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Procedures for Appearances and Representation in OATH’s Hearings Division

Rule status: Proposed

Agency: OATH-ECB

Comment by date: May 18, 2022

Rule Full Text
Revised-OATH-Proposed-Rule-re-Appearances-and-Representation-w-Certs.pdf

The Office of Administrative Trials and Hearings proposes to amend its rules to clarify procedures for appearances and representation in OATH’s Hearings Division.

Attendees who need reasonable accommodation for a disablity such as a sign language translation should contact the agency by calling 1 (212) 436-0708 or emailing enolan@oath.nyc.gov by April 17, 2022

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Public Hearings

Date

May 18, 2022
11:00am - 1:00pm EDT

Location



Connect Virtually
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When prompted, enter Meeting ID: 2337 857 8841
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Disability Accommodation

Online comments: 7

  • Matthew Shapiro

    I am writing regarding the proposed rule:

    § 2. Section 6-16 of title 48 of the Rules of the City of New York is amended to add a new subsection
    (d) to read as follows:
    (d) In order to appear on behalf of a Respondent:
    (1) A registered representative or attorney must provide a signed authorization to appear form
    prior to the hearing; and
    (2) The registered representative or attorney must keep and maintain the authorization to appear
    form with the original signature of the person authorizing the representation, produce it to the
    Tribunal upon request, and include a copy of it with all e-mail correspondence to the Tribunal
    relating to that representation (including but not limited to requests for telephone or online
    hearings). Failure to produce this form with the original signature for an in-person hearing creates
    a rebuttable presumption that the registered representative or attorney is not authorized to
    represent the Respondent. Failure to include a copy of this form with all e-mail correspondence to
    the Tribunal relating to the representation shall result in rejection of the request for a hearing.

    This proposed rule is an undue hardship for attorneys who are “Officers Of The Court” and already subject to the numerous Rules of Professional Conduct found in the New York State Court Systems Rules Of Professional Conduct regarding attorney-client relationships.

    The proposed rule will add an added hardship for attorneys who represent indigent clients (many of whom receive summonses returnable to OATH), especially in this era of remote work where clients may not have such access to technology such as printing, scanning, and email, to comply with the requirement to complete an authorization form. This is especially the case for attorneys who may represent hundreds of such clients and will not be able to timely ensure that paper authorizations forms are sent, filled out correctly, and received back by clients that usually do not speak English as a first language or have technological fluency.

    Additionally, it should be noted that “Authorization Forms” are not required by any Court in New York state for attorneys admitted to the bar.

    It is understood that “representatives” are not similarly subject to ethical rules and obligations regarding client relationships, but this proposed rule for attorneys should be removed.

    Comment added May 11, 2022 2:12pm
  • Andrew Mundo

    I am writing regarding the proposed rule:

    § 2. Section 6-16 of title 48 of the Rules of the City of New York is amended to add a new subsection
    (d) to read as follows:
    (d) In order to appear on behalf of a Respondent:
    (1) A registered representative or attorney must provide a signed authorization to appear form
    prior to the hearing; and
    (2) The registered representative or attorney must keep and maintain the authorization to appear
    form with the original signature of the person authorizing the representation, produce it to the
    Tribunal upon request, and include a copy of it with all e-mail correspondence to the Tribunal
    relating to that representation (including but not limited to requests for telephone or online
    hearings). Failure to produce this form with the original signature for an in-person hearing creates
    a rebuttable presumption that the registered representative or attorney is not authorized to
    represent the Respondent. Failure to include a copy of this form with all e-mail correspondence to
    the Tribunal relating to the representation shall result in rejection of the request for a hearing.

    This proposed rule is an undue hardship for attorneys who are “Officers Of The Court” and already subject to the numerous Rules of Professional Conduct found in the New York State Court Systems Rules Of Professional Conduct regarding attorney-client relationships.

    Additionally, it should be noted that “Authorization Forms” are not required by any Court in New York state for attorneys admitted to the bar.

    It is understood that “representatives” are not similarly subject to ethical rules and obligations regarding client relationships, but this proposed rule for attorneys should be removed.

    Comment added May 12, 2022 12:26pm
  • Lindsay Garroway, Esq.

    There should be clarification on what “timely” appearance means within the rule. While a Respondent’s attorney should be able to adequately assess the general amount of time it will take them to get through their caseload for the day, the three hour appearance window set out in the rule does not address the wait time caused by OATH in having a Hearing Officer assigned, and then the 30 minutes that Petitioner is allowed to take in making its appearance once a Hearing Officer is ready. There are sometimes OATH computer system problems causing delay as well. Considering these factors are outside Respondent’s counsel’s control, it is unreasonable to require Respondent’s counsel to be able to complete its daily caseload within three hours of the 8:30 am hearing appearance time.

    Given a scenario where Respondent’s counsel waits three hours for a Hearing Officer to be assigned to her cases in the morning, Respondent’s counsel then does not actually have three hours to get through her hearings. She would also then not be permitted to complete her second call for the day (if her hearings were divided into multiple phone calls) even though she was ready and able to begin hearings at the start of the work day. This unjustly penalizes Respondents and their attorneys for delays outside their control.

    The three hour requirement also impinges on Respondent’s counsel’s ability to present adequate defenses by introducing harsh time constraints that are unrealistic and burdensome on Respondent.

    Perhaps OATH should consider staggering the hearing times throughout the day if it cannot handle the volume of calls coming in at 8:30 am (the time that the vast majority of cases are adjourned to).

    Comment added May 17, 2022 11:30pm
  • Phoebe Dossett, Esq.

    I am writing regarding the proposed rule:

    § 2. Section 6-16 of title 48 of the Rules of the City of New York is amended to add a new subsection
    (d) to read as follows:
    (d) In order to appear on behalf of a Respondent:
    (1) A registered representative or attorney must provide a signed authorization to appear form
    prior to the hearing; and
    (2) The registered representative or attorney must keep and maintain the authorization to appear
    form with the original signature of the person authorizing the representation, produce it to the
    Tribunal upon request, and include a copy of it with all e-mail correspondence to the Tribunal
    relating to that representation (including but not limited to requests for telephone or online
    hearings). Failure to produce this form with the original signature for an in-person hearing creates
    a rebuttable presumption that the registered representative or attorney is not authorized to
    represent the Respondent. Failure to include a copy of this form with all e-mail correspondence to
    the Tribunal relating to the representation shall result in rejection of the request for a hearing.

    This proposed rule is an undue hardship for attorneys who are “Officers Of The Court” and already subject to the numerous Rules of Professional Conduct found in the New York State Court Systems Rules Of Professional Conduct regarding attorney-client relationships.

    Additionally, it should be noted that “Authorization Forms” are not required by any Court in New York state for attorneys admitted to the bar.

    It is understood that “representatives” are not similarly subject to ethical rules and obligations regarding client relationships, but this proposed rule for attorneys should be removed.

    There should be clarification on what “timely” appearance means within the rule. While a Respondent’s attorney should be able to adequately assess the general amount of time it will take them to get through their caseload for the day, the three hour appearance window set out in the rule does not address the wait time caused by OATH in having a Hearing Officer assigned, and then the 30 minutes that Petitioner is allowed to take in making its appearance once a Hearing Officer is ready. There are sometimes OATH computer system problems causing delay as well. Considering these factors are outside Respondent’s counsel’s control, it is unreasonable to require Respondent’s counsel to be able to complete its daily caseload within three hours of the 8:30 am hearing appearance time.

    Given a scenario where Respondent’s counsel waits three hours for a Hearing Officer to be assigned to her cases in the morning, Respondent’s counsel then does not actually have three hours to get through her hearings. She would also then not be permitted to complete her second call for the day (if her hearings were divided into multiple phone calls) even though she was ready and able to begin hearings at the start of the work day. This unjustly penalizes Respondents and their attorneys for delays outside their control.

    The three hour requirement also impinges on Respondent’s counsel’s ability to present adequate defenses by introducing harsh time constraints that are unrealistic and burdensome on Respondent.

    Perhaps OATH should consider staggering the hearing times throughout the day if it cannot handle the volume of calls coming in at 8:30 am (the time that the vast majority of cases are adjourned to).

    Comment added May 18, 2022 9:23am
  • Rick Shea, Esq.

    I am writing regarding the proposed rule:

    § 2. Section 6-16 of title 48 of the Rules of the City of New York is amended to add a new subsection
    (d) to read as follows:
    (d) In order to appear on behalf of a Respondent:
    (1) A registered representative or attorney must provide a signed authorization to appear form
    prior to the hearing; and
    (2) The registered representative or attorney must keep and maintain the authorization to appear
    form with the original signature of the person authorizing the representation, produce it to the
    Tribunal upon request, and include a copy of it with all e-mail correspondence to the Tribunal
    relating to that representation (including but not limited to requests for telephone or online
    hearings). Failure to produce this form with the original signature for an in-person hearing creates
    a rebuttable presumption that the registered representative or attorney is not authorized to
    represent the Respondent. Failure to include a copy of this form with all e-mail correspondence to
    the Tribunal relating to the representation shall result in rejection of the request for a hearing.

    This proposed rule is an undue hardship for attorneys who are “Officers Of The Court” and already subject to the numerous Rules of Professional Conduct found in the New York State Court Systems Rules Of Professional Conduct regarding attorney-client relationships.

    The proposed rule will add an added hardship for attorneys who represent indigent clients (many of whom receive summonses returnable to OATH), especially in this era of remote work where clients may not have such access to technology such as printing, scanning, and email, to comply with the requirement to complete an authorization form. This is especially the case for attorneys who may represent hundreds of such clients and will not be able to timely ensure that paper authorizations forms are sent, filled out correctly, and received back by clients that usually do not speak English as a first language or have technological fluency.

    Additionally, it should be noted that “Authorization Forms” are not required by any Court in New York state for attorneys admitted to the bar.

    It is understood that “representatives” are not similarly subject to ethical rules and obligations regarding client relationships, but this proposed rule for attorneys should be removed.

    Comment added May 18, 2022 9:47am
  • Geli Glatzer

    There should be clarification on what “timely” appearance means within the rule. While a Respondent’s attorney should be able to adequately assess the general amount of time it will take them to get through their caseload for the day, the three hour appearance window set out in the rule does not address the wait time caused by OATH in having a Hearing Officer assigned, and then the 30 minutes that Petitioner is allowed to take in making its appearance once a Hearing Officer is ready. There are sometimes OATH computer system problems causing delay as well. Considering these factors are outside Respondent’s counsel’s control, it is unreasonable to require Respondent’s counsel to be able to complete its daily caseload within three hours of the 8:30 am hearing appearance time.

    Given a scenario where Respondent’s counsel waits three hours for a Hearing Officer to be assigned to her cases in the morning, Respondent’s counsel then does not actually have three hours to get through her hearings. She would also then not be permitted to complete her second call for the day (if her hearings were divided into multiple phone calls) even though she was ready and able to begin hearings at the start of the work day. This unjustly penalizes Respondents and their attorneys for delays outside their control.

    The three hour requirement also impinges on Respondent’s counsel’s ability to present adequate defenses by introducing harsh time constraints that are unrealistic and burdensome on Respondent.

    Perhaps OATH should consider staggering the hearing times throughout the day if it cannot handle the volume of calls coming in at 8:30 am (the time that the vast majority of cases are adjourned to).

    Comment added May 18, 2022 11:01am
  • Indi Wanebo

    I am writing regarding the proposed rule:

    § 2. Section 6-16 of title 48 of the Rules of the City of New York is amended to add a new subsection
    (d) to read as follows:
    (d) In order to appear on behalf of a Respondent:
    (1) A registered representative or attorney must provide a signed authorization to appear form
    prior to the hearing; and
    (2) The registered representative or attorney must keep and maintain the authorization to appear
    form with the original signature of the person authorizing the representation, produce it to the
    Tribunal upon request, and include a copy of it with all e-mail correspondence to the Tribunal
    relating to that representation (including but not limited to requests for telephone or online
    hearings). Failure to produce this form with the original signature for an in-person hearing creates
    a rebuttable presumption that the registered representative or attorney is not authorized to
    represent the Respondent. Failure to include a copy of this form with all e-mail correspondence to
    the Tribunal relating to the representation shall result in rejection of the request for a hearing.

    Continuing to undermine the general publics access to representation by creating more and more hoops for attorney’s and their clients to jump through fundamentally undermines our judicial system. If OATH has an untenable workload, the effort would be better spent mobilizing lawyers to contact their representatives and request more funding for the court system so that it can be adequately staffed, not attempting to impose new barriers that will effect vulnerable clients the most. In actual practice, these proposed rules are going to mean that more people will not have adequate representation in court, and will be forced to navigate a system that is convoluted and constantly changing. I would argue that these rules are designed to reduce representation by competent attorneys in order to increase the fine amounts the city makes on each violation as people will increasingly be forced to represent themselves with absolutely no education on how to mitigate, corrections, etc. Even if this is not the designed purpose of these rules, it would be their natural consequence.

    Comment added May 18, 2022 11:10am

Comments are now closed.