New York State Bar Association Commences Lawsuit To Raise 18-B Rates

New York State Bar Association Commences Lawsuit To Raise 18-B Rates

11.30.2022

By Susan DeSantis

Children and indigent adults are being deprived of their constitutional rights to meaningful and effective representation in the criminal and family courts because pay for assigned counsel in the state has not been increased in 18 years, the New York State Bar Association contended in a lawsuit filed today.

The sole exception is New York City where Supreme Court Justice Lisa Headley issued a preliminary injunction on July 25, 2022 to raise pay to $158 an hour retroactive to Feb. 2, 2022, in response to a suit filed by the New York County Lawyers Association and nine other bar associations. The court found “that severe and irreparable harm to children and indigent adult litigants would occur without an injunction” and said protecting their constitutional rights is of “paramount importance.”

Through this legal action, the New York State Bar Association is seeking a pay rate of $158 per hour retroactive to Feb. 2, 2022 in the 57 counties outside of New York City for what is commonly referred to as 18-B lawyers. Pay has remained at $60 per hour for misdemeanors and $75 for felonies since 2004. By comparison, assigned counsel rates in the federal courts in New York in those same years have been raised 14 times to the current rate of $158 per hour.

“The New York State Bar Association has long supported sufficient pay for assigned counsel,” said Sherry Levin Wallach, president of the association. “Failing to provide adequate compensation for representation of children and indigent adults is a flagrant violation of the U.S. and New York State constitutions.”

“Rates have only been increased once in 35 years, which is a travesty. While we welcome the higher rates in New York City as a result of Justice Headley’s decision, it should be applied statewide. There is now a significant discrepancy in pay across the state for assigned counsel resulting in attorneys not being able to accept court appointed assignments. Ultimately, it is the clients — children and indigent adults — who suffer because their constitutional rights are not being protected,” she said.

The failure to raise rates in 18 years has led to fewer attorneys who are willing to take on the cases. Those who remain are overburdened and don’t have sufficient time to devote to each case.

“Inadequate funding, along with the excessive caseloads it causes, compromises the quality of legal representation that even the most qualified assigned private counsel in the counties can provide to their indigent clients,” the suit contends. “Excessive caseloads prevent assigned private counsel from performing basic pre-trial and pre-hearing tasks that are necessary and fundamental to the provision of meaningful and effective legal representation.

“Those tasks include, but are not limited to meeting with, interviewing, and counseling their clients; conveying basic information to their clients about the nature and purpose of upcoming court proceedings; spending adequate time reviewing their clients’ files, including volumes of case records, social media, and/or electronic evidence; conducting necessary legal and factual research; preparing witnesses to testify; filing evidentiary and procedural motions; and otherwise preparing their cases for trial.”

Michael J. Dell, a partner at Kramer Levin Naftalis & Frankel who is representing the New York State Bar Association, said, “In NYCLA v. State, the state did not and could not dispute that every single day, more children and indigent adults are deprived of their constitutional right of access to justice, and this calamity is visited most heavily and disproportionately on people of color.” Dell also represented the bar associations in the NYCLA suit.

“The state’s cavalier treatment of this issue and its constitutional obligation to children and indigent adults is unconscionable,” Dell said.