NYSBA leadership and our government relations team have been advocating for the association's legislative priorities, both in Albany and in Washington. Here are some highlights:
State Legislative Advocacy
Confidentiality for consumers of legal referral services
Each year, thousands of New Yorkers and non-New Yorkers have relied upon lawyer referral services (LRS) for help, and assumed that the detailed information they provide the LRS was necessary in order to receive appropriate referrals and was safe in the hands of the LRS. Legislation has passed the Senate and Assembly and awaits the Governor's signature to amend Judiciary Law to provide that communications between a consumer of legal services and a legal referral service or lawyer referral service be deemed to be privileged on the same basis as those provided by law for communications between attorney and client.
Power of Attorney
A power of attorney is an important document because it helps people, often the elderly or disabled, manage their affairs, especially their finances and health care planning - and a valid power of attorney avoids costly and time-consuming court proceedings. NYSBA members whose practices regularly involve the execution and enforcement of powers of attorney studied this issue and concluded that under current law, a power of attorney form is too complex, too costly and unreasonably difficult for individuals to use.
NYSBA is advocating for legislation to:
• Simplify the current power of attorney form;
• Prevent third parties from improperly refusing to accept a consumer's valid power of attorney;
• Provide protection for third parties who follow the process for accepting a power of attorney; and,
• Authorize language in the power of attorney form that substantially conforms with the statutory language, in order to prevent the harsh consequence of the form being invalidated because of harmless error in the form.
In 2017, the Assembly unanimously approved our legislative proposal. While the bill advanced in the Senate that house did not act to pass the bill. We have continued our vigorous advocacy efforts this legislative session, and will do so until the end of the session.
Discovery in Criminal Justice Matters
We commend state elected officials for engaging in discussions regarding criminal discovery. NYSBA supports these efforts and urges adoption of a proposal that would address this critical issue.
Litigants in civil lawsuits in New York State have an expansive opportunity through discovery under CPLR Article 31 to learn about facts and evidence that is the basis for the other side's case. Under New York's criminal discovery statute, however, defendants are often denied access to comparable information - unless a criminal defendant is fortunate enough to be charged in one of the counties where the District Attorney has rejected restrictive discovery according to the statute and maintains an "open-file" policy.
Defendants routinely receive limited information which often is turned over so late that it is virtually impossible to properly investigate, to secure and use any potentially exculpatory evidence, to fairly weigh a guilty plea offer, or to develop a trial strategy. We have been working throughout the legislative session to reform New York's criminal discovery rules, in order to help innocent or over-charged defendants fairly prepare for trial and also to encourage guilty defendants to plead guilty and avoid needless and costly delays. We were disappointed that this was not addressed as part of the budget process, and will continue through the end of the session and beyond to seek passage of the NYSBA proposal on discovery reform.
Elimination of the Judicial Retirement "Death Gamble"
We support amending New York State Retirement and Social Security Law in order to permit the election by state-paid judges to have their beneficiaries receive a pension in lieu of regular death benefits if the judge dies while in office. Under current law, if a judge dies in office, his or her beneficiaries receive a death benefit rather than the pension benefits to which they would be entitled if the judge died after retirement.
Many courts rely solely on cash bail or insurance company bond to secure a defendant's future appearances, despite the availability of alternatives that are set forth in the Criminal Procedure Law. Our advocacy has been focused on balancing the needs of communities while minimizing financial hardship for low-income defendants:
Unless there is a record of bench warrants for non-appearance, there should be a presumption that defendants facing misdemeanor and non-violent felony charges be released without cash bail, either on their own recognizance or with non-monetary conditions imposed by the court such as supervised release monitored by a pretrial services agency.
Monetary bail should be allowed but not required, as necessary, after an assessment of the nature of the case and the defendant's personal and financial circumstances.
When bail is set, the court should be required to give the defendant a choice between cash or bail industry bonds and an alternative form of bail that the judge will set, such as an unsecured or partially secured bond.
In cases involving domestic violence or other serious violence, or if, while on pretrial release, a defendant commits a crime or willfully fails to come to court, the court should be allowed to order a defendant to be held in jail pretrial.
During the legislative session, we advocated for reform of bail laws, and we were disappointed that this was not addressed as part of the budget process. Our advocacy on this issue will continue.
Suspension of Delinquent Taxpayers' Driver's Licenses
We support a proposal to amend the tax law, which currently allows the state to suspend the driver's license of any individual whose outstanding tax liability is $10,000 or greater, regardless of the financial condition of the taxpayer. There is no hardship exemption.
Our proposal would implement a hardship exemption that would include an automatic exemption for low-income tax debtors who receive public assistance or supplemental security income or who have income below 135% of the level specified by the Federal Poverty Income Guidelines (currently $16,281 per year for a household of one); and for any tax debtor who can demonstrate that payment of his or her past due tax liabilities will leave insufficient income to cover necessary basic living expenses.
We are also calling for raising the threshold for triggering license suspension from $10,000 to $50,000 and indexing it for inflation, and for granting the commissioner of motor vehicles the discretion to waive license suspension based on the specifics of a given case.
We do support suspension of a tax debtor's driver's license, regardless of the amount of tax debt owed, if the Department determines that the tax debtor has taken affirmative steps to evade or avoid the collection of tax, such as by hiding assets.
We were pleased that the Assembly introduced our bill, and will continue to work for its passage in the next legislative session.
State Budget Issues
NYSBA supported the Judiciary's 2018-19 budget request, which called for a two percent increase over current year funds - despite the fact that funding was not restored to 2010 levels. The increase was intended to allow for "adequate court staffing, especially in clerk, court officer, interpreter, court reporter, and other courtroom and back office positions that are critical to providing a high level of service to the public" and to "incrementally restore" a number of programs that were cut due to past-year budget constraints. We strongly urged the Legislature and the Governor to consider that the operations of the court system have not fully recovered from those devastating cuts years ago.
Funding Civil Legal Services
A critical component of the Judiciary's budget was $100 million in funding for civil legal services. This is an issue that has been among NYSBA's highest priorities for many years, given the strong and consistent need for these services. Attorneys in New York State contribute an estimated 2.5 million hours each year in voluntary pro bono legal services to the indigent, but these voluntary efforts alone are insufficient to meet current needs. The adopted budget for 2018-19 included $85 million for civil legal services.
The IOLA Fund
NYSBA was one of the original advocates for the formation of the IOLA Fund, which was created by the Legislature in 1983 and is funded by the interest earned on funds held by attorneys for clients and deposited in interest-bearing accounts at the discretion of attorneys and law firms. The accumulated interest is used to provide grants to legal service providers around the state. Concern in recent years has stemmed from the impact that low interest rates have had on the fund.
To help offset the low revenues due to low interest rates and a reduced number of real estate transactions, the Judiciary budget has for the past several years included a $15 million allocation for the IOLA Fund. These funds were included in the 2018-19 adopted budget.
Indigent Criminal Defense
More than 100 years ago, NYSBA created a special committee dedicated to advocating for the provision of an adequate criminal defense for the poor and otherwise disadvantaged, and endorsed the concept of public defenders to provide representation to indigent criminal defendants.
A 2006 report from the Commission on the Future of Indigent Defense Services concluded that there was "a crisis in the delivery of defense services to the indigent throughout New York State and that the right to the effective assistance of counsel, guaranteed by both the federal and state constitutions, is not being provided to a large portion of those who are entitled to it." In 2010, New York State created the Office of Indigent Legal Services. In 2014, the state entered into settlement in the case of Hurrell-Harring v State of New York, and committed to provide adequate funding in five counties outside of New York City.
In 2017, the Executive recommended that funding for indigent legal services be generated through an increase in the biennial attorney registration fee. We strongly opposed such a funding scheme and successfully urged its rejection. We are pleased to report that significant new funding was appropriated this year for indigent criminal defense programs across the state - without an increase of the registration fee.
Federal Legislative Advocacy
Support for the Legal Services Corporation (LSC)
LSC is an independent nonprofit established by Congress in 1974 to provide financial support for civil legal aid to low-income Americans. LSC promotes equal access to justice by providing funding to independent non-profit legal aid programs across the country. New York has seven LSC grantees that serve low-income individuals, children, families, seniors, and veterans. It is critically important that Congress provide adequate funding for LSC in order to provide access to justice for those who need assistance. Adequate LSC funding has always been at the top of our federal legislative priorities.
We are pleased to report that the 2018 federal budget included $410 million for the LSC budget - an increase of $25 million. Even with this increase the need is still great among consumers for civil legal services. Therefore we continue our current advocacy activity to urge Congress to provide more funding for the 2019 budget.
Federal regulation of State Tort Law and Scaffolding Law
We oppose proposed legislation that would effectively overrule New York State's Labor Law, section 240, which imposes absolute liability on property owners and contractors for falls and elevation-related injuries suffered by workers.
NYSBA has long held that laws covering the area of civil justice characterized as tort law are properly within the province of the states. For over 200 years, the authority to promulgate tort liability laws has rested with the states, and each state has been able to adopt laws based on its interests and public policy determinations. Proposed federal legislation purports to set a national standard applicable to all states, which is antithetical to this engrained concept. The practical effect of this bill is even worse, because it would force only New York to modify its statutory standards, thereby effectively having Congress enact a state law completely outside of the state's legislative process.
NYSBA believes that this would be a slippery slope for Congress with regard to the federal government's regulation of all states' tort laws.