Unfulfilled Promises for Right to Counsel

By Cheyenne Burke

October 8, 2021

Unfulfilled Promises for Right to Counsel


By Cheyenne Burke

In Albany, there is no shortage of legislation calling for expanded rights to counsel across a broad range of practice areas. Access to the courts through an attorney is an undeniably important and laudable goal fully supported by the New York State Bar Association. However, before lawmakers look to expand rights to counsel, they must make sure the current guarantees of legal representation are being honored.

Assigned counsel rates for attorneys representing children and indigent clients in New York have remained stagnant for nearly two decades. The woefully inadequate rates have resulted in a mass exodus of attorneys from assigned counsel panels and, more importantly, are argued to be reason for continuous constitutional violations of our state’s most vulnerable populations.

In June of 2021, a lawsuit was brought by several bar associations seeking injunctive relief forcing the state and city to raise assigned counsel rates and establish a mechanism for continuous review and adjustment. The heart of the plaintiff’s argument is that the constitutional promise of an individual’s right to meaningful and effective legal representation simply cannot be realized because of the abysmal assigned counsel rates. If this lawsuit sounds familiar, it is because the courts already addressed this issue 17 years ago in New York County Lawyers’ Assn. v State of New York.[1]

In 2001, a nearly identical complaint was filed by the New York County Lawyers’ Association seeking an increase to the assigned counsel rates which had not been increased since 1985. In 2003, the Supreme Court, New York County, issued a scathing decision admonishing lawmakers for ignoring the constitutional obligations to those entitled to counsel, and granted a permanent injunction raising the assigned counsel rates until the Legislature could act. The court recognized

“indigent citizens do not represent a substantial lobby in Albany. However, at the cornerstone of our system of justice is the precept that all citizens will be treated equally under the law. This court has shown substantial deference to the Legislature, awaiting legislation. Under these circumstances, equity can only be served by intervention to protect the fundamental constitutional rights of children and indigent adults who face present and future irreparable deprivations of these rights if injunctive relief is denied.”[2]

The court ultimately held that the assigned counsel rates set forth in § 722-b of the County Law, § 245 of the Family Court Act and § 35 of the Judiciary Law were unconstitutional as applied. The court issued an order removing compensation caps and setting the assigned counsel rate at $90 per hour, a rate comparable with federal assigned counsel at that time.

In response to this case, the 2003 legislative session was dominated by a contentious budget battle between the Legislature and then-Governor Pataki. Legislators passed a budget bill providing for increases to the assigned counsel rates effective January 1, 2004, but found themselves on the other side of a veto by the governor. In a historic vote, legislators on both sides of the aisle voted to override the governor’s veto, thereby increasing the rates for Attorneys for the Children (AFC) and18B assigned counsel for the first time since the mid-1980s.

So where does that leave us now as history seemingly repeats itself? Almost in the same position that we were in in 2001: 17 years since an increase in the rate, cries for reform coming from every corner of the legal community, and the courts considering if they need to intervene once again to ensure children and indigent individuals have access to counsel.

Over the years, Chief Judge Janet DiFiore has sounded the alarm over the increasing scarcity of assigned counsel available to take on cases; however, her tone has grown more urgent calling on leadership in Albany to take action to address “a crisis that cannot be ignored.” Countless organizations, including the New York State Bar Association, are advocating at the state capitol for increased rates. Hearings are being held to raise awareness and underscore that an already existing crisis will become a catastrophe as the courts reopen and administrators search high and low for attorneys that simply are not there.

Since the 2004 increase, assigned counsel rates have remained at $75 per hour for AFC and 18B counsel representing individuals in felonies; the rate is even lower for misdemeanors. Conversely, during that same time period, assigned counsel rates on the federal level have increased 14 times and now stand at $155 per hour, more than double the highest per hour rate in New York.[3]

Under current New York State law, there is no mechanism for assigned counsel rates to be increased without legislative action. This, however, is not the case across the board. District attorneys’ salaries, for example, are adjusted annually according to any judicial salary comparability. Similar concepts should be applied to assigned counsel rates and would eliminate the need for annual legislative action and, most importantly, would make certain clients do not suffer at the hands of a flawed system.

As lawmakers approach the 2022 legislative session and budget season, they will undoubtedly be called on by the courts, advocates, and judges alike to address the grim reality of the assigned counsel rates in  New York. The New York State Bar Association’s Committee on Mandated Representation[4] and Task Force on Rural Justice[5] have both issued reports underscoring how stagnant assigned counsel rates have compromised meaningful access to legal representation. The New York State Bar Association proudly lends its voice in support of reforms that will ensure equal access to legal representation and the courts, regardless of one’s ability to pay.

[1] 196 Misc. 2d 761 (2003).

[2] Id. at 784.

[3] https://www.uscourts.gov/rules-policies/judiciary-policies/cja-guidelines/chapter-2-ss-230-compensation-and-expenses#a230_20.

[4] https://nysba.org/app/uploads/2021/09/18B-rates-HOD-report-June-2018-004.pdf.

[5] https://nysba.org/app/uploads/2020/04/Report-Task-Force-on-Rural-Justice-April-2020-.pdf.

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