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Federal Judge Declares Assigned Counsel Rates Unconstitutional, Orders $90 Hourly Rate for Certain New York City Family Court Matters
Contacts: Craig A. Landy
212-629-0590
Norman L. Reimer
212-267-2600
Zachary S. McGee
Joan M. Loughnane (Davis Polk & Wardwell)
212-450-4498, 450-4844
Federal Judge Declares Assigned Counsel Rates Unconstitutional, Orders
$90 Hourly Rate for Certain New York City Family Court Matters
New York City, December 21, 2001 – Federal District Judge Jack B. Weinstein issued a preliminary injunction today declaring New York State’s hourly rates of compensation for assigned counsel unconstitutional as applied to the representation of certain domestic violence victims in the New York City Family Court, and ordering that assigned counsel in these cases receive $90 per hour.
“We hope that Judge Weinstein’s ruling is the beginning of the end for New York’s wholly inadequate assigned counsel rates,” said Craig A. Landy, President of the New York County Lawyer’s Association (“NYCLA”). “We anticipate that others will recognize the wisdom of Judge Weinstein’s ruling and take the steps necessary to remedy this crisis for all indigent litigants.”
In court proceedings held yesterday, NYCLA, appearing as amicus curiae and represented by its counsel, Davis Polk & Wardwell, argued that the rates paid to these assigned counsel – currently $25 per hour for out-of-court work and $40 per hour for in-court work – must be raised significantly to permit them to provide effective representation for their indigent clients. NYCLA urged Judge Weinstein to set a new rate of $100 per hour, or at a minimum to match the $90 per hour rate recently enacted for counsel assigned to represent indigent criminal defendants in the federal courts. In support of its request, NYCLA presented testimony from two former assigned counsel, an expert in the economics of law practice, and an expert in legal ethics and representation of the indigent, to demonstrate that the current rates are patently inadequate to ensure adequate representation of the domestic violence victims before the court.
David Gilman and Bill Dalsimer, experienced attorneys who in the past accepted assigned counsel work in Family Court, testified that they no longer do so because the low hourly rates do not even cover their overhead costs, which undermines their ability to represent clients in these cases. Dr. Lawrence Stiffman, who conducted a survey of the economics of law practice in New York, testified about overhead expenses faced by attorneys practicing in small firms in New York City. Based on that study, he concluded that most assigned counsel would not cover their overhead expenses when paid at the out-of-court rate, much less receive any compensation for their time. Even at the higher, in-court rate, Dr. Stiffman found that many attorneys would still lose money on assigned counsel work. Norman Lefstein, Dean of the Indiana University School of Law and a nationally recognized expert on indigent representation and legal ethics, testified that the low hourly rates fail to provide reasonable compensation to assigned counsel, as required by established national standards. Dean Lefstein testified that he believes a rate of $100 per hour is the minimum required for assigned counsel practicing in New York City.
The arguments used to persuade Judge Weinstein to order a $90 hourly rate are the same arguments NYCLA has advanced in an action now pending in New York State Supreme Court captioned NYCLA v. State of New York, Index No. 102987/00. In the state court action, NYCLA seeks increased hourly rates for assigned counsel in all family court and criminal proceedings in New York City. There NYCLA has presented overwhelming 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 that 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. NYCLA’s evidence depicts a system that fails to provide effective representation to litigants in family and criminal court proceedings.
In May 2001, NYCLA filed a preliminary injunction motion in the state court action asking Justice Lucindo Suarez to order the State to pay assigned counsel in New York City $100 per hour for their work representing children and indigent adults in family and criminal courts. After NYCLA’s motion was filed, Chief Judge of the State of New York Judith S. Kaye stated that New York State’s assigned counsel system is in a state of “catastrophe” and reiterated her prior calls for prompt action to alleviate the assigned counsel crisis. That motion is currently pending before Justice Suarez.
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 federal court action is captioned In re Sharwline Nicholson et al., Nos. 00 Civ. 2229, 00 Civ. 5155, 00 Civ. 6885. The plaintiffs in the action are represented by David Lansner and Carolyn Kubitschek of the law firm of Lansner & Kubitschek, and Jill M. Zuccardy of Sanctuary for Families Center for Battered Women’s Legal Services. The full text of Judge Weinstein’s Memorandum and Order, as well as NYCLA’s complaint and motion for preliminary injunction in the state court action, are available online at http://www.nycla.org/main.htm.