Are New York volunteer attorneys who help pro se litigants in Housing Court eligible for State defense and indemnification under Public Officers Law § 17?

Plain-English summary

The Chief Administrative Judge's special assistant asked the AG whether attorneys participating in the Office of Court Administration's Volunteer Lawyers Project for Housing Court would qualify for State defense and indemnification under Public Officers Law § 17.

The AG said yes.

The program. In 1997 the Chief Judge announced a Housing Court Initiative to make the court more accessible to pro se litigants (which, in Housing Court, is the overwhelming majority). OCA created a Resource Center staffed by two OCA-employee attorneys. Within the Resource Center, OCA established the Volunteer Lawyers Project: practicing attorneys complete a 12-hour OCA-sponsored training and then provide legal advice to pro se litigants under the supervision of the two OCA staff attorneys.

The statute. Public Officers Law § 17 provides for State defense and indemnification of an "employee." The statutory definition is broad: "any person holding a position . . . in the service of the state, whether or not compensated, or a volunteer expressly authorized to participate in a state-sponsored volunteer program." The question was whether the Volunteer Lawyers Project qualified as a "state-sponsored volunteer program."

The AG looked at the facts. The program was formally established by the Chief Judge of the State. Participating attorneys must complete OCA's training. They are supervised by OCA staff. The program operates within and is regulated by OCA. All of that adds up to "state-sponsored." Op Atty Gen No. 97-F3 had identified the elements of state sponsorship in a prior opinion and reached the same conclusion for a parallel program.

So the volunteer attorneys are "employees" within § 17. They are eligible for State defense if they are sued for acts within the scope of their volunteer service, and indemnification if a judgment or settlement attaches to such acts. The eligibility is subject to § 17's procedural rules (notice, request, fact-finding about scope of service).

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What kind of liability does a Housing Court volunteer lawyer face?

A pro se litigant who lost might claim that the volunteer's advice was wrong and caused harm. A landlord might claim the volunteer's intervention damaged the landlord's position. The AG opinion is about access to defense and indemnification by the State if such claims are filed, not about whether they are likely to succeed.

What does "defense and indemnification" mean in practice under § 17?

The State assigns counsel (or pays approved outside counsel) to defend the volunteer in any civil action arising from the volunteer service, provided the AG determines the act was within the scope of service. If a judgment or settlement is reached, the State indemnifies the volunteer for the amount, subject to statutory exclusions (punitive damages are typically excluded).

What's the difference between § 17 (this opinion) and § 18 (covered in the 1999-33 opinion)?

§ 17 is the State-level statute for State employees, including state-sponsored volunteers. § 18 is the local-government parallel for municipal employees. They have similar structures but apply to different employers. A volunteer in a State-sponsored program gets § 17 coverage from the State; a volunteer in a local-government program gets § 18 coverage from the municipality (if it has opted in).

What if the volunteer attorney also has their own malpractice insurance?

The State's defense and indemnification under § 17 typically operates as primary coverage for activities within the scope of the state-sponsored program. The volunteer's private malpractice insurance might be excess or might exclude state-sponsored volunteer activities. The volunteer should review the policy and check with the carrier for clarity.

Are other state-sponsored pro bono programs likely to qualify?

The AG opinion identifies the test: formal State establishment, training under State sponsorship, supervision by State employees, and operation within a State-regulated program. Pro bono programs in other state courts or state-agency contexts that meet those criteria likely qualify. Each program would need its own facts evaluated.

Background and statutory framework

Public Officers Law § 17. The State employee defense-and-indemnification statute. Defines "employee" to include state-sponsored volunteers expressly authorized to participate. Provides for State defense in civil actions arising from scope-of-service acts and indemnification for resulting judgments or settlements.

Housing Court Initiative. Established in 1997 by the Chief Judge of the State of New York. Includes the Resource Center and the Volunteer Lawyers Project.

OCA structure. The Office of Court Administration is the administrative arm of the Unified Court System. The Chief Administrative Judge runs OCA. Programs established and administered by OCA are state programs for purposes of § 17.

Prior AG opinion. Op Atty Gen No. 97-F3 applied the same state-sponsored-program analysis to a different volunteer initiative and concluded § 17 coverage attached.

Citations

• Public Officers Law § 17 (State defense and indemnification of employees and state-sponsored volunteers).
• Op Atty Gen No. 97-F3 (prior AG opinion on state-sponsored volunteer program qualification).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2000-F1_pw.pdf

Original opinion text

Opn. No. 2000-F1
PUBLIC OFFICERS LAW § 17.
Participants in the Volunteer Lawyers Project of the Housing Court are employees within the meaning
of Public Officers Law § 17 therefore are eligible to receive defense and indemnification by the State,
subject to the procedural terms and conditions of the statute.
February 3, 2000
Hon. Jonathan Lippman
Chief Administrative Judge
Office of Court Administration
111 Centre Street, Rm. 1240
New York, NY 10013

Formal Opinion
No. 2000-F1

Dear Chief Administrative Judge Lippman:
Your Special Assistant has asked whether participants in the Volunteer Lawyers Project
established by the Office of Court Administration ("OCA") to assist litigants in Housing Court are
eligible for defense and indemnification by the State pursuant to Public Officers Law § 17. We conclude
that the volunteers are eligible to receive defense and indemnification by the State under section 17.
Your assistant has explained that most litigants in Housing Court are not represented by lawyers
and many need extensive advice about court procedures. In 1997, the Chief Judge announced a Housing
Court Initiative intended to address that need and to make the Housing Court more accessible to the
public.
To implement the Housing Court Initiative, OCA established a Resource Center staffed by two
attorneys who are employees of OCA and advise pro se litigants at all stages of Housing Court
proceedings. Within the Resource Center, OCA also established the Volunteer Lawyers Project. Under
the supervision of the two staff attorneys, volunteer attorneys provide legal advice to pro se litigants.
Attorneys selected as volunteers must attend a 12-hour training session sponsored by OCA before they
can participate in the Volunteer Lawyers Project.
Public Officers Law § 17 provides for defense and indemnification by the State of an employee,
which the statute defines to include
any person holding a position . . . in the service of the state, whether or not compensated, or
a volunteer expressly authorized to participate in a state-sponsored volunteer program . . ..
In our view, the Volunteer Lawyers Project is a "state-sponsored volunteer program" within the meaning
of section 17. The characteristics of the Project clearly establish State sponsorship. The Housing Court
Initiative, which includes the Volunteer Lawyers Project, was formally established by the Chief Judge;
attorneys must attend a training program sponsored by OCA to qualify as volunteers; and the
volunteering attorneys are supervised by two OCA staff attorneys. Thus, the volunteer project has been
formally established by the State and operates within a regulated State program. The Volunteer Lawyers
Project is a "state-sponsored volunteer program." See Op Atty Gen No. 97-F3.

For these reasons, we conclude that participants in the Volunteer Lawyers Project are employees
within the meaning of Public Officers Law § 17 and therefore are eligible to receive defense and
indemnification by the State, subject to the procedural terms and conditions of the statute.
Very truly yours,
ELIOT SPITZER
Attorney General

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