NEW YORK COUNTY LAWYERS’ ASSOCIATION
||Norman L. Reimer
(212) 267-6646, x225
|Kelli J. Stenstrom
Davis Polk & Wardwell
NYCLA Enters Judgment Against New York State and City Declaring Assigned Counsel Compensation Rates Unconstitutional;
Declaratory Provisions of Judgment Will Not Be Subject to Automatic Stay
New York, NY, February 26, 2003 – The New York County Lawyers’ Association (“NYCLA”) today entered the Judgment issued in its favor and against the State and City of New York by New York State Supreme Court Justice Lucindo Suarez in its lawsuit challenging the constitutionality of the rates of compensation paid to assigned private counsel in New York City. The Judgment declares unconstitutional those portions of relevant statutes that fix the rates and limits on compensation for assigned counsel at $40 per hour for in-court work and $25 per hour for out-of-court work as applied to the representation of children and indigent adults in New York City and grants a permanent injunction directing the State and City to compensate assigned counsel at the rate of $90 for in-court and out-of-court work. The Judgment is now effective.
NYCLA anticipates that the State and City will immediately serve notices of their intent to appeal the Judgment, thereby triggering an automatic stay of proceedings to enforce the Judgment pursuant to CPLR 5519(a)(1).
Simultaneous with the entry of Judgment, NYCLA separately released a position paper today expressing the view that the CPLR 5519(a)(1) automatic stay will apply only to the permanent injunctive relief, which directs the payment of the new rate of $90 per hour, and will not apply to the declaratory relief granted in the Judgment. As a result, NYCLA believes that there is now no valid statutory requirement in effect in New York City limiting compensation for assigned counsel to only $25 and $40 per hour; hence, individual trial and appellate judges have inherent judicial authority to grant a higher rate on a case-by-case basis as they may deem appropriate.
To alleviate the continuing crisis in the assigned counsel system, NYCLA asserts that assigned counsel may, and should, submit vouchers seeking compensation at a rate that exceeds $25 and $40 per hour, accompanied by a written request that, in the absence of any valid statute now in effect in New York City limiting the rates to $25 and $40, the trial or appellate judge exercise his or her own inherent judicial authority to fix an appropriate rate. NYCLA suggests that assigned counsel submit vouchers seeking $90 per hour for work performed in-court and out-of-court. NYCLA believes that $90 is the minimal amount necessary to ensure that constitutionally adequate representation can be provided. Trial and appellate judges may refer to the findings made by Justice Suarez in the Judgment and earlier findings by U.S. Eastern District Court Judge Jack B. Weinstein in his decision in Nicholson v. Williams, both of which conclude that the current rates result in substantial and immediate irreparable constitutional injury to children and indigent adults in New York City.
NYCLA also announced that it plans to file papers in the Appellate Division, First Department as soon as possible seeking an order to vacate the automatic stay of that portion of the Judgment granting a permanent injunction directing the State and City to pay assigned counsel $90 per hour.
NYCLA’s Executive Committee has issued the following statement, urging the state to immediately drop its opposition to a rate increase:
“It is time for our public officials to act in accordance with their words. As Justice Suarez noted in his opinion, every responsible leader, including the leaders of the Legislature, Governor Pataki and Attorney General Spitzer, who is representing the State, have acknowledged the assigned counsel crisis and have called for rate reform. After 17 years of inaction our public officials should no longer ignore their constitutional duty to protect the poorest and most vulnerable citizens of New York. Any stay of the Judgment should be lifted and the Legislature should act.”