Successful 2023 Legislative Session for the New York State Bar Association

Successful 2023 Legislative Session for the New York State Bar Association

6.27.2023

By Hilary Jochmans

Four major NYSBA 2023 State priorities were passed this Spring:

Increase the rate of compensation for assigned counsel attorneys: 

As part of this year’s enacted budget, the assigned counsel rates were finally increased.  Effective April of this year, the rates for AFC (attorneys for children) and 18b attorneys have been raised to $158 per hour.  The caps on the applicable cases have also been raised to ten thousand dollars.  The state and counties will share the increased cost for this fiscal year.  While future state funding is not guaranteed, the Association will continue to advocate for these monies going forward.

In November 2022, NYSBA commenced a lawsuit against the State of New York seeking to compel an increase in the rates of compensation for assigned counsel equal to the federal rate and to provide a mechanism for continued increases. That lawsuit continues in NYS Supreme Court.

The last increase in assigned-counsel rates was in 2004, when they were increased to $75 per hour, in and out of court, for all matters under County Law Section 722.  This section includes felonies, violation of probation in connection with a felony conviction, appeals, parole representation, family court representation, and post-judgment motions. Fees of $60 per hour, in and out of court, are paid for representation of a person charged with a misdemeanor or lesser offence and no felony. Rates for Attorneys for the children under the judiciary law have also remained at $75 per hour for nearly two decades. Rates of compensation to assigned counsel must be increased to stop the exodus of practitioners from panels across the state. The resulting shortage of lawyers to represent indigent defendants and minors undermines access to justice in New York State.

Equal Rights Amendment:

It has been one year since the US Supreme Court decision in Dobbs v. Jackson Women’s Health Organization which decimated protection of fundamental rights of women in the United States. As discrimination at the federal level continues and adequate protections do not exist for women, the New York State legislature passed the Equal Rights Amendment.  This constitutional amendment expands the list of classes affirmatively protected by the New York Constitution in recognition of the need for comprehensive, enforceable, and intersectional equality under the law.  The amendment would prohibit discrimination based on gender, age, sexual orientation, disability, ethnicity, national origin, and pregnancy. In New York, Constitutional amendments must pass the legislature in two consecutive sessions and then go to the public for a vote.  This year marked the second legislative passage and will be on the ballot in 2024.

Permission for NY Admitted Attorneys to Practice without Residency or Office within NYS:

New York State Judiciary Law section 470 provides: “A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.” The concerns that led to the adoption of this section more than a century ago no longer exist and the current statutory prohibition serves no purpose in today’s global and virtual world. There is still a need for attorneys to serve New Yorkers throughout the state, particularly in under-served urban and rural areas. In January 2019, NYSBA’s House of Delegates, its governing body, approved a resolution calling for the repeal of Section 470, which had been recommended by the association’s working group studying the issue. Almost one in four members of the New York State Bar Association live and practice outside the state of New York.  The repeal of this outdated law will help further access to justice for New Yorkers throughout the state.  In the waning days of this session, legislation was passed to finally repeal Judiciary Law 470.

Clean Slate: 

New Yorkers who have served their sentences should have their conviction records automatically sealed so that they may be able to meaningfully rejoin their communities after their criminal legal system involvement. The Clean Slate Act carefully balances the harm of perpetual punishment for people with criminal records against society’s legitimate interest in allowing access to prior records where absolutely necessary. Sealed records will only be made available to specified court actors and law enforcement agencies in limited circumstances including agencies that issue gun licenses.  The Legislature passed a measure that provides for automatic sealing of certain convictions after a passage of time (misdemeanors 3 years, felonies 8 years).

In addition to these four state priorities, several other policies of the Association advanced in the legislature including measures on reparations, orders of post-termination visitation and Court Notification.

New York is set to become only the second state in the nation to establish a commission to examine slavery in the state and the role governments played in propagating this system.  The commission would be empowered to make recommendations to the legislature to right egregious past wrongs, including possible financial compensation.

The visitation legislation would establish procedures regarding orders of post-termination visitation and/or contact between a child and such child’s parent and for modification of such orders. This legislation is supported by NYSBA via a report of the Committee on Families and the Law on Racial Justice and Child Welfare. 

The Court Notification bill would enact standardized notification language so judges would not provide legal advice to criminal court defendants, but instead reinforce defense           counsel’s duty to provide individualized advice to their clients. The notification would also provide an additional opportunity for individuals to become aware of the possibility of immigration consequences resulting from a plea.  The Association issued a memo in support of this measure which is more important than ever given that the risk of deportation is often the most important part of any penalty imposed by the courts.