ALBANY – One year after establishing an experimental pro bono civil appellate program to handle family law appeals for people who cannot afford counsel, the New York State Bar Association is expanding the initiative to several other areas of law.
Cynthia F. Feathers of Glens Falls, co-chair of the state bar’s Committee on Courts of Appellate Jurisdiction, said the first year’s experience showed a clear need for pro bono appellate counsel. She said the committee is planning to take more cases, recruit more attorneys and expand into matters involving education, health, housing, domestic violence, child custody, public benefits and subsistence income.
“There is a real gap in that the person of modest means cannot afford to retain an appellate attorney and doesn’t qualify for an assigned attorney,” said Ms. Feathers, who co-chairs the committee with Denise A. Hartman, the state’s assistant solicitor general.
“We wanted to meet the needs of some of those people in cases we regard as meritorious and might create an important precedent,” Ms. Feathers said.
The Pro Bono Appeals Program got its start last year when then-committee chairwoman Betty Weinberg Ellerin, former presiding justice of the Appellate Division, First Department, approached Anthony V. Cardona, presiding justice of the Third Department.
With the strong support of Justice Cardona, who died Sunday, and the willingness of Ms. Feathers, who practices in the Third Department, to operate the program, Ms. Ellerin said it made sense to launch the pilot in Albany.
“I view it as a start, hopefully, toward a statewide endeavor,” said Ms. Ellerin, now of Alston & Bird in Manhattan.
Two upstate nonprofit organizations, the Legal Project in Albany and the Rural Center of New York in Plattsburgh, are providing staff support. The program is supported by a grant from the New York Bar Foundation.
During the first year, volunteer attorneys handled six appeals before the Third Department, one of them precedent-setting.
In Bowman v. Bowman, 82 AD3d 144 (2011), an appeal argued by Ms. Feathers, the Third Department made it easier for out-of-state support orders to be modified in the state where the custodial parent lives.
Reversing a trial court, the panel held that the federal Full Faith and Credit for Child Support Orders Act preempted a provision of the Uniform Interstate Family Support Act, which would bar modification of a child support order issued in Washington because the mother lives in New York.
“We’re happy to help one person,” said Ms. Feathers, adding that the committee hopes to handle 10 appeals next year. “But this program has the potential to help many people with one appeal.”
The Pro Bono Appeals Program currently takes cases only in the Third Department and 40 attorneys on the Committee on Courts of Appellate Jurisdiction are involved. However, the state bar is planning to reach out to other experienced appellate counsel, who would work under the mentorship of the committee. It also intends to eventually expand into the Fourth Department in Western New York.
The committee will evaluate cases based on several factors, including the issues presented, the merits of the appeal, the likelihood of establishing precedent and the number of cases it is already handling.
“New Yorkers shouldn’t be denied representation on appeal solely because they lack the means to pay,” said state bar president Vincent E. Doyle III of Connors & Vilardo in Buffalo.
According to the American Bar Association, the state bar’s pro bono appellate project is one of only 10 such programs in the country.
“The state bar is proud to be a national leader in providing pro bono legal assistance for appellate cases,” Mr. Doyle said.
More information on the program is available at nysba.org/ccaj.
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