A05856 Summary:

BILL NOA05856
 
SAME ASSAME AS S02839
 
SPONSORWalker
 
COSPNSRCook, D'Urso
 
MLTSPNSRSimon
 
Add Art 18-C 723 - 723-d, amd 722 & 722-c, County L; amd 1303, RPAP L; amd 227 & 261, V & T L; add 98-d, St Fin L; amd 468-a, Judy L
 
Creates the New York Civil Gideon Act.
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A05856 Actions:

BILL NOA05856
 
02/16/2017referred to judiciary
01/03/2018referred to judiciary
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A05856 Committee Votes:

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A05856 Floor Votes:

There are no votes for this bill in this legislative session.
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A05856 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5856
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 16, 2017
                                       ___________
 
        Introduced by M. of A. WALKER -- read once and referred to the Committee
          on Judiciary
 
        AN  ACT  to  amend  the  county  law,  the  real  property  actions  and
          proceedings law, the vehicle and traffic law, the  state  finance  law
          and  the  judiciary  law, in relation to enacting the "NY Civil Gideon
          Act"

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  This act shall be known and may be cited as the "New York
     2  Civil Gideon act".
     3    § 2. The county law is amended by adding a new article 18-C to read as
     4  follows:
     5                                ARTICLE 18-C
     6                 REPRESENTATION OF PERSONS IN CIVIL MATTERS
     7  Section 723.   Legislative findings.
     8          723-a. Civil right to counsel commission.
     9          723-b. Lead agency for civil right to counsel.
    10          723-c. Assigned counsel for civil matters review panel.
    11          723-d. Compensation and reimbursement.
    12    § 723. Legislative findings. The legislature hereby finds and declares
    13  as follows:
    14    1. Every year, at least eighty percent of the civil legal needs of low
    15  income New Yorkers go unmet.
    16    2. These legal needs often concern matters pertaining  to  the  essen-
    17  tials  of  life  including shelter, food, employment, health, and family
    18  sustainability.
    19    3. The lack of available civil legal assistance undermines  comprehen-
    20  sive assistance for crime victims.
    21    4.  The lack of civil legal services to resolve a family's legal prob-
    22  lems often disrupts the children and young adults' education, frequently
    23  with a permanent impact.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06176-01-7

        A. 5856                             2
 
     1    5. The lack of civil legal services can worsen chronic health problems
     2  often increasing the cost of medical care.
     3    6.  The  lack  of  civil legal services can result in homelessness not
     4  only affecting the individual families  but  also  destabilizing  entire
     5  neighborhoods.
     6    7.  In  light of these trying economic times, the need for civil legal
     7  services has increased beyond  individuals  below  the  federal  poverty
     8  guidelines  to  homeowners  and  other  middle  income  New Yorkers that
     9  provide the foundation for New York's economy.
    10    8. The substantial number of unrepresented litigants  in  civil  legal
    11  matters  adversely impacts the quality of justice for all parties in the
    12  courts of New York state, increases the amount of litigation, and under-
    13  mines the rule of law.
    14    9. It has been found that when a society is unable to meet their basic
    15  human needs it is in an ongoing state of emergency.
    16    10. The unmet  need  for  civil  legal  assistance  in  the  state  is
    17  profoundly  impacting  vulnerable  New  Yorkers  and  costing  taxpayers
    18  millions of dollars  by  increasing  homelessness,  failing  to  prevent
    19  domestic violence, and increasing poverty.
    20    11.  In order to address this emergency, this legislature finds that a
    21  right to counsel in certain civil matters is imperative.
    22    § 723-a. Civil right to counsel commission. 1. There is hereby  estab-
    23  lished  the  civil right to counsel commission.  The commission shall be
    24  composed of eleven members.
    25    2. a. The members of the commission shall be appointed as follows:
    26    (i) one member shall be appointed by the  governor  and  shall  be  an
    27  attorney with expertise in civil legal services;
    28    (ii)  one  member shall be appointed by the temporary president of the
    29  senate;
    30    (iii) one member shall be appointed by the speaker of the assembly;
    31    (iv) one member shall be appointed  by  the  minority  leader  of  the
    32  assembly;
    33    (v)  one  member  shall  be  appointed  by  the minority leader of the
    34  senate;
    35    (vi) two members shall be appointed by the chief judge of the court of
    36  appeals;
    37    (vii) one member shall be appointed by the association of counties;
    38    (viii) one member shall be appointed by the mayor of the city  of  New
    39  York  and shall be an attorney who has provided civil legal services for
    40  at least five years;
    41    (ix) one member shall be appointed by the governor, from a list of  no
    42  more  than  two  nominees  submitted  by  the chief administrator of the
    43  courts, each of whom shall be a judge or justice, or  retired  judge  or
    44  justice,  who  was  elected  to  the supreme, county or family court, or
    45  appointed to the criminal court or family court in the city of New York,
    46  and has substantial experience presiding as such a judge or  justice  in
    47  trial matters before such court; and
    48    (x)  one  member  shall be appointed by the New York state bar associ-
    49  ation.
    50    b. All members of the commission shall be residents of  the  state  of
    51  New York.
    52    c.  The members of the commission shall serve terms of four years. All
    53  members shall serve until their successors are appointed.  Vacancies  on
    54  the  commission  shall  be  filled  for the remainder of the term in the
    55  manner provided for by the original appointment.

        A. 5856                             3

     1    d. The members of the commission shall  receive  no  compensation  for
     2  their services, but shall be allowed their actual and necessary expenses
     3  incurred in the performance of their duties.
     4    e.  Notwithstanding  any inconsistent provisions of law, no officer or
     5  employee of the state or any civil division thereof shall be  deemed  to
     6  have  forfeited  or  shall  forfeit  his  or her office or employment by
     7  reason of his or her acceptance of membership on the commission.
     8    f. The commission shall meet at least once per year.
     9    g. A majority of the members of  the  commission  shall  constitute  a
    10  quorum.
    11    h.  The  chief  judge of the court of appeals, or his or her designee,
    12  shall serve as a non-voting ex-officio member of the commission.
    13    i. Appointment to the commission shall be filed by the chief judge  of
    14  the court of appeals, who shall convene the first meeting of the commis-
    15  sion  following  the  filing  of  the  majority  of appointments. At the
    16  initial meeting the members shall elect officers.
    17    3. The commission shall submit to the governor, temporary president of
    18  the senate, speaker of the assembly and the chief judge of the court  of
    19  appeals  an  annual  report  on  or  before  the anniversary date of the
    20  commission's first meeting. Such report shall contain all pertinent data
    21  for the prior twelve months on the operation of the commission including
    22  the number of assigned counsel in  each  county,  the  number  of  cases
    23  assigned,  the  number of cases resolved, recommendations for additional
    24  attorneys, if necessary, the cost of operation and financial  assistance
    25  to  localities.  Such  report shall also include the proposed budget for
    26  the succeeding twelve months including funds for financial assistance to
    27  localities.
    28    § 723-b.  Lead agency for civil right to  counsel.  1.  Representation
    29  for  persons  in civil matters shall be a partnership between the courts
    30  and all qualified legal services providers, bar associations and private
    31  organizations.
    32    2. The legal services providers shall serve as  the  lead  agency  for
    33  case assessment and direction under this article and furthermore shall:
    34    a.  be the central point of contact for receipt of referrals for legal
    35  representation;
    36    b. make determinations of eligibility based on uniform criteria;
    37    c. be responsible for  providing  representation  to  the  clients  or
    38  referring the matter to one of the organizations or individual providers
    39  with  whom  the  lead  legal  services  agency  contracts to provide the
    40  service; and
    41    d. to the extent practical, identify and make use of pro bono services
    42  in order to maximize available services efficiently and economically.
    43    3. Recognizing that not all indigent parties can be afforded represen-
    44  tation, even when they have meritorious cases, the court partner  shall,
    45  as a corollary to the services provided by the lead legal services agen-
    46  cy,  be  responsible  for providing procedures, personnel, training, and
    47  case management and administration practices that reflect best practices
    48  to ensure unrepresented parties meaningful  access  to  justice  and  to
    49  guard  against the involuntary waiver of rights, as well as to encourage
    50  fair and expeditious voluntary dispute resolution, consistent with prin-
    51  ciples of judicial neutrality.
    52    4. The participating legal services agency shall be  selected  by  the
    53  judicial council.
    54    a.  The  judicial council shall be made up of one administrative judge
    55  from each judicial district. There shall be at least one legal  services
    56  agency chosen for each judicial district.

        A. 5856                             4
 
     1    b.  The  judicial  council  shall  assess the applicants' capacity for
     2  success, innovation, and efficiency, including, but not limited to,  the
     3  likelihood  that  the  agency would deliver quality representation in an
     4  effective manner that would meet critical needs  in  the  community  and
     5  address  the  needs  of  the  court with regard to access to justice and
     6  calendar management, and the unique local unmet needs for representation
     7  in the community.
     8    c. Agencies approved pursuant  to  this  section  shall  initially  be
     9  authorized  for a three-year period, commencing on the effective date of
    10  this section and subject to renewal for a period to be determined by the
    11  judicial council, in consultation with the participating agency in light
    12  of the agency's capacity and success. After the initial three-year peri-
    13  od, the judicial council shall distribute any future funds available  as
    14  the result of the termination or nonrenewal of an agency pursuant to the
    15  process set forth in this subdivision.
    16    d.  Agencies  shall  be selected on the basis of whether, in the cases
    17  proposed for service, the persons  to  be  assisted  are  likely  to  be
    18  opposed  by  a party who is represented by counsel. The judicial council
    19  shall also consider the following factors in selecting the agencies:
    20    (i) the likelihood that representation in the proposed case type tends
    21  to affect whether a party prevails or otherwise obtains a  significantly
    22  more  favorable  outcome  in  a  matter  in  which  they would otherwise
    23  frequently have judgment entered against them or suffer the  deprivation
    24  of the basic human need at issue;
    25    (ii) the likelihood of reducing the risk of erroneous decisions;
    26    (iii) the nature and severity of potential consequences for the unrep-
    27  resented party regarding the basic human need at stake if representation
    28  is not provided;
    29    (iv)  whether  the provision of legal services may eliminate or reduce
    30  the potential need for and cost of public social services regarding  the
    31  basic  human  need  at  stake  for the client and others in the client's
    32  household;
    33    (v) the unmet need for legal services in the  geographic  area  to  be
    34  served; and
    35    (vi)  the  availability  and  effectiveness  of  other  types of court
    36  services, such as self-help.
    37    e. Each applicant shall do the following:
    38    (i) identify the nature of the partnership between the court  and  the
    39  other agencies or other providers that would work within the project;
    40    (ii)  describe  the  referral  protocols to be used, the criteria that
    41  would be employed in case assessment, why those cases were selected, the
    42  manner to address conflicts without violating any attorney-client privi-
    43  lege  when  adverse  parties  are  seeking  representation  through  the
    44  project,  and  the means for serving potential clients who need language
    45  assistance within the court system; and
    46    (iii) describe how the project would be  administered,  including  how
    47  the  data  collection requirements would be met without causing an undue
    48  burden on the courts, clients, or the providers, the  particular  objec-
    49  tives  of  the  project, strategies to evaluate their success in meeting
    50  those objectives, and the means by which the  project  would  serve  the
    51  particular  needs  of the community, such as by providing representation
    52  to limited-English-speaking clients, the elderly and the disabled.
    53    5. To ensure the most effective use of the funding available, the lead
    54  legal services agency shall serve as a hub for all  referrals,  and  the
    55  point  at  which decisions are made about which referrals will be served
    56  and by whom. Referrals shall emanate from the court, as well as from the

        A. 5856                             5
 
     1  other agencies providing services through  the  program,  and  shall  be
     2  directed  to  the lead legal services agency for review. That agency, or
     3  another agency or attorney in the event of conflict, shall  collect  the
     4  information  necessary  to  assess whether the case should be served. In
     5  performing that case assessment, the agency shall determine the relative
     6  need for representation of the litigant, including all of the following:
     7    a. case complexity;
     8    b. whether the opposing party is represented;
     9    c. the adversarial nature of the proceeding;
    10    d. the availability and effectiveness of other types of services, such
    11  as self-help, in light of the potential client and  the  nature  of  the
    12  case;
    13    e. barriers to access due to language;
    14    f. barriers to access due to disability;
    15    g. barriers to access due to literacy;
    16    h. the merits of the case;
    17    i. the nature and severity of potential consequences for the potential
    18  client if representation is not provided; and
    19    j. whether the provision of legal services may eliminate or reduce the
    20  need for and cost of public social services for the potential client and
    21  others in the potential client's household.
    22    6. The decision and level of representation should be made at the sole
    23  discretion  of  the  lead agency, organization, or attorney based on the
    24  factors set forth above.
    25    7. If both parties to a dispute are financially eligible for represen-
    26  tation, each proposal shall ensure that representation for both sides is
    27  evaluated. In these and other cases in which conflict issues arise,  the
    28  lead  legal  services  agency  shall  have referral protocols with other
    29  agencies and providers, such as a private  attorney  panel,  to  address
    30  those conflicts.
    31    8.  Each  lead  agency, organization, or attorney shall be responsible
    32  for keeping records on the referrals accepted and those not accepted for
    33  representation, and the reasons for each, in  a  manner  that  does  not
    34  violate  any  privileged  communications  between  the  agency  and  the
    35  prospective client. Each lead agency, organization or attorney shall  be
    36  provided with standardized data collection tools to be determined by the
    37  commission,  and required to track case information for each referral to
    38  allow the evaluation to measure the number of cases served, the level of
    39  service required, and the outcomes for the  clients  in  each  case.  In
    40  addition  to this information on the effect of the representation on the
    41  clients, data shall be collected regarding the outcomes  for  the  trial
    42  courts.  This  data shall be compiled in a report to be submitted to the
    43  commission on a quarterly basis.
    44    § 723-c. Assigned counsel for civil matters review panel. 1. There  is
    45  hereby established the assigned counsel for civil matters review panel.
    46    2.  a. The review panel shall be composed of at least sixteen members,
    47  to be appointed as follows:
    48    (i) Attorney-in-Chief for the Legal Aid Society or  his/her  represen-
    49  tative;
    50    (ii) Chair of Legal Services NYC or his/her representative;
    51    (iii)  Executive  Director  of  Legal Services of the Hudson Valley or
    52  his/her representative;
    53    (iv) Executive Director of the Legal Aid Society of Northeastern NY or
    54  his/her representative;
    55    (v) Executive Director of the Western NY Law Center or his/her  repre-
    56  sentative;

        A. 5856                             6
 
     1    (vi) President of the Empire Justice Center or his/her representative;
     2    (vii) Executive Director of the New York Lawyers for the Public Inter-
     3  est or his/her representative;
     4    (viii) The President of the New York legal assistance group or his/her
     5  representative;
     6    (ix) Executive Director of Lambda Legal or his/her representative;
     7    (x) The immediate past President of the New York State Bar Association
     8  or a representative appointed by the association;
     9    (xi)  The  immediate  past  President of the Network of Bar Leaders or
    10  his/her representative;
    11    (xii) The immediate past President of the Women's Bar  Association  of
    12  the State of New York or his/her representative;
    13    (xiii)  The  immediate  past  President  of the Metropolitan Black Bar
    14  Association or his/her representative;
    15    (xiv) The immediate past President of the New York State  Director  of
    16  the Fund for Modern Courts or his/her representative;
    17    (xv)  Executive  Director of the Iola Fund of the State of New York or
    18  his/her representative; and
    19    (xvi) One representative from the National Coalition for a Civil Right
    20  to Counsel.
    21    b. The members of the review panel shall serve terms  of  four  years.
    22  All  members shall serve until their successors are appointed. Vacancies
    23  on the review panel shall be filled for the remainder of the term in the
    24  manner provided for by the original appointment.
    25    c. The members of the review panel shall receive no  compensation  for
    26  their services, but shall be allowed their actual and necessary expenses
    27  incurred in the performance of their duties.
    28    d.  Notwithstanding  any inconsistent provisions of law, no officer or
    29  employee of the state or any civil division thereof shall be  deemed  to
    30  have  forfeited  or  shall  forfeit  his  or her office or employment by
    31  reason of his or her acceptance of membership on the review panel.
    32    e. A majority of the members of the review panel  shall  constitute  a
    33  quorum.
    34    f.  The  members  of  the review panel may participate in a meeting of
    35  such review panel by means of a conference telephone or similar communi-
    36  cations equipment allowing all persons participating in the  meeting  to
    37  hear  each  other  at  the  same time; participation by such means shall
    38  constitute presence in person at such meeting.
    39    3. The purpose of the panel is to ensure that  quality  representation
    40  is  provided  under  this article.   This includes processing complaints
    41  against attorneys assigned under this article, establishing  the  proper
    42  remedy  for  aggrieved  parties, attorney admission as assigned counsel,
    43  attorney training, and all  other  procedures  the  review  panel  finds
    44  necessary  to  achieve its goal.   Nothing in this article shall prevent
    45  any investigation under the New York state unified court system rules of
    46  professional conduct or otherwise.
    47    4. The review panel may work together with the civil right to  counsel
    48  commission to achieve the common goals of this article.
    49    5.  a.  The  chief  judge of the court of appeals and the review panel
    50  appointees shall convene the review panel and create  a  plan  outlining
    51  the  procedure  and  guidelines to govern the panel and assigned counsel
    52  program in accordance with the goal of  providing  quality  civil  legal
    53  representation.  The  chief  judge of the court of appeals shall consult
    54  with the administrative judges of  each  judicial  district  to  receive
    55  guidance on the needs of each district.
    56    b. The guidelines shall include but not be limited to:

        A. 5856                             7
 
     1    (i) meeting requirements of the panel;
     2    (ii) standards of quality representation;
     3    (iii)  training  necessary to provide civil assigned counsel represen-
     4  tation;
     5    (iv) content for the complaint form for a grievance against an  agency
     6  or attorney assigned as civil assigned counsel;
     7    (v) a grievance procedure; and
     8    (vi) establishing possible remedies for those found to be aggrieved.
     9    §  723-d.  Compensation  and reimbursement. 1. All counsel assigned in
    10  accordance with a plan of the court, other organization, or a bar  asso-
    11  ciation  conforming  to  the  requirements  of  this article whereby the
    12  services of private counsel are rotated and coordinated by  an  adminis-
    13  trator shall at the conclusion of the representation receive:
    14    a. for real property proceedings no less than fifty dollars per hour;
    15    b. for cases involving health no less than fifty dollars per hour;
    16    c.  for  cases involving license revocation or suspension no less than
    17  fifty dollars per hour;
    18    d. for cases involving sustenance no less than sixty dollars per hour;
    19  and
    20    e. for cases involving children no less than sixty dollars per hour.
    21    2. For the purposes of this section:
    22    a. real property proceedings  shall  include  sections  seven  hundred
    23  eleven,  seven  hundred thirteen, seven hundred thirteen-a, five hundred
    24  one, one thousand ninety-three, thirteen hundred three and article thir-
    25  teen of the real property actions and proceedings law;
    26    b. cases involving health shall  include  article  forty-nine  of  the
    27  public health law;
    28    c.  cases  involving  license  revocation  or suspension shall include
    29  sections two hundred twenty-seven, two hundred forty-two and two hundred
    30  sixty-one of the vehicle and traffic law;
    31    d. cases involving sustenance shall include sections one hundred nine-
    32  ty-six-a, five hundred thirty-eight, six  hundred  twenty,  six  hundred
    33  twenty-one,  six  hundred  twenty-four,  six hundred sixty-three and six
    34  hundred eighty-one of the  labor  law,  sections  twenty-two  and  three
    35  hundred  sixty-five  of  the  social services law and rule three hundred
    36  five and article seventy-eight of the civil practice law and rules;
    37    e. cases involving children shall include article four of  the  family
    38  court act.
    39    3.  For  all  representation,  compensation  and  reimbursement  shall
    40  include reimbursement for reasonably incurred expenses.
    41    4. Compensation for representation in such cases shall  be  guided  by
    42  the  minimum  amounts set forth above. The compensation minimums are set
    43  for counsel only, not support or administrative  staff  work.  Work  for
    44  support  or  administrative  staff  should be set by individual counsel,
    45  firm, or organization and should be set at a  lower  rate  than  compen-
    46  sation for counsel.
    47    5.  There  shall  be  no  differential in compensation rate for out of
    48  court time expended and in court time expended. Rates should be  set  at
    49  the  minimum  stated above or higher based on the complexity of the case
    50  and expertise of the attorney.  Such  rates  shall  be  subject  to  the
    51  approval  of  the  court  of jurisdiction based on the complexity of the
    52  case, expertise of the attorney, the market, and any other  factors  the
    53  court deems just and appropriate.
    54    6.  There should be no cap on the amount of compensation or reimburse-
    55  ment  received  for  representation.  The  amount  of  compensation  and
    56  reimbursement is subject to court approval as described above.

        A. 5856                             8
 
     1    7.  Compensation  and  reimbursement  for appeal shall be fixed by the
     2  appellate court not to be below the rates set forth in this section.
     3    8.  In  extraordinary  circumstances  a  trial  or appellate court may
     4  provide for payment  of  compensation  and  reimbursement  for  expenses
     5  before the completion of the representation upon application.
     6    §  3.  The  opening  paragraph  of  section  722 of the county law, as
     7  amended by chapter 7 of the laws of 2007, is amended to read as follows:
     8    The governing body of each county and the governing body of  the  city
     9  in  which a county is wholly contained shall place in operation through-
    10  out the county a plan for providing counsel to persons  charged  with  a
    11  crime  or  who  are  entitled to counsel pursuant to section two hundred
    12  sixty-two or section eleven hundred twenty  of  the  family  court  act,
    13  article  six-C  of the correction law, section four hundred seven of the
    14  surrogate's court procedure act or article ten  of  the  mental  hygiene
    15  law, who are financially unable to obtain counsel. The governing body of
    16  each  county  and  the  governing  body of the city in which a county is
    17  wholly contained shall also place in operation throughout the  county  a
    18  plan  for  providing  counsel  to  financially  unable  persons in civil
    19  proceedings under this section, sections one hundred ninety-six-a,  five
    20  hundred  thirty-eight,  six  hundred twenty, six hundred twenty-one, six
    21  hundred twenty-four, six hundred sixty-three and six hundred  eighty-one
    22  of  the  labor  law,  sections  twenty-two and three hundred five of the
    23  social services law, where there is a revocation  or  suspension  issued
    24  pursuant to sections two hundred twenty-seven, two hundred forty-two and
    25  two hundred sixty-one of the vehicle and traffic law, article forty-nine
    26  of  the  public health law, sections seven hundred eleven, seven hundred
    27  thirteen, seven hundred thirteen-a, five hundred one, one thousand nine-
    28  ty-three, section thirteen hundred three and  article  thirteen  of  the
    29  real  property  actions and proceedings law, rule three hundred five and
    30  article seventy-eight of the civil practice law and  rules  and  article
    31  four of the family court act. For the purposes of this section the terms
    32  "financially unable" and "low income" shall mean an individual who is at
    33  or  below  two  hundred  percent of the federal poverty guidelines. Each
    34  plan shall also provide for investigative,  expert  and  other  services
    35  necessary  for an adequate defense. The plan shall conform to one of the
    36  following:
    37    § 4. Subdivision 3 of section 1303 of the real  property  actions  and
    38  proceedings  law, as amended by section 5 of part Q of chapter 73 of the
    39  laws of 2016, is amended to read as follows:
    40    3. The notice to any mortgagor required by paragraph (a)  of  subdivi-
    41  sion one of this section shall appear as follows:
    42                     Help for Homeowners in Foreclosure
    43    New  York  State  Law  requires that we send you this notice about the
    44  foreclosure process. Please read it carefully.
    45  Summons and Complaint
    46    You are in danger of losing your home. If you fail to respond  to  the
    47  summons  and  complaint  in  this  foreclosure action, you may lose your
    48  home. Please read the summons and complaint carefully. You should  imme-
    49  diately  contact  an  attorney  or your local legal aid office to obtain
    50  advice on how to protect yourself.
    51  Sources of Information and Assistance
    52    The State encourages you to become  informed  about  your  options  in
    53  foreclosure. In addition to seeking assistance from an attorney or legal
    54  aid  office,  there are government agencies and non-profit organizations
    55  that you may contact for information about possible  options,  including
    56  trying  to  work with your lender during this process.  You may be enti-

        A. 5856                             9
 
     1  tled to assigned counsel if you are financially unable to obtain  repre-
     2  sentation.
     3    To  locate  an  entity  near  you, you may call the toll-free helpline
     4  maintained by the New York State Department  of  Financial  Services  at
     5  (enter number) or visit the Department's website at (enter web address).
     6    Rights and Obligations
     7  YOU ARE NOT REQUIRED TO LEAVE YOUR HOME AT THIS TIME. You have the right
     8  to  stay  in  your  home  during  the  foreclosure  process. You are not
     9  required to leave your home unless and until your property  is  sold  at
    10  auction pursuant to a judgment of foreclosure and sale.
    11  Regardless  of  whether  you  choose  to  remain  in  your home, YOU ARE
    12  REQUIRED TO TAKE CARE OF YOUR PROPERTY and pay property taxes in accord-
    13  ance with state and local law.
    14  Foreclosure rescue scams
    15    Be careful of people who approach you with offers to "save" your home.
    16  There are individuals who watch for notices of  foreclosure  actions  in
    17  order  to  unfairly  profit  from  a homeowner's distress. You should be
    18  extremely careful about any such promises and any suggestions  that  you
    19  pay  them a fee or sign over your deed. State law requires anyone offer-
    20  ing such services for profit  to  enter  into  a  contract  which  fully
    21  describes  the services they will perform and fees they will charge, and
    22  which prohibits them from taking any money  from  you  until  they  have
    23  completed all such promised services.
    24    §  5. Section 722-c of the county law, as amended by section 3 of part
    25  J of chapter 62 of the laws of 2003, is amended to read as follows:
    26    § 722-c. Services other than counsel. Upon a finding in  an  ex  parte
    27  proceeding  that  investigative,  expert or other services are necessary
    28  and that the defendant or other person described in section two  hundred
    29  forty-nine  or  section  two  hundred sixty-two of the family court act,
    30  article six-C of the correction law [or], section four hundred seven  of
    31  the surrogate's court procedure act, section seven hundred twenty-two of
    32  this  article,  sections  one hundred ninety-six-a, five hundred thirty-
    33  eight, six hundred twenty, six hundred twenty-one, six  hundred  twenty-
    34  four,  six  hundred  sixty-three and six hundred eighty-one of the labor
    35  law, sections twenty-two and three hundred five of the  social  services
    36  law,  where  there  is  a  revocation  or  suspension issued pursuant to
    37  sections two hundred twenty-seven, two hundred forty-two and two hundred
    38  sixty-one of the vehicle and traffic  law,  article  forty-nine  of  the
    39  public  health  law,  sections seven hundred eleven, seven hundred thir-
    40  teen, seven hundred thirteen-a, five hundred one, one  thousand  ninety-
    41  three,  thirteen hundred three and article thirteen of the real property
    42  actions and proceedings law, rule three hundred five and article  seven-
    43  ty-eight  of  the  civil practice law and rules, and article four of the
    44  family court act, is financially unable to obtain them, the court  shall
    45  authorize counsel, whether or not assigned in accordance with a plan, to
    46  obtain the services on behalf of the defendant or such other person. The
    47  court upon a finding that timely procurement of necessary services could
    48  not  await prior authorization may authorize the services nunc pro tunc.
    49  The court shall determine reasonable compensation for the  services  and
    50  direct payment to the person who rendered them or to the person entitled
    51  to  reimbursement.  [Only  in  extraordinary circumstances may the court
    52  provide for compensation in excess of one thousand dollars per  investi-
    53  gative, expert or other service provider.]
    54    Each  claim  for  compensation shall be supported by a sworn statement
    55  specifying the time expended, services rendered, expenses  incurred  and

        A. 5856                            10
 
     1  reimbursement  or  compensation applied for or received in the same case
     2  from any other source.
     3    § 6. Section 227 of the vehicle and traffic law is amended by adding a
     4  new subdivision 7 to read as follows:
     5    7. A financially unable person who is charged with an offense punisha-
     6  ble  by  a revocation or suspension of his or her drivers' license where
     7  the person is dependent on driving for their employment or  where  there
     8  is  a  lack  of  public  transportation in the person's surrounding area
     9  shall have a right to assigned counsel by the court. Assignment of coun-
    10  sel under this section shall be implemented as provided in article eigh-
    11  teen-B of the county law. For the purposes  of  this  section  the  term
    12  "financially  unable"  shall  mean  an individual who is at or below two
    13  hundred percent of the federal poverty guidelines.
    14    § 7. Section 261 of the vehicle and traffic law is amended by adding a
    15  new subdivision 5 to read as follows:
    16    5. Assignment of counsel. A financially unable person who  is  charged
    17  with  an  offense punishable by a revocation or suspension of his or her
    18  drivers' license where the person is  dependent  on  driving  for  their
    19  employment  or  where  there  is  a lack of public transportation in the
    20  person's surrounding area shall have a right to assigned counsel by  the
    21  court.  Assignment of counsel under this section shall be implemented as
    22  provided in article eighteen-B of the county law. For  the  purposes  of
    23  this  section the term "financially unable" shall mean an individual who
    24  is at or below two hundred percent of the federal poverty guidelines.
    25    § 8. The state finance law is amended by adding a new section 98-d  to
    26  read as follows:
    27    §  98-d.  Civil Gideon assistance fund. 1. There is hereby established
    28  in the joint custody of the comptroller, office of court  administration
    29  and  the commissioner of taxation and finance a special fund to be known
    30  as the civil Gideon assistance fund.
    31    2. Such fund shall consist of all moneys appropriated for the  purpose
    32  of  such  fund, all other moneys required to be paid into or credited to
    33  such fund, and all moneys received by the fund or donated to it.
    34    3. A one-time surcharge of seventy-five dollars shall be added to  the
    35  biennial attorney fees to be added to this fund, as set forth in section
    36  four hundred sixty-eight-a of the judicial law.
    37    (a)  The purpose of such fund shall be to: (i) assist counties and, in
    38  the case of a county wholly contained  within  a  city,  such  city,  in
    39  providing legal representation for persons who are financially unable to
    40  afford  counsel  pursuant  to article eighteen-C of the county law; (ii)
    41  assist the state, in improving  the  quality  of  civil  legal  services
    42  addressing the essentials of life and funding representation provided by
    43  assigned  counsel  paid  in  accordance  with section thirty-five of the
    44  judiciary law; (iii) provide support for the operations, duties, respon-
    45  sibilities and expenses for the right to civil representation commission
    46  and panel established, respectively, pursuant to this article; and  (iv)
    47  provide funding for legal representation as described herein.
    48    (b)  State  funds received by a county or city from such fund shall be
    49  used to supplement and not supplant any local funds which such county or
    50  city would otherwise have had to expend for the provision of counsel and
    51  expert, investigative and other services pursuant to article  eighteen-C
    52  of  the  county  law.  All such state funds received by a county or city
    53  shall be used to improve the quality of services  provided  pursuant  to
    54  article eighteen-C of the county law.
    55    (c) As used in this section, "local funds" shall mean all funds appro-
    56  priated  or  allocated  by  a  county or, in the case of a county wholly

        A. 5856                            11

     1  contained within a city, such city, for services and expenses in accord-
     2  ance with article  eighteen-C  of  the  county  law,  other  than  funds
     3  received  from:  (i)  the  federal  government  or  the state; or (ii) a
     4  private  source,  where  such  city or county does not have authority or
     5  control over the payment of such funds by such private source.
     6    3. Amounts distributed from such fund  shall  be  limited  to  amounts
     7  deemed  appropriate  by  the office of court administration and shall be
     8  distributed proportionately by level of need at the court's discretion.
     9    (a) For all state fiscal years, each county and the city of New  York,
    10  shall  receive  ninety  percent of the amount paid to such county in the
    11  previous fiscal year.
    12    (b) Remaining amounts within such fund, after  accounting  for  annual
    13  payments  required  in  this  section shall be distributed in accordance
    14  with sections eight hundred thirty-two and eight hundred thirty-three of
    15  the executive law.
    16    § 9. Subdivision 5 of section 468-a of the judiciary law is renumbered
    17  subdivision 6 and a new subdivision 5 is added to read as follows:
    18    5. A one-time surcharge of seventy-five dollars shall be added to  the
    19  biennial  attorney  fees to be allocated to and be deposited into a fund
    20  established pursuant to the provisions  of  article  eighteen-C  of  the
    21  county  law.  Such  surcharge shall be assessed to every attorney in the
    22  same manner as the biennial fee described in  subdivision  one  of  this
    23  section.
    24    §  10.  This act shall take effect immediately, and the appointment of
    25  members to the civil right to counsel commission and the assigned  coun-
    26  sel  for civil matters review panel shall be completed within 90 days of
    27  such effective date.
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