DAVIS POLK & WARDWELL

450 Lexington Avenue

New York, New York 10017

Craig A. Landy (212) 450-4000

NEW YORK COUNTY LAWYERS' ASSOCIATION

14 Vesey Street

New York, NY 10007

Of Counsel

Stephen D. Hoffman

Norman L. Reimer

STATEMENT OF THE CASE 3

ARGUMENT 6

I. The Court Should Grant the Preliminary Relief NYCLA Seeks 8

II. Family Court: NYCLA Has Demonstrated a Likelihood of Success on the Claim of Severe and Unacceptably High Risk of Ineffective Assistance of Counsel 11

A. The Right to "Meaningful and Effective" Assistance of Counsel for Children and Adults 12

B. New York City's Family Court Does Not Provide Attorneys to Many Indigent Litigants Who Are Entitled to Counsel 17

C. A Severe and Unacceptably High Risk Exists That Assistance Will Not Be "Meaningful and Effective" 33

III. Criminal Proceedings: NYCLA Has Demonstrated a Likelihood of Success on the Claim of Severe and Unacceptably High Risk of Ineffective Assistance of Counsel 48

A. The Right to "Meaningful and Effective" Assistance of Counsel 49

B. Systemic Deficiencies Result in a Real and Immediate Threat to Meaningful and Effective Assistance 53

IV. 86

V. Children and Indigent Adults Are Threatened Irreparable Injury in the Absence of Preliminary Relief 87

VI. The Balance of Equities Weighs Strongly in Favor of Granting Preliminary Relief 89

VII. The Court Has the Power to Order Preliminary Relief 91

A. Declaratory Judgment 91

B. Injunction Setting New Rates 92

C. Injunctions Requiring Access to Counsel, Imposing Workload Limits and Enforcing Existing Rules 95

CONCLUSION 101

The New York County Lawyers' Association ("NYCLA" or "plaintiff") respectfully submits this memorandum of law in support of its motion for a preliminary injunction. NYCLA seeks declarations that: (1) the State of New York (the "State" or "defendant") is obligated to ensure that a sufficient number of qualified private attorneys are available and able to represent children and indigent adults in family and criminal proceedings in New York City; (2) the State's failure to raise the hourly rates of compensation paid to assigned counsel, ⁽¹⁾ the distinction between the rates paid for in- and out-of-court work and the ceilings on total per case compensation have created a severe and unacceptably high risk that children and indigent adults will not receive meaningful and effective legal representation in violation of the New York and United States Constitutions; and (3) the rate-setting provisions of § 722-b of the County Law, § 245 of the Family Court Act and § 35 of the Judiciary Law are unconstitutional as applied to the representation of children and indigent adults in New York City.

NYCLA also seeks preliminary injunctive relief ordering that: (1) the rate of compensation for assigned counsel in all family and criminal trial and appellate proceedings in New York City shall be $100 per hour to ensure that a sufficient number of qualified private attorneys are available and able to provide children and indigent adults with meaningful and effective legal representation in these proceedings; (2) there shall be no distinction between the hourly rates paid for in- and out-of-court work; (3) there shall be no ceilings on total per case compensation; and (4) the $100 per hour rate shall be effective immediately and shall remain in effect until such time as the State may modify the assigned counsel system, consistent with its constitutional obligations.

Finally, NYCLA seeks further injunctive relief to take effect two months after the above orders have been issued: (1) requiring the State to ensure that sufficient numbers of assigned counsel are available to staff the intake parts each day in the New York City Family Court; (2) requiring the State to review the total number of hours billed by assigned counsel every three months and to prevent any attorneys who have billed 2,000 or more hours on assigned counsel work during the prior 12 months from accepting any new assigned cases until their billed hours fall below this limit; and (3) requiring the State to enforce all existing standards, guidelines and rules of the Assigned Counsel Plan and Law Guardian Programs pertaining to the conduct and performance of assigned counsel. These additional measures are necessary to ensure that all of the children and indigent adults who are entitled to counsel are assigned counsel and that those attorneys are able to provide them with meaningful and effective legal representation.

STATEMENT OF THE CASE

The shortages are so severe that in the New York City Family Court, dozens of indigent adults -- some of whom have been separated from their children -- are turned away each week simply because there are no attorneys available to represent them, even though the State is constitutionally and statutorily obligated to provide them with counsel on the first day they appear in court. Similarly, in juvenile delinquency proceedings, children have been remanded to the custody of the Department of Juvenile Justice without an attorney assigned to represent them, even though they are also entitled to have counsel appointed. Even when attorneys are ultimately found to represent these children and adults, many assigned counsel are so overburdened with other assigned cases that they cannot provide meaningful and effective legal representation to each of their clients. Shortages also contribute to severe delays in Family Court proceedings, which often cause children to remain separated from their parents for longer than they should.

In response to these shortages, court officials imposed an "emergency" or "triage" case system in the New York City Family Court starting in April 2001. This system seeks to make attorneys available to those children and indigent adults in certain categories of cases. The approach, however, is deeply flawed. The "emergency cases" system makes no provision whatsoever for counsel to be assigned to the children and indigent adults who do not appear in cases not designated as "emergency," even though they also are constitutionally and statutorily entitled to counsel. In addition, this system requires assigned counsel to represent parties in these "emergency cases" even if the attorney believes he or she cannot competently and ethically handle them.

The situation is no better in criminal proceedings, where shortages of active panel attorneys force the remaining assigned counsel to carry overwhelming caseloads and still higher workloads. As a result, many assigned counsel simply cannot perform all of the tasks that are necessary to provide their clients with meaningful and effective legal representation. Indeed, even the more talented and experienced attorneys who have served on the panels in recent years - many of whom have since reduced the number of assigned cases they accept or have left the practice altogether - confess that it is nearly impossible to provide quality representation given the current shortages and hourly rates. In addition, indigent defendants, many of whom are incarcerated pending disposition of the charges against them, often experience lengthy delays largely due to the unavailability of assigned counsel. Often, these delays last several years.

These shortages, and the other systemic deficiencies they have brought about, can be traced to one cause: the absurdly low rates of compensation paid to assigned counsel. Under Article 18-B, Article 2 of the FCA and Article 2 of the Judiciary Law, the State has delegated some of its responsibility to operate and fund a system of assigned counsel for children and indigent adults to New York City. Nevertheless, because the constitutional obligation to provide these litigants with meaningful and effective assistance of counsel rests ultimately upon the State, it has the duty to ensure that the system has the resources necessary to ensure that attorneys within the system are able to provide constitutionally adequate representation. By refusing to raise these rates, and by failing to take other necessary steps to ensure that sufficient numbers of assigned counsel are available and able to represent them, the State is violating the constitutional rights of children and indigent adults on a daily basis.

NYCLA brings this action on behalf of the thousands of children and indigent adults entitled to assigned counsel in criminal and family proceedings in New York City to prevent current and future violations of their rights to counsel, due process of law and bail under the New York and United States Constitutions, applicable state statutes and case law. As demonstrated below, and in the accompanying affirmations, affidavits and exhibits, the State's persistent refusal to act in the face of this crisis has led the assigned counsel system to deteriorate to the point where it subjects children and indigent adults to a severe and unacceptably high risk that meaningful and effective legal representation will not be provided. Indeed, as recent events in the New York City Family Court make plain, the system already has begun its collapse, ensuring that current and future violations of these constitutional rights will become even more pervasive and widespread. This collapse will not be corrected quickly, and may not be corrected at all, unless the Court grants the declaratory and injunctive relief NYCLA seeks herein.

ARGUMENT

Because the claims at issue in this action allege prospective deprivations of state and federal constitutional rights, NYCLA need prove only a likelihood that children and indigent adults who are entitled to counsel may be denied their rights in the future. See Swinton v. Safir, 93 N.Y.2d 758, 765-66, 720 N.E.2d 89, 93, 697 N.Y.S.2d 869, 873 (1999) ("[P]roof of a likelihood of the occurrence of a threatened deprivation of constitutional rights is sufficient to justify prospective or preventive remedies under 42 U.S.C. § 1983, without awaiting actual injury," citing Luckey, 860 F.2d at 1017 ("Prospective relief is designed to avoid future harm. Therefore, it can protect constitutional rights, even if the violation of these rights would not affect the outcome of a trial.")). The Luckey court explained the critical distinction between claims alleging prospective violations of the right to counsel and traditional "ineffectiveness" claims brought following a finding of guilt:

The sixth amendment protects rights that do not affect the outcome of the trial. Thus, deficiencies that do not meet the "ineffectiveness" standard may nonetheless violate a defendant's rights under the sixth amendment. . . . Whether an accused has been prejudiced by the denial of a right is an issue that relates to relief - whether the defendant is entitled to have his or her conviction overturned - rather than to the question of whether such a right exists and can be protected prospectively.

860 F.2d at 1017 (distinguishing Strickland v. Washington, 466 U.S. 668 (1984)). Thus, to obtain the preliminary relief sought, NYCLA is not required to demonstrate - and does not intend to prove - that any particular family court disposition or criminal conviction has been entered in violation of an individual's state or federal constitutional rights.

I. The Court Should Grant the Preliminary Relief NYCLA Seeks

The first factor, likelihood of success on the merits, does not require NYCLA to prove with certainty that it would prevail at trial. Rather, "[i]t is enough if the moving party makes a prima facie showing of his right to relief; the actual proving of his case should be left to the full hearing on the merits. . . ." Tucker v. Toia, 54 A.D.2d 322, 326, 388 N.Y.S.2d 475, 478 (4th Dep't 1976); accord Niagara Recycling, Inc. v. Town of Niagara, 83 A.D.2d 316, 324, 443 N.Y.S.2d 939, 945 (4th Dep't 1981) (applying three-part standard and citing Tucker). Where, as here, the plaintiff raises arguments "based on substantial principles of constitutional law and involves novel issues of first impression . . . [that] is precisely the situation in which a preliminary injunction should be granted to hold the parties in status quo while the legal issues are determined in a deliberate and judicious manner." Tucker, 54 A.D.2d at 326, 388 N.Y.S.2d at 478; see Lily Pond Lane Corp. v. Technicolor, Inc., 98 Misc. 2d 853, 854-55, 414 N.Y.S.2d 596, 597 (Sup. Ct. N.Y. County 1979) ("Plaintiff has established that failure to preserve the status quo would result in deprivation of its constitutional right to due process. This alone demonstrates irreparable harm. . . . Strongly tipping the scales in favor of the preliminary injunction is the necessity of preserving the plaintiff's constitutional rights . . . ."); Powlowski v. Wullich, 81 Misc. 2d 895, 897, 366 N.Y.S.2d 584, 587 (Sup. Ct. Monroe County 1975). That is because "[w]here denial of injunctive relief would render the final judgment ineffectual, the degree of proof required to establish the likelihood of success on the merits should be accordingly reduced." Republic of Lebanon v. Sotheby's, 167 A.D.2d 142, 145, 561 N.Y.S.2d 566, 568-69 (1st Dep't 1990); accord Doe v. Dinkins, 192 A.D.2d 270, 275, 600 N.Y.S.2d 939, 943 (1st Dep't 1993) (issuing preliminary injunction requiring New York City to bring homeless shelter into compliance with state occupancy regulations).

Applying these principles here, there can be little dispute that any judgment NYCLA would obtain on the constitutional claims it asserts following a trial of this action would be "ineffectual" with respect to those children and indigent adults who are denied their right to counsel in family or criminal proceedings in the interim. See Republic of Lebanon, 167 A.D.2d at 145, 561 N.Y.S.2d at 568-69; Doe v. Dinkins, 192 A.D.2d at 275, 600 N.Y.S.2d at 943. Accordingly, the Court should grant the preliminary relief NYCLA seeks - even if it is uncertain at this stage in the litigation that NYCLA will succeed on the merits of its claims - in order to prevent the serious and irreparable deprivations of constitutional rights that NYCLA's evidence demonstrates are likely to occur in current and future proceedings.

For the same reason, the Court should not hesitate to issue a preliminary injunction out of concern that it would be an inappropriate award of ultimate relief in this action. Justice Braun recently considered - and rejected - this argument offered in opposition to a preliminary injunction sought on behalf of a class of mentally ill prison inmates requiring New York City to provide them with discharge plans prior to their release as required by state law. Brad H. v. City of New York, 185 Misc. 2d 420, 712 N.Y.S.2d 336 (Sup. Ct. N.Y. County), aff'd, 276 A.D.2d 440, 716 N.Y.S.2d 852 (1st Dep't 2000). The court there reasoned that "[a]lthough awarding of such an injunction would be ultimate relief for some Plaintiffs and class members, the failure to do so would render any judgment in their behalf ineffectual because some would be discharged from incarceration before a final judgment is promulgated in this action." 185 Misc.2d at 431, 712 N.Y.S.2d at 345 (citing Doe v. Dinkins, 192 A.D.2d at 275, 600 N.Y.S.2d at 942). The Brad H. court also held that New York City could not oppose an injunction on the ground that it lacked sufficient funds to implement the relief requested because the law requires it to provide these services to the plaintiff class. See id. (citing Klostermann v. Cuomo, 61 N.Y.2d 525, 536-37, 463 N.E.2d 588, 594, 475 N.Y.S.2d 247, 253 (1984) (finding defense of lack of funding "particularly unconvincing when uttered in response to a claim that existing conditions violate an individual's constitutional rights")).

As NYCLA demonstrates in the sections that follow, the evidence bearing on the factors set forth above weighs strongly in favor of granting the preliminary declaratory and injunctive relief requested herein.

II. Family Court: NYCLA Has Demonstrated a Likelihood of Success on the Claim of Severe and Unacceptably High Risk of Ineffective Assistance of Counsel

A. The Right to "Meaningful and Effective" Assistance of Counsel for Children and Adults

The New York and United States Constitutions also require the assignment of counsel to children in many types of proceedings before the Family Court. In a juvenile delinquency proceeding,

where the issue is whether the child will be found to be 'delinquent' and subjected to the loss of his liberty for years . . . [a] juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.

In re Gault, 387 U.S. 1, 36 (1967); see also People v. Witenski, 15 N.Y.2d 392, 207 N.E.2d 358, 259 N.Y.S.2d 413 (1965). In other proceedings where children have a liberty interest at stake, such as child protective proceedings involving abuse, the Due Process Clauses of the New York and United States Constitutions require assignment of counsel. See In re Jamie TT, 191 A.D.2d 132, 136, 599 N.Y.S.2d 892, 894-95 (3d Dep't 1993).

The FCA also grants adults appearing in Family Court the right to counsel in many proceedings. Adults in child protective proceedings, custody proceedings and domestic violence or "family offense" proceedings, among many others, are entitled by express provisions of the FCA to the assistance of counsel. See FCA § 262; see also Spinak Aff. ¶ 23 (listing proceedings in which adults are entitled to counsel).

Counsel for adults also is constitutionally required in many cases in Family Court. In child protective cases, for example, the Court of Appeals has found a parent's interest in the liberty, care and control of a child so "fundamental an interest and a right" that due process requires the appointment of counsel when those interests are at stake. In re Ella B., 30 N.Y.2d 352, 356-57, 285 N.E.2d 288, 289-90, 334 N.Y.S.2d 133, 135-36 (1972). In any case where a respondent faces contempt for willful violation of an order of the Family Court, a common circumstance in both family offense and child support proceedings, he or she is also constitutionally entitled to counsel. See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) ("No person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial."); see also Kissel v. Kissel, 59 A.D.2d 1036, 399 N.Y.S.2d 781 (4th Dep't 1977).

2. Timely Assignment of Counsel

As to adults, § 262 of the FCA provides that when a person entitled to counsel "first appears in court, the judge shall advise such person before proceeding that he has the right to be represented by counsel . . . and of his right to have counsel assigned by the court in any case where he is financially unable to obtain the same." FCA § 262(a) (emphasis supplied). The Court of Appeals has interpreted § 262 to confer the right to "the assistance of counsel throughout the Family Court proceeding." In re Alexander L., 60 N.Y.2d 329, 335, 457 N.E.2d 731, 735, 469 N.Y.S.2d 626, 629, (1983) (finding in § 262 a "right, expressly conferred by the Legislature [citation omitted] to have . . . counsel present from the time of [the client's] appearance"); see also, e.g., DeMarco v. Rafferty, 242 A.D.2d 625, 662 N.Y.S.2d 138 (2d Dep't 1997) (in child support proceeding involving willful violation of an order, appointment of counsel at a late stage in the proceedings violated respondent's right to counsel).

3. Assigned Counsel's Assistance Must Be "Meaningful and Effective"

Just as in the more familiar criminal context, in Family Court meaningful and effective assistance requires that attorneys accomplish certain basic tasks in all cases. Attorneys must thoroughly interview and counsel their clients. See In re James R., 238 A.D.2d 962, 661 N.Y.S.2d 160 (4th Dep't 1997) (reversal where attorney did not meet with respondent mother and did not inform her of need to appear at fact-finding). They must conduct an independent investigation and develop evidence. See In re Colleen CC., 232 A.D.2d 787, 788, 648 N.Y.S.2d 754, 755 (3d Dep't 1996) (reversal where law guardian failed to develop evidence on behalf of his client). Attorneys also must prepare adequately for and actively participate in proceedings at each stage of the case. See In re Jamie TT., 191 A.D.2d at 136-37, 599 N.Y.S.2d at 894-95 (reversal where law guardian called no witnesses and conducted perfunctory cross-examination); In re Elizabeth R., 155 A.D. 2d 666, 548 N.Y.S. 2d 55 (2d Dep't 1990) (reversal where law guardian was not an active participant in the proceedings); see also In re Bernard K., 720 N.Y.S.2d 269 (3d Dep't 2001) (citing criminal precedent, including People v. Rivera, 71 N.Y.2d 705, 709, 525 N.E.2d 698, 700-01, 530 N.Y.S.2d 52, 54-55 (1988), to define effective assistance); see Part III.A., infra, for a discussion of the case law on effective assistance of counsel in the criminal context.

While there is no static definition of "meaningful and effective" assistance of counsel and "due process," state and national standards and guidelines describe the tasks required of counsel in Family Court proceedings. New York courts have relied on these standards, whose requirements are addressed in more detail in Part II.C. below, in defining meaningful and effective assistance of counsel and due process in Family Court proceedings. ⁽³⁾

B. New York City's Family Court Does Not Provide Attorneys to Many Indigent Litigants Who Are Entitled to Counsel

1. The Need for Assigned Counsel Is Great

Hundreds of thousands of petitions are filed in New York City's Family Court each year. In 1999, the last year for which statistics are available, 240,480 petitions were filed in Family Court, an increase of 38% from 1989. ⁽⁴⁾ See Moseley Ex. O (Summary of published OCA data). When indigent adults are entitled to have counsel assigned in these proceedings, virtually all of those attorneys come from the Family Court assigned counsel panels in each County ("Family Court panels"). ⁽⁵⁾ Panel attorneys also represent children when the Juvenile Rights Division ("JRD") of The Legal Aid Society ("Legal Aid"), the primary provider of attorneys for children, has a conflict, and in cases in which Legal Aid has no contract to represent children, such as in custody and visitation cases. See Cortese Aff. ¶ 4; Drinane Aff. ¶ 20; Leidholdt Aff. ¶ 6; Spinak Aff. ¶ 41.

Assigned counsel handle a large volume of cases, particularly in light of their small numbers. In 1999, for example, panel attorneys submitted 24,067 vouchers, each of which reflected a single client represented. In 2000, assigned counsel submitted 23,283 such vouchers. ⁽⁶⁾ See Spinak Aff. ¶ 255. Voucher statistics significantly understate the actual need for panel attorneys, however, because, as discussed below, vast numbers of litigants who are clearly entitled to attorneys, and recognized by the courts to be so entitled, never receive them. No records are regularly maintained by the system of the number of such failures - or the number and kinds of proceedings in which these failures occur.

2. The Family Court Panels Lack Attorneys
Because of the Abysmal Statutory Rates

NYCLA's expert, Professor Jane Spinak, considered data provided by the Assigned Counsel Plan and the Law Guardian Directors. After an examination of the number of vouchers submitted by panel attorneys, Professor Spinak determined that during the years 1997 through 2000, an average of approximately 206 attorneys citywide were the "workhorses" of the Family Court - attorneys who regularly represented clients there - although an average of approximately 333 attorneys submitted one or more vouchers in those years. See Spinak Aff. ¶¶ 249-51.

Rosters maintained by the Law Guardian Directors, who oversee and administer the Family Court panels, also show that very few panel attorneys regularly accept cases. In the First Department, appearance on the roster is a rough measure of regular activity, since Katharine Law, the Law Guardian Director for the First Department, requires a certain threshold level of assigned counsel work to maintain membership on the panel. ⁽⁸⁾ See Moseley Ex. E (Law Dep.) at 141-45. According to Ms. Law's records, in October of 1999, there were 143 Family Court panel members in the First Department. By April of 2000, that number had shrunk to 119, and by February of 2001 to 101. ⁽⁹⁾ See Moseley Ex. V at 2-3.

In the Second Department too, a few attorneys represent most clients needing assigned counsel in Family Court. See Moseley Ex. I (Weinberger Dep.) at 61. The panel includes many inactive attorneys because Harriet Weinberger, the Law Guardian Director for the Second Department, does not require a particular level of assigned counsel activity to remain on the panel. See Weinberger Dep. at 77-78. Still, total panel membership is low: 175 attorneys were eligible to take assigned counsel cases in the Second Department in 2000. ⁽¹⁰⁾ See Moseley Ex. V at p.1. Attorneys who appear in court several times each week estimate that the number of lawyers who regularly represent clients is even lower still. John Marotta, a current panel attorney from Queens, for example, estimated that while 54 attorneys appear on the Queens Family Court Panel roster, only 30 to 35 of them, or 55% to 65%, actively accept cases on a full-time or mostly full-time basis. ⁽¹¹⁾

The evidence overwhelmingly demonstrates that attorneys have left the panels or ceased taking cases because the rates they are paid are so "woefully inadequate." ⁽¹²⁾ The Law Guardian Directors who administer the panels, the panel attorneys themselves, screening committee members who review applicants to the panels, and Professor Spinak all reach this conclusion.

The Law Guardian Directors, who schedule attorneys to work in the intake part of the court each day, are acutely attuned to the number and availability of panel attorneys. They agree that the statutory rates have driven people to leave the panels or to reduce their panel work, and have made it very difficult to attract new attorneys. Ms. Law testified that the First Department is "hemorrhaging attorneys from the panel," largely due to the rates. Moseley Ex. E (Law Dep.) at 23-24. "[T]rained litigators," she testified, "can get jobs sufficient to feed their families and you can't feed a family on assigned counsel rates." Id. at 22; see also id. at 127-29. Ms. Weinberger said the "unconscionable" rates are the biggest obstacle to attracting attorneys to the panel. Moseley Ex. 1 (Weinberger Dep.) at 32; see also id. at 33, 240. She testified that "[t]here's nothing - there's nothing, and I can state rather unequivocally, that would assist us more than a pay [raise]." Id. at 244; see also id. at 169, 242-43.

Former members of the Family Court panels confirm that the financial hardships of panel work drove them away from the panel. ⁽¹³⁾ Current members affirm that many attorneys already have left because of the rates. ⁽¹⁴⁾ Many current members are themselves considering leaving the panel. See, e.g., Greenfield Aff. ¶ 18; Marotta Aff. ¶ 11; Schiff Aff. ¶ 44. Members of the screening committees charged with reviewing applicants for the Family Court panels in each County describe the dearth of applicants, explaining that attorneys are unwilling to work at these rates. ⁽¹⁵⁾ After her study of the assigned counsel system, it is also Professor Spinak's opinion that "because the rates are so low, the Family Court panels are unable to attract and retain a sufficient number of assigned counsel to represent the adults and children who appear in Family Court and who have a right to assigned counsel." Spinak Aff. ¶¶ 12, 230.

3. A Severe and Unacceptably High Risk of Denial of Access to Counsel Exists

(a) Assignment of Counsel in Family Court

(b) The Unavailability of Counsel in Recent Years

The problem is not limited to the First Department. On 48% of the days that the Family Court in Queens County was open in the year 2000 there were no primary attorneys available to take on cases for qualified litigants, according to a count of attorneys on calendars maintained by the Law Guardian Director for the Second Department. On 33% of the days the Family Court was open in Kings County in the year 2000 there were no primary attorneys available to take on cases of qualified litigants. See Moseley Ex. N (Report of Second Department intake coverage) at 3; Weinberger Dep. at 100-101. The shortages in the Second Department also have grown worse over time: in Queens County, for example, only 15% of court days had no primary attorneys available in 1998, but 25% of court days had none in 1999. By the year 2000, a full 48% of court days in Queens had none. See Moseley Ex. N (Report of Second Department Intake Coverage) at 1-3.

All of these percentages, moreover, reflect only those days when not a single attorney was available to represent qualified litigants. On many other days, as the documents make clear, only one attorney was available to represent all of the litigants who needed counsel. In this situation, a single attorney could be responsible for representing far more clients than he or she could handle - at times well over 20 new clients in one day. ⁽¹⁸⁾ Also not included in the above percentages are the many days on which the number of primary attorneys was below the required number by one or more.

When there are no primary attorneys, judges send court officers and court attorneys to scour the halls, asking any panel attorneys they find to accept cases. ⁽¹⁹⁾ Sometimes they even leave the bench themselves and search personally for panel attorneys to assign. ⁽²⁰⁾ Despite their best efforts, however, these ad hoc attempts to locate attorneys are insufficient to provide counsel reliably and consistently. ⁽²¹⁾

(c) The Unavailability of Counsel in 2001

The shortage of attorneys affects Bronx, Kings, New York and Queens Counties. During the week of February 26, 2001, 78 people in Kings County, 51 people in New York County and 15 people in Bronx County, who were entitled to counsel, received no panel attorney. No data was available about Queens for the week of February 26, 2001 but in the week of March 19, 2001, for example, 30 people in Queens did not get assigned counsel. All told, the statistics record 433 cases in the weeks of February 26, 2001 through March 26, 2001 in which a litigant entitled to counsel received none. See id. These counts by the Family Court document pervasive denial of the constitutional right of access to counsel.

Moreover, as discussed more fully below, the Family Court appears to have stopped considering some groups of litigants for counsel altogether - despite their established right to an attorney. For this reason, while NYCLA is not aware of the precise criteria used to determine the numbers in Exhibit K, Professor Spinak believes that "these numbers do not tell the whole story; it is likely that many more litigants who were entitled to counsel were not assigned attorneys." Spinak Aff. ¶ 307.

(d) The Family Court Triage of Constitutional Rights

Judges state plainly that they must, and do, prioritize cases for assignment of counsel. ⁽²³⁾ When there are not enough attorneys, prioritizing some cases inevitably leaves other litigants, also entitled to counsel, unrepresented. ⁽²⁴⁾ Some examples illustrate the extent of these violations of constitutional and statutory rights of access to counsel.

When a child has been placed in foster care voluntarily, ACS may move to extend the placement. A proceeding is then held to determine whether to continue the placement of the child in care, return the child home, or develop another permanency plan. See Spinak Aff. ¶ 302. Parents have a right to counsel in these proceedings, in which, as Professor Spinak explains, "the court has the power to order a child to be returned to a parent or to remain in foster care, the power to order the foster care agency to provide essential services to the parent or child, or even the power to order the filing of a petition to terminate parental rights and free a child for adoption." Spinak Aff. ¶ 303. Despite the importance of the proceeding - and the express right to counsel provided in the Social Services Law - counsel is almost uniformly not assigned. See N.Y. Soc. Serv. L. § 358-9, § 384, § 384-9, § 392. While 3,819 foster care placement and review petitions were filed in 1999, assigned counsel submitted only 169 vouchers for representation of a client in this type of case. See Spinak Aff. ¶ 303. ACS attorneys, law guardians for JRD and for the organization Lawyers for Children, and a court officer all confirmed to Professor Spinak that parents are rarely assigned counsel in the one foster care review court part that hears all such cases citywide. See Spinak Aff. ¶ 304.

Extension of placement proceedings, also called permanency hearings, suffer the same fate. These proceedings take place approximately 14 months after a child enters foster care as a consequence of an original abuse or neglect case. Michelle Cortese, the Director of Training for JRD at Legal Aid, which represents children in these proceedings, explains that at these hearings "parents . . . [have a] right to have the court address many important issues . . . which affect their ability to visit with, plan for and eventually reunite with their children." Cortese Aff. ¶ 21. Yet panel attorneys are generally available only for the original stages of the proceeding, not for permanency hearings. See id. at ¶ 20. ⁽²⁵⁾ The consequences of this lack of counsel are severe. As Cortese explains, "[t]he longer children are in foster care, the more likely it is that they will remain there and eventually be adopted. . . . Without the benefit of vigorous, competent and compassionate advocates, too many parents will find their ties to their children severed permanently and too often prematurely." Cortese Aff. ¶ 26.

Recently, the Family Court formalized these "triage" procedures by enacting a new "emergency case" system. At approximately the beginning of April, 2001, the court announced that two panel attorneys would be required to be available each day for assignment in "emergency cases." ⁽²⁶⁾ The precise definition of an "emergency case" is not clear, but to date the Family Court regularly has treated three categories of cases as "emergencies": (1) juvenile delinquency cases involving the remand of a child; (2) child protective cases involving the remand of a child; and (3) family offense proceedings in which a respondent may be incarcerated for contempt. ⁽²⁷⁾ These three categories of cases obviously are a very small subset of the cases in which litigants are entitled to assigned counsel. ⁽²⁸⁾

While the Family Court now requires that two assigned counsel each day accept all "emergency" cases, ⁽²⁹⁾ the court has abandoned its efforts to provide counsel for other litigants altogether. ⁽³⁰⁾ As one panel attorney explains, "there is currently no mechanism in place to assign counsel to litigants in non-'emergency' cases, and, as a consequence, assigned counsel for the most part are not representing litigants whose cases fall outside the category of what the court considers an 'emergency.'" Leder Aff. ¶ 20. The very existence of the "emergency case" system is a powerful admission that the Family Court cannot provide counsel for all those who are entitled to it. When a parent cannot visit his or her child, or when a court must act before a child may be adopted, that case is an emergency to that litigant - a litigant who is entitled to counsel - whether or not the court system deems it so. ⁽³¹⁾

(e) Severe Harm Caused by the State's Failure to Provide Counsel

One example is child protective cases. As Professor Spinak explains, at the initial stage of these proceedings an attorney is needed to interview the client, gather information from other parties, review the petition, request records and request appropriate services for the family. See Spinak Aff. ¶¶ 129-33. Perhaps most importantly, if a child has been removed from the home, a parent is statutorily entitled to have a hearing on the return of the child, sometimes called a "1028" hearing, within three days. See FCA §§ 1027, 1028. Yet Monica Drinane, the Attorney-in-Charge of Legal Aid's JRD, estimates that "in 50% of the child protective cases heard citywide today, there is no attorney available to represent a parent when he or she is initially arraigned on an abuse or neglect charge." ⁽³²⁾ These parents have no attorney to undertake the investigation, discovery and motions necessary to properly prepare for the hearing or even to advise and explain to the parent what lies immediately ahead for them. ⁽³³⁾ Moreover, they are denied the speedy resolution to which that the FCA entitles them. ⁽³⁴⁾

Children charged with delinquency also face immediate hearings with serious consequences. At an initial "pre-petition" hearing, for example, the court will determine whether to detain, or "remand," a child charged with delinquency pending the filing of a petition. See Spinak Aff. ¶¶ 94-98. This hearing is critical because, as the former Supervising Judge of the Family Court points out, "[c]hildren who are locked up tend to stay locked up." Gage Aff. ¶ 19. When there are no panel attorneys to assign, a child without counsel, and the judge hearing his or her case, are in a nearly impossible position. Despite the importance of these hearings to the child and the egregious constitutional violations inherent in holding a child in custody without affording him or her counsel, judges and attorneys confirm that children charged with delinquency are regularly unable to obtain attorneys because of the shortage of assigned counsel. ⁽³⁵⁾ No regular records are kept by the system of the identities of the children or of the occasions of these clear violations.

Domestic violence victims, who come to Family Court to obtain a temporary order of protection by filing a "family offense" petition, also require, and are entitled to, counsel at the outset of their cases. As Dorchen Leidholdt, the Director of Sanctuary for Families, explains,

Intake is a critical stage in a family offense proceeding. An unrepresented victim may not know enough to request the complete relief to which she is entitled, such as temporary child support or an order excluding a batterer from the home, and she may not be able to construct the arguments necessary to form a basis for relief. Early assignment allows an attorney to interview the petitioner, amend the clerk-drafted petition as necessary, and advise her on necessary steps such as ensuring that service is complete, collecting evidence, and safety planning.

Leidholdt Aff. ¶ 14. Unfortunately, says Leidholdt, "the general practice in Family Court is not to inform victims of their right to counsel or to assign counsel to them at [their first] appearance." Id. at 13; see also Susser Aff. ¶ 33.

Without counsel, domestic violence victims may remain at risk. Kim Susser, the Supervisor of the Domestic Violence Clinical Center at the New York Legal Assistance Group ("NYLAG"), represented a domestic violence victim who originally petitioned for an order of protection without the assistance of counsel she was entitled to. So frustrated was the court by the lack of detail in her petition that it denied her request for an order of protection, finding no good cause. When she came to NYLAG, Ms. Susser interviewed her and amended her petition, adding detail that the petitioner had omitted, including the fact that the respondent had beaten her while she was pregnant, punched her daughter in the face, tried to push her children out of a car, and frequently swung a baseball bat at home, smashing things. With Ms. Susser's help, the petitioner obtained the temporary order of protection that she was unable to obtain alone. See id. at 37. ⁽³⁶⁾

C. A Severe and Unacceptably High Risk Exists That Assistance Will Not Be "Meaningful and Effective"

1. Panel Attorneys Are Extremely Overburdened

Assigned counsel and judges alike describe the constant pressure on panel attorneys to accept cases. As one panel attorney explained, "[e]very day I am pressured to add a needy litigant to my already heavy caseload because there are no assigned counsel available. It is extremely difficult to refuse new cases when the need for attorneys is so great." Schiff Aff. ¶ 21. ⁽³⁸⁾ A judge explained that judges indeed must "send[] their court officers and court attorneys into the halls to plead with attorneys to take cases." Segal Aff. ¶ 19.

Because there are so few of them, assigned counsel have high caseloads. After reviewing data provided by the Assigned Counsel Plan and the Law Guardian Directors for the First and Second Department, Professor Spinak identified a group of approximately 206 attorneys as the "workhorses of the Family Court, appearing regularly - if not daily - to represent clients." ⁽³⁹⁾ Between 1997 and 2000, she found that an average of approximately 48 panel members - 14% of those who submitted a voucher but 23% of the attorneys who appear regularly - submitted 140 vouchers or more. An average of 31 of these attorneys each year submitted vouchers for over 160 cases. In addition, another 158 attorneys - just fewer than half of those who submitted vouchers but 76% of the attorneys regularly accepting cases - submitted vouchers for between 40 and 140 cases. See Spinak Aff. ¶¶ 249-251.

With respect to the 23% of regularly active attorneys who submit the most vouchers each year - 140 or more and in many cases 160 or more - Professor Spinak concludes, based on her experience, that "most attorneys carrying a caseload of this magnitude in myriad types of civil and criminal proceedings cannot represent all of their clients effectively." Id. at 250. As to the group of attorneys carrying between 40 and 140 cases, Professor Spinak concludes that while many attorneys submitting fewer than 100 vouchers "probably [are] able to represent a large number of their clients effectively, as the number of cases increases, the likelihood is that fewer of their clients are receiving meaningful and effective assistance of counsel. The sheer numbers preclude the amount of time and effort necessary to adequately prepare and represent clients in myriad types of civil and criminal proceedings." Id. at 251.

The Law Guardian Directors also discussed caseloads and their effect on attorneys' work. Ms. Weinberger suggested that an experienced attorney working full-time on assigned counsel matters would find 50 cases to be a manageable caseload. See Moseley Ex. I (Weinberger Dep.) at 127-28. When she knows an attorney is carrying more than 40 assigned cases, she inquires into the situation. See id. at 164-65. Ms. Law suggested that 70 cases was about average, and that many attorneys could handle more, but once an attorney has 70 cases, Ms. Law waives the requirement that the attorney work in the intake part, where he or she would be assigned more cases. See Moseley Ex. E (Law Dep.) at 26, 112, 142. Ms. Law acknowledged, however, that "[s]ome . . . attorneys are carrying as many as 120 cases. And they can't - they can no longer take satisfaction in doing a good job because they are so pressed to take more cases, and they can't economically afford to continue to do the work." Id. at 24. Ms. Weinberger also recognized that high caseloads impact the work attorneys can do, saying "despite how good you are, how diligent and how effective an advocate you are, if you have too much to do, you can't do it." See Moseley Ex. I (Weinberger Dep.) at 41-42. The Law Guardians Directors have not, however, imposed a limit on the number of cases a panel attorney can handle. ⁽⁴⁰⁾ In fact, Ms. Weinberger remarked that presently it would be difficult to impose a caseload limit, because "[f]or us to establish a limit would leave the court uncovered." Moseley Ex. I (Weinberger Dep.) at 169.

Finally, innumerable historical reports and recent analyses of the assigned counsel system have indicated that high caseloads undermine the representation assigned counsel are able to provide to their clients. ⁽⁴¹⁾

2. Panel Attorneys Lack Essential Resources

Many attorneys are unable to afford office space near the courthouse, a situation which makes it difficult to meet privately with clients. NYCLA reviewed the current panel rosters to determine how many panel attorneys listed an address outside the county in which they practiced, a post-office box or an address listed by six or more other panel attorneys. In Bronx County, 85% of attorneys on the Family Court panel fall into one of these categories. Likewise, 41% of Family Court panel attorneys in Queens County, 33% of Family Court panel attorneys in Kings County and 44% of Family Court panel attorneys in New York County have addresses outside the county they practice in, post-office boxes or addresses shared with six or more other panel attorneys. ⁽⁴³⁾

Panel attorneys also have very little access to legal research resources. ⁽⁴⁴⁾ They seldom have secretarial help and routinely do all of their word processing and other administrative work themselves. ⁽⁴⁵⁾ The need to do this administrative work further erodes their time to serve their clients. ⁽⁴⁶⁾

In light of data provided by Dr. Lawrence Stiffman, however, it is clear that panel attorneys have little choice but to drastically restrict expenditures on essential resources. In New York City, according to Dr. Stiffman, a sole practitioner has estimated overhead expenses of $23.05 to $30.89 per hour. For attorneys working in firms of three to five lawyers, overhead costs rise to $42.88 to $57.46 per hour. Id. at 22(c). ⁽⁴⁷⁾ For an attorney who has costs anywhere within this range, it is apparent that when paid $25 per hour, before taxes, for out-of-court work, he or she will lose money in each hour of work. Many attorneys would lose money even at the higher $40 in-court rate.

In addition to lacking the basic necessities of legal practice, assigned counsel rarely can afford the supplementary resources, such as social workers, mental health professionals and investigators, that are available to other attorneys, including the attorneys they litigate against. See Spinak Aff. ¶ 265. These resources are theoretically available at State expense under Section 722-c of the County Law, but several factors make it difficult for assigned counsel to make use of them. First, assigned counsel must invest substantial time, all of which is paid at the $25 out-of-court rate, to obtain and utilize these auxiliary services. Id. at 265-67. ⁽⁴⁸⁾ Second, assigned counsel cannot obtain these services without revealing their intentions and sometimes, consequently, their strategies to the trier of fact. See Spinak Aff. ¶ 267. Finally, many investigators, experts and other professionals are unwilling to work at the low rates paid by the State for their services. ⁽⁴⁹⁾ As a result, Professor Spinak concludes that "722-c orders are clearly not assisting the panel attorneys to provide meaningful and effective assistance of counsel as they should." See Spinak Aff. ¶ 269. ⁽⁵⁰⁾

3. Panel Attorneys Can Not Perform Essential Tasks

In her affidavit, Professor Spinak surveys the standards and guidelines applicable to attorneys representing children and adults in Family Court. While the guidelines applicable to different types of cases vary, certain basic tasks are common to all cases. Professor Spinak explains that attorneys must: (1) become fully familiar with the petition and initial documents in the case; (2) interview the client, discuss the matter fully, and counsel the client on his or her decisions; (3) conduct an independent investigation, interviewing witnesses, gathering documents and developing evidence; (4) perform appropriate legal research and prepare adequately at each stage of the proceeding; and (5) secure appropriate orders for services and monitor compliance with them. Professor Spinak concludes that even when clients receive assigned counsel, those attorneys often "are unable routinely and consistently to take the steps necessary to represent their clients" because of the systemic deficiencies in the assigned counsel system. Spinak Aff. ¶¶ 39, 231.

At the outset of a case, panel attorneys often do not have time to become fully familiar with the petition and other initial documents. One judge explained that she often observes that panel attorneys have not explored the facts of a child protective case. She determines that fact from the questions she overhears and the timing of events.

[I]t's not my impression that [assigned counsel] have [prepared for an arraignment and the decision of whether to request a 1028 hearing] or that they have all that much time to do it. . . . Because oftentimes, I will actually hear them asking the type of questions, or engaging in the type of inquiry that should be done outside of the presence of the court. . . . And because of the timing . . . even when I tell them, 'You go out and talk a bit with your client,' the person comes back in five minutes. You know that not much time could have gone into that process.

Moseley Ex. F (Lopez Torres Dep.) at 43.

Assigned counsel clearly do not have the time to interview their clients in the depth that is required. Indeed, they generally must conduct rushed interviews in public spaces which are not conducive to effective, candid and confidential communication. Attorneys describe the difficulties inherent in conducting any interview in a stairwell or a hallway, let alone one that touches on issues such as rape, domestic violence or child abuse. ⁽⁵¹⁾ One judge reported that, because of the interaction between the attorney and the client, at times it is clear that assigned counsel have not met with their clients:

[T]he case . . . [is on] for a 1028 [hearing in which a parent seeks the return of a remanded child] and after the ACS attorney put on their case . . . the attorney will turn to the client and say "Do you want to testify?" And I can kind of tell by the look on the - on the parent's face that - that it just really hasn't been discussed much, you know. I mean, it's an odd question, "Do you want to testify?" . . .[I]f you're going to call someone as a witness, one would think that there would have been quite a bit of discussion about it and preparation.

Moseley Ex. F (Lopez Torres Dep.) at 46-47.

Assigned counsel also are unable to adequately counsel their clients given the time constraints they face. ⁽⁵²⁾ With extremely busy schedules, they have difficulty reaching their clients, and their clients cannot reach them either. See, e.g., Greenfield Aff. ¶ 22; Schiff Aff. ¶ 30. This inability to spend sufficient time, while understandable given assigned counsel's workloads, nevertheless has severe consequences for clients. In one domestic violence case described by Dorchen Leidholdt, for example, a petitioner agreed to unsupervised visitation between her husband and their small toddler, despite severe domestic violence and evidence of his psychological deterioration. Her panel attorney had hastily approached her in court and asked if she would agree, without explaining that there was an alternative and without addressing the fact that she barely spoke English. See Leidholdt Aff. ¶ 34.

Assigned counsel often cannot conduct thorough investigations, secure witnesses or review records adequately. ⁽⁵³⁾ They describe their time constraints and their inability, when they are tied up in court all day long, to reach witnesses and to obtain records in the evenings or on weekends. See Zimmerman Aff. ¶ 22. Even if they obtain records, panel attorneys have insufficient time to review them and prepare appropriately. In child protective cases, for example, a judge explains, records are complex and voluminous and "must be studied, not simply reviewed." Segal Aff. ¶ 26. Panel attorneys do not have the time to accomplish this and other tasks, and the effects of their time constraints are obvious. The former Supervising Judge of the Family Court explains that she has "watched panel attorneys examine witnesses who apparently had not been interviewed before." See Gage Aff. ¶ 31.

Motion practice by many assigned counsel, according to witnesses, also is rare. Kim Susser, an attorney who often litigates family offense cases against respondents who are represented by assigned counsel, finds that many assigned counsel never file motions to vacate temporary orders of protection, motions to dismiss petitions, or requests for a bill of particulars - motions she considers essential when her client is the respondent in such a case. ⁽⁵⁴⁾ See Susser Aff. ¶ 50.

Not surprisingly, the limited time most panel attorneys can devote to any one case severely inhibits their ability to prepare for fact-finding hearings. ⁽⁵⁵⁾ Monica Drinane, the head of Legal Aid's JRD, reports that assigned counsel do not have the time or resources to develop their cases. As a result, she has "seen numerous cases in which panel attorneys, unable to develop an affirmative case, rely solely on cross-examination of caseworkers. This approach is almost sure to lose." Drinane Aff. ¶ 44. One judge explains that panel attorneys are often "[i]ll-prepared" for fact-findings, and rarely call witnesses. Moseley Ex. F (Lopez Torres Dep.) at 55. Another judge reports that he has had to adjourn a trial after it began in order to permit a panel attorney to review records. See Segal Aff. ¶ 25.

In Family Court, a critical part of representing a client is ensuring the delivery of necessary services to that client or to his or her family throughout the case. In child protective cases, for example, several witnesses explain that services can be a critical component in convincing a judge that it is safe to return a child home. ⁽⁵⁶⁾ Social service agencies do not always comply with orders to provide services, ⁽⁵⁷⁾ and it is absolutely critical that assigned counsel who represent parents ensure that compliance is obtained, services are delivered, and that clients understand the importance of their participation in those services. ⁽⁵⁸⁾ Unfortunately, judges and other advocates report that many assigned counsel do not accomplish these tasks. ⁽⁵⁹⁾ Panel attorneys themselves admit that it is very difficult for them to pursue service providers in the limited out-of-court time that they have. ⁽⁶⁰⁾

Finally, the lack of preparation by assigned counsel carries over to the disposition of Family Court cases. According to one judge, there often is no apparent preparation by assigned counsel for this stage of the proceedings. Panel attorneys appear for disposition with outdated records, and without any proposal of their own for what should happen to their client. "And the whole idea at disposition" as the judge said, "is that you want to come up with a plan. You want to present an alternate plan. You want to convince the judge not to take the most restrictive disposition. . . ." See Moseley Ex. F (Lopez Torres Dep.) at 63.

Many assigned counsel are overwhelmed and unable to accomplish many necessary tasks, but the evidence is clear that the out-of-court work that is critical to cases in the Family Court suffers most egregiously. Panel attorneys' caseloads require them to be in court for most hours of most days, a schedule that leaves little time to accomplish out-of-court work. ⁽⁶¹⁾ In addition, the two-tiered statutory payment structure clearly discourages out-of-court work. ⁽⁶²⁾

The data confirms that too little out-of-court work is done. In 1999, for example, vouchers filed in original child protective cases involving neglect or extensions of placement indicate that in approximately 44% of these cases, which averaged 220 days in length, the attorney spent less than five hours on out-of-court work in the case. See Spinak Aff. ¶ 256. It is Professor Spinak's opinion that "[a]n attorney cannot, consistent with the standards and guidelines outlined earlier, provide even the most minimal representation to a client in five hours spent during the first few weeks of a case, let alone in five hours spent over a period of over seven months. Very few lawyers - if any - are capable of accomplishing this." Id.

Likewise, "[i]n family offense cases for which vouchers were filed in 1999 and 2000, four or fewer hours were spent out of court on approximately 60% of the family offense cases. In fewer than 30% of the cases were six or more out-of-court hours devoted to these cases in those same years." Id. at 257. Yet Kim Susser estimates that on the most basic family offense case - and "[o]nly a small portion of domestic violence cases . . . are that simple" - "the necessary work of conducting thorough interviews, talking to witnesses and preparing for trial on such a case takes approximately eight hours, not including the court appearance." Susser Aff. ¶¶ 42-43.

The neglect of out-of-court work is particularly significant in the cases before the Family Court. "Out-of-court work and client counseling," the former Administrative Judge of the Family Court explains, "are especially critical to the representation of litigants in Family Court," where cases not only involve factual questions, but also require the Court to address the dynamic of a family and to answer questions about the fate of children. ⁽⁶³⁾ "What happens out of court for a Family Court attorney," according to Law Guardian Director Katharine Law, "is much more important, usually, than what happens in court." Moseley Ex. E (Law Dep.) at 78.

4. Severe Risk of Ineffective Assistance of Counsel Is Widespread

III. Criminal Proceedings: NYCLA Has Demonstrated a Likelihood of Success on the Claim of Severe and Unacceptably High Risk of Ineffective Assistance of Counsel

A. The Right to "Meaningful and Effective" Assistance of Counsel

Under the New York and United States Constitutions, and under New York statutes, indigent defendants have a right to counsel at arraignment and at every subsequent stage of the criminal proceedings. See U.S. Const. Amend. VI; N.Y. Const. Art. I, § 6; Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel in felony cases); Argersinger v. Hamlin, 407 U.S. 25 (1972) (right to counsel in misdemeanor cases and petty offenses where sentence of imprisonment may be imposed); Douglas v. California, 372 U.S. 353 (1973) (right to counsel on appeal); People v. Witenski, 15 N.Y.2d 392, 207 N.E.2d 849, 259 N.Y.S.2d 413 (1965) (right to counsel in felony cases); People v. Hughes, 15 N.Y.2d 172, 204 N.E.2d 849, 256 N.Y.S.2d 803 (1965) (right to counsel on appeal); CPL 170.10, 180.10.

The right to counsel is fundamental and essential because it protects the defendant's fundamental right to a fair trial. As the Supreme Court has held, "[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel." Powell v. Alabama, 287 U.S. 45, 68-69 (1932). The courts have "consistently exercised the highest degree of vigilance in safeguarding the right of an accused to have the assistance of an attorney at every stage of the legal proceedings against him." People v. Cunningham, 49 N.Y.2d 203, 207, 400 N.E.2d 360, 363, 424 N.Y.S.2d 421, 424 (1980) (per curiam); see also People v. Ross, 67 N.Y.2d 321, 324, 493 N.E.2d 917, 918-19, 502 N.Y.S.2d 693, 694-95 (1986) ("The common law and statutory law of this State impose upon Trial Judges the duty to scrupulously safeguard the right of all defendants to the effective assistance of counsel at every stage of a criminal proceeding.").

[I]n our adversary system of justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. . . . That government hires lawyers to prosecute and defendants who have the money to hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with a crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.

Gideon, 372 U.S. at 344.

This fundamental right to counsel means that defendants are entitled to "meaningful and effective" assistance from an attorney. See McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Powell, 287 U.S. at 71-72; Witenski, 15 N.Y.S.2d. at 395 ("The law as to the right to counsel must be made 'meaningful and effective' in criminal courts on every level."); People v. Baldi, 45 N.Y.2d 137, 146-47, 429 N.E.2d 400, 405, 444 N.Y.S.2d 893, 918-21 (1981). The federal and state constitutions thus "require[] not merely the provision of counsel to the accused, but '[a]ssistance,' which is to be 'for his defence.'" United States v. Cronic, 466 U.S. 648, 654 (1984). "[A]t the very least, the right of a defendant to be represented by an attorney means more than just having a person with a law degree nominally represent him upon a trial and ask questions." People v. Bennett, 29 N.Y.2d 462, 466, 280 N.E.2d 637, 329 N.Y.S.2d 801 (1972); see generally United States v. Decoster, 624 F.2d 196, 290 n.129 (D.C. Cir. 1976) (Bazelon, J., dissenting) ("The Sixth Amendment demands more than placing a warm body with a law degree next to the defendant.").

Using national standards and guidelines promulgated by organizations such as the American Bar Association ("ABA"), federal and New York courts have found that meaningful and effective assistance requires, at a minimum, that counsel: (1) have the skills and abilities of a "reasonably competent" defense attorney and adequate knowledge of the relevant areas of the law; (2) conduct a reasonable factual and legal pre-trial investigation into the charges against the defendant, including the pursuit of available discovery, the use of appropriate experts and the conduct of necessary legal research; (3) engage in meaningful consultations with the defendant to elicit relevant information, to inform the defendant of his or her rights, and to enable the defendant to make informed decisions about the direction of his or her case; and (4) adequately prepare for trial and all other critical proceedings. See, e.g., Strickland, 466 U.S. at 687-88; Cronic, 466 U.S. at 644 (1984); People v. Droz, 39 N.Y.2d 457, 462, 348 N.E.2d 880, 384 N.Y.S.2d 404 (1976) ("[T]he right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense and who is familiar with, and able to employ at trial basic principles of criminal law and procedure." (citation omitted)); Bennett, 29 N.Y.2d at 466 ("[T]he defendant's right to representation does entitle him to have counsel 'conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself time for reflection and preparation for trial."); see also Lefstein Aff. ¶ 22; Spangenberg Aff. ¶¶ 34-36. Because counsel's function is to assist the defendant, he or she also owes the defendant a duty to avoid conflicts of interest. See Strickland, 466 U.S. at 688; People v. Ortiz, 76 N.Y.2d 652, 655-56, 564 N.E.2d 630, 632, 563 N.Y.S.2d 20 (1990) ("The right to effective assistance of counsel encompasses the right to conflict-free counsel.").

The most authoritative guidelines for criminal defense work are those published by the ABA as its Standards for Criminal Justice (the "ABA Standards"). See ABA Standards for Criminal Justice, Defense Function and Providing Defense Services (3d ed. 1992); see also, e.g., Strickland, 466 U.S. at 688 (citing ABA Standards as guide in determining prevailing norms of criminal defense practice); Bennett, 29 N.Y.2d at 466-67 (citing Chapter Four of ABA Standards for defense counsel's duty to conduct appropriate factual and legal investigation and prepare for trial). Chapters Four and Five of the ABA Standards, the Defense Function and Providing Defense Services, set forth the minimum requirements for providing effective assistance of counsel, as well as for structuring a constitutionally adequate indigent defense system. As the commentary to Standard 5-1.1 of the ABA Standards on Providing Defense Services recognizes, "whatever the standard by which to measure the performance of counsel, even the minimum constitutional mandate of 'reasonably effective assistance' cannot be met when the defender system is not structurally sound or is deprived of the resources necessary for quality performance by each and every attorney who provides defense services in individual cases."