Bill Text: NY S09045 | 2019-2020 | General Assembly | Introduced


Bill Title: Provides representation to veterans that are at or below four hundred percent of the federal poverty guidelines for matters involving children, sustenance and real property proceedings.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2020-10-13 - REFERRED TO RULES [S09045 Detail]

Download: New_York-2019-S09045-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          9045

                    IN SENATE

                                    October 13, 2020
                                       ___________

        Introduced  by  Sen.  BROOKS -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules

        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.
    24    2.  Such  representation shall be a partnership between the courts and
    25  all qualified legal services providers,  bar  associations  and  private
    26  organizations.    The  legal  services providers shall serve as the lead

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14740-03-0

        S. 9045                             2

     1  agency for case assessment and direction under this article and further-
     2  more shall:
     3    a.  be the central point of contact for receipt of referrals for legal
     4  representation;
     5    b. make determinations of eligibility based on uniform criteria;
     6    c. be responsible for  providing  representation  to  the  clients  or
     7  referring the matter to one of the organizations or individual providers
     8  with  whom  the  lead  legal  services  agency  contracts to provide the
     9  service; and
    10    d. to the extent practical, identify and make use of pro bono services
    11  in order to maximize available services efficiently and economically.
    12    3. The court partner shall, as a corollary to the services provided by
    13  the lead legal services agency, be responsible for providing procedures,
    14  personnel, training, and case management  and  administration  practices
    15  that  reflect  best practices to ensure meaningful access to justice and
    16  to guard against the involuntary waiver of rights, consistent with prin-
    17  ciples of judicial neutrality.
    18    4. The participating legal services agency shall be  selected  by  the
    19  judicial council.
    20    a.  The  judicial council shall be made up of one administrative judge
    21  from each judicial district. There shall be at least one legal  services
    22  agency chosen for each judicial district.
    23    b.  The  judicial  council  shall  assess the applicants' capacity for
    24  success, innovation, and efficiency, including, but not limited to,  the
    25  likelihood  that  the  agency would deliver quality representation in an
    26  effective manner that would meet critical needs  in  the  community  and
    27  address  the  needs  of  the  court with regard to access to justice and
    28  calendar management, and the unique local unmet needs for representation
    29  in the community.
    30    c. Agencies approved pursuant  to  this  section  shall  initially  be
    31  authorized  for a three-year period, commencing on the effective date of
    32  this section and subject to renewal for a period to be determined by the
    33  judicial council, in consultation with the participating agency in light
    34  of the agency's capacity and success. After the initial three-year peri-
    35  od, the judicial council shall distribute any future funds available  as
    36  the result of the termination or nonrenewal of an agency pursuant to the
    37  process set forth in this subdivision.
    38    d.  Agencies  shall  be selected on the basis of whether, in the cases
    39  proposed for service, the persons  to  be  assisted  are  likely  to  be
    40  opposed  by  a party who is represented by counsel. The judicial council
    41  shall also consider the following factors in selecting the agencies:
    42    (i) the likelihood that representation in the proposed case type tends
    43  to affect whether a party prevails or otherwise obtains a  significantly
    44  more  favorable  outcome  in  a  matter  in  which  they would otherwise
    45  frequently have judgment entered against them or suffer the  deprivation
    46  of the basic human need at issue;
    47    (ii) the likelihood of reducing the risk of erroneous decisions;
    48    (iii) the nature and severity of potential consequences for the unrep-
    49  resented party regarding the basic human need at stake if representation
    50  is not provided;
    51    (iv)  whether  the provision of legal services may eliminate or reduce
    52  the potential need for and cost of public social services regarding  the
    53  basic  human  need  at  stake  for the client and others in the client's
    54  household;
    55    (v) the unmet need for legal services in the  geographic  area  to  be
    56  served; and

        S. 9045                             3

     1    (vi)  the  availability  and  effectiveness  of  other  types of court
     2  services, such as self-help.
     3    e. Each applicant shall do the following:
     4    (i)  identify  the nature of the partnership between the court and the
     5  other agencies or other providers that would work within the project;
     6    (ii) describe the referral protocols to be  used,  the  criteria  that
     7  would be employed in case assessment, why those cases were selected, the
     8  manner to address conflicts without violating any attorney-client privi-
     9  lege  when  adverse  parties  are  seeking  representation  through  the
    10  project, and the means for serving potential clients who  need  language
    11  assistance within the court system; and
    12    (iii)  describe  how  the project would be administered, including how
    13  the data collection requirements would be met without causing  an  undue
    14  burden  on  the courts, clients, or the providers, the particular objec-
    15  tives of the project, strategies to evaluate their  success  in  meeting
    16  those  objectives,  and  the  means by which the project would serve the
    17  particular needs of the community, such as by  providing  representation
    18  to limited-English-speaking clients, the elderly and the disabled.
    19    5. To ensure the most effective use of the funding available, the lead
    20  legal  services  agency  shall serve as a hub for all referrals, and the
    21  point at which decisions are made about which referrals will  be  served
    22  and by whom. Referrals shall emanate from the court, as well as from the
    23  other  agencies  providing  services  through  the  program and shall be
    24  directed to the lead legal services agency for review. That  agency,  or
    25  another  agency  or attorney in the event of conflict, shall collect the
    26  information necessary to assess whether the case should  be  served.  In
    27  performing that case assessment, the agency shall determine the relative
    28  need for representation of the litigant, including all of the following:
    29    a. case complexity;
    30    b. whether the opposing party is represented;
    31    c. the adversarial nature of the proceeding;
    32    d. the availability and effectiveness of other types of services, such
    33  as  self-help,  in  light  of the potential client and the nature of the
    34  case;
    35    e. barriers to access due to language;
    36    f. barriers to access due to disability;
    37    g. barriers to access due to literacy;
    38    h. the merits of the case;
    39    i. the nature and severity of potential consequences for the potential
    40  client if representation is not provided; and
    41    j. whether the provision of legal services may eliminate or reduce the
    42  need for and cost of public social services for the potential client and
    43  others in the potential client's household.
    44    6. The decision and level of representation should be made at the sole
    45  discretion of the lead agency, organization, or attorney  based  on  the
    46  factors set forth above.
    47    7. If both parties to a dispute are financially eligible for represen-
    48  tation, each proposal shall ensure that representation for both sides is
    49  evaluated.  In these and other cases in which conflict issues arise, the
    50  lead  legal  services  agency  shall  have referral protocols with other
    51  agencies and providers, such as a private  attorney  panel,  to  address
    52  those conflicts.
    53    8.  Each  lead  agency, organization, or attorney shall be responsible
    54  for keeping records on the referrals accepted and those not accepted for
    55  representation, and the reasons for each, in  a  manner  that  does  not
    56  violate  any  privileged  communications  between  the  agency  and  the

        S. 9045                             4

     1  prospective client. Each lead agency, organization or attorney shall  be
     2  provided with standardized data collection tools to be determined by the
     3  judicial council, and required to track case information for each refer-
     4  ral  to  allow the evaluation to measure the number of cases served, the
     5  level of service required, and the outcomes  for  the  clients  in  each
     6  case.  In  addition  to  this information on the effect of the represen-
     7  tation on the clients, data shall be collected  regarding  the  outcomes
     8  for  the  trial  courts.   This data shall be compiled in a report to be
     9  submitted to the judicial council on a quarterly basis.
    10    § 723-a. Compensation and reimbursement. 1.   Compensation  for  legal
    11  services  providers shall be based upon deliverables as described in the
    12  contracts with those providers.  Compensation for all  counsel  assigned
    13  in  accordance  with  a  plan of the court, other organization, or a bar
    14  association conforming to the requirements of this article  whereby  the
    15  services  of  private counsel are rotated and coordinated by an adminis-
    16  trator shall at the conclusion of the representation receive:
    17    a. for real property proceedings no less than fifty dollars per hour;
    18    b. for cases involving sustenance no less than sixty dollars per hour;
    19  and
    20    c. for cases involving children no less than sixty dollars per hour.
    21    2.  For  all  representation,  compensation  and  reimbursement  shall
    22  include reimbursement for reasonably incurred expenses.
    23    3.  Compensation  for  representation in such cases shall be guided by
    24  the minimum amounts set forth above. The compensation minimums  are  set
    25  for  counsel  only,  not  support or administrative staff work. Work for
    26  support or administrative staff should be  set  by  individual  counsel,
    27  firm,  or  organization  and  should be set at a lower rate than compen-
    28  sation for counsel.
    29    4. There shall be no differential in  compensation  rate  for  out  of
    30  court  time  expended and in court time expended. Rates should be set at
    31  the minimum stated above or higher based on the complexity of  the  case
    32  and  expertise  of  the  attorney.    Such rates shall be subject to the
    33  approval of the court of jurisdiction based on  the  complexity  of  the
    34  case,  expertise  of the attorney, the market, and any other factors the
    35  court deems just and appropriate.
    36    5. There should be no cap on the amount of compensation or  reimburse-
    37  ment  received  for  representation.  The  amount  of  compensation  and
    38  reimbursement is subject to court approval as described above.
    39    6. Compensation and reimbursement for appeal shall  be  fixed  by  the
    40  appellate court not to be below the rates set forth in this section.
    41    7.  In  extraordinary  circumstances  a  trial  or appellate court may
    42  provide for payment  of  compensation  and  reimbursement  for  expenses
    43  before the completion of the representation upon application.
    44    §  2.  The  opening  paragraph  of  section  722 of the county law, as
    45  amended by chapter 7 of the laws of 2007, is amended to read as follows:
    46    The governing body of each county and the governing body of  the  city
    47  in  which a county is wholly contained shall place in operation through-
    48  out the county a plan for providing counsel to persons  charged  with  a
    49  crime  or  who are entitled to counsel pursuant to article eighteen-C of
    50  this chapter, section two hundred sixty-two or  section  eleven  hundred
    51  twenty  of  the  family  court act, article six-C of the correction law,
    52  section four hundred seven of the surrogate's  court  procedure  act  or
    53  article  ten  of  the  mental hygiene law, who are financially unable to
    54  obtain counsel. Each plan shall also provide for  investigative,  expert
    55  and  other  services  necessary  for an adequate defense. The plan shall
    56  conform to one of the following:

        S. 9045                             5

     1    § 3. Subdivision 3 of section 1303 of the real  property  actions  and
     2  proceedings  law, as amended by section 5 of part Q of chapter 73 of the
     3  laws of 2016, is amended to read as follows:
     4    3.  The  notice to any mortgagor required by paragraph (a) of subdivi-
     5  sion one of this section shall appear as follows:
     6                     Help for Homeowners in Foreclosure
     7    New York State Law requires that we send you  this  notice  about  the
     8  foreclosure process. Please read it carefully.
     9  Summons and Complaint
    10    You  are  in danger of losing your home. If you fail to respond to the
    11  summons and complaint in this foreclosure  action,  you  may  lose  your
    12  home.  Please read the summons and complaint carefully. You should imme-
    13  diately contact an attorney or your local legal  aid  office  to  obtain
    14  advice on how to protect yourself.
    15  Sources of Information and Assistance
    16    The  State  encourages  you  to  become informed about your options in
    17  foreclosure. In addition to seeking assistance from an attorney or legal
    18  aid office, there are government agencies and  non-profit  organizations
    19  that  you  may contact for information about possible options, including
    20  trying to work with your lender during this process. You may be entitled
    21  to assigned counsel if you are a veteran who is  financially  unable  to
    22  obtain representation.
    23    To  locate  an  entity  near  you, you may call the toll-free helpline
    24  maintained by the New York State Department  of  Financial  Services  at
    25  (enter number) or visit the Department's website at (enter web address).
    26    Rights and Obligations
    27  YOU ARE NOT REQUIRED TO LEAVE YOUR HOME AT THIS TIME. You have the right
    28  to  stay  in  your  home  during  the  foreclosure  process. You are not
    29  required to leave your home unless and until your property  is  sold  at
    30  auction pursuant to a judgment of foreclosure and sale.
    31  Regardless  of  whether  you  choose  to  remain  in  your home, YOU ARE
    32  REQUIRED TO TAKE CARE OF YOUR PROPERTY and pay property taxes in accord-
    33  ance with state and local law.
    34  Foreclosure rescue scams
    35    Be careful of people who approach you with offers to "save" your home.
    36  There are individuals who watch for notices of  foreclosure  actions  in
    37  order  to  unfairly  profit  from  a homeowner's distress. You should be
    38  extremely careful about any such promises and any suggestions  that  you
    39  pay  them a fee or sign over your deed. State law requires anyone offer-
    40  ing such services for profit  to  enter  into  a  contract  which  fully
    41  describes  the services they will perform and fees they will charge, and
    42  which prohibits them from taking any money  from  you  until  they  have
    43  completed all such promised services.
    44    § 4. This act shall take effect immediately.
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