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New York State Bar Association Commences Lawsuit To Raise 18-B Rates

By Susan DeSantis

News Center

Children and indigent adults are being deprived of their constitutional rights to meaningful and effective representation in the criminal and family courts because pay for assigned counsel in the state has not been increased in 18 years, the New York State Bar Association contended in a lawsuit filed today.

The sole exception is New York City where Supreme Court Justice Lisa Headley issued a preliminary injunction on July 25, 2022 to raise pay to $158 an hour retroactive to Feb. 2, 2022, in response to a suit filed by the New York County Lawyers Association and nine other bar associations. The court found “that severe and irreparable harm to children and indigent adult litigants would occur without an injunction” and said protecting their constitutional rights is of “paramount importance.”

Through this legal action, the New York State Bar Association is seeking a pay rate of $158 per hour retroactive to Feb. 2, 2022 in the 57 counties outside of New York City for what is commonly referred to as 18-B lawyers. Pay has remained at $60 per hour for misdemeanors and $75 for felonies since 2004. By comparison, assigned counsel rates in the federal courts in New York in those same years have been raised 14 times to the current rate of $158 per hour.

“The New York State Bar Association has long supported sufficient pay for assigned counsel,” said Sherry Levin Wallach, president of the association. “Failing to provide adequate compensation for representation of children and indigent adults is a flagrant violation of the U.S. and New York State constitutions.”

“Rates have only been increased once in 35 years, which is a travesty. While we welcome the higher rates in New York City as a result of Justice Headley’s decision, it should be applied statewide. There is now a significant discrepancy in pay across the state for assigned counsel resulting in attorneys not being able to accept court appointed assignments. Ultimately, it is the clients — children and indigent adults — who suffer because their constitutional rights are not being protected,” she said.

The failure to raise rates in 18 years has led to fewer attorneys who are willing to take on the cases. Those who remain are overburdened and don’t have sufficient time to devote to each case.

“Inadequate funding, along with the excessive caseloads it causes, compromises the quality of legal representation that even the most qualified assigned private counsel in the counties can provide to their indigent clients,” the suit contends. “Excessive caseloads prevent assigned private counsel from performing basic pre-trial and pre-hearing tasks that are necessary and fundamental to the provision of meaningful and effective legal representation.

“Those tasks include, but are not limited to meeting with, interviewing, and counseling their clients; conveying basic information to their clients about the nature and purpose of upcoming court proceedings; spending adequate time reviewing their clients’ files, including volumes of case records, social media, and/or electronic evidence; conducting necessary legal and factual research; preparing witnesses to testify; filing evidentiary and procedural motions; and otherwise preparing their cases for trial.”

Michael J. Dell, a partner at Kramer Levin Naftalis & Frankel who is representing the New York State Bar Association, said, “In NYCLA v. State , the state did not and could not dispute that every single day, more children and indigent adults are deprived of their constitutional right of access to justice, and this calamity is visited most heavily and disproportionately on people of color.” Dell also represented the bar associations in the NYCLA suit.

“The state’s cavalier treatment of this issue and its constitutional obligation to children and indigent adults is unconscionable,” Dell said.

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Assigned counsel scores pay increase – for now.

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Assigned counsel attorneys rally in front of the governor’s Manhattan Office for a pay increase in April. On Monday, a judge granted the attorneys a preliminary injunction, allowing for a pay increase to kick in for the first time in nearly two decades. Eagle file photo by Jacob Kaye

Attorneys representing indigent clients and children in Family and Criminal Court cases in New York were handed a significant – albeit temporary – victory in their fight for better pay last week.

New York County Supreme Court Judge Lisa Headly granted a preliminary injunction in a lawsuit brought against New York City, State and the city’s Department of Finance by a number of attorney associations, including a handful from Queens this week. The order requires assigned counsel attorneys be paid an hourly rate of $158, up nearly $100 from the rate they have been paid for nearly two decades without an increase.

“The plaintiffs have demonstrated that the quality of legal representation for children and indigent adults, as well as their due process rights would continue to decline without a preliminary injunction,” Headly wrote in her decision. “The plaintiffs have demonstrated that such harm is neither remote nor speculative, as it is certain that a decrease in the number of assigned counsel leads to an already overburdened assigned attorney having to assume an increased workload.”

“This Court also finds that a balance of the equities weighs in favor of granting injunctive relief because if such injunctive relief was not issued by this Court, the constitutional rights of children litigants and indigent adults would be violated,” she added.

The lawsuit was first brought last July by the Assigned Counsel Association of the State of New York. It alleged that state and city officials had violated both the New York State and federal constitutions by failing to provide representation to indigent litigants in criminal and family proceedings as a result of not increasing the attorneys’ wages.

The ACA was joined in the suit by the Queens County Bar Association, the Macon B. Allen Black Bar Association, the Latino Lawyers Association of Queens County, the New York County Lawyers Association, the Bronx County Bar Association, the Richmond County Bar Association, the Brooklyn Bar Association, the Metropolitan Black Bar Association and the Asian American Bar Association of New York.

The suit is asking that the assigned attorneys be paid at the same rate of federal assigned counsel attorneys, who make $158 per hour.

The attorney groups argued that the lack of a pay increase – which, at $75 per hour, was last raised in 2004 following a lengthy court case – sets off a chain of events that leads to indigent clients not receiving their constitutionally guaranteed right to legal representation.

To start, the pay rate dissuades attorneys from joining 18-B panels and makes it difficult for 18-B attorneys to stay on the panel for extended periods of time. That means more work for those attorneys who remain on the panel.

In the years immediately following the previous pay increase, Queens’ Family Court assigned counsel panel had anywhere from 100 to 150 attorneys on it. Over the past several years, that number has dropped somewhere between 60 and 90 attorneys, according to lawyers currently on the panel.

According to Sarah Tirgary, the president of the Assigned Counsel Association of New York State and an 18-B panel member for Queens Family Court, it is recommended that assigned counsel attorneys only have 70 cases on their docket at any given point. However, without an adequate number of attorneys serving on the panels, attorneys often have upward of 150 cases at any given time. With such a large caseload, assigned attorneys are unable to dedicate as much time to each case as may be necessary, Tigary said.

She said news of the preliminary injunction, which the attorneys filed for in February, was a welcomed shock.

“I'm so very, very happy, not just for my own future, but for the future of assigned counsel panels and the quality of indigent defense in New York State,” Tigary told the Eagle. “It means that we will attract new talent to the panel and our caseload will ultimately decrease so that we can invest more time in each individual case.”

City attorneys said that while a pay rate increase for the attorneys is warranted, they argued that the funds are both not available and shouldn’t necessarily be paid by the city.

“Public defenders play a critical role in making the city more just for vulnerable communities, which is why the Adams administration made an unprecedented $60 million baselined commitment to legal and human services providers in the FY23 budget,” Nicholas Paolucci, a spokesperson for the city’s Law Department, told the Eagle in a statement. “However, we continue to maintain that the role of setting public defender pay rates should reside with the state, not the city.”

“We are evaluating our options,” Paolucci added.

Attorneys for the state argued that the pay rate is a budgetary issue to be dealt with by the State Legislature.

However, in April, following the passage of the state budget – which did not include the pay rate increase – Governor Kathy Hochul told reporters that the pay rate was not a budgetary issue because of the pending litigation.

“It's in litigation, so the budget was not the appropriate place to deal with it, but I support fair rates for those individuals,” Hochul said in April.

“I support fair wages for them,” she added. “Fair raise, they absolutely need this, the work they do is so critical, I support that. But there is still outstanding litigation and we are going to resolve it.”

The current fight for a pay rate increase mirrors that of the fight that began in 2002 and which led to the most recent increase, which came in 2004. Assigned counsel groups took the state and city to court, and was ultimately granted a pay rate increase.

But where this fight differs from the last is an opportunity for pay rates to increase over time, without the need for a legal battle every 20 years, according to Tigary.

Headly’s preliminary injunction ties the 18-B attorneys’ pay rate to federal assigned counsels’ pay rate, which has a cost of living assessment attached to. Should Headly’s final decision in the case align with the preliminary ruling, 18-B attorneys would have their pay rates periodically assessed to factor in the cost of living, increasing overtime, rather than all at once after decades without.

Less than 24 hours after the preliminary injunction was issued, the city and state had yet to implement the change into their payment system, according to Sandra Muñoz, the former president of the Latino Lawyers Association and a Queens Family Court 18-B panelist.

“The increase is not reflected yet and that's going to take some time,” Muñoz. “We're waiting for guidance on that.”

But waiting for an increase to kick in hasn’t stopped the attorneys in the past, Muñoz said.

For many, like Muñoz, working with indigent clients offers attorneys an opportunity to serve the communities where they came from.

“It's all about being attainable to the population that can’t afford attorneys – it's meaningful work,” she said.

“I could work in a law firm, making maybe triple what I'm making – not effortlessly, because I know how hard those people work – but it's not rewarding, really,” she added. “This is rewarding.”

Should the pay rate increase be made permanent, it could mean that attorneys that left panels because of the pay, return.

After 16 years of serving on Queens’ Family Court 18-B panel, Frank Bruno, the past president of the Queens County Bar Association and a Family Court attorney, stopped taking on new cases in 2020.

He told the Eagle on Tuesday that the biggest motivating factor was the pay.

“There came a point where all my expenses were going up, but the pay was stagnant for 15 years,” Bruno said. “It was purely an economic decision – I had to take on other work in other practice areas that were more lucrative.”

Though 18-B attorneys are expected only to work part-time on assigned counsel cases, the work can quickly become all-encompassing, Bruno said.

After his first few months on the panel, he had already amassed a nearly 100 case caseload that made it difficult to take on private practice cases, he said.

“There's the stated position and then there's the truth of it,” he said. “Yeah, I could take other work, but 100 cases often means that you're always obligated in some fashion to a case.”

Following the news of the preliminary injunction, Bruno said he had already spoken with one colleague about returning to the panel.

“I think it is a consideration,” Bruno said. “It really is a calling – and they were paying you like it was a calling.”

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assigned counsel rates ny

Proposed NY Budget to Cover Pay Raises for Limited Segment of Assigned Counsel

The governor's budget seeks to increase assigned counsel rates to $158 an hour in downstate localities, and to $119 an hour upstate.

February 10, 2023 at 01:54 PM

State and Local Government

Litigation Reporter

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County governments in New York may feel a fiscal pinch in implementing a plan to increase assigned counsel pay rates across the board.

While New York Gov. Kathy Hochul’s proposed budget for the fiscal year that begins April 1 includes continuation of state funding for attorneys who represent children.

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75% raise for New York appointed counsel aimed to broaden indigent defense services

New York attorneys assigned to represent defendants who cannot afford to hire their own counsel are getting a raise for the first time in two decades.

Manhattan Supreme Court Justice Lisa Headley’s decision and order directed New York state and New York City to pay assigned counsel a rate of $158 per hour, up from $90 per hour.

The 75% pay increase is retroactive from February. Assigned counsel last received a pay increase in 2004.

"It's way overdue," New York Bar Association President Sherry Levin Wallach said.

Several local bar and lawyer associations were plaintiffs on the lawsuit. The New York County Lawyers Association was the lead plaintiff in this case, and the legal fight two decades ago.

"We have gone to the Legislature and lobbied them to increase assigned counsel pay rates," Levin Wallach added. "I'm very happy to see that the courts agreed that it was necessary and long overdue to increase assigned counsel pay to the level that they did."

The city and state of New York, both defendants in the case, argued the hourly rates of assigned counsel should be negotiated through the state Legislature. But this suit prevented that from happening this year.

The lack of a pay raise for nearly 20 years led to many attorneys vacating panels to be assigned to a person who cannot afford representation. Fewer attorneys coupled with courts overwhelmed by litigants needing access to the justice system has burdened the court system.

"There was an exodus from those panels," said Levin Wallach, who previously served on the assigned counsel panels in Westchester and Putnam counties. "Attorneys were choosing to do other work because they couldn't survive and maintain their practices on the rate that they were being paid."

Attorneys and activists who help clients who cannot afford access to counsel say the pay increase will deepen the type of legal representation available within the assigned system, helping low-income and minority groups to access higher quality representation.

Joanna Davis, a managing attorney with the Legal Aid Society of Northeastern New York's office in Saratoga Springs, said the pay hike will help protect a person's right to due process regardless of whether they can afford counsel.

"Access to the legal justice system should not be prohibited by someone's ability, or their inability, to pay," Davis said. "...It's really important that the playing field is leveled out for all litigants before the courts. Just because someone has access to their own money to be able to get private counsel should not be the measure for someone to have greater access to the courts."

Court systems have become burdened by high volumes of cases, especially amid delays caused by the coronavirus pandemic. That coupled with fewer attorneys contributed to the ongoing backlog.

Attorneys and legal activists agree the pay increase is a step in the right direction until the Legislature takes further action.

A bill to increase the pay rate for assigned counsel to $150 started to advance in the Senate and Assembly at the end of session, but died in committee in both chambers.

This week's Supreme Court decision mandated a one-time increase to $158 per hour.

Lawmakers could push to pass legislation next session to legislate future pay increases for assigned counsel and avoid other litigation.

EDITOR'S NOTE: This story has been changed to reflect the plaintiffs in the lawsuit.

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Preliminary Injunction to Increase Assigned Counsel Compensation

A Result of New York County Lawyers Association Led Lawsuit

New Payrate is Retroactive to February 2, 2022

July 26, 2022, New York, New York – New York County Lawyers Association today announced the successful result of their 2020 lawsuit . On July 25, Supreme Court Justice Lisa Headley issued a preliminary injunction requiring the State of New York and the City of New York to pay 18B assigned counsel for children and the indigent in criminal and family court cases in New York at the federal CJA rate of $158 per hour, retroactive to February 2, 2022, and to revisit and consider an increase at the same rate and at the same time that federal assigned counsel receive an increase in compensation. 18B counsel are known by that term as a result of the legislative section that provides for them to be retained and paid.

The court decreed increase to $158 per hour for 18B lawyers is a dramatic and welcome increase from the current rates for 18B lawyers of $75 per hour in felony cases and $60 for misdemeanors, and Attorneys for Children (AFC) rates of $75 per hour. This increase brings compensation for state 18B lawyers in line with the compensation received by federal assigned counsel. Based in part on the precedent NYCLA set 20 years ago, the court today granted the preliminary injunction as “equitable . . . plaintiffs established a likelihood of success on the merits, that severe and irreparable harm to children and indigent adult litigants would occur without an injunction, and a balance of the equities favor in granting the injunction . . . plaintiffs have demonstrated that the quality of legal representation for children and indigent adults, as well as their due process rights would continue to decline without a preliminary injunction.”

NYCLA applauds this just result and we extend our thanks to pro bono counsel Michael Dell of Kramer Levin who was pivotal in achieving it.

The New York County Lawyers Association is one of the largest and oldest bar associations in New York. Along with several other bar associations and the Association of 18B Attorneys, NYCLA brought suit in 2020 seeking to force New York to honor its constitutional obligation to pay 18B counsel rates sufficient to attract qualified counsel and to enable them to fulfill the mandate in the constitution to provide assigned counsel for the indigent in criminal and family court cases.

“ Nearly 20 years ago, NYCLA also brought suit to force an increase in compensation for 18B lawyers . Its successful lawsuit 20 years ago resulted in the last raise that 18B lawyers have received. As inflation has eroded the compensation of 18B lawyers, New York’s insufficient resources for 18B indigent defense have become increasing violative of the Constitution. Justice Headley’s decision is a wonderful victory for children and indigent adults in New York City ” said Vincent T. Chang, NYCLA President.

The New York County Lawyers Association ( www.nycla.org ) was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion or gender. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence. For more information on NYCLA please visit nycla.org.

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Court-assigned counsel sues NYC, state for first rate increase in nearly two decades

Published: May. 17, 2022, 7:00 a.m.

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STATEN ISLAND, N.Y. – Assigned counsel attorneys are suing the state of New York -- after not receiving a raise in nearly two decades -- for a rate increase that would put them on par with federal attorneys.

The assigned counsel attorneys, like Tottenville resident Harry Chiu, an assigned counsel panel attorney in Richmond County Family Court, represent children and low-income families in New York state in cases dealing with child neglect, domestic violence and criminal cases.

These attorneys haven’t received a rate increase since 2004, which was also the result of a lawsuit, when their pay was bumped to $75 an hour for family court and felonies, and $60 an hour for misdemeanor cases. Before 2004, the rate was $40 per hour.

“Who has a job that they have to sue for [a raise]?” Chiu said.

Since the attorneys are unaffiliated with organizations, such as the Legal Aid Society, they must pay out of pocket for office space, supplies, health insurance and other day-to-day costs.

Chiu said he doesn’t think the request for a raise is unreasonable; the assigned counsel attorneys are asking for $158 an hour -- the rate for federal defenders -- and a periodic cost of living adjustment.

Chiu said at any given time his caseload consists of anywhere between 120 to 150 active cases.

The lack of a rate increase has caused a shortage of assigned counsel attorneys, making caseloads for those who remain even bigger. “It becomes challenging to give everyone the amount of time they deserve,” he said.

“They not only deserve [our time] but they have a right to it, it’s in the state Constitution that they have a right to representation,” he continued.

RATE INCREASE REMOVED FROM STATE BUDGET

Any rate increase would need to be approved by the state Legislature and signed into law by Gov. Kathy Hochul.

The Assembly and Senate approved an increase for Family Court and 18-B attorneys -- those assigned to criminal cases -- to $150 per hour and $120 an hour for criminal cases. The money for the raises was included in the Assembly and Senate budgets.

However, when the state’s budget was finalized, money for the raises was not included.

Anjali Bhat, a lawyer for the state, at a hearing last month, said Hochul “does not oppose doubling the rates.”

Hazel Crampton-Hayes, spokeswoman for Hochul, told the New York Times that the governor is supportive of a “fair rate” and is “working to reach a solution to ensure indigent parties have effective assistance of counsel.”

Hochul’s office didn’t immediately return a request for comment.

LOW PAY CREATES INADEQUATE LEGAL REPRESENTATION, LAWSUIT SAYS

Ten bar associations -- including the Richmond County Bar Association -- are suing the State of New York, the City of New York, the City Department of Finance and Sherif Soliman, in his official capacity as Commissioner of the Department of Finance.

The lawsuit says, “The State and City of New York have not met their obligation to ensure such representation because they have failed to increase the compensation for such counsel for more than 17 years.”

It goes on to say the lack of a rate increase “created a severe and unacceptably high risk that children and indigent adults were receiving inadequate legal representation in New York City in violation of the New York and United States Constitutions.”

And the number of assigned lawyers willing to take on cases in the assigned counsel program has continued to drop because of the low rate of pay. In turn, the number of cases already existing assigned attorneys are taking on has continued to rise to meet the demand.

Chiu told the Advance/SILive.com the Richmond County Bar, and all of the other associations named in the lawsuit, have been very supportive.

“They recognize the need for the indigent and for the children to have proper representation in family court and criminal court. I think it’s a fairly universal issue; it’s a guaranteed right in the constitution so it’s hard not to support it,” Chiu said, adding that other bar associations are supportive even though they are not impacted by the rate increase lawsuit.

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COMMENTS

Assigned Counsel Compensation in New York
Inasmuch as the current assigned counsel rates do not even meet law practice overhead costs in many areas of the State, it is no surprise that attorneys are
New York State Bar Association Commences Lawsuit To Raise 18-B
Pay has remained at $60 per hour for misdemeanors and $75 for felonies since 2004. By comparison, assigned counsel rates in the federal courts
Assigned counsel scores pay increase
The order requires assigned counsel attorneys be paid an hourly rate of $158, up nearly $100 from the rate they have been paid for nearly
Proposed NY Budget to Cover Pay Raises for Limited Segment of
The governor's budget seeks to increase assigned counsel rates to $158 an hour in downstate localities, and to $119 an hour upstate. February 10
Appointed counsel raises to help indigent defense services
Manhattan Supreme Court Justice Lisa Headley's decision and order directed New York state and New York City to pay assigned counsel a rate of
NY State Senate Bill S3527B
Provides the amount of compensation an attorney shall receive from representing a client which was assigned to the attorney through the bar association;
NY State Senate Bill S6004A
... a client which was assigned to the attorney through the bar association. ... to set the hourly compensation rate for assigned counsel in the state.
Assigned Counsel Rate
During the 2021-2022 session, the New York State Legislature considered S.3527 / A.6013, legislation to increase the hourly compensation rate for assigned
Preliminary Injunction to Increase Assigned Counsel Compensation
The court decreed increase to $158 per hour for 18B lawyers is a dramatic and welcome increase from the current rates for 18B lawyers of $75 per hour in felony
Court-assigned counsel sues NYC, state for first rate increase in
The Assembly and Senate approved an increase for Family Court and 18-B attorneys -- those assigned to criminal cases -- to $150 per hour and