NEW YORK COUNTY LAWYERS’ ASSOCIATION
Norman L. Reimer
|Zachary S. McGee
Joan M. Loughnane
Kelli J. Stenstrom
(Davis Polk & Wardwell)
New York State Supreme Court Orders $90 Hourly Rate for Counsel Who Represent the Poor in New York City Family and Criminal Matters
New York, NY, May 3, 2002 – Finding a “serious and imminent danger of ineffective assistance of counsel to indigent litigants in the New York City family and criminal courts,” New York State Supreme Court Justice Lucindo Suarez today issued a preliminary injunction ordering that counsel assigned to represent the poor in these cases be compensated at a rate of $90 per hour. Justice Suarez issued this landmark decision in a case brought by the New York County Lawyer’s Association (“NYCLA”) on behalf of the thousands of children and indigent adults who are entitled to have counsel assigned in these proceedings.
“We are extremely pleased with Justice Suarez’s decision upholding the constitutional rights of poor litigants to counsel and due process of law,” said Craig A. Landy, NYCLA’s President. “After years of legislative and gubernatorial gridlock in Albany have pushed New York’s assigned counsel system past the brink of collapse, this decision raising assigned counsel rates to prevent further deprivations of these rights embodies the finest traditions of the judiciary of this great State.”
In its motion for preliminary injunction filed last year, NYCLA 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 Justice Suarez to set a new rate of $100 per hour, or at a minimum to match the $90 per hour rate counsel assigned to represent indigent criminal defendants in the federal courts receive. The motion was filed on behalf of NYCLA by its counsel, Davis Polk & Wardwell.
NYCLA supported its motion with a staggering amount of evidence that the current assigned counsel system in New York City is in severe crisis and has begun its collapse. NYCLA submitted 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. Taken together, NYCLA’s evidence depicts a system that routinely and consistently fails to provide effective representation to litigants in family and criminal court proceedings.
Observing that “NYCLA’s uncontroverted evidence . . . chronicles the adverse effects and the depth of the crisis of the current 18-B compensation rates,” Justice Suarez determined in today’s decision that New York City’s assigned counsel system causes poor litigants to suffer “material and actual injury” to their constitutional rights to counsel and due process of law. Specifically, Justice Suarez found that “in neglect proceedings children and parents suffer when they are unnecessarily separated due to the unavailability of assigned counsel; in juvenile delinquency proceedings children suffer by continued detention in the absence of counsel; [and] in the criminal context, defendants endure protracted pre-trial detention, particularly in homicides and ‘serious’ felony cases.”
Recognizing that “New York’s assigned counsel rates undermine both the operation of the courts and the quality of the representation provided to children and indigent adults,” Justice Suarez determined that increasing the rates to a level “sufficient to induce experienced and able criminal and family law practitioners once again to take on these assignments . . . is both compelling and necessary to assure indigents effective counsel.” Indeed, Justice Suarez noted that respect for the separation of powers requires the court in this case to act – rather than forbids it from doing so – because “the State’s failure to raise the current compensation rates adversely affects the judiciary’s ability to function and presumptively subjects innocent indigent citizens to increased risks of adverse adjudications and convictions merely because of their poverty.” By reaffirming the court’s power to order injunctive relief where necessary to protect indigent litigants, Justice Suarez’s decision represents an important victory in the continuing struggle to ensure that poor people receive the meaningful and effective legal representation to which they are constitutionally entitled.
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 is captioned NYCLA v. The State of New York and City of New York, Index No. 102987/00. The full text of Justice Suarez’s decision granting NYCLA’s motion for preliminary injunction, as well as the briefs filed in support of that motion, are available online at http://www.nycla.org/main.htm.