‘Already hard to recruit again’: Over a year after rare pay increase, assigned counsel say more is needed

Assigned counsel panels in Family Courts across the state continue to see high caseloads a year after attorney pay was increased by the state. Eagle file photo by Walter Karling

By Noah Powelson

A year after getting their first pay raise in decades, attorneys who represent indigent clients and children in the state’s Family Courts say they are still a long way from refilling their ranks, cutting back on their caseloads and being fully equipped to provide the best representation possible to those who need it.

For years, assigned counsel panels, also known as 18-B panels, saw their numbers dwindle, leaving fewer and fewer attorneys to take on cases in the state’s Family Courts. But assigned counsel attorneys told the Eagle recently that despite getting a pay increase from the state last year – the first in around two decades – attrition rates remain high.

The pay increase, which came after several lawsuits were filed against the state claiming New York had failed to offer constitutionally mandated legal representation to children and indigent clients, hasn’t been a complete failure, attorneys say. However, the pay boost has not been enough thus far to bring in the required number of attorneys to fully serve New Yorkers in need.

Assigned counsel attorneys represent low-income clients and children and are paid by the state or the municipality in which they practice. Unlike other federal and state-employed attorneys, 18-B attorneys do not have a pay structure that increases wages over time.

New York State was sued by multiple entities in 2022 and 2023, including the New York City Liberties Union and the Assigned Council Committee of New York, who argued that inadequate pay rates violated the constitutional rights of vulnerable populations by compromising the quality of their legal representation.

18-B panels were suffering, the lawsuits argued, because a lack of reliable payment structure discouraged new panel applicants, resulting in attorney shortages and long delays for indigent and children clients’ cases.

The ACA was joined in these suits by nine bar associations across New York, including the New York State Bar Association.

The lawsuits and ongoing pressure from the state’s legal community eventually led to a pay increase for 18-B attorneys, which came in Governor Kathy Hochul’s 2024-2025 state budget. The pay increase put the wages of New York’s 18-B attorneys on par with what federal assigned counsel attorneys made at the time – $158 per hour.

However, a little more than a year later, 18-B attorneys said the same self-perpetuating cycle of high caseloads and attorney shortages has continued – and that their wages are again quickly falling behind those on the federal payroll.

"I think there is a slight increase in the number of people applying for the panel, but not anywhere significant enough to fill the needs,” Brian Zimmerman, president of the ACANYS, told the Eagle. “Caseloads are extremely high.”

Zimmerman said that the pay increase helped entice some attorneys to join 18-B panels, but that it hasn’t been enough to make any major dent in the problem that was decades in the making.

18-B attorneys across the state continue to juggle over 100 different cases on their docket. Zimmerman also said that any new attorney joining a panel provides only a temporary solution.

Just as some panels began receiving more applicants last year, just as many lost attorneys as older 18-B attorneys retired, adding to the already dire staffing problems some panels have. The retiring attorneys would then pass on their caseloads to the new attorneys, who in turn would become overwhelmed with cases and step down from the panel.

According to Zimmerman, to incentivize attorneys to sign up for a dysfunctional system that assigns massive caseloads, Albany needs to institute a payment structure that allows 18-B attorneys to give their full attention to their cases.

The high cost of living in the state, especially in New York City, only encourages 18-B attorneys to devote less time to their cases in favor of taking other legal work that’s more financially lucrative.

"A lawyer has to be able to do everything they can to represent their client and not have this artificial disincentive that might prevent an attorney from working effectively,” Zimmerman said.

Along with the fact that federal assigned counsel attorneys pay increased to $178 an hour this year, $20 more than what New York 18-B attorneys currently make, Zimmerman said New York’s track record for failing to keep 18-B attorney pay in line with the federal standard continuous to dissuade attorneys from signing up for a panel.

"Why would you sign up for something that you don't know you are going to get an increase for another 18 years?” Zimmerman said.

Assigned counsel panels in Queens have seen many of the same issues seen throughout New York.

Lesley Lanoix, an assigned counsel attorney and president for the 18-B panel in Queens, said that while they’ve been able to recruit a number of new attorneys in recent months, caseloads remain overwhelming.

Before the pandemic, Lanoix said that the panel had five attorneys available to work in the court five days a week. Now, they only have four.

Lanoix said the boost to pay and new hires has helped to improve morale and has given attorneys some breathing room, but that still comes with an ever-tense balancing act. Attorneys still face over 100 cases at a time, and it has become increasingly difficult to manage the needs of their clients while also taking care of themselves, he said.

While some attorneys have had to take on other legal work to make ends meet, most find that with their 18-B caseloads so high, it’s hard to make panel work anything less than a full-time commitment.

Despite the hardships, Lanoix said the people who work on 18-B panels do it because they love the work.

"We're grateful for the work, we're grateful for the type of work we do," Lanoix said. "We're blessed to do this work, to help families and keep families together. It helps me appreciate my own family."

The ACA has not withdrawn their lawsuit against New York state, and said they are still fighting for a pay structure with a cost-of-living statute, and to change state law that caps the amount of money 18-B attorneys can make per case.

The NYCLU settled their suit against the state after the pay increase was implemented. The organization said that it believed caseloads had reduced for attorneys working in the five counties included in their lawsuit.

“It was our position that the state was in compliance with the caseload standards of the…settlement for those 5 settlement counties,” a spokesperson for the NYCLU told the Eagle.

The NYCLU also said that of the five counties they monitored from October to March of 2023, assigned counsel panel numbers increased, though they did not say by how much.

A spokesperson for the New York Unified Court System told the Eagle they were unable to provide data showing how 18-B panels in Family Courts have changed in the past year.

Al Baker, a spokesperson for the court system, said that the UCS’s “commitment to effectively serve this population of indigent individuals has been unwavering even as needs increased.”

“The UCS will continue to collaborate with the city, who is primarily fiscally responsible for the administration of the program, in support of common goals such as robust recruitment, the reallocation of resources when possible, and further case-management innovations,” Baker said. “The attorneys who work in the Assigned Counsel Plan are crucial to its success, and we thank Governor Hochul and the State Legislature for working to enact an increase to their compensation rate that will help retain and recruit these attorneys, propelling forward our shared priority of continuously improving the justice system.”

“We pledge to keep working with our government partners to reinvigorate the ranks of 18-B attorneys that atrophied in recent years due in large part to the longtime stagnation of the $75-per-hour 18-B pay rate and the underfunding of institutional legal aid providers, which are the training ground and pipeline for the 18-B panels, and which are increasingly unable to attract and retain attorneys because of a lack of pay parity with governmental employers,” he added.

Phillip Katz, an assigned counsel attorney and vice president of the ACANYS, said that in order to truly address the issues seen on 18-B panels, the state needs to implement a cost-of-living increase. With federal assigned counsel again making more than New York 18-B attorneys, Katz said “it’s already hard to recruit again.”

"To make this a long-term viable system, Albany has to give full, thorough support, and that's not just a pay increase every twenty years,” Katz said. “We still have a crisis situation.”

"It's some of the most important work in the state,” Katz added. “[These clients] are the foundation of our society. And if we can't support them, the foundation begins to crack."