‘Partial win, partial loss’: Assigned counsel get pay raise but say more is needed
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Assigned counsel attorneys rally outside of Governor Kathy Hochul’s Manhattan office in April 2022. The state’s budget includes a pay raise for the attorneys, who have had stagnant wages for nearly two decades. Eagle file photo by Jacob Kaye
By Jacob Kaye
For the first time in decades, attorneys who represent indigent clients and children on the state’s dime have been given a pay raise.
Included in Governor Kathy Hochul’s massive $229 billion budget, which was passed this week over a month after it was due, was pay raises for assigned counsel, otherwise known as 18-B attorneys, who have gone without a boost in their hourly rate for two decades.
The attorneys, most of whom also work as private attorneys, represent low-income clients and children and are paid by the state or the municipality in which they practice.
The pay raise, which matches what federal assigned counsel attorneys get paid hourly, comes after several lawsuits have been filed against the state, alleging that it has violated the constitutional rights of indigent defendants and children by failing to increase the pay of the attorneys, who have faced high attrition rates and mounting case loads in recent years.
“For the first time in two decades, we're giving a pay increase to assigned attorneys, who represent individuals unable to afford their own counsel,” Hochul said last week when announcing that a conceptual agreement had been reached on the tardy budget.
Though 18-B attorneys and others who have been advocating for the pay bump celebrated the raises’ inclusion in the budget this week, they also expressed disappointment over what has been left out of the budget – chiefly, a cost-of-living yearly increase and a provision that requires the state to pay the attorneys’ rate, as opposed to their local municipality.
“The overall package is a partial win and a partial loss,” Lesley Lanoix, of the Assigned Counsel Association of Queens County, told the Eagle on Thursday. “My concern is that without the cost of living increase, then in a few years we'll find ourselves in the same position.”
The budget stipulates that 18-B attorneys working within New York City, Long Island, Westchester County, Rockland County, Putnam County, Orange County, Dutchess County, Ulster County and Sullivan County will receive 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 will receive a pay bump up to $119 per hour.
The budget also includes an increase to the cap attorneys cannot exceed on any one case. Previously, the cap was around $4,000. It has now been increased to $10,000.
Though the cap has increased commensurate with the hourly rate increase, Lanoix said that he believes it should be eliminated altogether, noting that caps can sometimes put attorneys and clients in a precarious position.
“I don't think there should be a cap,” he said. “Every case is different and so it's not fair to the attorneys who reach that cap to then have to stop doing what they’re doing because they’re afraid that they are not going to get paid.”
“It's burdensome, and it puts our clients in jeopardy, in terms of the representation that they're receiving,” Lanoix added.
For the past several years, 18-B panels have seen a reduction in their ranks. Some attorneys have left because the pay wasn’t enough.
Queens’ 18-B panel currently has around 100 lawyers. Several years ago, there were around 120, according to Lanoix.
“The numbers have decreased, not only because of the pandemic, but because of the low wages,” he said. “So many attorneys have left over the years because they just couldn't survive off of $75 an hour.”
The attorneys who remained on the panel have seen their caseloads increase to what they say is an untenable volume. On average, Lanoix said that Queens 18-B attorneys are typically representing 100 clients at a time.
“We're human beings – this is our livelihood,” Lanoix said. “We're not trying to get rich off of the work that we're doing, we're just trying to do good for the community.”
“But at the same time, we just want to be able to support our families without worry that we're not going to be compensated for the work that we do,” he added.
The last time 18-B attorneys in New York received a permanent pay increase was in 2004, and came as a result of a lawsuit.
Nearly two decades later, in 2021, a number of bar associations filed a lawsuit against the state, alleging that the stagnant wages had affected the state’s ability to provide counsel to indigent and children clients.
In July 2022, New York County Supreme Court Judge Lisa Headly granted a preliminary injunction in that lawsuit, ordering that assigned counsel attorneys be paid an hourly rate of $158, the rate outlined in the recently passed budget. Headly’s preliminary injunction issued in the case, which is ongoing, only applied to 18-B attorneys working within the five boroughs.
Last year, Hochul cited the lawsuit as a reason not to include the pay increase in the budget.
“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 2022. of the previous lawsuit. “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.”
Additionally, two other related lawsuits were filed in 2022. Making similar arguments, one of the suits was brought by the New York Civil Liberties Union and the other by the New York State Bar Association. Both cases are ongoing.
All three cases also call for a cost-of-living yearly pay increase mechanism, which federal 18-B attorneys receive.
Sherry Levin Wallach, the president of the New York State Bar Association, said that she was appreciative of the increase but that she had concerns about the “unfunded mandate.”
“The New York State Bar Association’s policy calls for having the cost for this critical service fully funded by the state and not as an unfunded mandate shouldered by local communities,” Levin Wallach said. “This is not currently the case. It is also disappointing that the budget lacks a cost-of-living increase for assigned counsel attorneys, which raises the threat that we will again be back where we started in short order.”
Levin Wallach further called on the legislature and governor to “work together to establish a stable, sustainable and recurring source of funding to benefit all the needy individuals who require the services of court-appointed attorneys.”
“Ensuring that every New Yorker can realize their constitutional right to fair and quality representation is incumbent on all of us,” she added. “Failure to do so is an injustice that can no longer stand.”
Lucian Chalfen, a spokesperson for the Office of Court Administration, which has previously voiced its support for a pay increase, said that court leadership is “gratified that the legislature and governor have agreed to a long-overdue raise in compensation for 18-B attorneys and Attorneys for the Child,” but added that either a cost-of-living pay increase guarantee or other promise of future raises should be worked into the law.
“We hope that this signals a commitment going forward to periodically adjusting such compensation so as to ensure that there is consistently an adequate pool of attorneys willing to represent indigent criminal defendants and children and others in Family Court,” Chalfen said in a statement to the Eagle.
Lanoix said that he hopes the pay increase will boost 18-B panels’ numbers throughout the state, and that the litigation is ruled in their favor and serves to draw more attorneys to the panels, as well.
He and his fellow assigned counsel attorneys are actively recruiting to bring more lawyers aboard the panel.
“We love the work that we do and we just want to make sure that the panel survives,” he said.
“It's good work we do,” Lanoix added. “We’re affecting a lot of lives.”
