National Center for Access to Justice

In Brennan Lecture, “The Judiciary as the Leader of the Access to Justice Revolution,” Chief Judge (NY) Lippman Calls for Reform of Unauthorized Practice Laws and More

In  remarks comprising the Twentieth Annual Justice William J. Brennan Lecture on State Courts and Social Justice at NYU Law School, titled, “The Judiciary as the Leader of the Access to Justice Revolution” and delivered on March 11, 2014, New York’s Chief Judge Jonathan Lippman summarized the role of the judiciary in the modern access to justice movement and called for reconsideration of New York State’s unauthorized practice laws (and more).

Citing the difficult circumstances facing the 2.3 million New Yorkers who proceed annually in civil legal matters in New York State without legal representation, the Chief Judge explained the role of the judiciary in making sure that the courts deliver justice:

“Ours is an analytical, multifaceted, incremental approach to closing the justice gap in our state, built around the leverage and credibility that the Judiciary and its leadership have, and utilizing all of the financial and programmatic resources available to the Judicial branch – along with the great talents and energy of our partners in the legal profession, academia and the legal services communities.”

The Chief Judge described some of the initiatives led by the New York courts that have helped to define the access to justice movement in New York and nationally, including:

  • the comprehensive (and increasingly successful) effort to expand state financial support for civil legal aid;
  • the multiple policies designed to expand pro  bono work by the private bar, including reporting requirements that are expected to shed light on the actual amount of pro bono service being done in New York
  • the court’s pathbreaking policies designed to re-focus legal education on the justice gap, including the new 50 hour pro bono service bar admission requirement in New York, and the new public service scholar program that will offer some third year students the option of sitting for the bar exam in February if they dedicate their final semester of law school to pro bono activity that helps to narrow the justice gap.

The Chief Judge described other important access to justice initiatives  by chief justices in the courts in California, Connecticut, Montana, New Jersey, and Washington, and by the federal courts as well.

Citing the well-known stratification of roles for non-lawyers in the medical profession, and the 2011 decision of the Supreme Court in Turner v. Rogers (in which the Court observed that non-lawyers can help trial court judges to safeguard due process and access to justice), the Chief Judge then described the New York Court system’s new “incubator projects” that will soon test the performance of non-lawyer “navigators” in roles helping unrepresented parties in the courtroom, but that will stop short of allowing the practice of law.

The Chief Judge then explained the need to consider whether to modify New York state’s unauthorized practice laws to create additional opportunity for non-lawyers to step into roles that can help to narrow and close the justice gap.  In what  must be the first instance in which a state court chief judge has called for reconsideration of state unauthorized practice laws, he said:

“Building on the use of non-lawyers who do not, in a real sense, practice law, we must look at our legal regulatory framework first, to see if our unauthorized practice of law rules should be modified in view of the crisis in civil legal services and the changing nature of legal assistance needs in society; and second, to identify if, short of full admission to the bar, there are additional skill sets, separate in concept from our incubator projects , that can be licensed to provide low-bono or less costly services to help those in need of legal assistance.”

The Chief Judge is not overstating when he closed with the observation, “We are shifting the landscape for access to justice in New York and around the country.  The cumulative effect truly amounts to a revolution, and the judiciary is and should be at its vanguard.”

For the full text of the March 11, 2014 Brennan Lecture by Chief Judge Lippman, click here.

For earlier coverage of NCAJ’s role in authorship of a report on non-lawyers by the Committee on Professional Responsibility of the NY City Bar (and for the report itself), click here.

For information about NCAJ’s newly launched access to justice resource, the Justice Index, visit www.justiceindex.org.

Visit our web site to subscribe to NCAJ’s blog covering the modern access to justice movement, www.ncforaj.org.