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Does the State’s failure to increase the compensation rates for assigned counsel violates the constitutional and statutory right to meaningful and effective representation

A Lawyers’ Association filed for a rate increase to the State for their in and out of court work. The issue is whether the State’s failure to increase the compensation rates for assigned counsel violates the constitutional and statutory right to meaningful and effective representation.

A New York Criminal Lawyer said the court finds beyond a reasonable doubt that it does and results in obstructing the judiciary’s ability to function, and declares the law that set those rates are unconstitutional as applied. The court also directed the payment of $90 an hour without distinction between in- and out-of-court work, and without ceilings on total per case compensation, until the governing body acts to address the issue.

Based from the evidence, the grim reality that children and indigent adults in the State Family Court, Criminal Court, and Criminal Term of Supreme Court are at unreasonable risk of being subjected to a process that is neither swift nor deliberate, and fails to confirm the confidence and reliability in the system of justice. It is a direct result of the law-making body’s failure to provide adequate compensation to the assigned counsel. The right of a criminal accused party or Family Court complainant to interpose an attorney between himself and the State with its considerable power and resources is a cherished principle, zealously protected by the State courts. The State continues to ignore its constitutional obligation to the poor by failing to increase the assigned counsel rates that result, in many cases, in denial of counsel, delay in the appointment of counsel, and less than meaningful and effective legal representation. Accordingly, the court declares portions of section of the County Law, section of the Family Court Act and section of the Judiciary Law to be unconstitutional as applied. These statutes were enacted without a mechanism for automatic periodic increases, therefore requiring recurrent visitation by the law-making body. The initial rate set in 1965 of $15 an hour for in-court work and $10 an hour for out-of-court work has been increased twice to $25 and $15 in 1978, and $40 and $25 in 1985. The last increase was 17 years ago.

The court finds upon the evidence of 41 witnesses and 435 evidences that assigned counsel are necessary and there are an insufficient number of them. The court also finds that the insufficient number results in denial of counsel, delay in proceedings, excessive case loads, and inordinate intake and arraignment shifts, further resulting in rendering less than meaningful and effective assistance of counsel, and impairment of the judiciary’s ability to function and the current assigned counsel compensation together with the rate distinction between the in-and-out-of-court work, and the monetary caps on per case compensation is the cause of the insufficient number of assigned counsel.

Assigned counsel are necessary in the Family Court, Criminal Court and Criminal Term of Supreme Court based upon the system selected by the State to provide counsel to the indigent and in order to service multi-offender cases. A Brooklyn Criminal Lawyer said there is a substantial need for assigned counsel to represent both children and indigent adults in family and criminal proceedings. The assigned counsel plan in the State has evolved into the primary source of legal representation for adults in Family Court proceedings such as abuse, neglect, custody, child protective, and domestic violence cases. A Legal Aid Society and the other institutional providers represent one offender in a multiple offender case. The assigned counsel plan serves a vital and important function by providing representation to indigent offender in cases where the institutional providers have a conflict of interest. The conflicts of interest occur frequently in juvenile delinquency cases and on a regular basis in child protective proceedings.

In 2001, the Juvenile Rights Division of the Legal Aid Society represented approximately 40,000 children in the State Family Court with an average of 2.5 children per case. Assigned counsel, today represent a greater proportion of the criminal offenders than originally contemplated by the assigned counsel plan. When adopted in 1966, it was expected that assigned counsel would represent criminal offenders only in homicide and conflict cases. The evidence demonstrates that assigned counsel represent a substantial percentage of indigent offenders charged with felonies, misdemeanors and violations. Assigned counsel also represents indigent offenders in a substantial number of non-conflict cases. There has been an increase in the total number of offenders referred to the assigned counsel panels, as seen in the significant increase of misdemeanor and violation arrests and summonses issued in State since the mid-1990s. As a result, there is an even greater need for assigned counsel representation.

The lack of panel attorneys is evident in the Family Court intake parts. The intake part of the Family Court serves the same function as arraignment in the Criminal Court. The Family Court intake part has been described as a very fast paced, incredibly busy part with a very large calendar. Victims of domestic violence, juveniles that have been arrested, and litigants with initial petitions in child support proceedings or cases of neglect or abuse, first appear in the intake part. The nature of Family Court practice requires assigned counsel to staff the intake parts every day. Attorneys assigned to staff an intake part must be available to accept as many as 25 to 50 cases that come into the part on that particular day. In addition, assigned counsel must also be available to accept cases that are not assigned to an attorney in the intake part.
The severe shortage of assigned counsel willing and available to staff the Family Court intake parts resulted in the creation of an emergency case system in March 2001. The system prioritized the appointment of counsel to litigants in cases where a liberty or public safety interest was directly involved. Litigants in cases deemed nonemergency were not assigned an attorney although they were entitled to one. The triage system failed and was discontinued. Currently, litigants in emergency cases do not receive timely assignments of counsel because of the severe shortage of available assigned counsel.

The shortage of assigned counsel in the criminal courts, as in the Family Court, has also resulted in less than meaningful and effective assistance of counsel. Too many assigned counsel do not conduct a prompt and thorough interview of the accused, fail to consult with them on a regular basis, fail to examine the legal sufficiency of the complaint or indictment, fail to seek the accused party’s prompt pretrial release, fail to retain investigators, social workers or other experts where appropriate and fail to file pretrial motions where appropriate. A Nassau County Criminal Lawyer said the assigned legal counsel also fail to fully advise the accused regarding any plea and only after conducting an investigation of the law and facts, fail to prepare for trial and court appearances and fail to engage in appropriate presentencing advocacy, including seeking to obtain the accused party’s entry into any appropriate diversionary programs. In addition, the evidence showed that many attorneys do not conduct appropriate investigations of the facts or the law, and of those that do, many fail to do so prior to engaging in plea negotiations and only do so immediately prior to trial.
The evidence revealed many assigned counsel do not prepare motions or memoranda and do not have sufficient contact with clients in a convenient atmosphere because they cannot afford the basic tools of the trade such as offices to meet with clients as well as traditional research materials, on-line research capability, paralegals, and secretaries or receptionists.

The present statutory compensation rates and the deficiencies in the assigned counsel system resulting therefrom have seriously impaired the courts’ ability to function. There are an insufficient number of attorneys to assign to litigants who are entitled to legal representation in Family Court and criminal proceedings. The critical shortage has resulted in judges leaving the bench or engaging their law clerks, court attorneys, court clerks, or court officers to scour the courthouse hallways to find attorneys willing to accept cases. The testimony revealed judges must persuade, urge and even beg assigned counsel to take cases. Many times these efforts were not successful. In the meantime, cases grind to a halt. If a willing and available assigned counsel cannot be found, the judge must proceed without counsel or adjourn the case, both to the detriment of the litigants and the court. In addition, judges are unable to process cases in a timely fashion. The shortage result in repeated adjournments, significant delays of trials and other court proceedings further resulting in substantial backlogs of pending cases.

The evidence shows that out-of-court assigned counsel work requires no less legal skill and effort than work performed in court and is as important, if not more so, to the quality of representation. Assigned counsels maximize their in-court time at the higher rate in order to financially survive. The lower rate operates as a disincentive to perform necessary out-of-court work. The lower out-of-court rate, accordingly, results in a threat of irreparable harm to litigants. The evidence further showed that assigned counsel would perform necessary out-of-court work if compensated at the in-court rate.

The removal of the caps on total per case compensation is necessary to assure meaningful and effective representation. There are too many cases where under the current law provisions governing payment for such representation, it seems then that any attorney who fulfills his/her ethical obligations must be prepared to exceed the determined cap in most felony cases which are not disposed of by an early plea of guilty.

Accordingly, counsels routinely submit vouchers seeking payment for the actual time that they have expended on the case. It is simply inconceivable to the Court that all (or even most) of the cases manifest extraordinary circumstances involving the underlying facts, the accused or anything else. However, the system has routinely ignored the cap and paid the amount requested perhaps out of a sense of fairness and/or embarrassment at the fact that the State is at the very bottom of the fifty states in compensation to assigned counsel in criminal cases.

The court recognizes it does not have the capacity or the resources, nor is it in the best position to provide a comprehensive, although interim, solution to the present crisis. However, it does so with limited judicial precision and minimal intrusion into the executive and Legislature’s province albeit justified by surrender of their constitutional obligations. The expenditure of funds for the purpose of indigent defense and the manner by which it is provided is a complex societal, political, economic and governmental issue best left to the executive and legislative branches. They are in a better position to investigate, hold hearings, formulate, debate, identify funding sources and provide, if at all, governmental incentives, such as tax deductions or credits, and structure a plan of rates with or without caps or differentials, to best meet the needs of the assigned counsel scheme. Implicit in the State’s obligation to provide reasonable compensation to assigned counsel is the recognition that legal assistance, like any provision or distribution of goods and services over time, is subject to the dynamics of inflation and the laws of supply and demand. The failure of the law-making body to address the rates since 1986 ignores these realities.

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