Stephen Hoffman New York County Lawyers’ Association Sues Pataki on Behalf of Children and Adults Who Cannot Afford Counsel New York, NY, February 18, 2000. The New York County Lawyers’ Association ("NYCLA") today sued Governor Pataki and the State of New York to insure that children and indigent adults who depend upon the state to provide attorneys in family and criminal proceedings receive the meaningful assistance of counsel required by the state and federal constitutions. NYCLA charged that the defendants have refused to establish adequate rates for appointed counsel, pushing the system of indigent representation in New York to the brink of collapse. The lawsuit was filed by Davis Polk & Wardwell, which is representing NYCLA in this case. Children and adults in certain family proceedings and all criminal defendants have a constitutional right to counsel. Despite a historic commitment to provision of counsel for children and indigent litigants, the system of appointed counsel in New York City is in crisis. Up to fifty parents are turned away from Family Court each week because no lawyer can be found to represent them. Criminal defendants wait years for overburdened defense lawyers to be available for trial. Attorneys have inadequate time and resources to prepare their assigned cases. In New York, the attorneys appointed to represent children and indigent adults are paid $25 an hour for out-of-court work and $40 an hour for work in court. These rates, the second-lowest paid by any state, have not been changed since 1986. Because they fall far short of meeting the costs of representation, NYCLA alleged, the number of attorneys willing to undertake assigned cases has plummeted in the last ten years. In the First Department, the number of attorneys accepting assigned cases decreased by more than 60% between 1989 and 1999. At the same time, the need has increased dramatically. In Bronx and New York Counties, the number of criminal cases in which the defendant was indigent has increased by 18.3% since 1989. As fewer attorneys stretch to satisfy a growing need, those still willing to accept appointments handle caseloads far too burdensome to permit them to adequately represent their clients. In New York County, for example, eighteen of the attorneys handling assigned cases had 150 or more felony cases assigned to them in the year 1998 alone. Attorneys with such caseloads are unable to perform the most basic tasks necessary to represent their client: meeting, interviewing and counseling the client, conducting legal and factual investigation, filing motions, and preparing for trials and appeals. While defendants refuse to raise the rates to a level which will insure the availability of effective counsel, officials on all sides of the family and criminal courts agree such a change is overdue. Chief Judge of New York State Judith Kaye has called for higher rates, saying that "a bedrock component of our State’s commitment to equal access to justice is . . . . at risk." Manhattan District Attorney Robert Morgenthau has expressed concern that the rates and caps threaten the fairness of the entire criminal judicial system, writing to Defendant Pataki in 1997 that: "The present level of compensation [for assigned counsel] makes it less likely that qualified counsel will undertake court appointments to represent poor defendants." New York City Criminal Justice Coordinator Steven M. Fishner testified on January 24, 2000, that Mayor Rudolph W. Guiliani supports Chief Judge Kaye’s proposal to increase the rates. Today NYCLA asked the court to declare the current system unconstitutional and to establish rates sufficient to protect the rights of children and indigent adults. Stephen D. Hoffman, NYCLA’s President said, "The Board of Directors has authorized this suit because all efforts by the Chief Judge and others to cause the Governor and State to ensure qualified private counsel will be available to provide meaningful representation, have failed."
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