FRANK S. MOSELEY, an attorney duly licensed to practice law in the State of New York, affirms under penalty of perjury that:

1. I am a partner at Davis Polk & Wardwell. My firm and I represent the New York County Lawyers' Association ("NYCLA" or "plaintiff") in the action captioned above. I respectfully submit this affirmation in support of NYCLA's Motion for a Preliminary Injunction pursuant to CPLR 6301 & 6311.

2. I make this affirmation to introduce the memorandum of law, affidavits, affirmations and exhibits filed herewith in support of NYCLA's motion.

3. In the memorandum of law, NYCLA demonstrates that the system designed to provide legal representation to children and indigent adults in family and criminal proceedings in New York City is in crisis, primarily because there are not enough qualified private attorneys available and able to represent all those who are constitutionally and statutorily entitled to it. NYCLA seeks declaratory and injunctive relief pending trial of this action to remedy these violations, and is entitled to preliminary relief on the grounds that it has shown a high probability of success on the merits, that children and indigent adults are threatened irreparable injury in the absence of relief, and that the balance of equities strongly favors granting of relief. The claims NYCLA asserts in this action are brought under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, §§ 5 & 6 of the New York State Constitution, and 42 U.S.C. § 1983. NYCLA's right to seek preliminary relief arises under the above provisions and CPLR 3001 & 6301.

Expert Affidavits and Other Affirmations

4. In support of this motion, NYCLA respectfully refers the Court to the following expert affidavits, which are submitted herewith in one volume entitled "Expert Affidavits of Norman Lefstein, Robert L. Spangenberg, Jane M. Spinak and Lawrence H. Stiffman."

5. In further support of this motion, NYCLA respectfully refers the Court to the following affirmations, which are submitted herewith in one volume entitled "Affirmations of Paul J. Angioletti, Dru Carey, Neil Checkman, Lori Cohen, Michele Cortese, Monica Drinane, Gary Farrell, James Lee Feck, Harvey Fishbein, 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. In further support of this motion, NYCLA respectfully refers the Court to the following affirmations it previously had filed in opposition to the State's motion to dismiss in one volume entitled "Affidavits and Affirmations of Benjamin B. Berlin, William R. Dalsimer, Harvey Fishbein, M. Robert Goldstein, Andrea G. Hirsch, Raymond Loving, Daniel J. Ollen and Anne Reiniger and Exhibits in Opposition to Defendants' Motion to Dismiss."

Court Decisions

7. In further support of this motion, NYCLA respectfully refers the Court to the following written decisions in which judges have made important findings concerning the operation of the courts and the assigned counsel system in New York City and surrounding areas:

8. People v. Roth, slip. op., May 21, 2001, at 1 (Sup. Ct., N.Y. County May 21, 2001) (Justice Scherer) (approving order awarding counsel $100 per hour for both in-court and out-of-court work).

9. People v. Johnson, slip. op., May 21, 2001, at 1 (Sup. Ct., N.Y. County May 21, 2001) (Justice Scherer).

There is no question that 18b panel attorneys are underpaid. In fact, Chief Judge Judith Kaye has appealed to the legislature for the past several years to ameliorate this situation with legislation that will adequately compensate attorneys who serve the court system by accepting panel assignments. Judges uniformly recognize the importance of the services provided by these able attorneys. They are critical to the administration of justice in our courts. However, despite the strong support for increased compensation, the rules governing payment do not permit routine enhancement of vouchers.

10. Sorrell v. Deyo, N.Y.L.J., May 12, 2001, at 28 (Family Ct., Clinton County, May 12, 2001) (Judge Lawliss).

In Joshua "AA," after awarding compensation at the rate of $75.00 per hour, this Court stated "the Court hopes and believes that this increase in rate is sufficient to provide the Court with sufficient volunteers to adequately represent adult litigants. Since late February 2001, this Court's hope . . . has been realized. Sufficient volunteers became available in late February once the Court awarded the higher compensation rate in a significant number of assigned counsel applications. . . . The ability to distribute 18-B assignments solely to volunteers is unquestionably the direct result of the increase in compensation rates.

Although it is impossible to quantify, there has been a real and substantial improvement in the operation of the Clinton County Family Court since February of 2001. The attorneys that are accepting 18-B assignments are doing so voluntarily and enthusiastically. As a result of the attorney's attitude regarding assignments, there is undoubtedly an increased confidence level of the adult indigent litigants involved in the judicial system. The litigants are no longer faced with the grim prospect of being represented by an attorney who is doing so only to fulfill his legal obligations, pursuant to Court order. The Court is not using its time to respond to legal actions related to compulsory assignments. The number of requests to be relieved of assignments has dropped dramatically and the requests appear to more consistently have merit. The net results of these changes is that the judge, the attorneys and the court system is again focused on the best interest of the children, rather than an ongoing battle over the assigned counsel distribution.

11. People v. Johnson, N.Y.L.J., Apr. 18, 2001, at 19 (Sup. Ct., N.Y. County Apr. 18, 2001) (Justice Kahn).

It cannot be seriously disputed that New York's assigned counsel rates fall far short of providing either a reasonable basis for attorneys to fulfill their professional obligations, as intended by the CJA [federal Criminal Justice Act], or 'compensation at a reasonable hourly rate' as recommended by the American Bar Association's Standards for Criminal Justice. Indeed, New York's current statutory rates are patently unreasonable. (citations omitted)

Attorneys' burgeoning caseloads have resulted in trial delays, the redeployment of judicial energies in seeking out attorneys to take assignments, and have also precipitated a mass exodus from the panel of a large number of the most able attorneys. (citations omitted)

Under the present conditions, indigent criminal defendants are at high and unacceptable risk of being deprived of their Sixth Amendment right to the effective assistance of counsel, especially when confronted with vast prosecutorial resources.

The problem has developed into an institutionalized, systemic crisis which jeopardizes the ability of our courts to uphold New York's longstanding tradition of providing effective legal representation to indigent criminal defendants.

[T]he situation courts are now facing directly undermines the constitutional guarantees of the right to counsel and the equal protection of the laws.

12. Matter of Joshua "AA", N.Y.L.J., Feb. 8, 2001, at 35 (Family Ct., Clinton County, Feb. 8, 2001) (Judge Lawliss).

The grossly unjust and unfair compensation paid to assigned counsel has created a crisis statewide.

In certain areas in the State, the situation has become so severe that large numbers of attorneys are refusing to accept assignments at the current rates, causing substantial delays and frustration for the judiciary and the litigants; and ultimately having a negative impact upon the children affected by the proceedings.

13. Matter of DSS O/B/O Anthony S. and Patricia K., N.Y.L.J., Feb. 1, 2001, at 32 (Family Ct., Dutchess County, Feb. 1, 2001) (Judge Amodeo).

It has become increasingly difficult and time-consuming for the court to find attorneys willing to handle cases. It has also become more common for the court to assign counsel in a particular matter and mail copies of all material to the attorney, only to have the attorney reject the assignment, citing his or her unwillingness or inability to handle the matter due to an already overburdened inventory of assigned cases.

[L]ongstanding inaction by and even resistance from legislative and executive offices concerning enhanced counsel fees has had the practical effect of shifting the burden of providing legal services from the state to those attorneys still willing to take these assignments.

Attorneys are, at times, less prepared than they might be due to the increasing case load of the dwindling number of attorneys willing to remain on the assigned counsel and law guardian panels.

The court must increasingly rely on less experienced attorneys to handle the often complex, challenging and emotionally charged matters regularly coming before the court.

Those whose adequate legal representation is at stake - children and indigent adults - represent constituencies with whom the general public has little empathy. They have virtually no organized or effective voice in the political community which will ultimately determine the limits of their attorney's compensation.

These circumstances permeate every aspect of the Family Court process and have had and continue to have an increasingly adverse impact on virtually every case coming before the court.

While there have been some hopeful indications that this issue may be the subject of serious consideration in upcoming months, and while the court would encourage such attention, the history and political realities surrounding this subject suggest that legislation addressing this issue is far from a certainty in the foreseeable future.

12. Matter of Sweat, Family Court, N.Y.L.J., Jan. 24, 2001 at 1 (Family Ct., Dutchess County Jan. 24, 2001) (Judge Brands).

There have been instances cited where judges have literally been reduced to personally collaring attorneys in the halls of the courthouse to represent a child or litigant because willing counsel could not be found or the overburdened attorney originally assigned has not appeared due to commitments before another Judge in the same or different courthouse.

The net result is that a crisis has occurred in the court system where lawyers are unwilling to accept assignments at the present pay scale as it results in those individuals giving professional services at a less than break even scenario.

15. Matter of Vouchers for Compensation, N.Y.L.J., Dec. 8, 2000, at 28 (Family Ct., Kings County Dec. 8, 2000) (Judge Elkins).

Due to the failure of the legislature since 1985 to increase the rate of compensation for assigned counsel, the Family Court finds it increasingly difficult to find sufficient numbers of counsel to represent all of the indigent litigants who appear in this forum.

16. Matter of Sheppard, N.Y.L.J., Nov. 17, 2000 at 28 (Family Ct., N.Y. County Nov. 17, 2000) (Judge Jurow).

[I]t should be noted that the applicant in his affirmation highlights a published comment of the Chief Justice that the current County Law rates are 'absolutely ludicrous and completely out of line with economic reality.' This court strongly concurs with that comment, as well as the recorded positions of the Unified Court System and various bar associations that such rates should be raised to meaningful levels.

17. People v. Herring, Order # 99-437, N.Y.L.J., Jan. 23, 2001 at 1 (Family Ct., Dutchess County May 12, 2000) (Judge Mathews).

[W]ithout qualification, low assigned counsel fees have negatively impacted the quality of justice in this community.

18. People v. Brown, Indictment #6125-99, slip. op. at 3-4 (Sup.Ct., Bronx County Jan. 5, 2000) (Justice Williams).

This court (as have many others) has previously noted the abysmally low level of compensation for such court appointed counsel in criminal cases and warned of the extremely deleterious effect upon the proper administration of justice which would result from the failure of the legislature to act to improve the situation.

In the face of that disregard of the basic requirements for fair compensation for work done, more and more experienced criminal defense attorneys are opting not to associate themselves with the assigned counsel panels with a resulting increase in the delays of the trials of cases. Moreover, the adequacy of the representation by that hardy band of attorneys who have so far been willing to 'pick up the slack' is becoming questionable simply because an even smaller group of attorneys is handling an ever increasing number of cases.

19. People v. Fortune, 178 Misc.2d 499, 501-502, 682 N.Y.S.2d 803, 805 (Sup. Ct., Bronx County 1998) (Justice Williams).

Clearly in a city such as New York City where overhead and expenses are, without a doubt, greater than those elsewhere in the state by in some cases probably several multipliers, when reviewing a voucher, courts should clearly consider such facts. Moreover, part of the reasonable consideration when reviewing vouchers of assigned counsel, is the fact that in this great city, electricians and plumbers routinely require payment of twice the in-court hourly rate permitted under the hourly plan merely to enter one's home and determine the nature of the problem.

Thus while the requested compensation in the instant case exceeds the maximum permissible statutory amount by a factor of almost ten, this Court must consider both the low rates of reimbursement authorized as well as the overhead and expenses occasioned simply by virtue of the location of counsel's practice as being in New York City.

20. People v. Brisman, 173 Misc.2d 573, 585, 661 N.Y.S.2d 422, 431 (Sup. Ct., New York County 1996) (Justice Goodman).

Services provided pursuant to Article 18-B are a charge against the county in question and constitute a use of precious governmental funds. Although fiscal considerations should play an important role in the determination of compensation, fiscal considerations cannot be an overriding concern when the ability of the court to carry out its essential function of the assurance of justice and due process is implicated.

Depositions

21. In further support of this motion, NYCLA respectfully refers the Court to the following deposition transcripts attached to this affirmation:

22. Attached as Exhibit A is a true and correct copy of the deposition transcript of Isabel Alicea (Feb. 1, 2001) ("Alicea Dep.").

23. Attached as Exhibit B is a true and correct copy of the deposition transcript of Harriet Buggs (Apr. 3, 2001) ("Buggs Dep.").

24. Attached as Exhibit C is a true and correct copy of the deposition transcript of the Honorable John P. Collins (Apr. 25, 2001) ("Collins Dep.").

25. Attached as Exhibit D is a true and correct copy of the deposition transcript of the Honorable Neil Jon Firetog (May 15, 2001) ("Firetog Dep.").

26. Attached as Exhibit E is a true and correct copy of the deposition transcript of Katherine Law (Mar. 6, 2001) ("Law Dep.").

27. Attached as Exhibit F are true and correct copies of the deposition transcripts of the Honorable Margarita Lopez-Torres (Apr. 23, 2001, May 12, 2001 and May 18, 2001 ("Lopez-Torres Dep.").

28. Attached as Exhibit G is a true and correct copy of the deposition transcript of the Honorable William Mogulescu (Apr. 24, 2000) ("Mogulescu Dep.").

29. Attached as Exhibit H is a true and correct copy of the deposition transcript of Lorraine Watson-Turner (Apr. 4, 2001) ("Watson-Turner Dep.").

30. Attached as Exhibit I are true and correct copies of the deposition transcripts of Harriet Weinberger (Mar. 5, 2001 and Mar. 12, 2001) ("Weinberger Dep.").

31. Attached as Exhibit J is a true and correct copy of the deposition transcript of the Honorable James A. Yates (Apr. 26, 2001) ("Yates Dep.").

Deposition Exhibits and Documents

32. In further support of this motion, NYCLA respectfully refers the Court to the following deposition exhibits and documents attached to this affirmation:

33. Attached as Exhibit K is a true and correct copy of a Memorandum from the Honorable Joseph M. Lauria, New York City Family Court Administrative Judge to the Honorable Jonathan Lippman, Chief Administrative Judge of the Unified Court System (Apr. 3, 2001) (Lopez-Torres Dep. Ex. 2).

34. Attached as Exhibit L is a true and correct copy of a Memorandum from the Honorable Paul H. Grosvenor, Supervising Judge of the Kings County Family Court, to All Judges of the Parts Division (Apr. 3, 2001) (Lopez-Torres Dep. Ex. 4).

35. Attached as Exhibit M are true and correct copies of lists prepared by Katharine Law, the Law Guardian Program Director for the First Department, summarizing coverage of intake shifts in Bronx and New York Counties from 1998 to 2000 (Law Dep. Ex. 6).

36. Attached as Exhibit N is a chart compiled under my supervision summarizing the Law Guardian Program Intake Calendars for Kings and Queens Counties (Jan. 1995 to Jan. 2000) (summarizing Weinberger Dep. Exs. 6 & 7). The Intake Calendars from which Exhibit N was compiled are not included here, but NYCLA would be pleased to provide copies upon request.

37. Attached as Exhibit O is a chart compiled under my supervision summarizing the number of Filings in the New York City Family Court from 1989 to 1999. This chart compiles data published in the State of New York Unified Court System Annual Reports of The Chief Administrator of the Courts (1989 to 1999). The Annual Reports from which Exhibit O was compiled are not included here, but NYCLA would be pleased to provide copies upon request.

38. Attached as Exhibit P is a true and correct copy of a list of pending felony cases in Bronx County Supreme Court (Apr. 18, 2001) (Mogulescu Dep. Ex. 1).

39. Attached as Exhibit Q is a true and correct copy of a list of pending homicide cases in Bronx County Supreme Court (Apr. 18, 2001) (Mogulescu Dep. Ex. 2).

40. Attached as Exhibit R is a true and correct copy of a list of pending dispositions by attorney type in Kings County Supreme Court (May 4, 2001) (Firetog Dep. Ex. 2).

41. Attached as Exhibit S is a true and correct copy of a list of pending felony cases in Kings County Supreme Court (May 4, 2001) (Firetog Dep. Ex. 3).

42. Attached as Exhibit T are charts prepared under my supervision illustrating the total number of criminal defendants referred for all matters, and the total number of attorneys on the criminal panels at the end of the year, for Bronx, Kings, New York, Queens and Richmond Counties for 1990 and 2000, based upon UCS-195 Reports filed by the Assigned Counsel Plan Administrators. The UCS-195 Reports from which Exhibit T was derived are not included here, but NYCLA would be pleased to provide copies upon request.

43. Attached as Exhibit U are tables compiled under my supervision summarizing the number of attorneys listed on rosters maintained by the Assigned Counsel Plan as members of Criminal, Supreme, Homicide, Appeals and Parole Panels for Bronx, Kings, New York, Queens and Richmond Counties from 1995 to 2001. Because attorneys can be members of more than one Panel, only their highest panel affiliation was considered for the purpose of this compilation. In other words, the figures listed in the attached tables reflect the actual numbers of attorneys available to accept assigned cases of each of the various types. The rosters from which Exhibit U was compiled are not included here, but NYCLA would be pleased to provide copies upon request.

44. Attached as Exhibit V are tables compiled under my supervision summarizing the number of attorneys listed on the rosters maintained by the Law Guardian Directors for the First and Second Departments as members of the Family Court Panels for Bronx, Kings, New York, Queens and Richmond Counties from 1995 to 2001. In cases where attorneys are members of both the Family Court and Family Court Appeals Panels, they are counted only once as members of the Family Court Panel. The rosters from which Exhibit V was compiled are not included here, but NYCLA would be pleased to provide copies upon request.

45. Attached as Exhibit W are tables compiled under my supervision summarizing the number of attorneys on the 2001 roster whose listed office address is: (a) outside the borough in which they are certified to practice; (b) a post office box; or (c) a "common address," defined as one that the attorney shares with six or more other panel attorneys. Once again, only the attorneys' highest panel affiliation was considered for the purposes of this analysis, and, each attorney was counted only once, even if he or she satisfies more than one of the criteria listed above. For example, an attorney who is a member of the Criminal and Supreme Court Panels in Kings County, and whose office address is a "common address" located in New York County, would be listed on the tables under Kings County, Supreme Court Panel, attorneys with "common addresses," and counted only once. The 2001 roster from which Exhibit W was compiled is not included here, but NYCLA would be pleased to provide a copy upon request.

46. Based upon the memorandum of law, affidavits, affirmations and exhibits submitted herewith, NYCLA respectfully requests that the Court grant its motion for preliminary relief in all respects.

Dated: New York, New York

May 31, 2001

/s/ Frank S. Moseley

Frank S. Moseley