Draft SJC Rule | HOPE Initiative

HOPE SJC Rule

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Proposed Supreme Judicial Court Rule 3:17: Housing Opportunity Provider Expansion Pilot Program

Background and Description of Proposed SJC Rule 3:17

Background. The gap in civil legal aid access for indigent persons remains vast despite prolonged efforts to address the problem from the Massachusetts General Court, judiciary, executive officials, and nonprofit organizations. The demand for legal services continuously exceeds the supply of lawyers available to meet it. This shortage is particularly acute in housing; people facing the life-altering consequences of evictions and foreclosures often have limited means to obtain counsel to vigorously defend their rights.

Accordingly, the Massachusetts Access to Justice Commission (hereinafter “Commission”) recommends enacting a new Supreme Judicial Court Rule 3:17 to allow for the creation of a pilot program wherein qualified non-lawyer professionals (called “housing justice workers”) can provide a defined set of legal services related to housing issues, as supervised by an attorney. This initiative shall be called the Housing Opportunity Provider Expansion (“HOPE”) program.

The Commission arrived at this proposal after studying the shortcomings of current legal aid provision in the Commonwealth (including where on-the-books legal rights may go underenforced), the innovative reforms taken in other states and countries, and scholarly and empirical works detailing the efficacy of varying approaches of pro bono legal service deliverance. This non-lawyer legal service model has proven to be decisively successful in other jurisdictions, expanding the provision of quality legal services to people who otherwise could not receive any legal assistance, considering the finite caseloads of civil legal aid attorneys.

Beyond this research, the Commission solicited the advice of residents who currently struggle with navigating the housing legal apparatus without representation, housing civil legal aid advocates, and state and local officials in the Commonwealth. These conversations routinely emphasized the shortage of lawyers in the Commonwealth and the difficulty of providing enough funding to attract new civil legal aid attorneys. This housing justice worker program, accordingly, provides a cost-effective alternative to correct this supply issue: engaging in direct-services legal work, with its generally lower pay, makes more financial sense when one does not need to bear the expenses of three years of law school.

Given that this is a pilot program, Massachusetts courts will be free to monitor the program’s efficacy and decide whether to continue, expand, or halt this initiative.

Summary Description. The Commission’s proposed SJC Rule 3:17 creates an innovative pilot program to expand the supply of legal services in the Commonwealth. Namely, upon satisfying the eligibility and certification requirements laid out in the Rule, non-lawyer professionals—called “housing justice workers”—can provide limited types of legal services related to housing issues to indigent individuals in need of such services, under the supervision of an attorney.

First, this Rule delineates the requirements for certification to become a housing justice worker (“HJW”). Applicants must first meet certain eligibility criteria, such as being 21 years of age and having obtained a high school diploma or GED equivalent. They must further work or volunteer at an approved legal services organization, who must then nominate the applicant, in writing, to the Clerk of the Supreme Judicial Court of Suffolk County. Along with completing a background check and training related to housing legal aid, applicants must pass an exam developed for this program by the Massachusetts Board of Bar Examiners. Once these conditions (the full list of which is provided in the Rule’s text) are satisfied, the applicant must achieve certification from the Clerk of the Supreme Judicial Court of Suffolk County to cement their status as a housing justice worker.

Second, this Rule specifies the circumscribed scope of legal services that HJWs may offer under the supervision of an attorney at the legal services organization where the HJW works or volunteers. An HJW may, for example, advise a tenant experiencing uninhabitable living conditions on the legal options available to them. All of these services must be free-of-charge, in line with this Rule’s intent to combat the access to justice gap facing the Commonwealth.

Finally, this Rule outlines the specific responsibilities and notification requirements of HJWs, their supervising attorneys, and their sponsoring legal services organizations. HJWs must adhere to the professional rules of responsibility applicable to attorneys practicing in the Commonwealth, including the duty to, for example, maintain confidential information. These dictates provide safeguards to guarantee the provision of top-end legal services.

Section 1. Purpose

To expand the supply of quality legal services in the Commonwealth and thereby promote access to justice, this Rule enables the creation of a pilot program (the “Housing Opportunity Provider Expansion” program) to allow certain non-lawyer professionals (called “housing justice workers”) to provide a confined set of legal services. The Commonwealth faces a steep access to justice problem, leading to the rights of indigent individuals going continually underenforced. In particular, increasing costs of living throughout the Commonwealth, and the evictions, foreclosures, and other housing consequences that result, have intensified the need for legal representation in housing-affiliated issues.

Accordingly, subject to the provisions of this Rule and upon being certified by the Clerk of the Supreme Judicial Court for the county of Suffolk, housing justice workers may provide limited types of pro bono legal services related to housing. They must be supervised, adhering to the provisions of Section 5 of this Rule, under the supervision of an attorney at the legal services organization where the housing justice worker is employed or volunteers.

Section 2. Definitions

“Accredited law school” refers to a law school that has been accredited by the American Bar Association or authorized by statute of the Commonwealth to grant the degree of Bachelor of Laws, Juris Doctor, or Master of Laws.

“Approved legal services organization” means a non-profit legal entity that currently receives funding from the Massachusetts Legal Assistance Corporation, has as one of its primary purposes the provision of free legal assistance to low-income individuals, has at least one non-lawyer employee or volunteer, and has at least one attorney specializing in housing law, all of which shall be verified by the Clerk of the Supreme Judicial Court for the county of Suffolk.

“Approved training program” refers to a legal services education program on professional conduct obligations and housing-related legal issues that has been approved by the Clerk of the Supreme Judicial Court for the county of Suffolk.

“Authorized legal services” are the types of legal assistance specified in Section 4 of this Rule.

“Clerk” shall refer to the Clerk of the Supreme Judicial Court for the county of Suffolk.

“Educational institution” shall mean an accredited law school or a non-profit organization certified by the Clerk of the Supreme Judicial Court for the county of Suffolk to provide professional responsibility and housing legal services training.

“Fiscal year” means the twelve-month period beginning on July first and ending on June thirtieth.

“General supervision” shall be construed to require that the supervising attorney, or another attorney affiliated with the same entity who is designated by the supervising attorney, be available within a reasonable period of time telephonically or otherwise if needed but shall not require that the supervising attorney be present with the housing justice worker in the court, tribunal, or agency, except when mandated by the relevant judicial or administrative official.

“Housing justice worker” is a non-lawyer in Massachusetts who is trained and supervised by a Massachusetts Legal Assistance Corporation grantee to provide limited, authorized legal assistance to clients of the grantee on issues related to housing, and whose work is under the jurisdiction of the Massachusetts Supreme Judicial Court.

Section 3. Certification of Eligibility

3.1. Qualifications for Eligibility

A person not admitted to the practice of law in this jurisdiction may receive permission to provide limited forms of legal assistance related to housing, if such person:

(a) is at least 21 years of age;

(b) is of good moral character;

(c) has obtained a high school diploma, or a general equivalency diploma (GED) evidencing the passing of the general education development test;

(d) is employed (full- or part-time) by, or provides volunteer service for, an approved legal services organization;

(e) has not been disbarred in any state, denied admission to the practice of law in any state for any reason other than the failure to secure a passing bar admissions examination score, denied certification—or had their certification suspended or revoked—for this non-lawyer legal services position; and

(f) obtains a passing grade on the examination administered by the Massachusetts Board of Bar Examiners for admission into this program. The substance, length, and format of this examination shall be determined by a Working Group on the Housing Opportunity Provider Expansion, which shall be comprised, as appointed by the Supreme Judicial Court, of civil legal aid attorneys and professors of accredited law schools in the Commonwealth.

3.2 Certification Process

An approved legal services organization may apply to the Clerk to certify current workers or volunteers of the organization as housing justice workers. To obtain this certification, the approved legal services organization shall file such forms as the Clerk may prescribe, setting forth the following information:

(a) proof of the prospective housing justice worker’s employment or volunteer status;

(b) a written agreement, signed by the prospective housing justice worker, to comply with all applicable rules and regulations of the approved legal services organization, provide authorized legal services only under the supervision of an attorney employed by the approved legal services organization, and otherwise offer legal assistance only as authorized under this Rule;

(c) an authenticated copy of the prospective housing justice worker’s passing grade on the entrance exam for admission into this program, as delineated in Section 3.1(f) of this Rule;

(d) the name of the approved legal services organization through which the housing justice worker will be providing services;

(e) the name and Board of Bar Overseers registration number of the housing justice worker’s supervising attorney(s); and

(f) an attestation that the prospective housing justice worker has:

(i) been evaluated by the approved legal services organization and deemed competent to provide authorized legal services;

(ii) successfully completed an approved training program provided by the approved legal services organization or an educational institution;

(iii) satisfactorily cleared a background check conducted by the approved legal services organization.

3.3. Expiration of Certification

A housing justice worker’s certification shall expire immediately when a housing justice worker:

(a) no longer works or volunteers at the approved legal services organization through which the housing justice worker was certified to practice pursuant to Sections 3.1 and 3.2 of this Rule;

(b) has been suspended from the approved legal services organization for willful misconduct;

(d) has been convicted of a misdemeanor or felony offense.

3.4. Expedited Certification Renewal

Notwithstanding any other provisions of this Rule, a housing justice worker whose certification expired pursuant to Section 3.3(a) may obtain a renewed certification once an approved legal services organization, whether that be the housing justice worker’s former organization or a new one, submits a written attestation to the Clerk that the housing justice worker:

(a) works or volunteers for the organization; and

(b) has been evaluated by the approved legal services organization and been deemed competent to provide authorized legal services.

This attestation shall further include the name of the approved legal services organization through which the housing justice worker will be providing services and the name and Board of Bar Overseers registration number of the housing justice worker’s supervising attorney(s).

Section 4. Scope of Practice

4.1. Authorized Scope of Practice

(a) A certified housing justice worker, under the general supervision of an attorney at the approved legal services organization, may perform legal work on behalf of clients of the approved legal services organization on current or anticipated disputes related to housing in the following tribunals of the Commonwealth:

(i) Housing Court, except in eviction defense proceedings;

(ii) Small Claims Court; and

(iii) any administrative agency.

(b) Such legal work may include:

(i) providing legal advice;

(ii) preparing documents, in any medium, on behalf of any client for

filing or that are intended to affect or secure a client's legal rights;

(iii) negotiating legal rights or responsibilities;

(iv) in-person and virtual representation in the tribunal; and

(v) assisting tenants with eviction sealing.

4.2. Notice of Appearance

A housing justice worker shall file a “Notice of Appearance of Housing Justice Worker” in each proceeding in which they intend to appear. The notice of appearance must include:

(a) the housing justice worker’s name;

(b) the name and Board of Bar Overseers number of the housing justice worker’s supervising attorney;

(c) a statement signed by the housing justice worker and their supervising attorney, averring that the housing justice worker is currently certified under this Rule and meets the requirements to appear before the court as set forth in Section 4.4 of this Rule; and

(d) the client consent documentation required by Section 5.2(b).

4.3. Document Preparation

All pleadings, motions, and other documents prepared and submitted to the Housing Court, an administrative agency, or in a small claims action by the housing justice worker shall include:

(a) the name and contact information for the housing justice worker;

(b) the title of “Massachusetts Housing Justice Worker";

sponsoring approved legal services organization; and

(d) the name and signature of the housing justice worker’s supervising

attorney.

4.4. Limitations of Housing Justice Worker Practice

A housing justice worker may provide legal assistance only to existing or prospective clients of their sponsoring approved legal services organization. This legal assistance must also be in matters in which the aid is free of any charges, costs, fees, or other financial obligations to the client. Finally, housing justice workers must always be sufficiently prepared, knowledgeable, and competent to appear in the relevant forum and to otherwise deliver quality services to their client. If the legal needs of the client are beyond the enumerated types of practice, listed in Section 4.1, that the housing justice worker is authorized to engage in, the housing justice worker must refrain from working on such matters and collaborate with their supervising attorneys to refer the client to a licensed attorney, which may be the supervising attorneys themselves.

4.5. Role of Judicial Officials

In line with the purposes of Rule 3:17, as detailed in Section 1, judicial officials shall presumptively permit and encourage housing justice workers to appear as set forth in Sections 4.1 and 4.2. Notwithstanding other provisions of this Rule, such officials may prescribe the form and manner by which the housing justice worker may participate in a proceeding and may limit their appearance in the interest of the orderly administration of justice, for good cause, or for the protection of a witness or litigant. If a limitation is ordered, the judicial official must, if requested, grant a reasonable continuance for the matter.

4.6. Privileged Communications

The rules of law and evidence relating to privileged communications between attorneys and clients shall govern communications made or received between housing justice workers and their clients.

Section 5. Responsibilities

5.1. Supervising Attorney Responsibilities

Housing justice workers must be supervised by an attorney who specializes in housing legal aid and is employed at an approved legal services organization. A person serving as a supervising attorney must:

(a) ensure that the housing justice worker is sufficiently prepared and competent to appear and is familiar with the rules, standing orders, and regulations of the forum in which the housing justice worker will appear; and

(b) provide the client to be served by the housing justice worker with written information about how to make a complaint concerning alleged misconduct with the Office of Bar Counsel.

Failure of an attorney to supervise and provide proper training to a housing justice worker may be grounds for disciplinary action or revoking or restricting that attorney’s ability to serve as a supervising attorney. Notwithstanding other sections of this Rule, a supervising attorney may seek leave of the court or administrative agency in which a housing justice worker is appearing for an appropriate and qualified substitute supervising attorney to appear on a temporary basis if the supervising attorney is not otherwise available on a given date.

5.2. Housing Justice Worker Responsibilities

Before a housing justice worker may act or appear on behalf of an individual client under this Rule, the housing justice worker shall:

(a) disclose to the client the housing justice worker’s status as a non-lawyer professional and advise them of the limited scope of legal assistance the housing justice worker is authorized to provide;

(b) obtain from the client a signed document in which the client acknowledges the housing justice worker’s status and authorizes the housing justice worker to represent the client in the matter identified in said document;

(c) obtain the signature of the housing justice worker’s supervising attorney confirming that the attorney will serve as the housing justice worker’s supervising attorney; and

(d) comply with the standards of professional conduct set forth in this Rule and Supreme Judicial Court Rule 3:07.

Section 6. Notification and Reporting Requirements

6.1. Supervising Attorney Notification Requirements

A supervising attorney must notify in writing the Clerk and any judicial officials before which the housing justice worker was appearing within seven (7) days when:

(a) the supervising attorney will no longer be regularly supervising a currently certified housing justice worker. If the housing justice worker will continue to serve in that role at the approved legal services organization, the name of a replacement supervising attorney at that same legal services organization must be disclosed in the notification;

(b) a housing justice worker ceases to volunteer with or be employed by the approved legal services organization, or has been suspended from the approved legal services organization for willful misconduct; or

(c) any other circumstance arises that reasonably calls into question the housing justice worker’s eligibility or capacity to serve in that role.

6.2. Housing Justice Worker Notification Requirements

A housing justice worker must notify the Clerk and the respective judicial officials in writing and file a withdrawal of appearance in any matter in which the housing justice worker was appearing within seven (7) days when the housing justice worker ceases to volunteer at or be employed by the approved legal services organization.

6.3. Approved Legal Services Organization Reporting Requirements

When a housing justice worker’s representation of an approved legal services organization’s client for legal assistance is terminated or completed, the approved legal services organization shall record the outcome of the legal assistance. Additionally, the supervising attorney of the housing justice worker shall send a closing letter to the client that details the assistance provided, includes a Clerk-created client satisfaction survey, and informs the client on how to submit a formal complaint to the Office of Bar Counsel and utilize any applicable grievance procedures.

The approved legal services organization shall also, by the end of each fiscal year, submit a report to the Clerk detailing the results of any housing justice workers that the organization has overseen. The report shall include:

(a) the number of clients served by housing justice workers and any impact on the approved legal services organization’s intake rate;

(b) the types of cases that the housing justice workers handled or assisted with;

(d) the number of client complaints the organization received about the

services provided by housing justice workers, if any; and

(e) recommendations for whether the housing justice worker program should

continue and, if so, how it can be improved.