Assigned counsel suits continue as wages remain stagnant
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For the third time in two years, the state and Governor Kathy Hochul have been named in a suit alleging the state has failed to meet its public defense obligation as a result of stagnant wages for 18-B attorneys.
Eagle file photo by Jacob Kaye
By Jacob Kaye
For the third time in two years, New York State and its governor are being sued over the stagnant wages of assigned counsel attorneys, who claim their low wages have resulted in a constitutional violation of low-income New Yorkers’ right to a defense in court.
On Thursday, the New York Civil Liberties Union filed a lawsuit against Governor Kathy Hochul and New York State, alleging that the state was failing to meet its public defense obligations mandated by a settlement reached nearly a decade ago in a similar case. The suit applies to attorneys working in Ontario, Onondaga, Schuyler, Suffolk and Washington Counties.
Assigned counsel attorneys, otherwise known as 18-B attorneys, are typically private lawyers who voluntarily enter into the 18-B program, where they represent low-income New Yorkers and children in court. Paid by the hour, the attorneys haven’t seen a codified pay increase in nearly two decades.
“Public defense opens the door for New Yorkers to have their fair day in court,” said Donna Lieberman, the executive director of the New York Civil Liberties Union. “If the state doesn’t adequately fund public defense, New York will fall deeper into the trap of a court system that only works for the wealthy.”
The lawsuit comes on the heels of two separate lawsuits filed against Hochul in the past two years. One, brought by the Assigned Counsel Association of the State of New York, has briefly resulted in a wage increase for 18-B attorneys working within the five boroughs – the litigation is ongoing. The second, brought by the New York State Bar Association, applies to attorneys operating outside of New York City and has yet to be ruled on. It was filed at the end of November.
In the leadup to the passage of the state’s budget in the spring of this year, Hochul floated the idea of including a pay increase for the attorneys in the fiscal plan. However, the item was eventually slashed. At the time, Hochul said that due to the lawsuit, the pay increase would have to be worked out in court, as opposed to by the state legislature.
Leiberman rejected that argument this week.
“State lawmakers must use the upcoming budget negotiations to ensure no one’s life or liberty is compromised simply because they can’t afford to hire a lawyer,” Lieberman said.
A spokesperson for Hochul declined to comment on the pending suit.
The lawsuit, which was filed in Albany, builds on Hurrell-Harring v the State of New York, a class action lawsuit that the state settled in 2014.
As part of the settlement agreement, the state agreed to improve several aspects of indigent defense. It agreed 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.
“Equal criminal justice for poor people is a constitutional right that the Hurrell-Harring Settlement Order guaranteed 8 years ago,” said Kristie Blase, a partner with Felicello Law P.C., one of the firms that brought the suit.
“The State has failed to meet its obligations by not properly funding assigned counsel programs and attorneys, making our State’s criminal justice system no longer fair or even handed,” Blase added. “Today, we bring suit to force the State to comply with its obligations under the Hurrell-Harring Settlement Order and increase the hourly rates and caps for assigned counsel immediately.”
Assigned counsel operating outside of New York City get paid between $60 and $75 per hour, depending on the severity of the charges against their client. The rate was last changed in 2004, as a result of a different lawsuit. At the time, attorneys had similarly gone around two decades without a pay increase.
The rate of pay stands in stark contrast to the pay given to federal assigned counsel attorneys, who are paid nearly $160 per hour and, more importantly, have incremental pay raises built into their rate.
Throughout the state, 18-B attorneys have said that the stagnant wages have resulted in a decline in membership on 18-B panels.
As attorneys depart for more lucrative jobs, the caseloads of remaining attorneys have ballooned. As an example, some assigned counsel in Queens have been juggling nearly 150 cases for several years. Those who can stomach the stagnant wages either stop taking on new clients or leave the panel entirely, attorneys say.
Ultimately, the pay has resulted in low-income New Yorkers struggling to obtain adequate representation in court, the lawsuits allege.
“This lawsuit seeks to hold the State accountable for its persistent and unjustified failure to raise assigned counsel rates,” said Hannah Thibideau, special counsel with Schulte Roth & Zabel, one of the other firms behind the suit. “This has led to attorneys leaving assigned counsel programs in droves and to a significant deterioration in the ability of those attorneys who remain to properly represent their clients.”
In July, New York County Supreme Court Judge Lisa Headly granted a preliminary injunction in the lawsuit brought by the Assigned Counsel Association of the State of New York, ordering that assigned counsel attorneys be paid an hourly rate of $158, on par with the pay rate of federal assigned counsel. The ruling only applied to attorneys working in the five boroughs.
The NYSBA’s suit, filed at the end of November, built off the Assigned Counsel Association’s suit, making similar claims and arguments for the state to give a pay raise to attorneys operating outside of the city.
“We hoped that the state would simply apply this throughout the state and it wouldn't be necessary to bring another lawsuit,” Michael J. Dell, a partner at Kramer Levin Naftalis & Frankel who is representing the NYSBA in the case, told the Eagle in November. “It shouldn't be necessary to be bringing lawsuits all the time over this kind of issue.”
Hochul has mostly refrained from committing to giving the attorneys a pay increase. In April, as budget negotiations came to a close, she said that while she agrees with the need for a pay increase, she believes it will have to come from the courts and not the legislature.
“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. “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.”
