Lawyers' Group Has Standing to Challenge Assigned Counsel Rates


	Print or Email This Page Lawyers' Group Has Standing to Challenge Assigned Counsel Rates By Daniel Wise �New York Law Journal Friday, January 19, 2001 A STATE Supreme Court justice committed the judiciary yesterday to a review of New York State's fee structure for court-assigned lawyers. The ruling rejected claims that the New York County Lawyers' Association lacked standing to bring a suit challenging the pay rates and ratcheted up the pressure to increase the fees. A year ago, citing a court study showing the rates for lawyers representing the poor in family and criminal matters to be abysmally low, Chief Judge Judith S. Kaye called for the rates to be raised to $75 an hour for felonies and Family Court work and $60 an hour for misdemeanors. Last week, Governor Pataki and the leaders of the State Legislature pledged action this year on raising the rates. The current rates, which have not been changed since 1986, pay court-appointed lawyers $40 an hour for time spent in court and $25 an hour for work elsewhere. At the end of last year, many lawyers taking court assignments in Family Court served notice that they would no longer accept new cases in protest of the Legislature's failure to raise the rates. According to a November 1999 survey prepared for the American Bar Association by the Spangenberg Group, New York's rates were among the lowest in the nation. While New Jersey, Maryland and Massachusetts paid less per hour for court work in felony cases than New York, several states, known for their parsimonious approach to compensating lawyers, paid more, according to the 1999 study. Among them were Arkansas, at $80-85 per hour, Georgia, at $60 per hour; and Alabama, $50 per hour. In rejecting New York State's motion to dismiss the case, Justice Lucindo Suarez wrote that to deny the New York County Lawyers' Association (NYCLA) standing to bring the suit would "erect an impenetrable barrier to any judicial scrutiny" of a legislative fee structure where it is contended that "presumptively innocent citizens are subjected to increased risks of adverse adjudications and convictions merely because of their poverty." Justice Suarez, who sits on the Appellate Term, First Department, commented favorably several times during the course of his 23-page opinion on the "vast amount of empirical data" NYCLA submitted in opposing the State's motion. Though Justice Suarez' remarks were carefully limited to the strictly legal issues before him on the motion to dismiss, the evidence he was referring to would have direct bearing on the ultimate factual issue he must decide: whether the State's failure to raise the rates has compromised its constitutional obligation to provide the poor with lawyers. In that regard, Justice Suarez, in New York County Lawyers' Association v. Pataki, 102987/00, wrote that the County Lawyers had submitted evidence which "outlined, in painstaking fashion, the shortage of active panel attorneys and how they are overburdened." The submissions also showed, he added, "the adverse effects on juvenile delinquency cases, abuse and neglect proceedings, appeal backlogs, [and] arraignments overload.... " Deputy Attorney General Richard Rifkin said yesterday that "the Legislature is the appropriate forum in which the materials [submitted by NYCLA] should be considered." Ethical Violations In finding that NYCLA, as a bar association, had standing, Justice Suarez pointed out that no individual criminal defendant would have financial resources to bring a legal challenge to the "systemic problem prima facie presented here." Justice Suarez also concluded that NYCLA has standing because its members could face "possible sanctions and ethical violations" by continuing to accept assignments under the current system. The judge relied upon affirmations submitted by two attorneys, who asserted that they lacked the time and resources to adequately investigate their cases, interview witnesses, prepare lengthy motions or fully prepare for trial. A "severe shortage" of attorneys, he noted, leads to "pressure from judges and court officers to accept additional case assignments despite an already heavy caseload." NYCLA was represented by Frank S. Moseley, Edward P. Boyle and Zachary S. McGee, of Davis Polk & Wardwell, which is handling the case pro bono. New York State was represented by Assistant Attorney General Carolyn Cairns Olson.
	National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org