Law graduates and new lawyers provide a fertile pool of potential pro bono or low-cost legal assistance to low- and moderate-income individuals. All state courts are coping with the flood of unrepresented litigants with cases.1 In some cases, an unrepresented litigant is opposed by an attorney, and in others both litigants are pro se. In either situation, ensuring equal justice is a challenge for judges. Many court systems have been active in trying to find solutions to the lack of civil legal services. Law schools are also beginning to embrace their obligation to assist their graduates after they leave the school. This article discusses two models for increasing pro bono or low-cost legal services: launch pads and incubators.
In New York City, the City University of New York (CUNY) School of Law, a school devoted to public interest lawyering, and the New York State Courts Access to Justice Program have cooperated since 2009 on programs called the “CUNY School of Law Launch Pad for Success” and the “Volunteer Lawyer for the Day Program.” The New York State Courts Access to Justice Program in New York has operated unbundled volunteer lawyer programs since 1998.2 The programs use volunteers to provide limited-scope services in document preparation, advice and brief services, or limited representation in the courtroom. These programs have operated with the hearty endorsements of two New York State chief judges, Judith S. Kaye and Jonathan Lippman.3 This joint initiative flowed from the devastating impact that the economic downturn has had on the legal profession and hence low- and moderate-income individuals who are deprived of their services. Lawyers have been hit hard at almost every level of practice—from large corporate firms to public service positions and perhaps most affected, attorneys in small firms and solo practices. CUNY School of Law, focusing on public interest law, was particularly concerned about the crisis because its graduates play a huge role in fostering access to justice in New York City through their work in public service organizations like Legal Services and Legal Aid and community-based small private practices dealing with bread-and-butter issues such as domestic violence, human rights, elder law, immigration, consumer credit, family, foreclosures, landlord/tenant, and criminal defense. In the arena of private practice, the Community Legal Resource Network (CLRN) of CUNY Law School was already in the national forefront of efforts designed to support lawyers working in solo and small-firm practices located in underserved communities throughout New York City. In 2009, access to justice was at an all-time low; a further decrease in the corps of attorneys who could assist New Yorkers with unmet legal needs was additionally exacerbated by the already critical downturn of the economy. The time was ripe in 2009 for the need to enlarge the pool of community-based lawyers, ready, willing, and able to serve New Yorkers of low income and modest means. This need has only grown since 2009.
With so few employment opportunities available for members of CUNY Law’s Class of 2009, the school was looking for ways to harness the talents of recent graduates without job prospects, simultaneously doing their part to respond to the justice gap. The CUNY Law Launch Pad for Success was designed to train graduates to do pro bono work between the time they take the New York State Bar Exam in July until they receive the results of the exam at the end of November.4 During this period, graduates are used to provide limited-scope representation in vital areas such as landlord/tenant and uncontested divorce. These graduates were initially paid $20 an hour to a maximum of $200 per week as a stipend to provide unbundled legal services in a court-based legal assistance program called the Housing Volunteer Lawyer for the Day. More recently, due to lack of funding, law graduates volunteer to participate in the Launch Pad and also provide services in the Uncontested Divorce Clinic drafting forms needed to obtain a divorce. After the training phase, participants provide services in court-based programs that provide free assistance to litigants under the supervision of an experienced attorney. Some law graduates have continued to volunteer in the court program after bar passage or employment has been obtained. Experiences gained in the Launch Pad enable participants to effectively transition into jobs that become available as the economy improves or into private practice.
Features of the New York Launch Pad Model
- The program is a partnership with CUNY Law School and the New York State Courts Access to Justice Volunteer Attorney Program. The program is based in the Civil Court of the City of New York, Housing Volunteer Lawyer for The Day Program, and the Uncontested Divorce Clinic based in Supreme Court.
- The court provides free office space for the program.
- Law graduates practice pending admission to the bar pursuant to a student and law graduate practice order issued by the Appellate Divisions of the New York State Court System.
- Law graduates are trained by the court.
- Law graduates are supervised by a court-employed attorney in all court programs. A part-time attorney, seasoned in housing law and hired by CUNY Law School, also provides on-site mentoring and support to law graduates in the housing program.
- The programs are unbundled programs. One program is a Lawyer for the Day Program in which litigants receive assistance in only settling their housing cases. If the case is not settled, the program does not provide representation at any subsequent trial or motion practice. Over 95 percent of cases are settled in New York City Housing Parts. The uncontested program does document preparation only. Forms needed for an uncontested divorce are prepared.
- The program is not income based. Services in the housing program are limited to litigants who live in low- or moderate-priced rentals.5 Litigants who seek assistance and are ultimately served are almost all low- and moderate-income tenants.
- The housing program handles a narrowed and well-defined type of housing case. New York City housing law and types of housing are very complex. The program handles only one type of housing case and will only handle certain defined claims and defenses. Cases are screened to determine if the case fits the protocols of the program and to ensure that the cases are the type the law graduates have received training in.
- The client signs a limited-scope retainer agreement that indicates the scope of the services that will be delivered and that a law graduate will be representing the client. If the client’s case cannot be settled in one day, the client can be assigned an attorney on the next court date; however, a new limited-scope retainer is signed, even if it is the same law graduate from the previous court date.
- The law graduate is considered a court employee when serving in the program. As such, pursuant to a New York State Attorney General opinion obtained in 1997, the law graduate is entitled to indemnification defense as any other court employee.6
- Some law graduates have continued to volunteer after being admitted to the bar. Some participants obtained employment due to the experience and skills obtained in the Launch Pad.
Developing a Launch Pad
Initially, the practice rules of the jurisdiction must be examined to determine under what circumstances, if any, a law graduate can practice law before admission to the bar. In the New York program, special practice orders were obtained by the New York State Courts Access to Justice Program from two appellate courts, which are responsible for determining under what circumstances law graduates can practice law.7 These practice orders provide the parameters under which the law graduates may represent people through the court programs. After determining under which circumstances law graduates can practice, the next task is to determine what kind of representational model is appropriate to engage law graduates in, what malpractice insurance or indemnification provisions can be obtained, what training is required, and how supervision will be provided.
Choosing a Model
Determining what type of model to develop should start with an analysis of the types of legal problems that need to be addressed. It is imperative that stakeholders be consulted in making the determination. Depending on the nature of the community, stakeholders may include the courts, litigants, local bar associations, and pertinent local officials or community organizations. Legal services providers may also provide some guidance on the needs of individuals who they cannot serve due to heavy caseloads or because the individuals’ income exceeds guidelines.
Law schools, bar associations, nonprofit organizations, and court systems are potential sponsors of a launch pad. The appropriate sponsor of the model will vary by community and will be dictated by the jurisdiction’s needs, the ability of an organization to be a potential sponsor, and the requirements for law graduates’ ability to practice. Some bar associations might be able to qualify to obtain the ability to use law graduates. Most law schools are able to obtain practice orders for their students and might be able to also obtain permission for their law graduates. Courts often have the most resources to sponsor or cosponsor a program. In New York, the court obtained the practice order that allows the use of both law graduates and law students and the program is both court-based and court cosponsored. The court employs attorneys who supervise the programs in compliance with the Attorney General opinion.8 CUNY Law School employs two seasoned part-time attorneys for the housing program who serve as mentors and provide information and assistance to volunteers as they settle their cases. The court and CUNY Law School jointly had the interest, ability, and resources to cosponsor the program.
The availability of law graduates will vary based on their need to search for employment and when they eventually obtain full employment. Therefore, any model chosen must be unbundled, which allows for discrete and limited services. Clinics, Lawyer for the Day programs, and service in bar association or court-based self-help centers are ideal models for law graduates as each requires limited duration service.
The decision on using law graduates to provide pro bono or low-cost services will be based on what the community needs and will accept, what any practice order will allow, and what will ultimately work. In Pinellas County, Florida, a low-cost services model is successfully operated in the courts by the local bar association.9 The court provides space for the program. That model uses attorneys only, but it could be adapted to involve law graduates, if the jurisdiction will permit their use.
Providing law graduates a stipend for travel and expenses will aid in recruitment of participants, who will be generally unemployed. Some law schools have small amounts of funding that may be able to be used in a model using law graduates or law students. However, many law graduates will volunteer in order to strengthen their résumés. Volunteers might also be used for supervision.
Training and Supervision
The New York practice orders require that all law graduates be closely supervised and the New York Attorney General opinion requires that all volunteers be trained and supervised by the courts. The court provides training in New York and a court-employed attorney supervises the program. CUNY Law School provides two part-time seasoned housing attorneys who provide mentoring and support for the law graduates and handle cases as well. The partnership provides oversight over the integrity of the program and ample supervision and support of the law graduates. The court-employed attorney is responsible for the programs’ operation including ensuring that all protocols are followed and provides supervision of the law graduates. The CUNY attorney is available to assist the law graduates with their cases and appears in the courtroom. Any model must have adequate and ongoing training and provide close supervision of law graduates. For the law graduate, this will be an opportunity to learn and sharpen skills that may be useful in private practice or employment when eventually obtained. For the attorneys providing supervision as either a volunteer or a paid employee, it is an opportunity to assist new members of the profession.
Training of law graduates must be adequate to prepare them for participation, but also must not be so protracted that prospective participants will be dissuaded from participating. The selection of the type of services that will be rendered will dictate the required training. Choosing a type of discrete legal service that requires minimal training will be important for attracting law graduates, who will often be looking for employment or working in nonlegal jobs until a legal position is found. In New York, the basic Launch Pad training is approximately 13.5 hours for housing and two for uncontested divorce. This training is sufficient for the types of cases that law graduates will handle. Continuing legal education classes are offered, without cost, to volunteers to enhance their knowledge base and skills.
Provision of Malpractice Insurance or Indemnification
All law graduates must be covered either by malpractice insurance or, if working for a government entity such as the court, by indemnification provisions. Each carrier or government will have its own requirements for coverage.
Limited-Scope Retainer Agreements
An appropriate limited-scope retainer agreement must be used when delivering any unbundled legal service. When a law graduate is involved in providing services, the retainer must clearly indicate that fact.10
Benefits of Launch Pads
Launch pad participants have provided free legal services to hundreds of litigants needing representation settling their housing cases and completing their uncontested divorce forms. The assistance is crucial for litigants who are facing the loss of their homes or who would be unable to obtain a divorce without an attorney. The unbundled services received by litigants serve to increase confidence and trust in the justice system. The court system benefits from the increased litigant confidence. In addition, judges’ calendars are eased when litigants have attorneys. Forms completed with legal assistance are legible and accurate, which is a benefit to clerks’ offices overwhelmed with case filings. Law graduates receive free training and learn legal skills, under the watchful eyes of supervisors, that prepares them for employment. Law graduates are also exposed to the types of substantive law and skills that they can use to provide pro bono services in the future. For some launch pad participants, the experience is both an eye and a heart opener.
The incubator concept is the brainchild of Fred Rooney, who has been deemed the “Father of Incubators.”11 The first incubator was established at CUNY Law School in 2007. Lawyers from the CUNY Incubator provided services in a New York City court-based volunteer program. Today, there are 18 incubators in the country, all dedicated to closing the justice gap.12 Rooney has also been successful in establishing an incubator in the Dominican Republic. Law schools are typically the sponsor of an incubator, but at least one is sponsored by a bar association. Law schools have seen incubators as a means to assist in closing the justice gap as well as supporting their graduates who are opting for solo practice due to difficulties finding suitable employment.
In an incubator, new lawyers are housed in one location to practice law, usually as independent attorneys. They are provided the support of a seasoned attorney who is a part of the incubator. In most programs, participants are also provided training in business practices. All incubators are dedicated to providing legal services at moderate costs in order to provide services to individuals of modest means. The time each participant may stay in the incubator varies. The supporting attorney might be a faculty member of the sponsoring law school or a hired attorney. The incubator can be subsidized by the law school, and participant attorneys pay into the costs of the incubator. Efforts are made to keep expenses low for incubator attorneys.
Touro Law School officially became the 18th and latest incubator sponsor on November 12, 2013. Rooney, who is now employed at the law school, was the leading force in organizing this incubator. The incubator will have 10 new lawyers and two supporting attorneys. The attorneys initially will handle immigration and elder law and are able to stay in the incubator for 18 months. The law school is subsidizing the salary of one of the supporting attorneys and was able to locate low-cost space for the incubator and free office furniture. Funding has been obtained for training of the attorneys. Faculty and local practitioners will provide training in business skills. Each lawyer must contribute 100 hours of pro bono services and all fees will be modest. Significantly, this incubator is called the Touro Law School Center for Community Justice, demonstrating the school’s commitment to the ideal of closing the justice gap that the incubator model was built on. The needs of the community served by the incubator will dictate some of the variables in each model.
Benefits of Incubators
Incubators provide legal services at low cost to moderate-income individuals who are subject to the justice gap. Low-income individuals barely receive necessary civil legal services; moderate-means individuals are similarly underserved. Some incubators also provide pro bono services to low-income individuals. Law schools that sponsor incubators get an opportunity to serve the greater public by assisting in providing more access to justice. Law schools also serve their schools’ graduates by ensuring that they receive the right legal and business skills to serve their communities. The incubator model encourages new lawyers to establish law practices and serve communities that are badly in need of legal services.
A justice system strained by millions of unrepresented litigants requires new approaches to closing the justice gap. The launch pad and incubator models assist in providing services, but, more importantly, these models help develop the solo practitioner and lawyer for the future. These models produce future solo practitioners who are both skilled and committed to community needs and lawyers who will be committed to more pro bono services. There is no downside to increasing the establishment of these models.
1. New York estimates 2.3 million unrepresented litigants annually have cases in its courts.
2. The New York State Courts Access to Justice Program operates six attorney volunteer programs that also use law students and law graduates. Descriptions of these programs can be found at http://nycourts.gov/attorneys/volunteer/vap/program_descriptions.shtml.
3. Judith S. Kaye was chief judge of the New York State Court of Appeals from 1993 to 2008. Chief Judge Jonathan Lippman was appointed thereafter in 2009. Chief Judge Lippman expressed his support for the Launch Pad program in the New York Law Journal (see Daniel Wise, OCA, CUNY Law Launch Program to Represent the Poor in Housing Matters, N.Y.L.J., Nov. 16, 2009, at 1, col. 3).
4. Fred Rooney, a graduate of CUNY, is the creator of both the launch pad and the incubator models. He was recently named a Legal Rebel by the ABA Journal (see Terry Carter, Stephanie Francis Ward & Rachel M. Zahorshy, Legal Rebels: Banner Year, 99 A.B.A. J. 33, 42 (Sept. 2013)).
5. The program does not represent owners. Approximately 15 percent of owners are unrepresented. If an owner is unrepresented, then the program cannot represent the tenant in court. Owners without lawyers have the same difficulty in court cases as tenants. This policy was implemented in order not to disadvantage owners by a court-sponsored program. Numerous conflict issues prevented the program from representing both owners and tenants.
6. See 2000 Ops. Att’y Gen. No. 2000-F1, http://nycourts.gov/attorneys/volunteer/vap/pdfs/NYAG_VLPopinion.pdf (last visited Nov. 13, 2013).
7. See In re New York State Courts Access to Justice Program, Student Practice Order (N.Y. Sup. Ct., App. Div. 2d Dep’t Jan. 31, 2013), http://nycourts.gov/attorneys/volunteer/vap/pdfs/StudentPractice_2ndDept.pdf; and In re New York State Access to Justice Program, Order (N.Y. Sup. Ct., App. Div. 1st Dep’t July 24, 2013), http://nycourts.gov/attorneys/volunteer/vap/pdfs/StudentPractice_1stDept.pdf.
8. See 2000 Ops. Att’y Gen. No. 2000-F1.
9. See Self Help Center, Clerk of the Circuit Court & Comptroller, Pinellas Cnty., Fla., http://www.pinellasclerk.org/aspinclude2/ASPInclude.asp?pageName=selfhelp.htm (last visited Nov. 13, 2013).
10. See VLFD Program Limited Scope Retainer Agreement, NYCourts.gov, http://nycourts.gov/attorneys/volunteer/vap/pdfs/VLFD_retainer.pdf (last visited Nov. 13, 2013).
11. See Carter, Ward & Zahorshy, supra note 4.
12. See Incubator/Residency Programs, Am. Bar Ass’n, http://www.americanbar.org/groups/delivery_legal_services/initiatives_awards/ program_main.html (last visited Nov. 13, 2013).