Governor Pataki: Raise Assigned Counsel Rates Now
What would the visitor from Mars say about a society where 1) top business lawyers have billing rates well in excess of $500 per hour, 2) billing rates for normal individual work range well in excess of $200 per hour yet 3) lawyers assigned to represent indigent clients who have a right to counsel under the law are fixed by the State at $25 per hour for out-of-court time and $40 for in-court time?
The visitor from Mars would say that in that society the right to counsel is a cruel joke that exists on paper only. With respect to the State of New York, the visitor from Mars would be absolutely right.
Recently, in a typical day, a New York Family Court Judge in the Domestic Violence Part heard 60 cases. In approximately one half of those cases the parties were entitled by law to assigned counsel in such matters as order of protection proceedings. How-ever, no counsel were available for assignment. The matters were either adjourned or proceeded on a pro se basis.
When victims of domestic violence proceed pro se, mistakes happen. For example, an unrepresented woman recently consented to an order of protection against herself even though the night before her husband had doused the sleeve of her nightshirt with lighter fluid and, in front of her children, set her afire.
Judges hearing abuse and neglect proceedings face a similar void of available counsel. The result is that these cases do not go forward. The best interests of the child and the rights of the parents are left in limbo and people, particularly children, are hurt.
In criminal cases assigned counsel are needed, for example, when an institutional provider such as The Legal Aid Society has a conflict. Here the public may be hurt when there are no counsel to assign and a serious case may have to be plea-bargained away.
Why are assigned counsel so often not available? The answer is the law of supply and demand. Few lawyers or law firms are willing to work for the statutory rates, which have not been increased for 15 years. By comparison, in Arkansas assigned counsel get $90 an hour. When you consider that lawyers have to cover the cost of office overhead, the New York rates are a total disgrace.
Those lawyers who do agree to serve as assigned counsel for the most part do it because they are committed to the Rule of Law and to fair access to justice. Their commitment is heroic, but there are not enough of them.
In Albany, all concerned recognize that there is a crisis. However, because of the way the Albany system of governance "works," nothing happens. As is so often the case, the "Three Men in a Room" (the only people who really matter in Albany are the Governor, the Assembly Speaker and the Senate Majority Leader) all point the finger at one another during budget negotiations.
Last year, the Governor's people took the position that "we need to find a source of revenue" to pay for fee increases which would cost approximately $70 million under Chief Judge Kaye's proposal to increase the rate to $75 per hour.
"Finding money" is a tribal ritual in Albany. The Republican Senate majority historically "finds money" for prosecutors and the Democratic Assembly majority "finds money" for the defense. Assigned counsel carry out in part a defense function. The Senate has insisted that the Assembly find the money for fee increases by cutting something that the Senate is also willing to cut. This practice of raising money for one thing by cutting another is known in Albany-speak as creating "move money."
Further complexity arises because of the Albany tradition that once move money is created, its spending is divided up between the majorities in the two houses. The mathematical result of this tradition, given that the Senate majority will not spend its share of move money on fee increases, is that the Assembly majority must agree to a similar amount of funds the Senate wants, resulting in the need to "find" twice as much money. The Assembly was unwilling to "find" that much money.
What is to be done? With all respect, Governor Pataki needs to step up to the plate and propose in his upcoming budget that the cost of the increase should be paid from State tax revenue. Putting the money in the Governor's budget greatly simplifies the budget dynamic. The need to look for "move money" disappears.
The Governor will be making his critical budget decisions in the last week of the year. We should all pay close attention to what he does. Some may even be moved to write, fax or e-mail the Governor to tell him that you will be paying close attention. His fax number is (518) 474-1513 and his e-mail address is firstname.lastname@example.org.
If the Governor and Legislature fail to do the right thing, we as a profession must decide what to do next. It is entirely unreasonable for the State to expect lawyers to continue to provide these services under these conditions. The current fees are an intolerable injustice to the poor and to the profession and they must be changed. Strong measures, such as the recent decision by some assigned counsel to decline further family court intake are entirely justified. The crisis will only deepen if Governor Pataki fails to act.