Legal organizations ask state judge to order New York to raise pay of assigned lawyers

Gary Craig
Rochester Democrat and Chronicle

State lawyers say New York lawmakers are nearing an agreement for pay increases for assigned lawyers for the indigent, but that pledge rings hollow for lawyers and activists pushing for the rate hike.

Too often, lawyers for the indigent say, state legislators and past governors have spoken as if a rate increase is on the horizon, only to abandon the plans. The hourly rate for New York lawyers who represent indigent people in state and local courts tops out at $75 an hour — about half what is paid in the federal court system.

In New York, the rate has not been increased in 18 years and once in 35 years.

"We believe that the indigent should have the same quality of representation as clients who can afford their own attorney, which is why we take on the cases," said Fairport-based lawyer Cara Waldman.

Judge's gavel on a desk with Family Court nameplate.

Across the state recently, lawyers refused what are called "assigned counsel" cases in protest of the stagnant rates. For years, the number of private lawyers willing to take on assigned indigent defense has shrunk, typically because of the pay, leading to hearing delays and lapses in representation, advocates argue.

Assigned counsel attorneys are lawyers who represent poor defendants when local public defender offices have a conflict. Most localities have a list of lawyers for judges to access for those cases. The program, known as the Assigned Counsel Plan (18B), has been in place since 1966.

But the static hourly rates have prompted many lawyers to no longer take the cases. In turn, those who continue to do so end up with burgeoning and burdensome caseloads, making quality representation difficult.

This has proven to be especially true in courtrooms helping keep children secure, such as Family Court.

"In the five years I've been at the assigned counsel program, we've lost probably about 20 percent of our attorneys across the board," said Rochester lawyer Mark Funk, who heads the county's Conflict Defender Office. "The biggest hit we've had is in our Family Court panel."

Funk said the hourly rates often must cover lawyer's employees, insurance, overhead, supplies, and other costs. "Our lawyers, they're small businesspeople," Funk said.

Last year, legal organizations across New York joined to sue state and New York City officials over the rates for assigned counsel. In Manhattan, those organizations asked state Supreme Court Justice Lisa Headley to order an increase in the payments.

State attorneys have maintained that the courts do not have the power to unilaterally order an increase.

Rate rise could be closer

During the hearing, a lawyer for the Attorney General's Office said the Legislature and Gov. Kathy Hochul are nearing an agreement to raise the rates. Both legislative houses included increases in their budgets, but Hochul ultimately nixed those proposals.

Michael Dell, a New York City lawyer representing the legal organizations, encouraged the judge to order the increased rates. "Their whole defense boils down to 'trust me,' " he said of the state.

Headley on Thursday reserved on a decision, but indicated she was willing to go forward even if negotiations are underway. She told attorneys to inform her if there is progress.

Counties and New York City have shouldered the payments for assigned counsel cases, and there has been a push for the state to absorb the costs.

"It's been an unfunded mandate for 50-plus years for the county to pay for this when it's really a state responsibility," Funk said.

It took court action in 2003 for the last rate increase, which went into effect the next year. 

"The system operates because attorneys choose to uphold their oath, undertake the obligation to test the adversarial process and bring to bear such skill and knowledge as will render the outcome reliable," the 2003 ruling stated. "In return, the State assumes the obligation to provide assigned counsel with a reasonable basis upon which they can carry out their profession’s responsibility, without either personal profiteering or undue financial sacrifice."

Many lawmakers and state Chief Judge Janet DiFiore have decried the failures to increase the payments. DiFiore said in 2020 that the failure to boost the rates since 2004 has created a "crisis that can't be ignored."

Contact Gary Craig at gcraig@gannett.com. Follow him on Twitter at gcraig1