Assigned counsel scores pay increase – for now

Assigned counsel attorneys rally in front of the governor’s Manhattan Office for a pay increase in April. On Monday, a judge granted the attorneys a preliminary injunction, allowing for a pay increase to kick in for the first time in nearly two decades. Eagle file photo by Jacob Kaye

By Jacob Kaye

Attorneys representing indigent clients and children in Family and Criminal Court cases in New York were handed a significant – albeit temporary – victory in their fight for better pay last week.

New York County Supreme Court Judge Lisa Headly granted a preliminary injunction in a lawsuit brought against New York City, State and the city’s Department of Finance by a number of attorney associations, including a handful from Queens this week. The order requires assigned counsel attorneys be paid an hourly rate of $158, up nearly $100 from the rate they have been paid for nearly two decades without an increase.

“The plaintiffs have demonstrated that the quality of legal representation for children and indigent adults, as well as their due process rights would continue to decline without a preliminary injunction,” Headly wrote in her decision. “The plaintiffs have demonstrated that such harm is neither remote nor speculative, as it is certain that a decrease in the number of assigned counsel leads to an already overburdened assigned attorney having to assume an increased workload.”

“This Court also finds that a balance of the equities weighs in favor of granting injunctive relief because if such injunctive relief was not issued by this Court, the constitutional rights of children litigants and indigent adults would be violated,” she added.

The lawsuit was first brought last July by the Assigned Counsel Association of the State of New York. It alleged that state and city officials had violated both the New York State and federal constitutions by failing to provide representation to indigent litigants in criminal and family proceedings as a result of not increasing the attorneys’ wages.

The ACA was joined in the suit by the Queens County Bar Association, the Macon B. Allen Black Bar Association, the Latino Lawyers Association of Queens County, the New York County Lawyers Association, the Bronx County Bar Association, the Richmond County Bar Association, the Brooklyn Bar Association, the Metropolitan Black Bar Association and the Asian American Bar Association of New York.

The suit is asking that the assigned attorneys be paid at the same rate of federal assigned counsel attorneys, who make $158 per hour.

The attorney groups argued that the lack of a pay increase – which, at $75 per hour, was last raised in 2004 following a lengthy court case – sets off a chain of events that leads to indigent clients not receiving their constitutionally guaranteed right to legal representation.

To start, the pay rate dissuades attorneys from joining 18-B panels and makes it difficult for 18-B attorneys to stay on the panel for extended periods of time. That means more work for those attorneys who remain on the panel.

In the years immediately following the previous pay increase, Queens’ Family Court assigned counsel panel had anywhere from 100 to 150 attorneys on it. Over the past several years, that number has dropped somewhere between 60 and 90 attorneys, according to lawyers currently on the panel.

According to Sarah Tirgary, the president of the Assigned Counsel Association of New York State and an 18-B panel member for Queens Family Court, it is recommended that assigned counsel attorneys only have 70 cases on their docket at any given point. However, without an adequate number of attorneys serving on the panels, attorneys often have upward of 150 cases at any given time. With such a large caseload, assigned attorneys are unable to dedicate as much time to each case as may be necessary, Tigary said.

She said news of the preliminary injunction, which the attorneys filed for in February, was a welcomed shock.

“I'm so very, very happy, not just for my own future, but for the future of assigned counsel panels and the quality of indigent defense in New York State,” Tigary told the Eagle. “It means that we will attract new talent to the panel and our caseload will ultimately decrease so that we can invest more time in each individual case.”

City attorneys said that while a pay rate increase for the attorneys is warranted, they argued that the funds are both not available and shouldn’t necessarily be paid by the city.

“Public defenders play a critical role in making the city more just for vulnerable communities, which is why the Adams administration made an unprecedented $60 million baselined commitment to legal and human services providers in the FY23 budget,” Nicholas Paolucci, a spokesperson for the city’s Law Department, told the Eagle in a statement. “However, we continue to maintain that the role of setting public defender pay rates should reside with the state, not the city.”

“We are evaluating our options,” Paolucci added.

Attorneys for the state argued that the pay rate is a budgetary issue to be dealt with by the State Legislature.

However, in April, following the passage of the state budget – which did not include the pay rate increase – Governor Kathy Hochul told reporters that the pay rate was not a budgetary issue because of the pending litigation.

“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.

“I support fair wages for them,” she added. “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.”

The current fight for a pay rate increase mirrors that of the fight that began in 2002 and which led to the most recent increase, which came in 2004. Assigned counsel groups took the state and city to court, and was ultimately granted a pay rate increase.

But where this fight differs from the last is an opportunity for pay rates to increase over time, without the need for a legal battle every 20 years, according to Tigary.

Headly’s preliminary injunction ties the 18-B attorneys’ pay rate to federal assigned counsels’ pay rate, which has a cost of living assessment attached to. Should Headly’s final decision in the case align with the preliminary ruling, 18-B attorneys would have their pay rates periodically assessed to factor in the cost of living, increasing overtime, rather than all at once after decades without.

Less than 24 hours after the preliminary injunction was issued, the city and state had yet to implement the change into their payment system, according to Sandra Muñoz, the former president of the Latino Lawyers Association and a Queens Family Court 18-B panelist.

“The increase is not reflected yet and that's going to take some time,” Muñoz. “We're waiting for guidance on that.”

But waiting for an increase to kick in hasn’t stopped the attorneys in the past, Muñoz said.

For many, like Muñoz, working with indigent clients offers attorneys an opportunity to serve the communities where they came from.

“It's all about being attainable to the population that can’t afford attorneys – it's meaningful work,” she said.

“I could work in a law firm, making maybe triple what I'm making – not effortlessly, because I know how hard those people work – but it's not rewarding, really,” she added. “This is rewarding.”

Should the pay rate increase be made permanent, it could mean that attorneys that left panels because of the pay, return.

After 16 years of serving on Queens’ Family Court 18-B panel, Frank Bruno, the past president of the Queens County Bar Association and a Family Court attorney, stopped taking on new cases in 2020.

He told the Eagle on Tuesday that the biggest motivating factor was the pay.

“There came a point where all my expenses were going up, but the pay was stagnant for 15 years,” Bruno said. “It was purely an economic decision – I had to take on other work in other practice areas that were more lucrative.”

Though 18-B attorneys are expected only to work part-time on assigned counsel cases, the work can quickly become all-encompassing, Bruno said.

After his first few months on the panel, he had already amassed a nearly 100 case caseload that made it difficult to take on private practice cases, he said.

“There's the stated position and then there's the truth of it,” he said. “Yeah, I could take other work, but 100 cases often means that you're always obligated in some fashion to a case.”

Following the news of the preliminary injunction, Bruno said he had already spoken with one colleague about returning to the panel.

“I think it is a consideration,” Bruno said. “It really is a calling – and they were paying you like it was a calling.”