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Counties Push For State To Pony Up For Lawyers

ALBANY — New York’s county governments are trying to convince lawmakers that the state should pick up the tab expected to result from litigation seeking to increase pay for private lawyers assigned to handle cases in criminal and family courts.

The pay rate for assigned counsel is set in state law. In New York, it tops out at $75 per hour.

No increase has been granted to those lawyers in 18 years, creating a situation that legal experts say has made it increasingly difficult to find lawyers to do the work.

Without the state accepting the responsibility for the costs of higher payment to those lawyers, a court ruling expected imminently in the matter “could significantly impact your county’s public defense costs,” Stephen Acquario, the executive director of the New York State Association of Counties, advised county government leaders last week.

The projected cost of increasing the pay rate is $160 million.

The ongoing litigation involves a statute known as County Law 18-b, which sets the pay rate for private lawyers assigned to represent defendants in criminal court as well as individuals involved in family court cases.

State Chief Judge Janet DiFiore, who presides over the Court of Appeals, said in her State of the Judiciary speech in February that boosting pay for assigned counsel would support the state’s goal of equal justice for all regardless of economic status.

“The failure of our state’s funding scheme to keep pace with any reasonable semblance of inflation has led to a statewide mass exodus of qualified assigned counsel available to take on new assignments,” the judge warned.

It has led to a situation that “harms countless litigants who are subjected to delays in the assignment of counsel, repeated adjournments of their proceedings, fewer opportunities and less time to meaningfully consult with counsel, DiFiore added.

In Albany, both houses of the state Legislature included provisions for pay increases for assigned counsel in their responses to Gov. Kathy Hochul’s proposed state budget.

But when Hochul signed final budget legislation a month ago, the spending blueprint did not address the call for giving the lawyers a pay increase.

A brigade of assigned counsel lawyers recently staged a rally outside Hochul’s office in Manhattan, demanding an increase in the hourly rate and wielding signs with messages such as “Justice is Non Negotiable.”

Some of the lawyers complained publicly that while the state budget excluded the pay increase favored by the Assembly and the Senate, it did include Hochul’s request for a $600 million state subsidy for a new NFL stadium to be used by the Buffalo Bills near the governor’s hometown.

Hochul told reporters she agrees the assigned counsel lawyers deserve higher pay. But she explained it was not included in the budget because of the ongoing litigation involving the issue. She noted efforts are ongoing in an attempt to resolve the lawsuit.

NYSAC’s Acquario said while the lawsuit was instigated by lawyers in New York City, “it is only a matter of time when the precedent of this case is simply applied to all counties with 18-b attorneys.”

“We have recently heard of from multiple upstate counties where 18-b attorneys have submitted for and been approved by courts to double their hourly rate while citing this case,” Acquario noted in his letter to county leaders.

When testifying at a state budget hearing in February, Patricia Warth, director of the state Office of Indigent Legal Services, emphasized the importance of not only providing higher hourly rates for assigned counsel, but also having the state pay for the increase.

“The need for the statutory rates to be increased is irrefutable,” Warth said. She noted county governments “lack sufficient resources to fully fund this increase and if required to pay for it would likely cut other mandated representation costs.”

Such a scenario, Warth pointed out, could jeopardize the success of the ongoing effort to expand the availability of legal aid to low-income New Yorkers throughout the state.

That effort stems from the 2014 settlement of lawsuit brought by the New York Civil Liberties Union, alleging that the state had been failing to provide adequate public defense services. But that settlement did not address the pay rate for the 18-b lawyers.

The New York State Bar Association has also signaled its support for new assigned counsel rates that would be in line with what is offered in the federal court system. The hourly rate in the federal system is approximately twice what the lawyers get for similar work in the state courts.

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