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Memorandum of Law for Motion of Preliminary Injunction of 18-B Rates

NEW YORK COUNTY LAWYERS' ASSOCIATION, :

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Index No. 102987/00

Justice Lucindo Suarez

IAS Part 38

ORAL ARGUMENT

REQUESTED

Plaintiff,
- against -
THE STATE OF NEW YORK,
Defendant.
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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION

FOR PRELIMINARY INJUNCTION

Attorneys for Plaintiff NYCLA

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

TABLE OF CONTENTS


Page

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

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

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NEW YORK COUNTY LAWYERS' ASSOCIATION, :

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:

:

:

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Index No. 102987/00

Justice Lucindo Suarez

IAS Part 38

ORAL ARGUMENT

REQUESTED

Plaintiff,
- against -
THE STATE OF NEW YORK,
Defendant.
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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 system designed to provide legal representation to children and indigent adults in family and criminal court proceedings in New York City is in crisis. The reason is clear: There are not enough qualified private attorneys available and able to represent all those who are constitutionally and statutorily entitled to receive meaningful and effective assistance of counsel. This crisis deepens every day. While the need for assigned counsel to represent children and indigent adults in New York City, and the burden placed upon those attorneys who continue to accept assignments, has never been greater, there are far fewer attorneys available and able to perform this work now than ever before. This is true despite the heroic efforts of many talented and experienced assigned counsel who continue to accept assigned cases and to represent their clients in the face of overwhelming circumstances, with little support or resources. (2)

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


As set forth in NYCLA's complaint, the State has failed to comply with its obligation to provide children and indigent adults with meaningful and effective assistance of counsel. Because of deficiencies in the assigned counsel system in New York City, there is a severe and unacceptably high risk that children and indigent adults will not receive meaningful and effective assistance from their assigned counsel. These deficiencies are sufficiently widespread that the likelihood that any one child or indigent adult will be deprived of constitutionally adequate representation is real and immediate. In fact, NYCLA's proof shows that litigants already are being denied these rights. These children and indigent adults have no adequate remedies at law to protect against this threat of irreparable injury to their constitutional rights. See Luckey v. Harris, 860 F.2d 1012, 1017-18 (11th Cir. 1988) ("In a suit for prospective relief the plaintiff's burden is to show 'the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.").

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 decision whether to grant a motion for preliminary relief is committed to the sound discretion of the trial court. See Doe v. Axelrod, 73 N.Y.2d 748, 750, 532 N.E.2d 1272, 1273, 536 N.Y.S.2d 44, 45 (1988); James v. Board of Educ., 42 N.Y.2d 357, 363-64, 366 N.E.2d 1291, 1295-96, 397 N.Y.S.2d 934, 939-40 (1977); Jiggetts v. Perales, 202 A.D.2d 341, 342, 609 N.Y.S.2d 222, 223 (1st Dep't 1994). In exercising this discretion, the Court should consider whether the movant has shown: "(1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of the equities tipping in the moving party's favor." Doe v. Axelrod, 73 N.Y.2d at 750, 532 N.E.2d at 1272, 536 N.Y.S.2d at 45; accord Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862, 552 N.E.2d 166, 167, 552 N.Y.S.2d 918, 919 (1990); Housing Works, Inc. v. City of New York, 255 A.D.2d 209, 213, 680 N.Y.S.2d 487, 491 (1st Dep't 1998). If factual issues are raised by opposition to the motion, the Court should resolve them by holding a hearing; the existence of factual issues is an insufficient ground to deny a motion for preliminary relief. See CPLR 6312(c); Housing Works, 255 A.D.2d at 213, 680 N.Y.S.2d at 491; State v. Sour Mountain Realty, Inc., 183 Misc. 2d 313, 323-25, 703 N.Y.S.2d 854, 860-62 (Sup. Ct. Duchess County 1999) (granting State's motion for preliminary injunction despite fact issues raised by conflicting testimony), aff'd, 276 A.D.2d 8, 714 N.Y.S.2d 78 (2d Dep't 2000).

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


With respect to Family Court, NYCLA has shown a likelihood of success on its claims on behalf of children and indigent adults. Family Court litigants who are entitled to have meaningful and effective legal representation are deprived of these rights by the systemic deficiencies in the assigned counsel system. Many litigants simply are not assigned counsel at all. Others are assigned overburdened counsel who lack the time and the means to provide meaningful and effective legal representation. NYCLA's evidence demonstrates that the State has created an unacceptably high risk that litigants in Family Court will receive either no counsel at all or ineffective assistance of counsel. This showing entitles NYCLA to preliminary injunctive and declaratory relief.

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


1. Litigants Entitled to Counsel
In New York, children and adults in Family Court proceedings have a well established right to counsel. Placing itself at the forefront of the protection of children's rights in 1962, the State adopted the Family Court Act ("FCA"), which provides that children in many specifically enumerated Family Court proceedings, including delinquency, abuse and neglect ("child protective") and termination of parental rights proceedings, among others, are entitled to an attorney ("law guardian") of their choosing or to one appointed by the State. See FCA 241; see also Spinak Aff. 22 (listing proceedings in which children are entitled to counsel under the FCA). In addition to proceedings enumerated in the FCA, the court may appoint counsel in any other proceeding where "such representation shall serve the purposes of [the] act." FCA  241.

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


The right to counsel includes the right to timely assignment of counsel. In juvenile delinquency proceedings, for example, "[t]he child 'requires the guiding hand of counsel at every step in the proceedings against him.'" In re Gault, 387 U.S. at 36.

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"


Of course, a litigant's "constitutional and statutory right[] to be represented by counsel [is] not satisfied merely by the State's supplying a lawyer's physical presence in the courtroom . . . ." In re Jamie TT., 191 A.D.2d at 136, 599 N.Y.S.2d at 895 (3d Dep't 1993). Family Court litigants, like the accused in criminal cases, are entitled to assistance of counsel that is meaningful and effective. See Witenski, 15 N.Y.2d at 395, 207 N.E.2d at 360, 259 N.Y.S.2d at 415 (in delinquency case, "the law as to the right to counsel must be made 'meaningful and effective'"); In re Jamie TT., 191 A.D.2d at 137, 599 N.Y.S.2d at 895 (in child abuse case, "[n]o less than an accused in a criminal case, [the child is] entitled to 'meaningful representation'"); In re Erin G., 139 A.D.2d 737, 739, 527 N.Y.S.2d 488, 490 (2d Dep't 1988) (in neglect case, "because of the potentially drastic consequences of a child protective proceeding . . . the statutory right to counsel under Family Court Act 262 affords [parents] protections equivalent to the constitutional standard of effective assistance of counsel afforded defendants in criminal proceedings"); DeVivo v. Burrell, 101 A.D.2d 607, 474 N.Y.S.2d 860 (3d Dep't 1984) (in custody case, a parent's "right [to counsel] would be meaningless unless the assistance of counsel is effective"); Thompson v. Jones, 253 A.D.2d 989, 678 N.Y.S.2d 166 (3d Dep't 1989) (in family offense case, petitioner has right to effective assistance of counsel). But see Dep't Soc. Serv. v. Trustum C.D., 97 A.D.2d 831, 468 N.Y.S.2d 908 (2d Dep't 1983), lv. denied 61 N.Y.2d 605, 473 N.Y.S.2d 1026, 462 N.E.2d 156 (no right to effective assistance of counsel in paternity cases).

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


In New York City's Family Court today, children and indigent adults who must rely on the State for counsel face a severe and unacceptably high risk that counsel will not be provided to them. The assigned counsel system is so drastically underfunded that there simply are not enough panel attorneys to provide them to the litigants who need them and are entitled to them. Judges and attorneys agree that on a regular basis litigants who are entitled to counsel actually do not receive an attorney. The Family Court's own documents confirm this testimony.

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


Few attorneys remain willing to represent litigants in Family Court at the abysmal statutory rates now paid to assigned counsel. Attorneys who meet the qualifications and have been certified by the appropriate Appellate Division are eligible for assignment as counsel. Not all attorneys who are eligible, however, regularly represent clients. Some panel attorneys represent no assigned clients at all; others represent only a few in the course of a year. (7) A small group of panel attorneys represents most of the children and indigent adults needing assigned counsel in Family Court. Their number more accurately reflects the availability of assigned counsel.

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


As a result of the shortage of panel attorneys, children and indigent adults in Family Court today face a severe and unacceptably high risk that they will be denied counsel. In fact, the assigned counsel system in Family Court is so inadequate that today the court focuses its very limited panel attorney resources on cases deemed "emergency" or "triage" cases. There is no longer a system in place to provide litigants in non-"emergency" cases with counsel. The Family Court's own recent statistics indicate that each week many litigants entitled to assigned counsel do not receive attorneys. This is only the latest indictment of a system which has long failed to fulfill its constitutional and statutory obligations.

(a) Assignment of Counsel in Family Court


In Family Court, counsel typically is assigned in the intake part, where most cases begin. In order to provide counsel to children and to adults who cannot afford it, the Family Court historically has staffed the intake part with between two and four "primary attorneys," depending on the County. (16) Primary attorneys are panel attorneys who sign up to work a full-day "intake shift" during which they are responsible for representing each qualifying litigant who needs counsel. See Moseley Ex. E (Law Dep.) at 35, 51; Moseley Ex. I (Weinberger Dep.) at 73; Greenfield Aff. 12; Schiff Aff. 10. The attorneys keep each case they get at intake and represent that litigant throughout the proceedings that follow. See Greenfield Aff. 13; Schiff Aff. 10; Zimmerman Aff. 17. In addition, if cases proceeding at later stages need counsel to be assigned because, for example, a conflict has arisen, judges often turn to the same primary attorneys who are handling intake at the time. (17)

(b) The Unavailability of Counsel in Recent Years


Unfortunately, on many days in the last several years, there have been no primary attorneys available to represent litigants. In the year 2000, according to the records of the Law Guardian Director for the First Department, on 40% of the days the court was open, there were no primary attorneys in Family Court in New York County. Likewise, during the same year in Bronx County, on 21% of the days the court was open there were no primary attorneys to represent litigants. See Moseley Ex. M (Report of First Department intake coverage) at 3; Law Dep. at 45-47. This problem has grown progressively worse over time. In October of 1998, for example, on only one day of the month were there no primary attorneys available in the intake part in New York County Family Court. In October of 1999, however, on four days of the month there were none. By October of 2000, on eight days of the month there were none. See Moseley Ex. M (Report of First Department intake coverage) at 1-3.

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


More recent information paints an even grimmer picture. As litigants arrive at Family Court most recently, there often are no panel attorneys to assist them. From February 26, 2001 until March 30, 2001, the Family Court undertook to count the number of litigants who were entitled to assigned counsel but did not get it. These counts, which arguably underreport the problem for several reasons, (22) nevertheless reveal significant denials of the right to counsel. During the week of February 26, 2001 alone, for example, the court was unable to provide an attorney to people who were entitled to counsel in at least 144 cases citywide. See Moseley Ex. K (Apr. 3, 2001 memorandum from Hon. Joseph M. Lauria) at 1.

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


Faced with years of assigned counsel shortages like those detailed above, the Family Court has made a regular practice of triage, prioritizing cases in order to allocate the scarce supply of panel attorneys. As a result, large groups of litigants who are entitled to counsel are barely considered for assignments of counsel. If they are considered for counsel, or even notified of their right to it, they frequently do not receive any.

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


NYCLA is not required to show, in order to secure relief, that a violation of a litigant's constitutional rights to counsel causes harm to the litigant. See, e.g., Luckey, 860 F.2d at 1017. However, when the State does not provide the attorneys that litigants are constitutionally and statutorily entitled to, children and indigent adults do suffer severe harms. Indeed, severe harm can occur in the earliest stages of Family Court proceedings.

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"


Even for those litigants fortunate enough to be assigned counsel in the Family Court today, there is a severe and unacceptably high risk that the counsel they receive will be ineffective. The low statutory rates create systemic deficiencies that undermine the ability of panel attorneys to represent their clients meaningfully and effectively. Panel attorneys working under the current rates are so overburdened, and so lacking in resources, that they are unable to routinely and consistently accomplish the basic tasks that would provide effective assistance to their clients. There exists today, accordingly, a severe and unacceptably high risk that assigned counsel will not provide meaningful and effective assistance of counsel.

1. Panel Attorneys Are Extremely Overburdened


While many litigants need assigned counsel in Family Court, very few panel attorneys remain willing to work at current rates. As a result, the panel attorneys who currently accept Family Court cases carry an extremely heavy caseload and a correspondingly heavy workload from those cases. "Attorneys who regularly appear as assigned counsel," Professor Spinak concludes, "are expected to accept more cases than they are able to handle and still provide effective assistance of counsel." Spinak Aff.  244. (37)

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


In addition to high caseloads and workloads, panel attorneys are constrained by their utter lack of essential resources. The low statutory rates do not permit these attorneys to afford the basic necessities of law practice: office space, secretarial and paralegal help, adequate computer and office equipment and access to legal research. (42)

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


A client who is assigned a panel attorney burdened with an extremely heavy workload and equipped with few resources faces an unacceptably high risk that he or she will be denied meaningful and effective assistance of counsel. In fact, NYCLA's evidence demonstrates that many assigned counsel already are unable to accomplish basic tasks required to represent clients effectively.

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


In light of all of the above, it is Professor Spinak's opinion that "as a result of these deficiencies in the assigned counsel system - low rates, insufficient numbers of assigned counsel, high caseloads, and inadequate resources - many panel attorneys are unable consistently and routinely to provide meaningful and effective assistance of counsel." (64) This "harm[s] children and adults and undermine[s] the system of fairness and justice the Family Court should provide to all persons coming through its doors." (65)

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


The State also has failed to comply with its constitutional obligation to provide indigent defendants in criminal court with meaningful and effective assistance of counsel. Like the situation in Family Court, the State's failure has created a real and immediate threat of irreparable injury to these defendants' constitutional rights to counsel. Because of systemic deficiencies in the assigned counsel system in New York City, there is a grave risk that indigent defendants who are represented by assigned counsel will not receive meaningful and effective representation. The primary deficiency is the State's failure to provide adequate funding for the system. Because of the grossly inadequate rates of compensation paid to assigned counsel, there is a shortage of qualified assigned counsel who are available and able to represent indigent defendants. As in Family Court, the remaining lawyers who still take assigned cases often are overburdened with excessive caseloads and even higher workloads, and lack the basic resources that are necessary to provide effective legal representation. As a result of these and other systemic deficiencies, many of these assigned counsel are unable to perform tasks that are necessary to provide each of their clients with meaningful and effective 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."

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


The assigned counsel system in the City's criminal courts is plagued with deficiencies which prevent the attorneys within the system from being able to provide meaningful and effective representation to each of their clients.

1. Shortages of Attorneys Due to the Inadequate Rates of Compensation


As a result of the grossly inadequate rates of compensation in 722-b of the New York County Law, there is a shortage of qualified assigned counsel who are willing and available to represent indigent defendants in criminal proceedings in New York City.

Today, assigned counsel play a critical role in the City's criminal courts. Originally, the Assigned Counsel Plan envisioned that assigned counsel would represent defendants only in homicides and in other cases in which the City's primary institutional provider, Legal Aid, had a conflict. However, assigned counsel now represent a substantial percentage of the indigent defendants charged with all types of crimes in the City's courts. According to data from the Assigned Counsel Plan Administrators, assigned counsel in Bronx and New York Counties represented a total of 183,726 defendants in the year 2000, as compared to 45,036 defendants in 1990, an increase of 408%. Similarly, assigned counsel in Kings, Queens and Richmond Counties represented a total of 125,936 defendants in 2000, as compared to 44,362 in 1990, an increase of 284%. (66) In Kings County Supreme Court, Criminal Term, for example, assigned counsel represented 43% of the indigent defendants in the 2,263 felony and homicide cases pending in that court as of May 4, 2001; Legal Aid, Brooklyn Defender Services and retained attorneys, respectively, represented 24%, 6% and 28% of the remaining defendants in those cases. (67) In every county, assigned counsel represent the vast majority, if not all, of the indigent defendants charged with homicides. See Moseley Ex. C (Collins Dep.) at 15-16, 32 & Moseley Ex. Q (Mogulescu Dep. Ex. 2); Moseley Ex. D (Firetog Dep.) at 43, 82 & Moseley Ex. S (Firetog Dep. Ex. 3).

This significant demand for assigned counsel is due, in part, to increased case filings in the criminal courts and, in particular, the sharp increase both in arrest case filings for misdemeanors and violations and in summons in the New York City Criminal Court in recent years. See Spangenberg Aff. 44-56 & tbl. II, 57-60. As a result of these increases, as well as decreased funding for Legal Aid, the courts rely heavily upon assigned counsel to represent the increasing number of indigent defendants who must be provided with attorneys. See Moseley Ex. D (Firetog Dep.) at 29 ("When we lost Legal Aid, the slack was taken up by 18-B.").

The number of attorneys actively participating in the City's assigned counsel system today, however, is insufficient to meet this increased demand for their representation. The total number of attorneys who serve on the criminal panels and, thus, who are eligible to receive assigned cases, has decreased steadily since 1986. Between 1990 and 2000, the number of attorneys listed on the roster for the Bronx and New York County criminal panels decreased from 1,028 to 752, or 27%. Similarly, for the same period, the number of attorneys listed on the roster for the Kings, Queens and Richmond County criminal panels decreased from 1,000 to 513, or 49%. See Moseley Ex. T; Spangenberg Aff. 41-43 & tbl. I.

Many of these eligible attorneys, however, do not accept assignments to represent indigent defendants on a regular basis. (68) See Spangenberg Aff. 33. Instead, a much smaller pool of attorneys is handling the majority of the cases that require assigned counsel. NYCLA's expert, Robert Spangenberg, finds that a relatively small group of assigned counsel are handling the majority of arraignment shifts and assigned cases. For example, he finds that the 100 "top earners," or the 100 attorneys in Bronx, Kings and New York Counties who earned the largest amount of money for the years 1996 to 2000, handled 27.74% of all of the assigned cases that survived arraignment and earned 26.98% of all monies paid to assigned counsel during that five-year period. The 300 "top earners" in those three counties handled approximately 63% of all of the assigned cases that survived arraignment and earned 61.44% of all monies paid to assigned counsel during those five years. By contrast, the bottom 500 attorneys in those three counties who earned the least amount of money handled only 2.97% of all of the assigned cases surviving arraignment during that period. (69) See Spangenberg Aff. 77-83.

Because the right to counsel in New York attaches at the defendant's arraignment upon the initial accusatory instrument, see People v. Samuels, 49 N.Y.2d 218, 223, 400 N.E.2d 1344, 1347, 424 N.Y.S.2d 892 (1980); CPL 170.10(3), 180.10(3), assigned counsel always must be available to represent indigent defendants who appear in the arraignment parts of the New York City Criminal Court, which operate 16 and 24 hours a day in some counties. Assigned counsel thus are assigned to staff seven to eight-hour "shifts" in these parts and are expected to obtain their assigned clients during those shifts and to continue to represent those clients until the final disposition of their cases. See Assigned Counsel Plan (First and Second Department) Guidelines, Section E.

The total number of shifts in the Criminal Court arraignment parts that must be staffed by assigned counsel has increased in recent years, due in large part to the increase in the number of arrest case filings and summons. (70) In addition to the need to staff these shifts, there also is a substantial need for attorneys to accept cases directly from the Assigned Counsel Plan, where the prior assigned attorney represented the defendant for purposes of arraignment only or where the court otherwise found it necessary to re-assign the case at a later stage of the proceedings. (71)

Despite this increased need, fewer assigned counsel are willing and available to accept the assignment of arraignment shifts and cases. (72) Many assigned counsel are significantly reducing the number of arraignment shifts and assigned cases they accept or refusing to accept those shifts and cases entirely. (73) In Bronx County, for example, assigned counsel must staff approximately 170 shifts each month in the arraignment and other parts of Bronx Criminal Court. While approximately 150 attorneys requested at least one shift each month about five years ago, only 100 or fewer attorneys request one shift or more today and typically 20 of the approximately 170 shifts are totally un-staffed after the shifts initially are assigned. (74) See Milano Aff. 7-10.

Judges confirm that they do not have sufficient numbers of assigned counsel who are willing and available to represent all of the indigent defendants who require their representation at arraignment and subsequent stages of criminal proceedings in New York City. (75) In particular, there is a severe shortage of assigned counsel who are willing and available to represent indigent defendants charged with homicides, especially in Bronx and Kings Counties. Justice John P. Collins, the Supervising Judge of Bronx County Supreme Court, Criminal Term, testified that only about 44 of the approximately 65 attorneys on the Bronx County Homicide Panel currently accept assigned homicide cases. (76) See Moseley Ex. C (Collins Dep.) at 28. Similarly, Kings County Supreme Court Justice Neil Firetog testified, "You have a limited number of attorneys on the 18-B homicide panel. They are always in demand, and I am always fighting with [other] judges. It is always a battle." Moseley Ex. D (Firetog Dep.) at 47-48.

The evidence NYCLA submits establishes that the inadequacy of the current rates of compensation under Article 18-B is the primary reason for this shortage of assigned counsel. NYCLA submits the affirmations of ten panel members from Bronx, New York and Kings Counties who no longer accept assigned cases and arraignment shifts or who have significantly reduced the number of cases and shifts they accept. Each of these attorneys cites the inadequacy of the current rates as a significant, if not the foremost, reason for their decisions to do so. (77) Neil Checkman, for example, affirms: "[m]y decision to reduce my assigned counsel caseload and finally stop taking assigned cases is a direct result of the inadequacy of the current statutory rates of compensation." Checkman Aff. 11.

These attorneys affirm that the current rates of compensation simply are insufficient to permit them to cover the overhead costs of maintaining a law practice in New York City, let alone earn a decent living. (78) Dr. Stiffman's data, which is discussed in Part III.C.2. above, establishes the high average hourly costs of maintaining a law practice in New York City and confirms that many attorneys will lose money on their assigned counsel work. See Stiffman Aff. 21-22; 24-26 & Ex. B; Part III.C.2., infra.; see also Traub Aff. 12-13; Walker Aff. 9. Attorneys confirm the significant overhead costs of maintaining a law practice in New York City, listing average monthly overhead expenses that range from approximately $2,000 per month to approximately $10,000 per month, depending upon the resources and support services they have been able to afford. (79)

Many of the attorneys who are leaving the panels or significantly reducing their assigned caseload are among the most qualified and experienced members of the panels. Out of the ten affirmations submitted by attorneys who have left the panels or significantly reduced their assigned caseload, at least six of those attorneys also serve on the capital or 35-b Panels for the First and Second Judicial Departments or the Federal Criminal Justice Act ("CJA") Panels for the Southern and Eastern Districts of New York and eight of those attorneys have practiced criminal law for 20 years or more. (80) The current Chair of the First Department Central Screening Committee confirms that these attorneys have not been replaced because the number, as well as the quality and experience, of new applicants to the panels has decreased in recent years. See Fishbein Aff. 12-13; see also Raskin Aff. 17. Similarly, fewer attorneys who already are members of the Criminal Court and Supreme Court Panels in both Departments are seeking to "up-grade" their certification to the Supreme Court and Homicide Panels, respectively. (81)

Judges confirm that this shortage of assigned counsel generally, and of experienced assigned counsel in particular, is due to the inadequacy of the current rates. See, e.g., Moseley Ex. C (Collins Dep.) at 38-41; Moseley Ex. G (Mogulescu Dep.) at 63-64, 95-96, 101; Moseley Ex. J (Yates Dep.) at 35-37, 124-25. Mr. Spangenberg also finds that the shortage of qualified assigned counsel has been caused by the inadequacy of the current rates. See Spangenberg Aff. 33(h).

This shortage of assigned counsel has harmful consequences for the quality of legal representation provided to indigent defendants, as detailed below. The shortage of assigned counsel willing to accept arraignment shifts also results in particular harms to indigent defendants' rights to the meaningful and effective assistance of counsel both at arraignment and throughout the rest of the criminal proceedings. Because fewer assigned counsel now accept arraignment shift assignments, many of the remaining attorneys who still accept those assignments are working more shifts, on average, per year. Mr. Spangenberg, for example, finds that the average number of shifts handled by assigned counsel increased from 7 per year in 1995 to 20.6 in 2000. See Spangenberg 61, 63; see also Moseley Ex. B (Buggs Dep.) at 102-05, 151-52; Moseley Ex. H (Watson-Turner Dep.) at 151-59. These attorneys, as a result, are spending more time in court working those shifts and receiving more assigned cases from those shifts. Both of these changes over time increase the workloads of these attorneys. See Spangenberg Aff. 64, 67; Milano Aff. 15. Mr. Spangenberg concludes that many of these remaining active attorneys are left to dispose of a high number of cases at arraignment, carry workloads so high that they risk violating ethical standards and/or work an excessive number of hours per year. Spangenberg Aff. 33(i).

In addition, arraignment shifts may be under-staffed, leaving one or more attorneys to handle all of the cases in the part that require assigned counsel representation. As one attorney affirms, this situation confronts the assigned counsel staffing the shift with the "choice of picking up too many cases or only picking up a reasonable number of cases, which means that people charged with low-level crimes who would typically be released as soon as they saw a judge are left to sit in jail for many hours until the next eight-hour shift." Angioletti Aff. 7-10.

The shortage of assigned counsel to staff arraignment shifts also results in an increased incidence of "arraignment-only" representation, a practice which has been the subject of much judicial criticism. See, e.g., People v. Corley, N.Y.L.J., Nov. 19, 1990 (Bronx County Sup. Ct. 1990). Legal Aid and the other contract defense providers have a strict policy that they will represent only one defendant in multiple-defendant cases. This policy is intended to preserve the defendants' constitutional rights to conflict-free counsel. See Ortiz, 76 N.Y.2d at 656. "An attorney who simultaneously represents two clients whose interests actually conflict cannot provide effective assistance to either client." People v. Carillo, 218 A.D.2d 505, 505, 630 N.Y.S.2d 305, 307 (1st Dep't 1995). Assigned counsel, however, routinely are assigned to one co-defendant for all purposes, including post-arraignment proceedings, and one or more others for "arraignment only" in such multiple defendant cases. See Spangenberg Aff. 13, 33(k); Angioletti Aff. 11. This practice subjects these indigent defendants to a real risk that their assigned counsel may be unable to represent them with the single-minded devotion required by the federal and state constitutions because of a potential or actual conflict of interest.

Moreover, "arraignment-only" representation is harmful to defendants because it often will result in an actual, or, at a minimum, effective absence of counsel during the critical time period between arraignment on the initial accusatory instrument and indictment by the grand jury. See Corley at 3 ("The period between arraignment on a felony complaint and arraignment on the indictment is a crucial stage in criminal proceedings.") Judges disfavor arraignment-only representation "because the first few days of a case are crucial" and, in felony and homicide cases, a defense attorney must perform certain important tasks during those days in order to preserve his or her client's rights. Moseley Ex. G (Mogulescu Dep.) at 41-42, 78.

One of the most significant rights is the defendant's absolute right to testify before the grand jury prior to indictment pursuant to CPL 190.50. CPL 180.80 requires that an indictment be voted or filed within 144 hours of a defendant's arraignment if he or she is incarcerated. Thus, the defendant must have a meaningful opportunity to consult with and receive advice from assigned counsel at arraignment or immediately thereafter in order to make an informed decision whether to testify and in order to ensure that the defendant exercises his or her right to testify if he or she so chooses. (82) If assigned counsel represents a defendant for "arraignment only," the defendant will not have a meaningful opportunity to consult with counsel when making the decision to testify and, because of practical problems in service of the prosecutor's notice of its intent to present the case to the grand jury or of the cross-notice of the defendant's intent to testify, the defendant may be prevented from exercising this right. See Corley at 3; see also Angioletti Aff. 11.

"Defendants may also be prejudiced by the impact of delays in assigning counsel on preliminary investigations, plea negotiations, and bail determinations." Corley at 4. The time before indictment is an important one for plea negotiations, particularly where a defendant has a prior felony conviction which would subject him or her to mandatory-minimum sentencing laws. If the case is in Bronx County, this time period is of greater importance because the District Attorney has a "theoretical[]" "no plea policy." Moseley Ex. G (Mogulescu Dep.) at 42-43. In addition, it is critical, and absolutely necessary if the attorney is advising the defendant concerning a plea, for an attorney to conduct an initial investigation of the facts immediately after arraignment. The ABA Standards provide that "under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed." Lefstein Aff. 37.

If assigned counsel represents a defendant for "arraignment only," the Assigned Counsel Plan will be responsible for finding another attorney who will accept the assignment and appear at the defendant's next court appearance, which, in the case of incarcerated defendants charged with a felony, will be their "180.80 day," pursuant to CPL 180.80, six days after arraignment. In many cases, however, the Plan is unable to find an attorney until the 180.80 day itself and, in some cases, may not even find an attorney by that date. (83) The defendant thus is effectively without counsel during this crucial period. Justice Mogulescu testified with respect to this period: "If there is some period of time that the defendant is counsel-less, it makes it less likely that the defendant is going to get adequate representation." Moseley Ex. G (Mogulescu Dep.) at 42. One attorney affirms that on many occasions the judges in the 180.80 parts in Manhattan Criminal Court have called him out of the audience to accept assignments for "arraignment-only" clients where the Plan has failed to assign counsel by their 180.80 day. He further states, "[t]hese clients have not had anyone with whom they and their families could communicate about the case in the intervening four to six days, nor have they had any attorney to contact the assigned assistant district attorney to try to negotiate a pre-indictment plea offer." Angioletti Aff. 11.

2. Lack of Essential Resources


Because of the inadequacy of the current rates of compensation, assigned counsel also cannot afford basic resources which are necessary to provide effective legal representation to their indigent clients. As Dean Lefstein attests, these resources include: (i) private office space in which they can meet with clients, clients' families or witnesses, or receive phone calls from incarcerated clients; (ii) support staff such as secretaries or paralegals; (iii) support equipment such as adequate computers for word-processing or on-line legal research, proper legal research materials, telephones, copying and mailing facilities and data-processing systems; and (iv) access to other support services such as investigators and expert witnesses. (84)

Unlike attorneys employed by institutional defense providers, such as Legal Aid, assigned counsel do not have access to these resources and support services simply by virtue of their membership on the panels. Instead, as independent contractors, they must pay for the costs of all of these resources and services (other than investigators and other experts obtained pursuant to 722-c of the County Law), out of the income they earn from their assigned counsel and other work. See Carey Aff. 9.

Attorneys who derive a substantial percentage of their income from assigned counsel work, however, are unable to afford these resources and services at the current low rates of compensation. Mr. Spangenberg finds that many current panel members either do not have a private office space or share a single office with several other attorneys, and many of them lack secretarial support, a current law library or access to on-line legal research and an up-to-date computer. See Spangenberg Aff. 96-101. This finding is corroborated by the affirmations submitted by assigned counsel who have been forced to give up their offices or other resources or support services because they cannot afford them at the current rates, (85) as well as the testimony of judges who observe that many assigned counsel do not appear to have access to those resources and services. (86) The current panel rosters for the First and Second Department Plans similarly reflect that approximately 5% of the attorneys have only a post-office box rather than an office, that 5% share offices with six or more other panel attorneys, and that 29% do not maintain an office in the borough in which they practice. See Moseley Ex. W.

3. High Caseloads and Even Higher Workloads


Due to the inadequacy of the current rates of compensation, and the resulting shortages of assigned counsel and lack of resources, many of the attorneys who continue to accept assigned counsel cases are overburdened with high caseloads and even higher workloads.

Because there are fewer assigned counsel willing to accept the assignment of arraignment shifts and cases, the courts and the Assigned Counsel Plan must rely upon a small group of attorneys to handle the majority of those cases and shifts. Mr. Spangenberg finds that the 300 "top earners" in Bronx, Kings and New York Counties from 1996 to 2000 "clearly handled the majority of the assigned cases" during this period, handling 57.14% of the homicides, 60.56% of the felonies, 59.21% of the misdemeanors and violations and 88.96% of the parole and probation cases. As stated above, he also finds that the 100 "top earners" disposed of 27.74% of all of the assigned cases that survived arraignment. See Spangenberg Aff. 77-83; see also Moseley Ex. H (Watson-Turner Dep.) at 70 (testifying that a small group of attorneys are taking more and more cases).

Many of these attorneys must practice on a "volume" basis, by accepting a high number of assigned cases and arraignment shifts, in order to survive financially on the current low rates. Because the rate for out-of-court work is even lower, assigned counsel also must carry enough cases to permit them to spend the majority of each day in court. Assigned counsel confirm this pressure to practice on a "volume" basis and maximize in-court time. One attorney states: "Because the out-of-court rate for assigned counsel work is so low that it is a money-losing proposition, I can only maintain my assigned counsel practice by having full days in court on most days. . . . Essentially, the rate structure has made me like an airline that has to overbook to survive." Angioletti Aff. 13. A number of attorneys who no longer accept assigned cases or who have significantly reduced their assigned caseloads confirm this pressure to carry a high number of cases and cite it as a reason for their decision to significantly reduce or discontinue their assigned counsel work. (87)

Similarly, Mr. Spangenberg finds that "because the rates of compensation are so low, a number of assigned counsel are taking on excessive caseloads/workloads at times in order to make an adequate living." Spangenberg Aff. 10. He further finds that there is "obvious over-utilization" of a number of the most active assigned counsel, some of whom handle as many as eight to ten arraignment shifts in one month. Spangenberg Aff.  89. He finds that this core group of assigned counsel who remain active are assigned a high number of cases at arraignment and, as a result, "carry workloads so high they risk violating ethical standards and/or work an excessive number of hours per year." Spangenberg Aff. 33(i).

Mr. Spangenberg finds that in the year 2000, 41 panel attorneys handled more than 150 felony cases, the maximum number of cases that an attorney employed by a public defender's office handling only felonies is recommended to handle per year under caseload and workload guidelines promulgated by the ABA, the NLADA and the National Advisory Committee on Criminal Justice Standards and Goals. Unlike attorneys working in public defender offices, however, many of these panel attorneys do not devote their entire practice to assigned counsel work and do not have support staff. Mr. Spangenberg found that in two instances, assigned counsel handled in excess of four times the national public defender caseload standard for felonies (or over 600 cases in one year). See Spangenberg Aff. 59.

Mr. Spangenberg's findings regarding the total hours billed by panel attorneys' also suggest that many assigned counsel are handling extremely high caseloads and workloads. Over the past five years, approximately 100 assigned counsel in Bronx, Kings and New York Counties have billed in excess of 2,000 hours per year. In each year, there also were instances where assigned counsel billed in excess of 3,000 hours. See Spangenberg Aff. 69-74 & tbls. III & IV.

Judges also confirm that many assigned counsel carry high caseloads. Justice Firetog testified: "I would say of the active 18-B attorneys, they range from 30 to 50 [open felonies] which is a heavy caseload." (88) Moseley Ex. D (Firetog Dep.) at 33-34. Due to the severe shortage of assigned counsel who still are willing to accept homicides, many of the remaining attorneys on the Homicide Panels, in particular, are extremely overburdened. In Bronx County, for example, Justice Collins testified that almost half of the pending homicide cases are being handled by only thirteen to sixteen assigned counsel, some of whom have as many as twelve to fourteen open homicide cases in addition to their other cases. (89)

These high caseloads result in even higher workloads. As Dean Lefstein explains, "workload" is a more comprehensive term than "caseload" and refers to the sum of all work performed by the individual attorney at any given time. This includes the number of cases to which an attorney is assigned, but also includes the other tasks for which that attorney is responsible on those cases. See Lefstein Aff. 56. Moreover, because many assigned counsel lack basic support services such as secretarial or paralegal assistance, their workloads are even greater because they must perform these administrative and secretarial tasks themselves. Similarly, their workloads necessarily increase without access to time-saving resources such as on-line legal research services and up-to-date computers.

As the Administrators' staff testified, the Assigned Counsel Plan does not monitor attorneys' caseloads or workloads, nor does it have the capability to do so. (90)

4. Harms Caused by Systemic Deficiencies

The systemic deficiencies described above directly impact the quality of legal representation provided by assigned counsel in the City's criminal courts. Dean Lefstein states that "in evaluating the overall adequacy of an assigned counsel program, the relevant inquiry is whether the program guarantees reasonably effective assistance of counsel, or, conversely, whether it creates a substantial risk of ineffective assistance of counsel." Lefstein Aff. 70. These deficiencies impair assigned counsels' abilities to provide meaningful and effective assistance to each of their indigent clients. Moreover, as a result of these deficiencies, many assigned counsel fail to perform basic tasks which are necessary to provide constitutionally adequate representation.

These deficiencies are so widespread that, taken together, they result in a constitutionally deficient system which does not guarantee that each and every indigent defendant receives constitutionally adequate assistance. Instead, as NYCLA's experts conclude, these systemic deficiencies result in a substantial and unacceptably high risk that assigned counsel will be unable to provide meaningful and effective representation to each of their indigent clients. See Lefstein Aff. 3, 71; Spangenberg Aff. 9-15, 33, 169-78.

(a) Harms Caused by High Caseloads and Workloads


Dean Lefstein confirms that "the presence of excessive caseloads and workloads" is a "significant impediment to the furnishing of effective representation to indigent defendants." Lefstein Aff. 56. As he explains:

Inevitably, the size of an attorney's workload and caseload affects the amount of time the attorney spends investigating the facts of each case; the amount of time he or she spends interviewing and counseling the defendant; the amount of time that elapses before a case is resolved; the attorney's ability to conduct appropriate legal research and prepare motions, briefs and other written submissions to the court; and the attorney's ability to evaluate and negotiate adequately proposed plea arrangements.

Id. at 57. Many assigned counsel are highly qualified and experienced attorneys. However, as the commentary to Standard 5-5.3 of the ABA Standards on Providing Defense Services recognizes, "not even the most able and industrious lawyers can provide quality representation when their workloads are unmanageable." Id. Dean Lefstein opines that "excessive caseloads and workloads of defense attorneys create a substantial risk that defense attorneys will not render effective assistance, so that neither the judiciary, the bar, nor the public can be confident that the program as a whole sufficiently safeguards the constitutional rights of defendants." Id. at 60.

At the most basic level, the high caseloads and workloads carried by many assigned counsel in New York City render them unavailable to both their clients and the courts. Due to their high caseloads and workloads, many assigned counsel who serve on the Supreme Court and Homicide Panels frequently are on trial and, thus, are unavailable to devote significant amounts of time, in-court or out-of-court, to their other cases. Moseley Ex. D (Firetog Dep.) at 80. Because of the shortage of assigned counsel willing to handle homicides and because homicide cases involve lengthy trials and rarely plead out , the members of the Homicide Panels, in particular, are continually on trial. (91)

When assigned counsel continually are on trial, they necessarily have less time to devote to pre-trial preparation in their other cases. (92) Proper pre-trial preparation, however, "is crucial to the provision of effective representation." Lefstein Aff. 33. As the commentary to Standard 4-4.1 of the ABA Standards recognizes: "The effectiveness of advocacy is not to be measured solely by what the lawyer does at trial; without careful preparation, the lawyer cannot fulfill the advocate's role." Id.

Because these assigned counsel always are on trial, they also cannot proceed to trial in their other cases. This leads to substantial delays in trials and other criminal proceedings and contributes significantly to the back-log of pending felony and homicide cases in many courts. Justice Firetog testified with respect to these delays in Kings County Supreme Court:

The oldest cases are the 18-B's. Those are the ones you try to move to trial and the individuals are always on trial which means those are the ones that you can't get to trial all the time. They just become older, and you are constantly trying to get them to trial, and you can't because they are always on trial. When you finally get them on trial, you can't get the DA, and the caseloads get older and harder to move. It's a nightmare.

Moseley Ex. D (Firetog Dep.) at 77-78; see also id. at 90. Justice Collins similarly testified: "One of the significant reasons why we are unable to move cases pending more than a year is the lack of assigned counsel. They are representing a defendant on one case, and they can't go to trial on another case."Moseley Ex. C (Collins Dep.) at 41. (93) These lengthy delays result in harm to indigent defendants, as well as the courts. A significant percentage of defendants charged with felonies and homicides are incarcerated pending trial and, accordingly, many of these defendants spend as long as two to three years in jail awaiting trial because their assigned counsel are unavailable to try their cases. Bronx County Supreme Court Justice William Mogulescu testified:

You look at [the list of the 183 homicides pending in Bronx County Supreme Court as of April 18, 2001] . . . if you . . . look at the number of homicides and the amount of time people have been incarcerated and a goodly portion of that can be laid right at the doorstep of 18B about not having sufficient lawyers to try these cases.

Moseley Ex. G (Mogulescu Dep.) at 177-78. If delays of this magnitude were attributable to the prosecution, many of these defendants would be entitled to dismissal of the charges against them under New York's speedy trial statute, CPL 30.30, or on the grounds that the delay violated their rights to a speedy trial under the federal and state constitutions. See, e.g., Barker v. Wingo, 407 U.S. 514, 530 (1972); People v. Taranovich, 37 N.Y.2d 442, 445 (1975).

Assigned counsel also routinely fail to appear at scheduled court appearances or appear late or unprepared because they often must be in more than one court part at one time due to their heavy caseloads. See Moseley Ex. J (Yates Dep.) at 65-69. (94) Justice Firetog testified that assigned counsel failed to appear on five out of the ten arraignments he handled on the day of his deposition. Moseley Ex. D (Firetog Dep.) at 39. Justice Yates similarly testified: "18-Bs . . . are in a league of their own when it comes to not showing up in time and being unreachable. They clearly are distinguishable from the other three groups [retained counsel, New York County Defenders, and Legal Aid]." Moseley Ex. J. (Yates Dep.) at 69. This failure to appear results in lengthy adjournments and delays in court proceedings, and can result in damage to the attorney-client relationship and serious harm to the defendant. See id. at 39. (95) In one case, a prosecutor was prepared to offer a defendant a treatment program instead of incarceration, but withdrew the offer when the defendant's assigned counsel failed to appear; as a result, the defendant faced a 7 to 15 month prison sentence. Spangenberg Aff. 89(ii). Assigned counsel's routine failure to appear in Parts N and F (the 180.80 parts) in the Criminal Court and the arraignment parts in the Supreme Court poses an even greater threat of harm to indigent defendants' rights given the critical stages of the proceedings which occur in those parts. See Moseley Ex. H (Watson-Turner Dep.) at 181-83, 184-85.

High caseloads and workloads also necessarily prevent assigned counsel from performing all of the tasks required to properly represent each of their clients. Even the most qualified attorneys may be unable to devote the time necessary to each client's representation if they are carrying too many cases. Justice Mogulescu testified: "I practiced as a criminal defense lawyer for twenty years and I know what it takes to be able to adequately prepare a case, to do it the right way, and it is very, very difficult to do it the right way when you are carrying the numbers of cases these lawyers are carrying. Notwithstanding how skilled they may be, how dedicated and how hard working." Moseley Ex. G (Mogulescu Dep.) at 103. Justice Collins similarly testified that most assigned counsel with high caseloads in Bronx County "are very fine attorneys . . . but it seems to me that to give adequate service to your client, it is impossible to represent 13 or 14 homicide defendants." Moseley Ex. C (Collins Dep.) at 54-55.

Mr. Spangenberg finds that as a result of the extremely high caseloads and workloads carried by many assigned counsel, these attorneys frequently do not consult with their clients on a regular basis and do not undertake important work on their client's cases even when necessary. As a result, pre-trial motions are not filed and necessary legal research is not conducted. See Spangenberg Aff. 89(iv), 104.

(b) Harms Caused by Lack of Essential Resources


The lack of essential resources and support services also seriously compromises assigned counsels' abilities to represent their clients effectively. See Spangenberg Aff. 11, 15, 33(l). The commentary to standard 5-1.4 of the ABA Standards states: "A sine qua non of quality legal representation is the support personnel and equipment necessary for professional service." Lefstein Aff. 52. Citing this provision, Dean Lefstein states: "In order to provide effective legal representation, assigned counsel must not only receive reasonable compensation for the work they perform, but they also must have adequate funding for, and access to, the support personnel and services which are essential to the provision of effective legal representation." Id.

This lack of support staff and services impairs assigned counsel's ability to consult on a regular basis with their clients. With no secretary to answer telephone calls and only an answering service or machine, assigned counsel often cannot be reached by their clients or the courts. See Spangenberg Aff. 104-05. Justice Yates testified: "[T]he typical 18B attorney, especially the one with many cases, that I see, has just an answering service or an answering machine, and has no one else in the office as a backup to come and cover and no one to explain where they are when they are not there, and that means that you may get no response." Moseley Ex. J (Yates Dep.) at 60.

Because many assigned counsel lack adequate legal research materials or access to on-line legal research services, they are unable to conduct appropriate and necessary legal research or "to remain on top of changes in the law relevant to their cases." Spangenberg Aff. 101. Without access to those legal research materials and computers for word-processing, assigned counsel also are unable to prepare and submit written motions, briefs and other court papers on a timely basis, even when requested by the court. See Spangenberg Aff. 100. Justice Yates testified that, because he keeps a computer on his bench and assigned counsel tell him they do not have access to on-line research services, they often depend on him to inform them of relevant cases. See Moseley Ex. J (Yates Dep.) at 81-82.

(c) Harms Caused by Lack of Out-of-Court Work


The ABA Standards require that assigned counsel receive reasonable compensation for all hours necessary to provide quality legal representation. Such reasonable compensation is necessary because, as the commentary to the standards recognizes, "the quality of representation often suffers when adequate compensation for counsel is not available." Lefstein Aff. 48. Dean Lefstein explains: "[I]f the compensation is patently inadequate, defense lawyers are sometimes unwilling to put forth all of the necessary efforts on behalf of their clients and perform all of the tasks necessary to represent their clients properly." Id. at 49.

Dean Lefstein concludes that the statutory distinction between the rates paid for in-court and out-of-court work under Article 18-B "results in a constant incentive for assigned counsel to maximize the amount of time they spend in court and a corresponding disincentive to perform basic out-of-court tasks. . . . which are essential to providing effective legal representation." Id. at 51.

Mr. Spangenberg likewise concludes that the inadequacy of the current rates of compensation and, in particular, the lower rate paid for out-of-court work result in a disincentive for assigned counsel to concentrate on critical out-of-court work and to devote the out-of-court hours necessary to provide meaningful and effective assistance to their clients. He finds that the lower out-of-court rate discourages assigned counsel from performing out-of-court work that is both required in every case and necessary to the provision of meaningful and effective representation, such as looking carefully at the complaint, conducting necessary legal research, interviewing the client fully, keeping the client informed of his or her rights and the status of the case and meeting with witnesses and family members. (96) See Spangenberg Aff. 84-86.

Data from the Assigned Counsel Plan establishes that the attorneys who handle a significant amount of assigned counsel work, in fact, do not spend sufficient amounts of time on out-of-court work. Mr. Spangenberg finds that the "top hours" attorneys in Bronx, Kings and New York Counties, or those attorneys who submitted vouchers for over 2,000 hours per year for the years 1996 to 2000, consistently bill approximately one hour of in-court time for every out-of-court hour. In his opinion, this ratio far exceeds the appropriate ratio of two to three hours of out-of-court time for every one in-court hour. It is his opinion that "assigned counsel can only provide meaningful and effective representation when they perform the . . . legal tasks [required by the ABA and NLADA standards] and those tasks, by definition, require primarily out-of-court time." Id. at 85.

Attorneys confirm that the lower out-of-court rate discourages assigned counsel from performing necessary out-of-court work and, instead, encourages them to maximize the amount of time they spend in court, leaving little time for crucial out-of-court tasks, such as a thorough investigation of the facts, appropriate legal research and other pre-trial preparation. (97) Many of these attorneys have stopped accepting assigned cases or significantly reduced their assigned caseload because they cannot afford to devote the substantial amounts of out-of-court time they feel is required to properly represent a defendant charged with a felony or homicide at the current compensation rate of only $25 per hour. (98) Judges similarly have observed that many assigned counsel neglect critical out-of-court work because of the lower rate of compensation. See Moseley Ex. G (Mogulescu Dep.) at 60-61.

Mr. Spangenberg concludes that the inadequacy of the current rates of compensation paid to assigned counsel are the single greatest factor responsible for the current crisis in the City's assigned counsel system. As a result of the inadequacy of the rates of compensation and the crisis in the system generally, he concludes there is a severe and unacceptably high risk that assigned counsel will be unable to provide their indigent clients with meaningful and effective assistance. See Spangenberg Aff. 9-15, 33(h), 37.

Dean Lefstein further concludes that the inadequacy of the current rates of compensation "create a substantial risk that assigned counsel will be strongly tempted to breach their duties under the ABA Model Rules of Professional Conduct and the New York State Code of Professional Responsibility." Lefstein Aff. 69. Assigned counsel, like all attorneys, have an ethical obligation not to accept employment if their exercise of professional judgment on behalf of the client will be or may be reasonably affected by their own financial interests. When an assigned counsel system fails to provide attorneys with reasonable or even adequate compensation, however, the system creates a significant and unavoidable conflict of interest between the attorneys' own need to earn a living and the best interests of their clients. Accordingly, the system may lead attorneys to undertake more cases than they can competently handle in order to make a living. Dean Lefstein concludes that the current inadequate rates of compensation under Article 18-B necessarily create such a significant and unavoidable conflict of interest between the financial interests of the attorneys who serve as assigned counsel and the best interests of their clients. See id. 64-69.

(d) Harms Caused by Failure to Perform Other Basic Tasks


Indigent defendants must have meaningful opportunities to consult with, and receive advice from, their assigned counsel on a regular basis throughout the criminal proceedings. See id. 38-42. Mr. Spangenberg, however, finds that many assigned counsel do not consult with their clients on a regular basis or in any meaningful way. He finds that, among the majority of assigned counsel whom he interviewed, there is a "serious problem involving their ability to maintain contact with their clients and/or keeping their clients informed regarding the steps to be taken and decisions to be made in their cases." Many of the assigned counsel who were interviewed, for instance, lacked specific knowledge of the facts of their clients' cases. See Spangenberg Aff. 102-03. (99) Spangenberg further finds that many assigned counsel do not engage in correspondence with their clients, do not accept collect calls from their incarcerated clients, rarely visit their incarcerated clients and instead conduct most consultations with their clients either in the courthouse pens and lock-up areas or, in some circumstances, in the courtroom immediately prior to an appearance. See id. 104-10; see also Checkman Aff. 17.

Judges confirm that many assigned counsel fail to engage in meaningful consultations with their clients on a regular basis and, in particular, on critical subjects such as a client's decision whether to accept a plea offer. Justice Yates testified:

[V]ery commonly, and I put it up in the 30, 40 percent range of the time when a case is called, the lawyer has not consulted with the client on either a separate date, or down in the pens that day, in the interview area, but instead just had the case called for the purpose of talking to the person up in the courtroom as the case is being called.

A lot of times, they will hear about the plea offer for the first time there, and they will right there in open court discuss the plea offer with their client. And the -- sometimes since the client's not always happy with the first phase of the negotiation, the discussion will become heated.

And I've had, on too many occasions, too many, more times than I want to say, seen open, loud arguments in open court right in front of me between the lawyer and the client . . . with the lawyer urging the plea on the client, because that's what passes for an interview between them.

Moseley Ex. J (Yates Dep.) at 95-96; see also Moseley Ex. G (Mogulescu Dep.) at 53-54. Spangenberg further finds, as a result of this failure to engage in meaningful consultations with their clients, that "on a daily basis, large numbers of indigent defendants are making decisions about pleas and case dispositions without the benefit of adequate advice from their assigned counsel." Spangenberg Aff. 106.

To provide meaningful and effective representation, assigned counsel must conduct an appropriate pre-trial investigation of both the facts of the case and the relevant law and must secure the assistance of an investigator or other expert to assist in that factual investigation where necessary. See Lefstein Aff. 28-33. Mr. Spangenberg, however, finds that some assigned counsel fail to conduct an investigation of the facts or request an investigator where warranted, often because they do not want to devote the out-of-court time at $25 per hour. See Spangenberg Aff. 111-15; see also id. 116 (failure to request expert witnesses). Similarly, an attorney who regularly accepts the re-assignment of felony and homicide cases that previously have been handled by other assigned counsel affirms: "Too often, when I review the case file in a case that has been re-assigned to me from another assigned counsel, I find that the prior assigned counsel failed to perform what I would consider an adequate investigation of either the facts or the law in light of the circumstances of the particular case." The attorney provides an example of an attempted murder case in which the defendant claimed to have an alibi defense. After reviewing the case file, she found that the prior assigned counsel had not sought to interview the alibi witnesses or to obtain copies of the related records despite having handled the case for six months after the defendant's arraignment. The defendant later was acquitted after she presented the alibi witness and records at trial. See Cohen Aff.  18. Justice Yates also testified that few assigned counsel seek authorization from him pursuant to 722-c of the County Law for investigators, or only seek an investigation when it is clear the client will not accept a plea. See Moseley Ex. J (Yates Dep.) at 88.

After conducting an appropriate investigation of the law and the facts, assigned counsel must take all necessary actions to protect and vindicate the defendant's rights, including filing appropriate pre-trial motions. See Lefstein Aff. 25, 27, 28, 34. The evidence reflects, however, that assigned counsel routinely fail to prepare and submit meaningful pre-trial motions or legal memoranda or otherwise advocate effectively on behalf of their clients. Justice Yates testified that aside from boiler-plate omnibus motions and motions pursuant to CPL 190.50 and 30.30, he almost never receives written motions or memoranda from assigned counsel. See Moseley Ex. J (Yates Dep.) at 77-81. He testified, for example, that assigned counsel do not submit written memoranda on the law or facts of a particular case after he conducts a hearing on a boiler-plate motion to suppress but instead simply rest on the record after the hearing. See id. at 83-85.

To provide meaningful and effective representation, assigned counsel must prepare adequately for trial and all other critical stages of the proceedings. "[W]ithout careful preparation, the lawyer cannot fulfill the advocate's role." Lefstein Aff. 33-34. Many assigned counsel, however, do not adequately prepare for trial because they have neither the time nor resources to do so. Justice Yates testified that assigned counsel typically do not begin to prepare seriously for trial until a trial date is scheduled. He observed that, in contrast to Legal Aid, which typically will submit subpoenas a week to three days before the scheduled date for trial, assigned counsel typically do not submit subpoenas any earlier than a day before the trial date or the trial date itself. He further observed that many assigned counsel will request an investigator for the first time only when the case is scheduled for trial, or will make a "desperate" request for a one or two-day adjournment immediately before or on the scheduled trial date, presumably in order to prepare for the trial. Moseley Ex. J (Yates Dep.) at 98-102.

After conviction, assigned counsel also should explore available sentencing alternatives and "present to the court any ground which will assist it in reaching a proper disposition favorable to the accused." Lefstein Aff. 44-45. Justice Yates testified that he rarely sees assigned counsel request experts such as social workers or a clinical analyst. He observed that while Legal Aid and New York County Defenders often will prepare a five to seven-page memorandum on the defendant's background with the assistance of their social service units in appropriate cases, such as a defendant with Alzheimer's disease charged with assault, he typically does not receive such submissions from assigned counsel. See Moseley Ex. J (Yates Dep.) at 92-93.

5. Threat of Injury is Real and Immediate


Mr. Spangenberg concludes that because of the low rates of compensation, high caseloads and workloads and limited access to essential resources, many assigned counsel fail to perform the basic and minimum tasks required to represent their clients effectively. As a result of these failures and the systemic deficiencies in the City's assigned counsel system, he concludes that there is a severe and unacceptably high risk that assigned counsel will be unable to provide meaningful and effective representation to each of their clients. In Mr. Spangenberg's view, based upon the workloads and hours reported by some of the most active assigned counsel, there are a number of assigned counsel who already may be failing to provide meaningful and effective assistance to their clients due to these systemic deficiencies. Spangenberg Aff. 10. Dean Lefstein similarly concludes that the City's current assigned counsel system "creates a substantial and unacceptable risk that defendants do not always receive effective assistance of counsel and, further, that representation is sometimes in violation of constitutional standards governing the Sixth Amendment and rules governing professional conduct." Lefstein Aff. 71.

Mr. Spangenberg, in summary, concludes that "the spirit of the Sixth Amendment is barely alive in the criminal courts of New York City, in substantial part because of the unwillingness of the State to adequately fund and support the assigned counsel system." Spangenberg Aff. 178.

IV. Children and Indigent Adults Have No Adequate Remedy at Law

NYCLA's claims for prospective relief also satisfy the second prong of the likelihood of success on the merits test because there are no adequate remedies at law available to children and indigent adults who are denied meaningful and effective assistance of counsel. See Luckey, 860 F.2d at 1017-18. Outside of this lawsuit, these litigants have no means of redressing injuries suffered from a denial of their rights to meaningful and effective representation. In the criminal context, these injuries include pre-trial imprisonment, false convictions and unnecessarily long sentences. In the Family Court, these injuries include the separation of a child from his or her parents, and the inability to secure protection from domestic violence and pervasive delay. These injuries cannot successfully be remedied through an appeal or, in the criminal context, a habeas petition. By the time of any such appeal or habeas petition, these litigants would already have sustained an irreparable injury to their constitutional rights. Moreover, most litigants would be unable to obtain relief because they could not meet the strict standards which apply to an attempt to overturn an adjudication on the basis of ineffective assistance of counsel. See Strickland, 466 U.S. at 668; Baldi, 45 N.Y.2d at 140.

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


On a motion for a preliminary injunction, a plaintiff need only demonstrate "'a potential, that irreparable injury will result if the preliminary injunction is not awarded." Brad H., 185 Misc. 2d at 430, 712 N.Y.S.2d at 344 (citing Chernoff Diamond & Co. v. Fitzmaurice, Inc., 234 A.D.2d 200, 201, 651 N.Y.S.2d 504, 504 (1st Dep't 1996)); accord Twenty First Assocs., L.L.C. v. Estates at Hallet's Cove Homeowners Ass'n, Inc., 179 Misc. 2d 972, 979, 686 N.Y.S.2d 696, 701 (Sup. Ct. Queens County 2000) ("Insofar as concerns irreparable injury, plaintiff has demonstrated a potential for injury, since its legal remedies may not be as efficient or effective as its equitable one.") Where, as here, the plaintiff seeks to enjoin enforcement of a statute on the ground that it violates that party's fundamental constitutional rights, courts routinely conclude that potential exists for "irreparable injury" as required by CPLR 6301. See, e.g., Niagara, 83 A.D.2d at 332-33, 443 N.Y.S.2d at 950; Tucker, 54 A.D.2d at 325, 388 N.Y.S.2d at 477; Lily Pond, 98 Misc. 2d at 855, 414 N.Y.2d at 597; Powlowski, 81 Misc. 2d at 898, 366 N.Y.S.2d at 588 (granting preliminary injunction to prison inmates arguing that "they will suffer irreparable injury because of the continuing deprivation of their constitutional rights pending trial and final judgment.").

NYCLA's evidence demonstrates that the State denies children and indigent adults their state and federal constitutional rights to meaningful and effective legal representation by failing to ensure that a sufficient number of qualified private attorneys are available and able to represent them in family and criminal proceedings in New York City. The injuries caused by these violations are irreparable because of the very nature of the constitutional rights and legal proceedings at issue. For example, children and parents in neglect proceedings suffer irreparable injury when they are unnecessarily separated - sometimes for months - due to the shortage and unavailability of assigned counsel. Children also suffer irreparable harm when they are remanded to custody without an attorney to counsel them about what is happening to them or to begin work immediately on their behalf. Domestic violence victims suffer irreparable harm when they fail to obtain relief because they have no attorney, or obtain relief that is insufficient to fully protect them from further violence. See Part II.B., supra.

Similarly, in criminal proceedings defendants suffer irreparable injury when their assigned counsel are unable to devote sufficient time to their cases because they are constantly in court on other matters. These harms are particularly acute for defendants charged with homicide and serious felony cases in Bronx and Kings Counties, as these parties may remain in jail for up to three years awaiting trial because assigned counsel are unavailable to try their cases. The irreparable injury suffered by those defendants who ultimately are acquitted is obvious; however, even defendants who are convicted suffer harm in the form of longer sentences than they deserve because assigned counsel often fail to submit pre-sentence memoranda or to engage in any sentencing advocacy on their behalf. See Part III.B., supra. Based on the proof NYCLA has submitted of these and other harms, children and indigent adults currently suffer and will continue to suffer irreparable injury if the Court denies the preliminary relief being sought by this motion.

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


In determining whether the balance of equities weighs in favor of or against granting preliminary relief, see Doe v. Axelrod, 73 N.Y.2d at 750, 532 N.E.2d at 1272, 536 N.Y.S.2d at 44; Aetna, 75 N.Y.2d at 862, 552 N.E.2d at 167, 552 N.Y.S.2d at 919; Housing Works, 255 A.D.2d at 213, 680 N.Y.S.2d at 491, courts examine the relationship between the parties to the action and their respective interests, as well as the interests of any others whom the parties represent or who stand to be affected by the relief requested. See, e.g., Jiggetts, 202 A.D.2d at 342, 609 N.Y.S.2d at 223-24 (finding that balance of equities favored granting injunction in favor of indigent mother against State agency); Doe v. Dinkins, 192 A.D.2d at 276, 600 N.Y.S.2d at 943 (determining that balance of equities favored granting injunction in favor of homeless against State and New York City officials); Matthews v. Barrios-Paoli, 178 Misc. 2d 602, 614, 676 N.Y.S.2d 757, 764 (Sup. Ct. N.Y. County 1998) (concluding that balance of equities favored granting injunction in favor of indigent high school students against City officials).

In doing equity, courts are mindful of the past conduct of the party opposing the motion, including any notice or warnings it may have received with respect to the matters at issue. See, e.g., Doe v. Dinkins, 192 A.D.2d at 276, 600 N.Y.S.2d at 943 ("The City has been aware of the overcrowded conditions for more than a decade, but has taken no concrete steps to resolve the problem, despite being warned repeatedly and threatened with sanctions. . . . The defendants' claim of hardship because of the court's directive is, therefore, negated by the notice and warnings they have received. That hardship was caused by their own inaction."); Brad H., 185 Misc. 2d at 431, 712 N.Y.S. 2d at 345 ("So what do defendants do with members of plaintiffs and the class rather than provide them with a discharge plan? Defendants drop them in the middle of the night at a subway station with $3 in tokens or MetroCard fare."); cf. McCain, 70 N.Y.2d at 114, 511 N.E.2d at 63, 517 N.Y.S.2d at 919; (noting trial court's rejection of New York City's claim that no injunction was necessary because Mayor's Advisory Task Force on the Homeless had found it was doing a "creditable job" in housing and feeding the homeless).

In this case, the balance of equities weighs strongly in favor of NYCLA and the children and indigent adults it represents. NYCLA seeks the Court's intervention to protect the fundamental constitutional rights of children and indigent adults who face present and future irreparable deprivation of these rights if preliminary relief is denied. NYCLA's evidence demonstrates that the State routinely and consistently denies children and indigent adults their rights to meaningful and effective assistance of counsel in family and criminal proceedings in New York City. See Parts II. & III., supra.

On the other side of the scale, the State will suffer no injury whatsoever if the Court issues the declaratory relief NYCLA seeks. Further, with respect to the injunctions, the State should not be heard to cry hardship. The current assigned counsel crisis is the direct result of more than a decade of indifference and inaction on the State's part, despite repeated warnings it has received from legislators, judges, administrators, assigned counsel, and countless others familiar with the operation of the assigned counsel system. Moreover, the State would benefit greatly from preliminary relief designed to ensure that its poorest and least fortunate citizens receive the meaningful and effective assistance of counsel to which they are constitutionally and statutorily entitled. Cf. Matthews, 178 Misc. 2d at 614, 676 N.Y.S.2d at 764 (finding that New York City would benefit greatly from providing assistance necessary for indigent high school students to complete their educations). The State also would stand to accrue substantial benefits in the form of reduced costs of adjudicating family and criminal proceedings currently plagued by delay and inefficiency caused by assigned counsel shortages. Thus, the balance of the equities weighs strongly in favor of this Court granting the preliminary relief NYCLA seeks.

VII. The Court Has the Power To Order Preliminary Relief


As the Court already determined in denying the State's motion to dismiss NYCLA's complaint as non-justiciable, if NYCLA makes the required showing it is entitled, at a minimum, to a declaratory judgment that the constitutional and statutory rights of children and indigent adults are being violated. NYCLA v. Pataki, Index. No. 102987/00 at p. 8 (Sup. Ct. N.Y. County Jan. 17, 2001) (citing, inter alia, Klostermann, 61 N.Y.2d at 538, 463 N.E.2d at 594-95, 475 N.Y.S.2d at 253-54)). The Court also has the power - indeed the duty - to issue injunctive relief to prevent such violations in the future, including the authority to order the specific injunctions requested herein.

A. Declaratory Judgment


The Court should declare the rights of children and indigent adults entitled to counsel on this motion for preliminary relief. Such a declaratory judgment would have independent force, apart from any injunction it also may decide to issue, particularly if the judgment were to put the State on notice that its failure to cure the unconstitutional conditions within a short period of time will result in further, more coercive, action by the Court. For example, the Court could issue an order declaring that the current hourly rates of compensation are unconstitutional and notifying the State that if new, constitutional rates are not set within 30 days' the Court would set such rates itself. (100)

Based on the arguments set forth above, and upon the substantial proof submitted in support of this motion, NYCLA respectfully requests that the Court enter an order pursuant to CPLR 3001 & 6301 declaring that:

(1) the State is constitutionally and statutorily 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 paid to assigned private counsel, to eliminate the distinction between rates paid for in- and out-of-court work and to abolish the ceilings on total per case compensation creates 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.

B. Injunction Setting New Rates


Although the above declarations would do much to address the constitutional and statutory violations complained of herein, the Court also should issue an injunction setting new hourly rates of compensation for assigned counsel.

For nearly 200 years, courts have recognized that they have the power - indeed the duty - to issue injunctions to remedy violations of vested legal rights. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) ("'[I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.'"); Baker v. Carr, 369 U.S. 186, 197-98 (1962) (rejecting district court's perceived impotence to order relief necessary to remedy due process and equal protection violations it had found to exist). Even when the proposed injunction would require expenditure of public funds, the Court undoubtedly has the power to order such relief where necessary to protect constitutional and statutory rights. See Klostermann, 61 N.Y.2d at 535, 463 N.E.2d at 593, 475 N.Y.S.2d at 252; McCain, 70 N.Y.2d at 119; 511 N.E.2d at 66; 517 N.Y.S.2d at 922; Doe v. Dinkins, 192 A.D.2d at 276, 600 N.Y.S.2d at 942. Nor should the State be permitted to forestall any longer the Court's consideration of such an injunction by suggesting that other, less-costly remedies may be available, see Deason v. Deason, 32 N.Y.2d 93, 94-95, 296 N.E.2d 229, 229-30, 343 N.Y.S.2d 321, 322-23 (1973), or that courts are ill-suited to set rates for assigned counsel. See Bruno v. Codd, 47 N.Y.2d 582, 588, 393 N.E.2d 976, 979, 419 N.Y.S.2d 901, 904 (1979); Moynahan v. City of New York, 205 N.Y. 181, 98 N.E. 482 (1912); cf. Zarabia v. Bradshaw, 912 P.2d 5, 5-9 (Ariz. 1996) (en banc) (concluding that the assigned counsel system violated an Arizona statute requiring that counsel be provided and paid a reasonable fee and, without reaching the constitutional issue, ordering the presiding judge of the County to set "a fair and equitable fee schedule for lawyers appointed from private practice.").

NYCLA has demonstrated that the absurdly low hourly rates of compensation are the primary cause of the current crisis in family and criminal proceedings in New York City -- a crisis that harms litigants everyday -- and that an immediate and substantial increase in the rates would ameliorate many of the problems caused by the crisis. See Collins Dep. at 75-77; Firetog Dep. at 88-91; Mogulesu Dep. at 107-11; Gage Aff. 48; Gilman Aff. 44-45; Roberts Aff. 10-12; Segal Aff. 38. NYCLA's proof further establishes that the following injunction, narrowly-tailored to respond to the crisis, would reduce the shortages of assigned counsel, see Law Dep. at 137; Weinberger Dep. at 242-244; Carey Aff. 15-17; Checkman Aff.  21-23; Farrell Aff. 22-24; Gelb Aff. 18; Michaels Aff. 22-23; Traub Aff. 15-16; Walter Aff.  14-16. It would also greatly improve the level of representation they currently provide within a relatively short period of time. See Law Dep. at 137-38; Weinberger Dep. at 169; Angioletti Aff. 27; Greenfield Aff. 36; Leder Aff. 40-42; Schiff Aff. 43-44; Torres Aff. 18-19; Zimmerman Aff. 26-28.

NYCLA respectfully requests that the Court enter an order pursuant to CPLR 6301 mandating the following injunctive relief:

(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, or at such other level as the Court deems necessary, to ensure that a sufficient number of qualified private attorneys are available and able to provide children and indigent adults with meaningful and effective 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 ceiling 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 and statutory obligations. (101)

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


Finally, NYCLA believes that further injunctive relief, to take effect two months after the above orders have been issued, is necessary to ensure that children and indigent adults in fact will be provided with counsel under the current assigned counsel system, and that assigned counsel will be able to provide the meaningful and effective legal representation to which their clients are constitutionally and statutorily entitled. As set forth above, the proof submitted herewith demonstrates that an immediate and substantial increase in the hourly rates of compensation paid to assigned counsel would dramatically increase the number of qualified private attorneys willing to serve as assigned counsel in family and criminal proceedings in New York City, and that such an increase would markedly improve the quality of representation they are able to provide their clients.

Nevertheless, as NYCLA also has demonstrated above, each day, children and indigent adults fail to have counsel appointed to represent them in Family Court proceedings because there are no attorneys available to assign. As a result, court officials are forced to prioritize among all who are entitled to counsel, culminating most recently in the "emergency" or "triage" case system, in an effort to provide attorneys to a chosen few who most need them. See Part II.B., supra. Furthermore, in both family and criminal proceedings, a small pool of assigned counsel carry extremely high caseloads and still higher workloads, thereby threatening the level of representation they are able to provide their clients. For example, data reveals that many attorneys routinely bill in excess of 2,000 hours per year for assigned counsel work, with a few billing more than 3,000 hours per year. See Parts II.C. and III.B., supra.

The Court of Appeals has made plain that courts have the obligation to monitor the delivery of critical services to the poor to ensure that state and local governments comply with all applicable guidelines specifying how such services are to be provided. See Mixon v. Grinker, 88 N.Y.2d 907, 911, 669 N.E.2d 819, 646 N.Y.S.2d 661, 662 (1996); McCain, 70 N.Y.2d at 116, 511 N.E.2d at 65, 517 N.Y.S.2d at 921. As a necessary corollary to this obligation, the Court has the authority, in cases where none exist, to establish standards for the provision of critical services to ensure that government does not deny indigents their constitutional and statutory rights in effect by providing services that fail to meet even minimal standards. See McCain, 70 N.Y.2d at 119-20, 511 N.E.2d at 65-66, 517 N.Y.S.2d at 921-22, ("[I]n a civilized society, a 'shelter' which does not meet minimal standards of cleanliness, warmth, space and rudimentary conveniences is no shelter at all.") (emphasis in original). (102)

Here, NYCLA seeks injunctions implicating both aspects of the Court's duty to ensure that children and indigent adults in family and criminal proceedings in New York City receive the critical legal services to which they are entitled. First, NYCLA asks the Court to issue an injunction requiring the State to provide a sufficient number of assigned counsel to staff intake in the New York City Family Court to ensure that children and indigent adults receive counsel at their "first appear[ance]" in Family Court as required by  262(a) of the FCA and relevant case law. NYCLA has presented substantial proof that children and indigent adults routinely and consistently are not being provided with counsel when they "first appear"; indeed, there is no mechanism currently in place to assign counsel to children and indigent adults appearing in "non-emergency cases." See Part II.B., supra.

Second, NYCLA seeks an injunction requiring the State to monitor and limit assigned counsel workloads to prevent children and indigent adults from being represented by attorneys who, by virtue of their overwhelming workloads, are the functional equivalent of no counsel at all. NYCLA's evidence demonstrates that many of the assigned counsel who labor under extremely high workloads - exemplified by those attorneys who routinely bill more than 2,000 hours per year for assigned counsel work - run a serious risk of being unable to provide meaningful and effective representation. This risk is particularly acute where, as here, many attorneys have few or no support services to assist him or her and little, if any, access to the assistance of investigators and other experts. This same evidence also demonstrates why limiting the workloads of these attorneys is necessary to ensure that the clients they represent will receive the level of representation to which they are constitutionally and statutorily entitled.

In this case, the Court should issue an injunction requiring the State to monitor assigned counsel workloads and to prevent extremely overburdened attorneys from accepting new assigned cases because no specific standards or rules limiting the workloads of assigned counsel in New York City currently exist to ensure that the rights of their indigent clients will be protected. Nor do the Assigned Counsel Plan Administrators, Law Guardian Program Directors for the First and Second Departments, or their respective staffs, as currently organized and funded, monitor or limit attorney caseloads or workloads in any regular or systematic way. In the absence of any standards relating to assigned counsel workloads, and in light of the critical role that caseloads and workloads play in an attorney's ability to provide quality legal representation, see Parts II.C.1-3. and III.B.4., supra, the Court should issue an injunction imposing such limits to ensure that the right to counsel has any meaning for children and indigent adults in family and criminal proceedings in New York City. See McCain, 70 N.Y.2d at 119-120, 511 N.E.2d at 65-66, 517 N.Y.S.2d at 921-22.

Third, NYCLA seeks an injunction requiring the State to enforce all existing standards, guidelines and rules of the Assigned Counsel Plan and Law Guardian Programs for the First and Second Departments pertaining to the conduct and performance of assigned counsel. NYCLA has shown that many of these standards, guidelines and rules are not presently being enforced, primarily due to the shortages of assigned counsel and the low hourly rates of compensation. See Parts II.B.2., II.C.2. and III.B.2-3., supra.

Accordingly, NYCLA respectfully requests that the Court enter an order pursuant to CPLR 6301 mandating the following further injunctive relief:

(1) requiring the State to assign the following numbers of assigned counsel to staff the intake parts each day in the New York City Family Court, or such other numbers as the Court may deem necessary, and to ensure that all parties entitled to counsel who appear on that day are assigned counsel;

Bronx County 4 attorneys

Kings County 6 attorneys

New York County 4 attorneys

Queens County 5 attorneys

Richmond County 2 attorneys; (103) and

(2) requiring the State to review the total number of hours billed on vouchers submitted by assigned counsel every three months, and to prevent any attorney who during the prior 12 months billed 2,000 or more hours on assigned counsel work during the prior 12 months, or such other amount as the Court deems necessary, from accepting new assigned cases until their billed hours fall below the limit established herein, to ensure that assigned counsel are able to provide meaningful and effective representation to each of their clients; and

(3) requiring the State to enforce all existing standards, guidelines and rules of the Assigned Counsel Plan and Law Guardian Programs for the First and Second Departments pertaining to assigned counsel conduct and performance. (104)

CONCLUSION


For the reasons set forth above, and based on the affidavits, affirmations and exhibits submitted herewith in support of the motion for a preliminary injunction, NYCLA respectfully requests that the Court grants this motion in all respects.
Dated: New York, New York
May 31, 2001
Respectfully submitted,
By:
/s/ Frank S. Moseley
Frank S. Moseley

Edward P. Boyle

Zachary S. McGee

Joan M. Loughnane

Kelli J. Stenstrom*

DAVIS POLK & WARDWELL

450 Lexington Avenue

New York, New York 10017

(212) 450-4000

Attorneys for Plaintiff New York County Lawyers' Association

Of Counsel:

Craig A. Landy

Stephen D. Hoffman

Norman L. Reimer

NEW YORK COUNTY LAWYERS'

ASSOCIATION

14 Vesey Street

New York, NY 10007

(212) 267-6646

_____________________

* Associates Robert Chesney, Avi Gesser, Jay Dyckman and Benjamin Hauser, law clerks Anastasia Smith, Jeffrey Alberts, Antoinette Greenaway and Kavita Kumar, and legal assistant Kristen Schulte made significant contributions to the preparation of this memorandum and the other materials filed herewith.

1. As used herein, the terms "assigned counsel" or "panel attorneys" refer to private attorneys assigned to represent children and indigent adults pursuant to Article 18-B of the County Law ("Article 18-B"), 245 of the Family Court Act ("FCA") or 35 of the Judiciary Law.

2. See Deposition of the Honorable John P. Collins ("Collins Dep.") at 54, 113-14; Deposition of the Honorable Margarita Lopez Torres ("Lopez Torres Dep.") at 62; Deposition of the Honorable William Mogulescu ("Mogulescu Dep.") at 113; Deposition of the Honorable James A. Yates ("Yates Dep.") at 120; Affidavit of Robert L. Spangenberg ("Spangenberg Aff.") 9, 33.d.; Affidavit of Jane M. Spinak ("Spinak Aff.") 253. Copies of the above and other deposition transcripts are attached as Exhibits A to J to the Affirmation of Frank S. Moseley ("Moseley Aff."). Citations to these deposition transcripts are in the form "Moseley Ex. (Deponent) at __." The affidavits of Mr. Spangenberg, Professor Spinak and NYCLA's other experts are submitted herewith in one volume entitled "Expert Affidavits of Norman Lefstein, Robert L. Spangenberg, Jane M. Spinak and Lawrence H. Stiffman."

3. See In re Jamie TT, 191 A.D.2d at 137, 599 N.Y.S.2d at 895 (citing New York State Bar Association Law Guardian Representation Standards); In re Jamie J, 209 A.D.2d 896, 619 N.Y.S.2d 367 (3d Dep't 1994) (same); see also In re Sandra XX, 169 A.D.2d 992, 565 N.Y.S.2d 269 (3d Dep't 1991) (citing New York State Bar Association Law Guardian Representation Standards in defining duties of law guardian at disposition).

4. The summary of published OCA data and other documents submitted by NYCLA are attached as Exhibits K through W to the Affirmation of Frank S. Moseley in Support of Plaintiff's Motion for Preliminary Injunction.

5. See, e.g., Cortese Aff. 4; Drinane Aff. 16; Leidholdt Aff. 9; see also Gage Aff. 38 (many cases require two or more assigned counsel). Copies of the above and other witness affirmations are submitted herewith in one volume entitled "Affirmations of Paul J. Angioletti, Dru Carey, Neil Checkman, Lori Cohen, Michele Cortese, Michael Gage, Jonas Gelb, David Gilman, Robert Jay Greenfield, Robert Leder, Dorchen Leidholdt, Mina MacFarlane, John J. Marotta, Anthony Michaels, Joseph J. Milano, Marvin Ray Raskin, Burton B. Roberts, Philip Schiff, Philip C. Segal, Kim Susser, Michael Torres, Jeffrey Traub, Joel S. Walter, and Brian Zimmerman."

6. Occasionally, a panel attorney will submit two vouchers for a single case. This occurs when he or she submits an interim voucher, rather than waiting for the end of the case, as is the usual practice. See Moseley Ex. E (Law Dep.) at 63.

7. See Gilman Aff. 5 ("Although I am not active, I am a member of the New York County Family Court Panel."); Dalsimer Aff. 6 (accepted two assigned cases in 1999 and two in 1998); Marrotta Aff.  32; Zimmerman Aff. 28.

8. The number of panel members still may overstate the number of attorneys who regularly accept cases because Ms. Law is reluctant to enforce her own requirement - that attorneys work six intake shifts to maintain membership - for fear of losing more attorneys. See Moseley Ex. E (Law Dep.) at 145.

9. These numbers include members of the Family Court panels in the First Department. They do not include attorneys who are members of the Family Appellate Panels only.

10. This number includes members of the Family Court Panels in the Second Department. It does not include attorneys who are members of the Family Appellate Panels only.

11. See Marotta Aff. 21; see also Moseley Ex. I (Weinberger Dep.) at 61 ("[V]ery, very few lawyers are taking primary cases."); Moseley Ex. V at 5 (count of panel rosters).

12. Chief Administrative Judge Jonathan Lippman and Deputy Chief Juanita Bing Newton, "Assigned Counsel Compensation in New York: A Growing Crisis," (Jan. 2000). A copy of the report is attached to NYCLA's complaint as Exhibit A.

13. See Gilman Aff 10 (experienced assigned counsel are leaving the panel "because of the economic difficulty created by the low rates. I left the panel for this very reason."); Dalsimer Aff. 17 (stating that he has left panel but would consider returning if rates were raised).

14. See Schiff 9 ("Panel attorneys are leaving the panel in droves."); Berlin Aff. 17; MacFarlane Aff 25; Marotta Aff. 17, 21; Zimmerman Aff 28.

15. See Greenfield Aff. 19-21 (too few applicants in Kings County to meet the need for assigned counsel; attorneys leave once they realize rates cannot support their practice); Marotta Aff. 30-32 (few qualified or experienced applicants in Queens); Reiniger Aff. 2, 14 (few applicants for admission in Bronx and New York Counties; current applicants are less experienced than predecessors).

16. In Bronx and New York Counties, the Law Guardian Director tried to schedule two primary attorneys each day. While "[t]he ideal would be to have three or more counsel in every intake part," Moseley Ex. E (Law Dep.) at 40, Ms. Law did not accept more than two attorneys for any particular day because of the need to cover more days. See id. at 49. In Queens County, the Law Guardian Director tried to schedule three primary attorneys each day, see Moseley Ex. I (Weinberger Dep.) at 74, but stated that "what we really need in Queens would be something between four - about four to six." Id. In Kings County, the Law Guardian Director tried to schedule four primary attorneys each day, see id., but stated that "if I could do it now, I'd ask for eight. . . . probably between five and eight." Id.

17. See, e.g., Segal Aff. 9; Leder Aff. 14-16; MacFarlane Aff. 6; Marotta Aff. 19.

18. See Gage Aff 14 ("[I]f there is one primary attorney, it is impossible for him or her to fulfill his role for everyone who needs counsel."); Segal Aff. 9 (50-60 new cases each day require assignment of panel attorneys); MacFarlane Aff. 6 (represented 21 clients in a single intake shift); Zimmerman Aff 17 (working intake shift alone, attorney risks assignment of 20 new cases).

19. See, e.g., Segal Aff. 19 ("Judges must invest a great deal of time finding counsel, often sending their court officers and court attorneys into the halls to plead with attorneys to take cases."); Gage Aff. 23.

20. See Moseley Ex. F (Lopez Torres Dep.) at 21 ("[T]here have been times where I've gotten off the bench and have looked myself. It's unseemly, but it's a serious situation."); Berlin Aff. 7.

21. See Moseley Ex. F (Lopez Torres Dep.) at 21; MacFarlane Aff. 15-16 ("I have personally witnessed judges, hearing officers and referees . . . search the Family Court's hallways to find available assigned counsel. Unfortunately, these commendable efforts are insufficient to meet the current need for assigned counsel."); Gilman Aff. 18; Schiff Aff. 20.

22. See Moseley Ex. F (Lopez Torres Dep.) at 29-30 ("I don't know what the count is. But I do know that whenever a new system starts, it takes a while before it sinks in. . . . [F]or instance, I would often turn to my clerk and say, 'Don't forget, we have to keep the counts,' and he [would respond], 'Oh, God, let me start now.'"); see also Greenfield Aff. 9.

23. See Gage Aff. 23 ("When there are not enough attorneys, judges must prioritize and decide who will be assigned counsel, inevitably leaving other litigants, who are also entitled to counsel, unrepresented."); Segal Aff. 19; Moseley Ex. F (Lopez Torres Dep.) at 21 ("[Y]ou triage your cases. . . .").

24. See Gage Aff. 23; Segal Aff. 19.

25. See also Spinak Aff. 290 ("Many times over the years I have observed court proceedings in which parents in child protective cases, particularly extension of placement proceedings, either were not told that they were entitled to counsel or were told in such a perfunctory manner that they did not understand the purpose of having counsel or were left with the impression that they would be better off without counsel.")

26. See Moseley Ex. L (Lopez Torres Dep. Ex. 4) (memo from Supervising Judge dated April 3, 2001, explaining that two panel attorneys would be available each day for assignment "only in 'emergency cases'"(emphasis in original)); Moseley Ex. F (Lopez Torres Dep.) at 181-82; see also, e.g., Leder 17.

27. See Moseley Ex. L (Lopez Torres Dep. Ex. 4) (memorandum from Supervising Judge defining emergency cases as the three categories supra); see id. at 182; see also Drinane Aff. 31 (court's practice has been to treat as emergencies cases in which a child faces remand on a delinquency charge and child protective cases in which a child has been removed and a parent is considered likely to seek an immediate hearing); Leder 17 (same); MacFarlane 17 (same); Schiff 13 (delinquency cases involving remand and child protective cases in which child removed treated as emergencies).

28. Compare Spinak Aff. 22-23 (describing many parties in various categories of proceedings who are entitled to counsel); see also Moseley Ex. F (Lopez Torres Dep.) at 31 (fewer cases qualify as "emergency" cases than are entitled to counsel).

29. Panel attorneys may be expelled from the panel for refusing "emergency" cases. See Gilman Aff. 22, Greenfield Aff. 15, Schiff Aff. 13

30. See Moseley Ex. F (Lopez Torres Dep.) at 89 ("All the other [non-emergency] cases would be adjourned without assigning an attorney."); Moseley Ex. I (Weinberger Dep.) at 91-93 (no longer able to schedule attorneys for intake); Moseley Ex. E (Law Dep.) at 42 (intake system has "now completely fallen apart"); Drinane Aff. 33 (under "emergency case" regime, no system established for assignment of counsel in non- "emergency" cases); MacFarlane Aff. 17 (same); Schiff Aff. 19 (same); Zimmerman Aff. 14 (intake system has "completely broken down").

31. See, e.g., Leder Aff. 20 (custody and visitation orders may prevent parents from seeing children but are not "emergencies"); Schiff Aff. 16 (child protective cases where child not removed are not "emergencies," though parent may be in danger of losing child in future); id. at 17 (termination of parental rights cases, which free children for adoption, are not emergencies, leaving children to languish in foster care.)

32. Drinane Aff. 24.

33. See Drinane Aff. 17. ("Parents need counsel to help them understand their right to a hearing within three days on the return of the child. Counsel must explain the advantages and disadvantages of such a hearing, and the preparation that will be necessary for it.")

34. See Gage Aff 15 (a hearing within three days often is not possible because such a hearing requires counsel).

35. See Moseley Ex. F (Lopez Torres Dep.) at 14 ("I can't provide you with numbers [of children charged with delinquency for whom the court cannot provide an attorney] but it's happened enough. It's a problem."); Drinane Aff. 28 ("Children have been remanded, or held in custody, without counsel."); see also id. at 27 (after a child charged with delinquency returned to court on six occasions for assignment of counsel without success, court dismisses petition); Segal Aff. 18; Spinak Aff. 308 (child charged with robbery remanded without counsel).

36. See also id. at 38 (another petitioner without counsel drafted petition asserting only that respondent turned off electricity in house; petitioner, inexperienced at drafting documents, failed to mention that her son was on an asthma machine at the time, or that she had endured years of physical abuse); Gage Aff. 17 ("In domestic violence cases, the unavailability of counsel not only can delay legal relief, it also can place victims at risk of physical harm.").

37. See also, e.g., Leder Aff. 22 ("When I carry more than 60 or 70 cases at a time, I simply cannot perform all the tasks necessary for what I consider complete and thorough representation of my clients.").

38. See also Leder Aff. 14 ("I often feel tremendous pressure to take on an additional case, even when I already am carrying a high caseload, because a judge has asked me to do so."); Zimmerman Aff 13 ("On a typical day, at least five judges or their staff will ask me to take on a case then pending.").

39. Spinak Aff. 251; see also id. at 250.

40. The Law Guardian Director for the First Department, Ms. Law testified that she does not maintain records of attorneys' caseloads, see Moseley Ex. E (Law Dep.) at 112, and has not established a maximum caseload. Id. at 112-13. In fact her records, which reflect the number of children a panel attorney represents in assigned cases, contain no information about the number of adults the panel attorney represents in assigned cases. The Assigned Counsel Plan, which maintains that information, does not provide it to Ms. Law. Id. at 114-15, 144. In connection with scheduling intake shifts, Ms. Law has begun to ask how many assigned cases panel attorneys carry, and will excuse an attorney who is carrying more than 70 cases from working intake shifts. Id. at 112-13, 142. She does not use this self-reported caseload information for any other purpose, however, and discards it after preparing the intake shift schedule. Id. at 112-13.

The Law Guardian Director for the Second Department, Ms. Weinberger, also has no means of verifying the number of cases an attorney carries. She also has established no upper limit on the number of cases a panel attorney may carry. See id. at 168. In the last year, in connection with the recertification process, Ms. Weinberger has asked panel attorneys how many assigned cases they carry, but has no means of verifying their responses. See Moseley Ex. I (Weinberger Dep.) at 163-69. Ms. Weinberger's records, like Ms. Law's, pertain only to an attorney's representation of children in Family Court, not to his or her representation of adults. See id. at 111-12.

41. See Spinak Aff. 259 ("Whether it was a failure to counsel clients, a failure to use investigative or evaluative assistance, a failure to file motions, a failure to secure services, or a failure to seek compliance with orders, the overall pattern [of the historical reports on and recent analysis of the assigned counsel system] is that attorneys who are required to be in court during most of their work hours are unable to prepare adequately on their cases.").

42. See Lefstein Aff. 53 (resources "necessary for assigned counsel to provide effective legal representation to their indigent clients include office space; support staff such as secretaries and paralegals; support equipment such as adequate computers for word-processing or on-line research, proper legal research materials, telephones, copying and mailing facilities, data-processing and filing systems; and access to other support services such as investigators, expert witnesses and social workers.").

43. See Moseley Ex. W (count of panel addresses) at 5-7, 19-20, 34-35, 43-44; see also Schiff Aff 30 ("Practicing without an office is particularly problematic in the Family Court context because it degrades the representation of my clients."); Leder Aff 40 (no office near courthouse, making it impossible to meet clients after hours); MacFarlane Aff. 9 (keeps expenses down by working out of home); Zimmerman Aff 9 (must work from home).

44. See Greenfield Aff. 29 (no access to online legal research); Schiff Aff 32 (lack of access to legal research doubles the time it takes to research and prepare); Zimmerman Aff. 9 (lack of access to legal research because of cost).

45. See Greenfield Aff. 29 (no longer can afford the expense of his share of secretary's part-time salary); Leder Aff. 40 (cannot afford secretary); MacFarlane Aff. 10 ("I perform all secretarial work myself."); Zimmerman Aff. 9 (cannot afford secretary).

46. See Leder Aff. 40 ("Having someone available to perform administrative tasks such as copying and faxing would allow me to focus more of my attention on the legal assistance my clients need and desire.")

47. Stiffman Aff. 22(c). For attorneys in firms of six to nine lawyers, overhead costs rise further to $56.68 to $75.81 per hour. See id. at 22(d).

48. See Spinak Aff. 265-67; Segal Aff. 22, 24; see also Greenfield Aff. 30 (use of ancillary services creates a substantial difficulty in terms of time and expense); Schiff Aff. 33 (takes valuable time to prepare an expert).

49. See Spinak Aff. 268; Segal Aff. 27; see also, e.g., Leder Aff. 28 (requests under 722-c for social worker denied by judge).

50. See also Leder Aff. 28 (discussing court's denial of social worker to assist in monitoring client's receipt of services).

51. See, e.g., Leidholdt Aff. 27 (for domestic violence victims, "such public places are not appropriate for delving into what may be a lengthy and complicated history of abuse. A rushed in-court interview is simply insufficient for meaningful advocacy for battered women."); MacFarlane Aff. 21 ("Discussions in crowded corridors do not lend themselves to establishing the close attorney-client relationship that is necessary to address the sensitive topics at issue in Family Court cases."); Schiff Aff.  30 (interviewing clients in hallways and stairwells is "destructive and nerve-racking" and makes it difficult to gain the trust of a client who often views the panel attorney as part of a hostile system).

The interview rooms in the Family Court are little better. See Schiff Aff.  30 ("The two interview rooms at the New York County Family Court are filthy, vermin-infested and foul-smelling. Until recently, the rooms were divided by a bashed-in wall. Even given this poor condition, they are often occupied and hard to obtain.").

52. See, e.g., Spinak Aff. 261 ("High caseloads and court schedules severely undermine assigned counsel's abilities to establish even a basic working relationship with their clients."); Segal Aff. 24 (assigned counsel do not have time to invest in counseling clients; "[a]t times, it is clear that they have not counseled their clients outside of the few minutes preceding a hearing."); Leidholdt Aff. 33.

53. See Gage Aff. 31 ("Even a thorough review of case records - whether medical records, agency records, or others - requires more time than many assigned counsel are able to devote.").

54. See also Gage Aff. 32 ("While not all Family Court cases require motions, some do, and such motions are often not filed."); Moseley Ex. F (Lopez Torres Dep.) at 51 (motions are rare).

55. See Cortese Aff. 17 (counsel who have not had a chance to review records or to do their own investigation "are simply not in a strong position to advocate meaningfully for their clients.").

56. See Gage Aff. 28 ("Services are critical to a parent's success in a case. In the long-term, they are an important tool in persuading a court of a parent's fitness. Services can also provide a more immediate solution. If, for example, children are removed from a home on an allegation of neglect because their housing is unacceptable, and a parent needs a housing subsidy, the law requires that the subsidy be provided and the children be returned to the parent.").

57. See Cortese Aff. 13 (agencies may not comply because of lost information or insufficient diligence; sometimes they comply but neglect a critical element of the order, such as a requirement that a Spanish speaking counselor be available).

58. See Gage Aff. 27 ("Litigants need to be counseled about the importance of these steps, and often require the assistance of counsel to accomplish them. Procuring services, for example, can demand a knowledge of the system and persistence beyond that possessed by many clients."); Cortese Aff. 14; Segal Aff. 23.

59. See, e.g., Drinane Aff. at 42-43 (assigned counsel do not develop critical service plans, dramatically impacting their ability to represent clients); Gage Aff. 29 ("In my experience, assigned counsel often . . . are not available to assist in obtaining services or in ensuring that services already mandated are actually delivered, and it is unusual for them to spend time counseling clients about these services.").

60. See, e.g., Leder Aff. 41 (would like to be in touch with clients to monitor their visitation and custody plans, but must ask clients to call him because has insufficient time to check in with them regularly); Zimmerman Aff.  20-22.

61. See Spinak Aff. 254-55; Zimmerman Aff. 22 (caseload requires appearance in court all day, but key records and witnesses frequently are available only during business hours).

62. See Spinak Aff. 232 ("the rate for out-of-court time is so insufficient that it discourages attorneys from doing any but the most compelling task"); Moseley Ex. I (Weinberger Dep.) at 42 ("the way our [compensation] system is set up, our lawyers are encouraged to do very little out of court work [b]ecause there's a . . . disparity between the amount of the in-court and out-of-court rate.") see also Cortese Aff. at 23 ("With low numbers and such low rates for out-of-court work, assigned counsel are typically unable or perhaps unwilling to monitor compliance with orders, prepare their clients for conferences, or review important agency records.").

63. Gage Aff. 26; see also Segal Aff. 22 ("Out of court work . . . is always as important, and frequently more important, than in-court work for cases in Family Court."); see also Moseley Ex. I (Weinberger Dep.) at 50-53, 45 ("[I]t's not that you're being an especially good lawyer or really devoted [if you do out-of-court work,] if you don't do it, you're remiss. You have to do it to do a good job.").

64. Spinak Aff. 230.

65. Spinak Aff. 230. In addition to the matters discussed supra, NYCLA also has gathered extensive proof of delays caused by the shortage of assigned counsel and by the heavy caseloads and workloads that panel attorneys carry. See, e.g., Gage Aff. 36-46; Segal Aff. 31-36; Schiff Aff. 38-41. These delays seriously harm litigants in Family Court. See, e.g., Gage Aff. 44-46 (describing consequences of delay for parents under the recent Adoption and Safe Families Act); Drinane Aff. 47 (describing impact of delay and repeated appearances on children's schooling and adults' job stability); id. at 49 (stating that the longer a child is in foster care, the less likely it is that the child will return home).

66. See Moseley Ex. T; see also Spangenberg Aff. 41-42 & tbl. I; Moseley Ex. B (Buggs Dep.) at 54-56 (estimating that number of attorneys on Second Department panel roster has decreased by 300-400 since 1990); Moseley Ex. H (Watson-Turner Dep.) at 17-18 (noting decrease in active attorneys).

67. See Moseley Ex. D (Firetog Dep.) at 23-27 & Moseley Ex. R (Firetog Dep. Ex. 2); see also id. at 22-23, 26-27 (estimating that assigned counsel appear in approximately 35% of the pending cases in his Part); Moseley Ex. J (Yates Dep.) at 33-34 (estimating that assigned counsel appear in approximately 40% of the pending cases in his Part); Affirmation of Frank Moseley in Opposition to the Defendants' Motion to Dismiss Ex. N.

68. See also Moseley Ex. G (Mogulescu Dep.) at 61-63 ("Well there are a rather large number of lawyers who are on the Panel[s] who no longer take any cases at all."); Moseley Ex. H (Watson-Turner Dep.) at 20, 46-51 (estimating that 60-70 of the 130 attorneys on the Supreme Court Panel in Manhattan who remain "active," and 30-35 of the 52 "active" Criminal Court panel members, still accept arraignment shifts).

69. See also Moseley Ex. H (Watson-Turner Dep.) at 70 (testifying that a small group of attorneys are taking more and more cases).

70. See Spangenberg Aff. 61-63; Milano Aff. 8 (affirming that many arraignment parts in Bronx County "must be staffed by two or more assigned counsel due to an increased volume of cases"); Moseley Ex. B (Buggs Dep.) at 90-92, 140-43 (testifying that number of arraignment parts staffed by assigned counsel in Brooklyn has increased since 1994, and that number of attorneys assigned to each part has increased); and 82-83 (testifying that she needs a lot more misdemeanor attorneys to staff increased number of shifts in arraignment and other court parts in Brooklyn); Moseley Ex. H (Watson-Turner Dep.) at 70-87 (testifying that there is an increased need for attorneys to staff arraignment parts in Manhattan Criminal Court because numbers of arraignment parts and of attorneys needed to staff those parts have increased).

71. Some cases are re-assigned due to defendants' complaints or judges' concerns about the quality of representation being provided by assigned counsel generally, their failure to communicate with their clients and/or their heavy caseloads or workloads. See, e.g., Moseley Ex. J (Yates Dep.) at 37-46.

72. See Spangenberg Aff. 63 (finding that between 1995 and 2000, there was a 160% increase in number of arraignment shifts that needed to be staffed by assigned counsel while number of attorneys willing to take those shifts decreased by 6.87%); Fishbein Aff. 9; Milano Aff. 10, 12-13; Moseley Ex. B (Buggs Dep.) at 100-01 (estimating that number of requests from panel attorneys to be given "primary day" or arraignment shift assignments has decreased from 200 to 125); see also Feck Aff. 11 ("I continue to receive requests asking me to accept more arraignment shift assignments. Based on the increasing frequency of these calls over the past several years, I believe that there is a steadily decreasing supply of attorneys who are willing or available to work these arraignment shifts.").

73. See Carey Aff. 7; Checkman Aff. 10; Cohen Aff. 6-8; Farrell Aff. 10; Fishbein Aff. 17; Gelb Aff. 10, 17; Michaels Aff. 10-11, 13; Raskin Aff. 8; Torres Aff. 9; Traub Aff. 14; Walter Aff. 10.

74. See also id. 11 ("I know there have been days when no assigned counsel could be found to work a shift in an arraignment or other court part."); see also Moseley Ex. B (Buggs Dep.) at 151 (testifying she has "a lot of problems staffing the misdemeanor arraignment parts" in Brooklyn because of the large number of parts to be staffed and the "relatively low number of misdemeanor attorneys"); Moseley Ex. H (Watson-Turner Dep.) at 23-24, 43 (number of attorneys willing to accept arraignment shifts in Manhattan has decreased), and 103-04 (testifying that number of empty spots on arraignment calendars have increased because there are more spots to fill and fewer lawyers who want the spots).

75. See Moseley Ex. C (Collins Dep.) at 27-28; Moseley Ex. D (Firetog Dep.) at 31; Moseley Ex. G (Mogulescu Dep.) at 83; see also Roberts Aff. 5-6; Moseley Ex. J (Yates Dep.) at 32 (testifying that on several occasions, he had received a fax from the Assigned Counsel Plan in response to his request to reassign an attorney to a pending felony case that simply stated "No attorney assigned"); Moseley Ex. J (Yates Dep.) at 52; see also Moseley Ex. H (Watson-Turner Dep.) at 175-77 (testifying that, in April 2001, she had a backlog of approximately 60 to 70 cases in Manhattan that needed to be re-assigned to another panel attorney that she had not been able to re-assign, and that her current back-log of cases is larger than in the past).

76. See Moseley Ex. C (Collins Dep.) at 28. Justice Collins' testimony is corroborated by the affirmations of Jonas Gelb and Michael Torres, who state that, although they are members of the Bronx County Homicide Panel, they no longer accept assigned homicides because the rates are grossly inadequate to compensate them for the significant amounts of time and out-of-court preparation required to handle a homicide case properly. See Gelb. Aff. 17; Torres Aff. 13-16. Torres also affirms that he knows several other attorneys on the Homicide Panel who have refused to accept additional homicide cases or reduced the number of cases they accept because of the inadequacy of the rates. See Torres Aff. 17; see also Roberts Aff. 5; Moseley Ex. H (Watson-Turner Dep.) at 200-01 (testifying that she has to "[b]eg" attorneys on the Homicide Panel to take homicide cases.

77. See Carey Aff. 8; Checkman Aff. 11; Cohen Aff. 10; Farrell Aff. 11; Fishbein Aff. 17; Michaels Aff. 13; Raskin Aff. 8; Torres Aff. 13; Traub Aff. 6, 8; Walter Aff. 10.

78. See Carey Aff. 10; Checkman Aff. 11, 15; Cohen Aff. 11; Farrell Aff. 11-12; Michaels Aff. 13-14; Raskin Aff. 8; Torres Aff. 8, 13; Traub Aff. 8; Walter Aff. 9, 13; see also Feck Aff. 15-17.

79. See Carey Aff. 10; Checkman Aff. 15; Cohen Aff. 11; Farrell Aff. 12; Torres Aff. 8; Traub Aff. 8.

80. See Checkman Aff. 4, 9; Farrell Aff. 3; Fishbein Aff. 3, 17; Michaels Aff. 4; Raskin Aff. 4, 6; Torres Aff. 4; Traub Aff. 3, 5; Walter Aff. 3, 4.

81. See Moseley Ex. D (Firetog Dep.) at 34 ("I know a number of attorneys on the misdemeanor panel that I would have thought would have gone to the felony panel but they don't. I know a number on the felony panel that I thought would have taken homicides, but they don't."); cf. Feck Aff. 3.

82. See Lefstein Aff. 38, 40-41 (stating that Standard 4-5.2 of the ABA Standards on the Defense Function provides that the decision whether to testify in his or her own behalf is a decision "which [is] to be made by the accused after full consultation with counsel" and that the defendant must have "a meaningful opportunity to consult with, and receive advice from, defense counsel before making" that "critical decision"); Moseley Ex. G (Mogulescu Dep.) at 42 (The decision whether to testify "generally has to be made within the 144-hour period, if not before the 144 hours.").

83. See Moseley Ex. H (Watson-Turner Dep.) at 181-83 (testifying that she receives faxed requests "[c]onstantly, all day long," from Parts N and F in Manhattan and Bronx Criminal Court requesting the assignment of counsel, sometimes as many as 20 per day), and 184-85 (testifying that she receives, on average, 10 to 15 requests per week from Parts 60 and 70, the arraignment parts in New York County Supreme Court, requesting the assignment of counsel).

84. See Lefstein Aff. 53; see also Checkman Aff. 14; Cohen Aff. 12; Farrell Aff. 13 (noting the resources they feel are necessary in order to represent their clients properly).

85. See Carey Aff. 9-10; Feck Aff. 15-18; Gelb Aff. 11; Michaels Aff. 14-15.

86. See Moseley Ex. D (Firetog Dep.) at 59 ("A lot are working out of their house with a phone, answering machine, beeper."); Moseley Ex. J (Yates Dep.) at 81-82, 64-65 ("I don't know whether there's a minimal description of what constitutes an office and, whatever that minimum is, I have a feeling that a lot of them meet the minimum by, from what I hear.").

87. See Carey Aff. 11, 13 ("Because the current rates of compensation are so low, I found that I could only cover the overhead costs of a law practice in New York City and earn a reasonable living on assigned counsel work if I practiced on a 'volume' basis and handled an extremely high number of cases."); Checkman Aff. 11, 18 ("Because the rates are so low, an attorney would have to carry a high number of assigned cases in order to make a living."); Cohen Aff. 13 ("Because the current rates of compensation are so low, I could only earn an income from my assigned counsel work sufficient to cover the overhead costs of my law practice and provide me with reasonable earnings if I carried an extremely high number of cases."); Farrell Aff. 9, 18 ("[B]ecause the hourly rates of compensation are so low, I quickly found that I was unable to generate enough income from assigned counsel work alone to cover the overhead costs of my law practice and provide me with reasonable earnings unless I carried an extremely high number of assigned cases."); Michaels Aff. 9-10 ("Because the rates are so low, the only way I could earn a living on assigned counsel work would have been to increase my assigned counsel caseload and perform as much in-court work as possible on those cases.").

88. See also Moseley Ex. C (Collins Dep.) at 54 ("I think some of them are carrying too many assigned cases."); Moseley Ex. D (Firetog Dep.) at 36-37 (observing that volume is clearly important and that the attorneys before him have a lot of cases); Moseley Ex. G (Mogulescu Dep.) at 102 ("I think that by and large [the assigned counsel who appear in Bronx Supreme Court] have too many cases.").

89. See Moseley Ex. C (Collins Dep.) at 32-38, 54 & Moseley Ex. Q (Mogulescu Dep. Ex. 2); see also Moseley Ex. D (Firetog Dep.) at 49-50 (testifying that some members of the Kings County Homicide Panel are carrying as many as 15 to 20 open homicides).

90. See, e.g., Moseley Ex. B (Buggs Dep.) at 109 (testifying that there are no specific limits on the number of arraignment shifts or cases that can be assigned to an attorney).

91. See Moseley Ex. D. (Firetog Dep.) at 43-44, 46; Farrell Aff. 17 ("I know several assigned counsel who are literally always on trial in homicide and serious felony cases."); Moseley Ex. H (Watson-Turner Dep.) at 201-02 (estimating that approximately 25 of the 30-40 active attorneys on the Bronx Homicide Panel are constantly trying cases and, as a result, often unable to accept new homicide cases).

92. See Moseley Ex. G (Mogulescu Dep.) at 101; see also Farrell Aff. 17-18 ("[I]n my opinion, an attorney simply cannot be at his or her best trying serious homicide and felony cases back-to-back-to-back as some of my colleagues now are doing. I remember in my busiest year on the Panels, I tried eight cases. I found that experience thoroughly exhausting and frustrating because the demands of that schedule made it impossible for me to be at the top of my game for each trial.").

93. See also id. at 49-53; Moseley Ex. G (Mogulescu Dep.) at 87-89; Roberts Aff. 8. As of April 1, 2001, 394 homicide and felony cases had been pending for 365 days or more in Bronx County Supreme Court, Criminal Term. Some of these cases have been pending as long as 933 and 847 days. Justice Collins testified that in spite of his significant efforts over the last year to reduce the court's back-log, the shortage and resulting unavailability of assigned counsel in Bronx County are a significant reason why he is unable to reduce the number of pending cases even further. See Moseley Ex. C (Collins Dep.) at 49-53 and Moseley Ex. P (Mogulescu Dep. Ex. 1).

94. See also Moseley Ex. D (Firetog Dep.) at 39-43; Spangenberg Aff. 89(ii); Roberts Aff. 8; Moseley Ex. B (Buggs Dep.) at 108-09; Moseley Ex. H (Watson-Turner Dep.) at 166-67.

95. See also Angioletti Aff. 17 ("If I spend adequate time with each client whose case is on, obviously I cannot get to all of the clients in the morning. The ones I do not see in the morning, and those whom I do not see at all, feel neglected and that I am 'working against them.' There are occasions where a distrustful client will not accept my recommendation to take a plea offer and will hurt himself by going to trial because of the distrust engendered by this situation.").

96. As set forth in Part III.A. above, assigned counsel must perform these tasks and devote sufficient time generally to appropriate pre-trial preparation in order to provide meaningful and effective assistance of counsel.

97. See Cohen Aff. 13, 18; Farrell Aff. 16; Feck Aff. 22; Gelb Aff. 13; Michaels Aff. 20-21; Torres Aff. 15.

98. See Cohen Aff. 15; Farrell Aff. 9-10; Feck Aff. 3; Gelb Aff. 17; Raskin Aff. 8-9; Traub Aff. 13-16; Torres Aff. 11-12.

99. See also Moseley Ex. H (Watson-Turner Dep.) at 167 (testifying that the court clerks often tell her that defendants complain their attorney isn't calling or visiting them).

100. Alternatively, the Court could declare the hourly rates unconstitutional and strike them, leaving other courts to fix assigned counsel compensation on a case by case basis. However, such a declaration may well prove insufficient to remedy the shortages of assigned counsel because many attorneys will not continue to accept assigned cases, or to resume accepting assigned cases, based merely on the possibility of receiving higher hourly rates of compensation from a particular judge or court at the completion of the case. See Farrell Aff. 21; Gilman Aff. 39; Greenfield Aff. 32; Marotta Aff. 36-37; Traub Aff. 13; Walter Aff. 12, 20, 21.

101. Before an injunction could take effect, NYCLA would be required to give an undertaking in an amount set by the Court. See CPLR 6312(b). Where, as here, the parties for whose benefit the injunction would issue are indigent, courts typically require the plaintiff to post a nominal undertaking. See, e.g., Brad H., 185 Misc. 2d at 431, 712 N.Y.S.2d at 345 (fixing undertaking at $1.00).

102. Significantly, McCain also rejected the defendant's argument that the plaintiffs' lawsuit was rendered moot after the Department of Social Services adopted the substance of the injunction standards in its own regulations. In doing so, the court found that defendants had "overlook[ed] a cardinal point. It is not the words of the standards, whether in the injunction or the regulations, but compliance with them which will produce the minimally adequate housing to which these plaintiffs are entitled. . . . Until such questions have been judicially addressed and resolved, plaintiffs' action seeking injunctive relief cannot be moot." 70 N.Y.2d at 116-17, 511 N.E.2d at 65-66, 517 N.Y.S.2d at 921.

103. The number of attorneys set forth above are based in part on estimates made by Law Guardian Program Directors for the First and Second Department of the number of assigned counsel that would be needed to represent all of the children and indigent adults who are entitled to it. See Moseley Ex. E (Law Dep.) at 40-43; Moseley Ex. I (Weinberger Dep.) at 74.

104. It is intended that this injunction would be binding on the State as well as the Assigned Counsel Plan Administrators and Law Guardian Program Directors for the First and Second Departments, and their respective staffs. Power Auth. v. Moeller, 57 A.D.2d 380, 382, 395 N.Y.S.2d 497, 499 (3d Dep't 1977) ("[P]ersons not named as defendants . . . if they have knowledge of the terms of the injunction . . . are within the class of persons sought to be enjoined and . . . are acting in collusion or combination with the named defendants.") (citing People ex rel. Stearns v. Marr, 181 N.Y. 463, 468, 74 N.E. 431, 433 (1905) ("An injunction not only restrains the parties to the action in which it was granted, but also, when so drawn, those who act under or in connection with a party, as attorneys, agents, or employees."))




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