Dear Ms. Jarvis,
Recently, a question/issue came up in the jurisdiction (New York City) where other and I recent law graduates practice. Many of us are in the PSLF/IBR program, work at 501c3 public interest family law agencies and make loan payments under the current loan forgiveness program. Some attorneys are interested in joining the NY Family Court 18b Assigned Counsel panel, which is administered by the New York Appellate Department.

The question is whether loan payments made during such employment qualifies for purposes of PLSF.

NY Family Court 18b Assigned Counsel Are Subject to The Following:
1) 18b Assigned Counsel are required to apply to the Appellate Department for acceptance, and to be accepted must provide reference letters, work samples, and participate in an interview.

2) If accepted, the 18b Assigned Counsel attorney must fulfill certain job requirements, such as mandatory minimum intake days and mandatory/specific certifications and trainings (above and beyond state required CLE requirements). The attorney can also be discharged from the panel at the discretion of the Appellate Department.

3) 18b Assigned Counsel are assigned exclusively by, and at the discretion of, the Court on a case-by-case basis, pursuant to “Article 18b of the County Law”, by way of “New York Family Court Act §262 Assignment of Counsel For Indigent Persons”, only after a litigant satisfies the court that they are indigent and cannot afford private counsel. Thus, an 18b Assigned Counsel attorney is entirely dependant on the Court for employment.

4) Once assigned, the 18b Assigned Counsel represents the indigent parent of a child or children, or the child or children themselves (depending on the Courts’ discretion and assignment) in Family Court, and may only be discharged from the representation with the consent of the Court.

5) Upon submission of a Court approved and signed voucher, which details the hours worked, 18b Assigned Counsel panel attorneys submit those vouchers to New York City and are paid directly by New York City.

6) 18b Assigned Counsel are compensated at an hourly rate solely determined by NYC. Assigned Counsel are not permitted to bill the client directly for any part of the representation.

7) 18b Assigned Counsel attorneys work in the same court parts and on the same cases/legal matters as other legal entities that either in part or in whole also are funded by NY City or State and that represent indigent persons or persons in need. For instance, on a given New York Family Court case involving a child or children, an agency might represent one litigant, 18b Assigned Counsel might represent the other litigant, and a children’s agency might represent the child.

The PSLF program is meant to encourage attorneys to work in underserved areas and with people in need.

By statute and by practice, New York Family Court 18b Assigned Counsel panel attorneys (and indeed, all assigned counsel in all jurisdictions) do just that. It would seem this type of work fits exactly the enumerated loan forgiveness practical elements and requirements. But even though the intent of the PSLF program and descriptive language and definitions in the OMB Employment Certification Form (OMB No. 1845-0110) seem to indicate 18b Assigned Counsel employment should qualify for loan forgiveness, I have not been able to determine definitively whether this area of Public Interest practice will indeed be deemed eligible because it does not fit neatly into the specific Department of Education/OMB Employment Certification Form employment labels.
Per that form, qualification for loan forgiveness requires working in “qualifying employment in one or more jobs for the greater of: an annual average of at least 30 hours per week, for a contractual or employment period of at least 8 months, an average of 30 hours per week. . .” Under Section 6: Definitions Public Interest Law refers to “legal services provided by a public service organization that are funder in whole or in part by a local, State, Federal, or Tribal government.”  While the 18b Assigned Counsel panel is not in and of itself a separate “public service organization” (with charters and bylaws) as indicated in the OMB document, its attorneys, to recap, are part of a de-facto public interest law organization in that they 1) must be approved and accepted (and can be removed from the panel) by the Appellate Department; 2) must fulfill mandatory minimum job requirements; 3) can verify the minimum hours worked because Courts must sign hours-worked vouchers and NYC pays the 18b Assigned Counsel attorneys based on submitted vouchers; 4) are funded wholly by a “local” government (NYC) at a rate determined by that government; and 4) provide “public interest law services” in and for the communities the act was intended to serve.  Even if 18b Assigned Counsel are not seen as a formalized organization of any kind, the difference between them and public interest law agency attorneys is in name only, as both provide literally the same type of representation, to the same indigent population, in the same court, paid for by the same government. But because of this labeling ambiguity/omission issue, I am having trouble getting clarification if 18b Assigned Counsel attorneys will in fact ultimately qualify for PSLF, and if not, if this critical oversight in the legislation and program is being addressed.

Many experienced, skilled, dedicated attorneys are ready and willing to fill this critical public interest law service need - to provide legal representation to statutorily proscribed indigent persons - and want to ensure they are treated as equally under the law with regards to loan forgiveness as other government funded public interest attorneys when providing the same legal services to the same litigants, in the same manner and matter, in the same NY Family Courts.  Can you provide any guidance on this issue?

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