9 CRR-NY 6654.12NY-CRR
9 CRR-NY 6654.12
9 CRR-NY 6654.12
6654.12 OAA legal assistance.
(a) Each area agency shall use an adequate portion of its OAA-supportive services funding for a program of legal assistance including advice and representation to elderly people with economic or social need. Legal assistance means legal advice and judicial or administrative representation by an attorney including, to the extent feasible, counseling or other appropriate assistance by a paralegal or law student under the direct supervision of an attorney. Legal assistance also includes counseling or representation by a nonlawyer where permitted by law, to elderly people with economic or social need. OAA legal assistance must be in addition to any other legal services already being provided to elderly people in the area.
(b) Each area agency shall develop and assure the coordination of a system of access to legal assistance for elderly in the area which encourages the participation of all segments of the legal provider community. If the area agency does not contract with a legal services corporation grantee, it will coordinate its services with existing legal services corporation projects in the area agency, in order to assure that the elderly receive a proportional share of representation from the legal services corporation grantee, to avoid under this Title on individuals with the greatest social and economic need.
(c) Each legal assistance provider shall make efforts, in coordination with the area agency, to involve the private bar in legal assistance for the elderly, including the establishment of groups within the private bar which will furnish legal assistance to elderly people on a pro bono or reduced-fee basis. The legal assistance provider and the area agency will develop a system of assisted referrals of cases to the private bar, including appropriate follow-up to assure that services have been provided.
(d) Each area agency must award funds to the legal assistance provider or providers that most fully meet the standards of this subdivision. The legal assistance provider or providers must:
(1) have staff with expertise in specific areas of law affecting elderly people in economic or social need (for example, public benefits, institutionalization, and alternatives to institutionalization);
(2) demonstrate the capacity to provide effective administration and judicial representation in the areas of law affecting elderly people with economic or social need;
(3) demonstrate the capacity to provide support to other advocacy efforts (for example, the long-term care ombudsman program);
(4) demonstrate the capacity to deliver legal services to institutionalized, isolated and homebound elderly individuals effectively; and
(5) demonstrate the capacity to provide legal assistance in the principal language spoken by clients in areas where a significant number of clients do not speak English as their principle language.
(e) Each legal assistance provider, in consultation with the area agency, may set priorities for service delivery which allocate program resources in areas which will concentrate service on the elderly least able to obtain legal assistance elsewhere. In setting case priorities, the area agency and service provider:
(1) may take into account the availability of staff resources in determining the extent of legal advice and representation to provide individual elderly people; but
(2) may not consider the priorities as eligibility criteria, but shall evaluate whether representation is appropriate in a particular case because of the benefits to the elderly individual or elderly in general, and the availability of adequate representation from other sources.
(f) In setting case priorities, criminal cases may not be defended, and representation in fee-generating cases except where private bar representation is otherwise unavailable is also prohibited. Filing conservatorships is prohibited except where an elderly person requests the filing of a voluntary petition or in the case of an involuntary petition against a close relative such as a spouse; and where no other agency can be persuaded to bring the petition and where bringing such a petition is not inconsistent with the interest of the elderly conservatee.
(1) Case priorities must be determined so as not to duplicate services available from other sources, i.e., the private bar and legal services corporation grantee, and to fill existing gaps in the availability of services to the elderly with the greatest need.
(g) Other provider responsibilities.
(1) The legal assistance provider shall assist the area agency with other advocacy efforts, and shall assist the long-term care ombudsman program.
(2) The legal assistance provider may not serve as house counsel to the area agency.
(3) The legal assistance provider shall provide training to area agency staff and, where appropriate, to community groups and members of the private bar. Training is reimbursable as training costs when provided by legal assistance providers. Outreach activities by the area agency and the legal assistance providers are reimbursable, and the legal assistance providers may be reimbursed for recruiting members of the private bar to conduct training, make group presentations and accept referrals.
(h) An OAA legal assistance provider may not require an elderly person to disclose information about income or resources as a condition for providing legal assistance. An OAA legal assistance provider may ask about an elderly person's financial circumstances as a part of the process of providing legal advice, counseling and representation, or for the purpose of identifying additional resources and benefits for which an elderly person may be eligible.
(i) Nothing in this section is intended to prohibit an attorney or staff attorney from providing any form of legal assistance to an eligible client, or to interfere with the fulfillment of any attorney's professional responsibilities to a client. When providing OAA legal assistance:
(1) Each legal assistance provider and its attorneys and employees must comply with the following regulations when engaged in the outside practice of law:
(i) no attorney shall engage in any outside practice of law if the director of the provider has determined that such practice is inconsistent with the attorney's full-time responsibilities;
(ii) if the requirement of subparagraph (i) of this paragraph is met, a provider may permit an attorney to engage in compensated outside practice of law when the attorney is newly employed and has a professional responsibility to close cases from a previous law practice, and does so as expeditiously as possible;
(iii) if the requirement of subparagraph (i) of this paragraph is met, a provider may permit an attorney to engage in compensated outside practice of law when the attorney is acting pursuant to an appointment made under a court rule or practice of equal applicability to all attorneys in the jurisdiction, and remits to the provider all compensation received; or
(iv) if the requirement of subparagraph (i) of this paragraph is met, a provider may permit an attorney to engage in uncompensated outside practice of law when the attorney is acting pursuant to an appointment made under a court rule or practice of equal applicability to all attorneys in the jurisdiction or on behalf of a close friend, family member, religious community, or charitable group.
(2) A provider, employee of the provider, or staff attorney shall not engage in the following prohibited political activities:
(i) A provider shall not contribute or make available OAA funds, or any personnel or equipment to any political party or association to the campaign of any candidate for public or party office; or for use in advocating or opposing any ballot measure, initiative, or referendum.
(ii) No employee shall intentionally identify the OAA program or provider with any partisan or nonpartisan political activity, or with the campaign of any candidate for public or party office.
(iii) No employee shall use any OAA funds for activities prohibited to attorneys under subparagraph (1)(i) of this subdivision; nor shall an employee intentionally identify or encourage others to identify the provider with such activities.
(iv) While engaged in any activity carried out during an employee's working hours which uses OAA resources and, in fact, provides legal assistance to an eligible client, no employee and no staff attorney shall, at any time:
(a) use official authority or influence for the purpose of interfering with or affecting the result of an election or nomination for office, whether partisan or nonpartisan;
(b) directly or indirectly coerce, attempt to coerce, command or advise an employee under OAA to pay, lend or contribute anything of value to a political party, committee, organization, agency or person for political purposes; or
(c) be a candidate for partisan elective public office.
(v) While engaged in any activity carried out during an employee's working hours which uses OAA resources and, in fact, provides legal assistance to an eligible client, no attorney shall engage in:
(a) any political activity;
(b) any activity to provide voters with transportation to the polls, or to provide similar assistance in connection with an election; or
(c) any voter registration activity;
(3) No provider shall use OAA funds to provide legal assistance in a fee-generating case unless other adequate representation is unavailable. All providers shall establish procedures for the referral of fee-generating cases.
(i) Fee-generating case means any case or matter which, if undertaken by an attorney in private practice, may reasonably be expected to result in a fee for legal services from an award to a client, from public funds, or from the opposite party.
(ii) Other adequate representation is deemed to be unavailable when the provider has determined that fee referral is not possible because of any of the following:
(a) the case has been rejected by the local lawyer referral service, or by two attorneys;
(b) neither the referral service nor any lawyer will consider the case without payment of a consultation fee; or
(c) emergency circumstances compel immediate action before referral can be made, but the client is advised that, if appropriate, and consistent with professional responsibility, referral will be attempted at a later time.
(iii) Other adequate representation is deemed to be unavailable when:
(a) recovery of damages is not the principal object of the case and a request for damages is merely ancillary to an action for equitable or other nonpecuniary relief; or inclusion of a counterclaim requesting damages is necessary for effective defense or because of applicable rules governing joinder of counterclaims; or
(b) a court appoints a provider or an employee of a provider pursuant to a statute or a court rule or practice of equal applicability to all attorneys in the jurisdiction; or
(c) an eligible client is seeking benefits under title II of the Social Security Act, Federal Old Age, Survivors, and Disability Insurance Benefits; or title XVI of the Social Security Act, Supplemental Security Income for Aged, Blind and Disabled.
(iv) A provider may seek and accept a fee awarded by a court or administrative body, or included in a settlement, if funds received are not used for prohibited purposes.
(v) When a case or matter subject to this section results in a recovery of damages, other than statutory benefits, a provider may accept reimbursement from the client for out-of-pocket costs and expenses incurred in connection with the case or matter, if the client has agreed in writing to reimburse the provider for such costs and expenses.
(4) While engaged in any activity carried out during an employee's working hours which uses OAA resources and, in fact, provides legal assistance to an eligible client, no employee shall:
(i) knowingly participate in any public demonstration, picketing, boycott or strike, except as permitted by law in connection with the employee's own employment situation; or
(ii) intentionally exhort, direct or coerce others to engage in such activities, or otherwise usurp or invade the rightful authority of a client to determine what course of action to follow.
(5) While employed under OAA, no employee shall, at any time:
(i) knowingly engage in any rioting or civil disturbance, activity in violation of an outstanding injunction of any court of competent jurisdiction, or any other illegal activity that is inconsistent with an employee's responsibilities under OAA, or the code of professional responsibility; or
(ii) intentionally exhort, direct or coerce others to engage in such activities, or otherwise usurp or invade the rightful authority of a client to determine what course of action to follow.
(6) Nothing in this subdivision shall prohibit an attorney from:
(i) informing and advising a client about legal alternatives to litigation or the lawful conduct thereof; or
(ii) fulfilling the professional responsibilities of an attorney to a client.
(j) No OAA funds made available to a provider shall be used, at any time, directly or indirectly, to support activities intended to influence the issuance, amendment or revocation of any executive or administrative order of a Federal, State or local agency, or to undertake to influence the passage or defeat of any legislation by the Congress of the United States or by any state or local legislative body or State proposals by initiative petition, except that:
(1) an employee may respond to a request from a governmental agency or a legislative body, committee or member, made to the employee or to a recipient to testify, draft or review measures or to make representation to such agency, body, committee or member on a specific matter; or
(2) an employee may engage in such activities at the request of an eligible client of a provider, to the extent such activities are necessary to the provision of legal advice and representation to a client who has sought such legal advice and representation with respect to particular legal rights and responsibilities which would be affected by particular legislation or administrative measures, but no employee shall solicit a client in violation of professional responsibilities for the purpose of making such representation possible.
(k) Providers shall adopt procedures and forms to document that the legislative and administrative activities in which they engage fall within the activities permitted by subdivision (f) of this section. Such documentation shall include:
(1) With respect to activities permitted under paragraph (f)(1) of this section, a written request, signed by an official of the governmental agency or a member of the legislative body or committee making the request, which states the type of representation or assistance requested and identifies the executive or administrative order or regulation, or legislation to be addressed.
(2) With respect to activities permitted under paragraph (f)(2) of this section, a retainer agreement, signed by the client or clients represented, or by an official of the client group in the case of a group client, which agreement shall specify the legislative or administrative measure on which representation is sought (appearance at a hearing, legislative drafting, etc.), and which shall include a statement of the client's direct interest in the particular legislative or administrative measure to be addressed.
(3) Providers shall obtain the documentation required by this subdivision prior to undertaking any of the activities permitted by paragraph (f)(1) or (2) of this section, except that providers may respond to an oral request made pursuant to such paragraph in the absence of a written request, provided that the fact, nature and circumstances of the request are subsequently documented in writing and signed by the requesting authority.
(l) No OAA funds may be used to:
(1) maintain separate offices for the sole purpose of engaging in legislative activity;
(2) pay dues to any organization (other than a bar association), a substantial purpose or function of which is to take positions on matters pending before legislative or administrative bodies;
(3) pay for transportation to legislative or administrative proceedings of persons other than employees engaged in activities under this section or witnesses entering appearances in such proceedings on behalf of clients of the providers, except that such funds may be used to transport the client where necessary and appropriate. This subdivision does not authorize payment of transportation expenses for employees not actually engaged in permitted representation activities;
(4) pay, in whole or in part, for the conduct of or transportation to an event if a primary purpose of the expenditure is to facilitate lobbying or any other activity which would be prohibited if conducted with OAA funds;
(5) pay for administrative or related costs associated with any activity prohibited by this section; or
(6) assist others, through legislative liaison activities, to influence legislation in a manner that would be prohibited if undertaken with OAA funds. Legislative liaison activities include, but are not limited to, attending legislative sessions or committee hearings, gathering information regarding pending legislation, and analyzing the effect of pending legislation.
(m) Notwithstanding the provisions of paragraph (f)(1) of this section, providers shall not use OAA funds for publicity or propaganda purposes designed to support or defeat proposed legislation or legislation pending before Congress or any state legislature. For purposes of this Chapter, publicity or propaganda means any oral communication or any advertisement, telegram, letter, article, newsletter or other printed or written matter or device which contains a direct suggestion or, when taken as a whole, an indirect suggestion to the public at large or to selected individuals to contact elected representatives in support of or in opposition to pending or proposed legislation.
(n) No OAA funds of a provider shall be used to support the preparation, production and dissemination of any article, newsletter or other publication or written matter for general distribution which contains any reference to proposed or pending legislation, unless:
(1) the publication does not contain any publicity or propaganda prohibited by subdivision (i) of this section;
(2) the provider has adopted a policy requiring the provider's executive director, or his or her designee, to review each publication produced by the provider prior to its dissemination for conformity to this section;
(3) the provider provides a copy of any such material to the area agency within 30 days after publication; and
(4) such funds are used only for costs incident to the preparation, production and dissemination of such publications to providers, providers' staff and board members, private attorneys representing eligible clients, and the area agency, as opposed to the public at large.
(o) Notwithstanding the provisions of subdivision (f) of this section, no OAA funds of a provider shall be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone communication, letter, printed or written matter, or other device, intended or designed to influence any decision by a Federal, State or local agency, except where legal assistance is provided by an employee of a provider to an eligible client on a particular application, claim or case, which directly involves the client's legal rights and responsibilities, or to influence any member of Congress or any other Federal, State or local elected officials to favor or oppose any acts, bills, resolutions or similar legislation, or any referendum, initiative, constitutional amendment, or any similar procedure of the Congress, any state legislature, any local council, or any similar governing body, except that this subdivision shall not preclude such funds from being used in connection with communications made in response to any Federal, State or local official upon a specific matter. The exception for communications to officials does not authorize communication with anyone other than the requesting party. No employee of the provider shall, directly or indirectly, solicit a request from any official to testify or otherwise advocate the support or defeat of legislative measures.
(p) Nothing in this section is intended to prohibit an employee from:
(1) communicating with a governmental agency for the purpose of obtaining information, clarification or interpretation of the agency's rules, regulations or policies;
(2) informing a client about a new or proposed statute, executive order or administrative regulation consistent with the requirements of subdivisions (i) and (j) of this section;
(3) responding to an individual client's request for advice only with respect to the client's own communications to officials, unless otherwise prohibited by OAA statute or regulations or other applicable law. This paragraph does not authorize publication or training of clients on lobbying techniques or the composition of a communication for the client's use; or
(4) making direct contact with the area agency for any purpose.
9 CRR-NY 6654.12
Current through July 31, 2021
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IMPORTANT NOTE REGARDING CONTENT CURRENCY: JULY 31, 2023, is the date of the most recently produced official NYCRR supplement covering this rule section. For later updates to this section, if any, please: consult editions of the NYS Register published after this date; or contact the NYS Department of State Division of Admisnistrative Rules at [email protected]. See Help for additional information on the currency of this unofficial version of the NYS Rules.