The New York County Lawyers' Association ("NYCLA") today took what it hopes will be a significant step towards remedying the ongoing violations of children's and indigent adults' rights to counsel in family and criminal proceedings in New York City.

In a motion filed with the New York County Supreme Court, NYCLA has asked Justice Lucindo Suarez to declare that the State fails to provide effective assistance of counsel to parties entitled to receive such assistance, due to the State's inadequate compensation of assigned counsel, which has caused a severe shortage of attorneys willing to take these cases. To prevent current and future constitutional violations, NYCLA's motion also requests that the Court issue a preliminary injunction which, effective immediately, will require the State to pay assigned counsel in New York City $100 per hour for their work representing children and indigents in family and criminal courts. The motion was filed on behalf of NYCLA by its counsel, Davis Polk & Wardwell.

NYCLA's motion is supported by a staggering amount of evidence that the current assigned counsel system in New York City is in a severe crisis and already has begun its collapse. NYCLA has submitted to the Court sworn testimony from more than 40 persons with first-hand knowledge of the state of the assigned counsel system, including eight current and former judges, family and criminal court experts, and current and former assigned counsel, among others. The evidence depicts a system that does not provide effective representation to litigants in family and criminal court proceedings.

The State's failure to fund the system adequately has caused a shortage of attorneys willing to take these cases. For example, the evidence shows that, each day in the family courts of New York City, children and indigent adults are denied their right to counsel because there are no lawyers available to take their cases. In one recent week in the Family Court, no counsel was available to represent parties in 144 cases. These litigants are forced either to go ahead without a lawyer or to postpone their proceedings - which can have dire consequences when issues like visitation or child removal are at stake.

Moreover, in family and criminal court proceedings, even when counsel is appointed, the lawyer frequently is so overburdened with other court-appointed cases that he or she cannot devote sufficient attention to the client. As a direct consequence of these shortages, parents seeking return of a child repeatedly are turned away from court; children accused in delinquency proceedings are remanded to custody without any lawyer being appointed; defendants in criminal cases are given perfunctory, assembly-line representation; and battered women seeking protection find discouragement instead of counsel.

Indeed, one of NYCLA's experts has concluded, drawing upon nearly 25 years of experience reviewing indigent defense systems in all 50 states and the results of a three-month investigation he conducted of the assigned counsel system here in New York: "the spirit of the Sixth Amendment is barely alive . . . in New York City, in substantial part because of the unwillingness of the State to adequately fund and support the assigned counsel system."

NYCLA's evidence establishes that the shortage of counsel at the root of these constitutional and statutory violations is a direct consequence of the low rates of compensation New York State pays to assigned counsel. Currently, assigned counsel receive $25 per hour for the work they perform outside of court, and $40 per hour for the work they perform in court. At these rates, it is nearly impossible for even the most idealistic and frugal attorney to maintain a functional law office in New York City. Since these rates were fixed in 1986, the costs of providing legal services in New York City have greatly increased at the same time that the volume of cases in New York City courts - and hence the workload for assigned counsel - has skyrocketed. Despite these changes, New York State, one of the most expensive places to live and work in the country, pays its assigned counsel the lowest statutory hourly rate of any state in the nation.

The current crisis and the daily harms it inflicts to litigants in New York City's family and criminal courts have been widely noted by officials representing all aspects of the judicial system, including the Chief Judge of New York State, Judith Kaye. Many recent court decisions have suggested that the low pay rates are the direct cause of the crisis. In the last six months alone, nearly a dozen courts have issued decisions noting the current crisis and awarding attorneys higher compensatory rates because of these problems in the system.

Despite the ongoing harms to litigants, and the consensus that the low rates are to blame, the State has done nothing to alleviate the present crisis. Instead, legislative gridlock and gubernatorial indifference in Albany have combined to guarantee that this crisis continues to worsen. Given the State's inaction, NYCLA is seeking injunctive relief as the only realistic way to address these systematic violations.

NYCLA is a not-for-profit association of attorneys practicing in New York City, with a long-standing commitment to and tradition of promoting the fair administration of justice and reforms in the law that further the public interest. NYCLA facilitates the provision of free legal representation to the indigent as part of its efforts to fulfill these objectives, serving since 1965 as a founding member of the assigned counsel plan in New York City, supplying its members as appointed lawyers, and assisting the courts in the administration of the assigned counsel system.

The lawsuit filed by NYCLA is captioned NYCLA v. State of New York, Index No. 102987/00. NYCLA is represented in this action by the law firm of Davis Polk & Wardwell. The full text of NYCLA's motion for preliminary injunction and supporting documents filed today, as well as its complaint, are available online on this site.

Earlier this year, Justice Suarez denied the State's motion to dismiss the complaint, finding that NYCLA had standing to pursue these claims and was "an effective proponent of the rights of the third-party children and indigent adults." See, Motion Decision Granting NYCLA Standing to Challenge New York State's Assigned Counsel Rates.