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State Bar Association sues NY State over right-to-attorneys

December 1, 2022 Rob Abruzzese
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It is becoming harder and harder for New Yorkers with the right-to-counsel to actually get that right and the New York State Bar Association is hoping to help.

The State Bar Association (NYSBA) has filed a lawsuit against New York State (the State) because it claims the State has deprived its citizens of their constitutional right to meaningful and effective representation in criminal and family courts.

The issue, according to the lawsuit, is over the pay for assigned counsel. These lawyers, who are referred to as 18B attorneys, have not gotten a raise in 18 years and as a result there are fewer attorneys to handle these types of cases. The last raise prior to 2004 was in 1986.

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“The NYSBA has long supported sufficient pay for assigned counsel,” said Sherry Levin Wallach, president of the association. “Failing to provide adequate compensation for representation to 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.”

Since 2004, attorneys have been making $75 per hour for family court and felony cases, and $60 an hour for misdemeanor cases. Last May, ten bar associations across the State, including the Brooklyn Bar Association, joined together in a lawsuit against New York State over the raises.

In July, 18B attorneys in New York City got some relief when Manhattan Judge Lisa Headley granted an interim preliminary injunction for 18B attorneys to be paid $158 per hour retroactive from February 2. The increase brings 18B attorneys in line with their federal counterparts, who also receive $158 an hour.

In the lawsuit by the NYSBA, attorneys make the same argument for raises that they made in 2004, but point out that the Legislature was required to, but did not follow the court’s instructions that “recurrent visitation” of the rates of compensation were revisited.

“During the eighteen years that assigned counsel rates for state court proceedings have been frozen outside the City, the rate paid to assigned counsel in federal court proceedings, which this Court considered in NYCLA I in determining whether the rates for assigned counsel in state court proceedings were adequate, has been increased fourteen times and is now $158 per hour, more than twice the highest, $75 per hour rates paid to assigned counsel in state court proceedings in the Counties,” read a passage from the NYSBA’s lawsuit.

The lawsuit explains that because of inadequate funding and excessive caseloads, the quality of legal representation has been compromised and that even the most qualified lawyers struggle to properly represent their clients under these conditions.

“The state’s cavalier treatment of this issue and its constitutional obligation to children and indigent adults is unconscionable,” Michael J. Dell, a partner at Kramer Levin Naftalis & Frankel who is representing the New York State Bar Association, said.

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