May 31, 2001
Summary of Motion for Preliminary Injunction

RE: New York County Lawyers' Association v. State of New York
Index No. 102987/00) (Lucindo Suarez, J.) ⁽¹⁾

Today, the New York County Lawyers' Association ("NYCLA") filed a motion for a preliminary injunction against the State of New York in the lawsuit referenced above. The motion seeks the following relief:

(1) a declaration from the Court that the provisions of Article 18-B of the County Law setting the rates of compensation for assigned counsel are unconstitutional as applied in New York City, and that the State has failed to comply with its obligations under the federal and New York State constitutions and state statutes to provide children and indigent adults with meaningful and effective representation in family and criminal proceedings in New York City;

(2) an order providing that, effective immediately, the hourly rate paid to attorneys serving as assigned counsel shall be $100 per hour to ensure that a sufficient number of qualified private attorneys are available and able to satisfy the State's obligation to provide appointed counsel in these proceedings, thus providing an interim remedy for the State's ongoing constitutional and statutory violations. ⁽²⁾

In support of its motion, NYCLA has submitted affidavits from three recognized experts in representation of indigent litigants - Dean Norman Lefstein of Indiana University School of Law, Robert L. Spangenberg, and Professor Jane M. Spinak of Columbia University Law School. NYCLA also submitted testimony from more than 40 fact witnesses, including current and former judges, the staff of the administrators of the City's Assigned Counsel Plan, members of the First and Second Department Central Screening Committees, and lawyers who serve, or have served, as assigned counsel in the family and criminal courts.

NYCLA's evidence in support of the motion is a comprehensive report on the current state of these systems. That report - summarized in NYCLA's memorandum of law - amounts to an indictment of the State's shameful failure to ensure the constitutional and statutory rights of its most vulnerable citizens, and warrants preliminary injunctive and declaratory relief in this case.

I. Systemic Violations of the Right to Counsel in Family Court

Under the federal and state constitutions, and under New York statutes, children and adults have a right to appointed counsel and to due process in many proceedings in the Family Court. Those rights entitle children and indigent adults to the timely assignment of meaningful and effective counsel.

The evidence assembled by NYCLA and its counsel, Davis Polk & Wardwell, demonstrates that the State routinely deprives children and indigent adults in Family Court of these rights. The Family Court's own records reveal that dozens of people each week are denied counsel; in a single week recently no lawyer was available in 144 cases. See Memorandum of Law ("Mem.") Part IIB3c. After conducting a thorough examination of New York City's Family Courts, for example, Professor Spinak concludes in her affidavit that:

New York has allowed the assigned counsel system to deteriorate to a point where there are far too few attorneys on the panels, far too many litigants who are not receiving counsel at all, far too many litigants who are receiving ineffective assistance of counsel, far too many panel members carrying caseloads which make them unable to provide meaningful and effective assistance of counsel routinely and consistently, and far, far too many adults and children harmed deeply by this failure.

Spinak Aff. ¶ 10.

As a consequence of this failure, Professor Spinak further concludes:

[C]hildren and families are regularly denied some of their fundamental liberty rights - children are locked up, parents separated permanently from their children, victims unprotected from their assailants, adoptions left uncompleted, visitation between parent and child postponed . . . .

Spinak Aff. ¶ 11.

Among the most egregious examples of the State's systematic failure to provide effective counsel can be drawn from indigent domestic violence victims. According to the affirmation of Dorchen Leidholdt, Director of Sanctuary for Families' Center for Battered Women's Legal Services and Adjunct Professor at Columbia University Law School, there is a "pressing need for counsel" in domestic violence cases, but because there are "so few panel attorneys, the Family Court does not provide attorneys for many domestic violence victims." Such failures to provide counsel result in needless "delay and adjournments that discourage domestic violence victims from pursuing relief in Family Court." Even where appointed counsel is available, moreover, those attorneys are likely to carry far too heavy caseloads and workloads to be capable of dependably rendering meaningful and effective assistance. Leidholdt relates the story of one Spanish-speaking woman in a child custody proceeding whose assigned counsel failed even to interview her and thus did not learn from her that her husband had a history of sexual abuse. Unaware of the issue, the judge in that case ordered unsupervised visitation between the petitioner's husband and their child. Leidholdt Aff ¶¶ 12, 28-29.

The reason for the shortage of available Family Court panel attorneys is straightforward: the rate of pay fixed by the State for these services is too low to attract and retain attorneys. Mina MacFarlane, President of the Bronx Family Court Bar Association, joins many of her colleagues in stating in her affirmation that "experienced assigned counsel are leaving the Panel, or reducing the amount of Panel work that they do, because of the economic difficulties created by the current statutory rates." MacFarlane Aff. ¶ 12.

Dr. Lawrence H. Stiffman, based upon a detailed survey and investigation he has performed of the economics of practicing law in New York, offered his expert opinion that:

When the in-court and out-of-court reimbursement rates are considered against the hourly overhead cost based on total hours . . . it is clear that assigned counsel would have great difficulty maintaining a law practice in New York City. . . . In some cases, a practitioner attempting to maintain a New York City law practice on the statutory rates may actually lose money when the cost of overhead is considered.

Stiffman Aff. ¶¶ 24-26. Similarly, in her affirmation, Judge Michael Gage, former Administrative Judge of the New York City Family Court, states that:

[T]he current rates paid to assigned counsel are the principal reason for the shortage of attorneys. Not only do the existing rates attract an insufficient number of attorneys, they also fail to attract the experienced and knowledgeable attorneys who are needed. Moreover, those senior and experienced members who already are on the panel are leaving in increasing numbers to concentrate on developing private practices, a choice dictated by rising costs of living, overhead expenses, and the impossibility of living at these rates.

Gage Aff. ¶  9.

According to Judge David Gilman, former Family Court judge and current family law practitioner, the ultimate result of these low rates is that

[T]he system is in virtual collapse. The low statutory rates have depleted the counsel panel and left its remaining members extremely overburdened.

Gilman Aff. ¶ 41.

II. Systemic Violations of the Right to Counsel in Criminal Court

The assigned counsel crisis in criminal proceedings in New York City is equally severe.

Robert L. Spangenberg, a nationally recognized expert on representation of indigent criminal defendants, conducted an in-depth study of New York City's assigned counsel system on NYCLA's behalf. After interviewing more than 150 persons working in the system, including judges, administrators and attorneys, conducting in-court observation, analyzing data and reviewing numerous documents, Spangenberg concludes:

I am convinced there are a number of talented and devoted attorneys who are providing indigent defendants very high quality legal representation in New York City's criminal courts. However, based on my recent review and my experience evaluating indigent defense systems throughout the country, it is my opinion that the assigned counsel system in New York City is in a state of crisis. Indigent defendants represented by assigned private counsel are currently subjected to a severe and unacceptably high risk that they will not be afforded meaningful and effective representation by their assigned counsel as required under the Sixth Amendment to the United States Constitution, Article I, Section 6 of the New York Constitution . . . .

. . . .

The single greatest factor that has caused the assigned counsel system to reach this state of crisis is the low rates of compensation currently paid to attorneys under Article 18-B of the County Law.

Spangenberg Aff. ¶¶ 9, 33(h).

Dean Norman Lefstein of the Indiana University School of Law, an expert in the fields of criminal defense standards and legal ethics, reaches a similar conclusion:

[T]he system for providing representation for indigent defendants by assigned private counsel . . . in New York City involves a substantial and unacceptable risk that defendants are not being represented in a manner consistent with constitutional and professional standards. . . . In addition, it is my opinion that the inadequacy of the assigned counsel system in New York City means that an unknown number of persons who are actually innocent of the crimes with which they are charged are almost certainly convicted and that some of these people are sentenced to prison."

Lefstein Aff. ¶ 71.

Mr. Spangenberg concludes that New York City's current assigned counsel is the result of several contributing factors, the most significant of which are the current low rates of compensation:

First, because the rates of compensation are so low, a number of assigned counsel are taking on severely excessive caseloads/workloads at times in order to make an adequate living. Based on the number of hours reported to process these cases and on information obtained directly from these lawyers during the course of our interviews, I believe that there is an extreme risk that these lawyers cannot provide meaningful and effective representation to their assigned clients as required by the federal and state constitutions. . . .

Second, the low compensation has forced many assigned counsel to go without the basic tools of the lawyers' trade . . . . The lack of these basic tools seriously compromises attorneys' abilities to effectively represent their clients. . . .

Third, the pay differential for in- and out-of-court work creates a disincentive for panel attorneys to concentrate on critical out-of-court work that the American Bar Association . . . and the National Legal Aid and Defender Association . . . recommend be performed in all criminal cases, such as looking carefully at the complaint, conducting necessary legal research, interviewing the client fully [and] keeping the client informed of his or her rights and the status of the case . . . .

Fourth, fewer and fewer panel attorneys are willing to accept arraignment shifts . . . . [resulting in]: (i) assigned counsel who represent co-defendants at arraignment, despite the existence of an actual or potential conflict of interest; (ii) assigned counsel with insufficient time to adequately interview and prepare their clients before advising whether they should enter a plea at arraignment; (iii) Criminal Court Panel attorneys who represent indigent defendants charged with felonies at arraignment when they are not members of the appropriate Supreme Court Panel; and (iv) a break in continuity of counsel when cases are re-assigned to other counsel following arraignment.

Fifth, those individuals who receive assigned counsel are at an unacceptably high risk that their constitutional rights to meaningful and effective representation will be compromised . . . because of many other systematic problems [in the assigned counsel system].

Spangenberg Aff. ¶¶ 10-14.

Mr. Spangenberg's findings are confirmed by the testimony provided by judges and the staff of the Administrators of the Assigned Counsel Plan and by the affirmations submitted by former judges, members of the Central Screening Committees and attorneys who serve, or have served, as assigned counsel.

NYCLA, for example, submits the affirmations of ten attorneys from Bronx, Kings and New York Counties who no longer accept assigned cases or arraignment shifts, or who have significantly reduced the number of cases they do 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. See Affirmations of Dru Carey, Neil Checkman, Lori Cohen, Gary Farrell, Harvey Fishbein, Anthony Michaels, Marvin Raskin, Michael Torres, Jeffrey Traub and Joel Walter.

Judges and attorneys also confirm shortages of attorneys to staff the arraignment parts in the New York City Criminal Court and to accept assigned cases generally. Joseph J. Milano, a member of the Bronx County Supreme Court Panel, the First Department Committee on Representation of the Poor, and the First Department Central Screening Committee, affirms that it is difficult to find sufficient numbers of attorneys willing to staff the arraignment shifts in Bronx County due to the inadequate rates, and that "there have been days when no assigned counsel could be found to work a shift in an arraignment or other court part." Milano Aff. ¶¶ 10-12. Marvin Ray Raskin, a member of the Bronx County Homicide and Supreme Court Panels and the Vice-Chairman of the First Department Central Screening Committee, states that "the number of new applicants to the Homicide Panels for New York and Bronx counties has sharply decreased. . . . . I believe this decline . . . is due, in large part, to the inadequacy of the current statutory rates of compensation." Raskin Aff. ¶ 17.

Judges and attorneys also confirm the increased pressures and burdens placed on the attorneys who continue to accept assigned cases as a result of these shortages. Data obtained from the Assigned Counsel Plan reveals, for example, that last year 41 attorneys each handled 150 or more felony cases. Such caseloads exceed nationally-recognized standards for representation of indigent defendants by attorneys in public defender agencies who - unlike most assigned counsel - have the benefit of paralegals, investigators and support staff to assist them.

In addition, with respect to the distinction between the hourly rates paid for in- and out-of-court work, Paul Angioletti, a member of the New York County Supreme Court Panel, affirms: "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. ¶ 12.

Judges and NYCLA's experts confirm that the low rates and shortages of attorneys result in a variety of harms to the indigent defendants who must rely upon assigned counsel -- including excessive workloads and caseloads that prevent attorneys from devoting sufficient time to each of their cases, their routine failure to appear at scheduled court appearances due to conflicting obligations on other assigned cases, lengthy delays in trials and other proceedings in felony and homicide cases that prejudice not only the defendant but also the people's ability to present its case, and assigned counsel's inability, or failure, to perform necessary out-of-court preparation and other critical tasks. See Mem. Part IV.

Judge Burton B. Roberts, the former Administrative Judge of the New York State Supreme Court, Bronx County, provides an apt summary: "I, like many of my colleagues, believe that the current rates are an affront and beneath the dignity and vision of the State of New York, the Empire State, which has always been renowned for being in the forefront of providing competent representation for defendants who are indigent." Roberts Aff. ¶ 10.

III. Why a Preliminary Injunction Is Appropriate at this Time

To obtain preliminary relief, NYCLA must show: 1) threat of irreparable injury; 2) likelihood of success on the merits; and 3) the balance of equities favors granting the relief sought.

NYCLA has established that, absent the declaratory and injunctive relief requested by this motion, children and indigent adults will suffer irreparable injury. Each day exposes them to a severe and unacceptable risk of suffering the irreparable harms associated with proceeding in family or criminal court without meaningful and effective representation. Such irreparable harms may include, in the Family Court, for example, separation of children from their parents, physical abuse by an alleged battered where sufficient protection was not obtained from the court and termination of a parent's rights.

NYCLA also has established that at trial it likely will succeed in proving the merits of its claim that the State has defaulted on its constitutional and statutory obligations to ensure that meaningful and effective representation of counsel is afforded to children and indigent adults in the family and criminal courts of New York City. The evidence persuasively demonstrates that the State's failure to raise the hourly rates paid to assigned counsel, to eliminate the distinction between compensation for in-court and out-of-court work, and to remove the cap on the amount of compensation available per case combine to create a severe and unacceptably high risk that children and indigent adults systematically will be denied their constitutional and statutory rights to counsel.

The equities also are decidedly in favor of granting the preliminary relief NYCLA requests. On one side rest the long-ignored but nonetheless fundamental constitutional and statutory rights of the most vulnerable members of our society. With respect to the declaratory relief sought by NYCLA, there literally is no countervailing interest. With respect to the injunctive relief NYCLA seeks, the most that can be said is that the State would suffer the consequences of finally having to address a crisis of its own creation, the result of 16 years of neglect.

Frank S. Moseley

Edward P. Boyle

Zachary S. McGee

Joan M. Loughnane

Kelli J. Stenstrom

1. This summary document presents an overview of the motion papers and supporting evidence submitted by the New York County Lawyers' Association in support of its motion for a preliminary injunction in the above-captioned action. Copies of these materials are available upon request from counsel or on NYCLA's web site: www.nycla.org/main.htm.

2. The motion further requests that the Court: remove the distinction between the rates paid for in-court and out-of-court work by assigned counsel and eliminate the ceiling on total per-case compensation (which provide a strong economic disincentive to perform crucial out-of-court work such as investigations, interviews, and legal research); require the State to ensure that sufficient numbers of attorneys are available to represent clients in Family Court; require the State to monitor and take steps to limit attorney workloads to ensure that assigned counsel are able to provide quality representation; and certain other relief detailed in NYCLA's motion papers.