State settles in assigned counsel case

NY State agrees to extension of assigned counsel settlement 

October 25, 2023 Jacob Kaye
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The state last week reached an agreement to settle one of several lawsuits brought against it in recent years alleging that it had failed to meet its constitutional obligation to provide attorneys to low-income New Yorkers. 

New York State and the New York Civil Liberties Union recently agreed to a settlement in the case brought by the NYCLU that alleged that the state had not been meeting its requirements under Hurrell-Harring v. the State of New York, the settlement that first defined that the state has a constitutional requirement to provide legal representation for indigent defendants.

The settlement agreement reached in court last week comes not long before the settlement period in Hurrell-Harring was set to expire. 

Under the new agreement, the monitoring period under the previous settlement agreement will be extended by six months, coming to an end in March of next year instead of last month, when it was originally set to expire. 

News for those who live, work and play in Brooklyn and beyond

The settlement also comes after assigned counsel attorneys across the state received pay increases through the passage of the state’s budget in May, after being denied similar raises in years past. 

According to a number of legal organizations — including the NYCLU — the stagnant wages contributed to high rates of attrition among assigned counsel panels, leading to higher caseloads for those attorneys who remained, and which, in turn, led to inadequate representation for low-income New Yorkers in need of an attorney. 

“The state has always — and continues to have — a constitutional responsibility to provide high-quality representation and must continue giving public defenders across the state, including assigned counsel providers that provide mandated representation, the support they need to help their clients navigate the legal system,” said JP Perry, an NYCLU staff attorney. 

“We are encouraged by the state’s commitment this year to adequately fund the assigned counsel program so that those attorneys can provide adequate public defense without suffering under very high caseloads, but that commitment to funding must continue,” Perry added. “We are going to be using the next six months to closely monitor whether the five counties are satisfying their constitutional obligations to provide mandated representation.”

The NYCLU brought the lawsuit against the state in September, alleging that indigent residents of Ontario, Onondaga, Schuyler, Suffolk and Washington counties — the counties included in the Hurrell-Harring settlement — were not receiving adequate legal defense. The suit was separate from but made similar allegations as two other suits brought against the state by the New York State Bar Association and the Assigned Counsel Association of the State of New York respectively. 

At the time of the suits, assigned counsel or 18-B attorneys, named after the 18-B panels they volunteer to sit on, had not seen a codified pay raise in around two decades. 

In the 2014 Hurrell-Harring settlement, the state agreed to improve several aspects of indigent defense. Among them was an agreement to set and adhere to a standard for caseloads, and was ordered to “include in an Executive budget appropriations bill…sufficient appropriation authority for such funds that…are necessary to accomplish” providing an adequate system of public defense to New Yorkers.

Though the settlement initially applied only to the five counties named in the current suit, it was later expanded to apply to the entire state.  

But the NYCLU in its lawsuit said the stipulations of the settlement weren’t being met, in large part because the state had failed to increase the pay of assigned counsel attorneys in the past 20 years. 

What had resulted, the attorneys alleged, was a self-perpetuating cycle — attorneys’ caseloads pile up, they stop taking on new cases, then they resign from their respective assigned counsel  panel, remaining attorneys pick up their colleagues’ caseloads and then resign themselves. 

In some cases during the past several years, attorneys had twice as many cases on their docket than they should as mandated by the settlement. 

But progress has been made over the past several months, according to Perry. 

Included in Governor Kathy Hochul’s massive $229 billion budget was pay raises for assigned counsel.

The budget stipulates that assigned counsel attorneys working within New York City, Long Island, Westchester County, Rockland County, Putnam County, Orange County, Dutchess County, Ulster County and Sullivan County received a pay increase from a rate of $60 per hour for a misdemeanor case and $75 per hour for a felony case, to $158 per hour. 

Assigned counsel working in all other New York State counties received a pay bump up to $119 per hour. 

The budget also included an increase to the limit attorneys cannot exceed on any one case. Previously, the cap was around $4,000. It has now been increased to $10,000. 

The changes worked into the budget have appeared to resolve some of the issues mentioned in the lawsuit, Perry said. 

“We started to hear that more attorneys were signing up to take on cases, that panel numbers were going back up – so, that’s a really essential thing,” Perry said. “Having more attorneys being willing to take on cases is partly what’s going to bring caseloads down. That’s a really important thing.”

“So, that’s really promising,” Perry added. 

However, most of what Perry and others at the NYCLU have heard about the effects of the budget has been anecdotal. The data has yet to be fully collected and analyzed. The NYCLU is hoping that the six-month extension agreed to in the settlement will allow them to fully and accurately assess whether or not the state is meeting its obligations under Hurrell-Harring.

“We’re hopeful that [panel numbers are increasing and caseloads are decreasing], but we need some real concrete evidence and data-based assurances that what we’re hearing is actually what’s happening,” Perry said.


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