ALBANY – The leaders of the New York State Bar Association are raising questions about a proposal to allow non-lawyers to assist poor New Yorkers in legal matters—specifically, how these “navigators” would be monitored, supervised and evaluated.
In an email to the group’s members last week, state bar President David Schraver said he and President-Elect Glenn Lau-Kee met on Feb. 25 with Roger Maldonado and Fern Schair, the co-chairs of the Committee on Non-Lawyers and the Justice Gap (NYLJ, May 29, 2013), which is enacting the Court Navigator Program at the behest of Chief Judge Jonathan Lippman.
The meeting follows controversy among lawyers’ reporting requirements for pro bono activities implemented by the chief judge. Many attorneys complained they were not consulted before Lippman acted.
The bar leaders asked the committee chairs how limits on the navigators’ activities would be enforced and how the program would be evaluated going forward, said Schraver, of Nixon Peabody in Rochester, in an interview Tuesday.
In his 2014 State of the Judiciary address, Lippman announced that navigators will be allowed to accompany unrepresented people into the courtroom for consumer credit matters in Bronx Civil Court and housing matters in Brooklyn Civil Court.
Navigators began working with litigants in the Bronx this week and will begin to do so in Brooklyn next week, Maldonado said.
Though navigators are not allowed to address the court on their own, they will be permitted to answer factual questions if they are addressed by judges, Lippman announced.
The navigators are not to be compensated by unrepresented parties, court officials said.
Schraver said that Lippman’s announcement on Feb. 11, and the release of an order by Chief Administrative Judge A. Gail Prudenti establishing rules for training and conduct of the navigators and where they can operate, prompted the meeting with Maldonado and Schair.
“It think it is part of the role of the bar association and I guess of the president to educate and inform our members about developments in the legal profession,” Schraver said in the interview.
Lippman’s committee has noted that non-lawyers have been used to successfully handle some forms of assistance to litigants in Great Britain. The state of Washington also has a certification process for Limited Licensed Legal Technicians for non-lawyers to serve the same purpose.
But Schraver said lawyers are concerned about the breadth of the navigator’s role. “The concern is that the navigator not cross the line into practicing law,” he said.
Maldonado, a partner at Balber Pickard Maldonado & Van Der Tuin in Manhattan, said he welcomed the meeting with Schraver and Lau-Kee because he does not want lawyers to feel that navigators “pose a threat to the economic interests of lawyers.” Those being assisted by navigators cannot afford to pay for lawyers, and the navigators are not taking legal work away from attorneys, Maldonado said.
“Given the sensitivities that we understand are out there among lawyers, including members of the state bar, it was important to meet with them and to keep the lines of communication open,” Maldonado said. “We expect to be speaking with them on a regular basis and, to the greatest extent possible, to take their concerns into account.”
According to Maldonado, both Prudenti’s order and a handbook prepared for its participants and the courts make clear that “non-lawyers are not to practice law” under the auspices of the program.
Prudenti’s rules stipulate that navigators may not “provide legal advice, legal counseling or (unless in a manner approved by the Chief Administrator of her designee) legal information to the unrepresented litigant.”
They also may not “draft, execute, serve, or file with the court any documents on behalf of a litigant” or “perform any service that constitutes the practice of law.”
Prudenti’s rules formalize the assistance that non-lawyers may offer under the auspices of three not-for-profit service providers, the New York State Access to Justice Program, University Settlement and Housing Court Answers. Other groups are expected to be added in the future.
Maldonado said the service providers are responsible for monitoring the conduct of the navigators outside the courtroom and judges inside the courts.