18 advice on how to protect yourself. 19 Sources of Information and Assistance 20 The State encourages you to become informed about your options in 21 foreclosure. In addition to seeking assistance from an attorney or legal 22 aid office, there are government agencies and non-profit organizations 23 that you may contact for information about possible options, including 24 trying to work with your lender during this process. You may be entitled 25 to assigned counsel if you are a veteran who is financially unable to 26 obtain representation. 27 To locate an entity near you, you may call the toll-free helpline 28 maintained by the New York State Department of Financial Services at 29 (enter number) or visit the Department's website at (enter web address). 30 Rights and Obligations 31 YOU ARE NOT REQUIRED TO LEAVE YOUR HOME AT THIS TIME. You have the right 32 to stay in your home during the foreclosure process. You are not 33 required to leave your home unless and until your property is sold at 34 auction pursuant to a judgment of foreclosure and sale. 35 Regardless of whether you choose to remain in your home, YOU ARE 36 REQUIRED TO TAKE CARE OF YOUR PROPERTY and pay property taxes in accord- 37 ance with state and local law. 38 Foreclosure rescue scams 39 Be careful of people who approach you with offers to "save" your home. 40 There are individuals who watch for notices of foreclosure actions in 41 order to unfairly profit from a homeowner's distress. You should be 42 extremely careful about any such promises and any suggestions that you 43 pay them a fee or sign over your deed. State law requires anyone offer- 44 ing such services for profit to enter into a contract which fully 45 describes the services they will perform and fees they will charge, and 46 which prohibits them from taking any money from you until they have 47 completed all such promised services. 48 § 4. This act shall take effect immediately.