First Department Unanimously Affirms Injunction Secured by Kramer Levin To Protect Constitutional Rights of Children and Indigent Adults

On June 13, 2023, the Appellate Division, First Department unanimously affirmed the July 25, 2022, order of Justice Lisa S. Headley granting Kramer Levin’s motion for a preliminary injunction to protect the constitutional right of children and indigent adults to the effective assistance of counsel in New York City Family and Criminal Court proceedings.

Kramer Levin represents 10 bar associations — the New York County Lawyers Association, the Bronx County Bar Association, the Brooklyn Bar Association, the Queens County Bar Association, the Richmond County Bar Association, the Assigned Counsel Association of New York State Inc., the Metropolitan Black Bar Association, the Macon B. Allen Black Bar Association, the Latino Lawyers Association of Queens County and the Asian American Bar Association of New York. Their complaint alleges that the state of New York and the city of New York are violating the constitutional right of children and indigent adults to meaningful and effective legal representation by assigned private counsel in Family and Criminal Court proceedings by failing to pay assigned counsel adequate compensation to ensure that there are enough lawyers prepared to provide this important service and that those who do provide the service have enough time for each of their clients. The bar associations’ Feb. 2, 2023, motion for a preliminary injunction — which sought an immediate rate increase for assigned counsel in the city — explained that the state and the city have not met their obligation to ensure such representation because they increased the compensation for assigned counsel only once in the prior 35 years and did so in 2003 only after the court ordered them to do so in 2002. Before the court’s July 25, 2022, order, assigned counsel received $60 per hour for work on misdemeanors and $75 per hour for other work. The failure to increase their compensation caused a crisis in the Family and Criminal Courts and in the assigned counsel system because there were not enough lawyers who were willing to perform the work at those rates, and the lawyers who continued to do so had more work than they could handle.

Justice Headley found our motion established, inter alia, that children and indigent adult litigants would suffer severe and irreparable harm if an injunction were not granted. The court’s July 25, 2022, order required the state and the city to increase the compensation of assigned counsel to $158 per hour — the rate then paid to federal CJA panel attorneys — retroactive to Feb. 2, 2022, the date we filed the motion for a preliminary injunction.

The city appealed the portion of Justice Headley’s order that granted relief retroactive to the date the motion was filed. The city argued that the increase in assigned counsel rates for services that had already been performed as of the date of the order did not cure future irreparable harm and was thus “wholly unrelated to the right to counsel that Supreme Court’s injunction was intended to protect.” After a May 24, 2023, oral argument before Justices Barbara R. Kapnick, David Friedman, Ellen Gesmer, Lizbeth González and Bahaati E. Pitt-Burke, Law360 reported that the justices appeared to disagree with the City’s position and the justices pointed out that the retroactive portion of the relief was, contrary to the city’s contention, designed to cure prospective irreparable harm and aimed at retaining existing assigned counsel, who had been underpaid and overworked for years before the July 25, 2022, order. On June 13, 2023, the First Department unanimously affirmed Justice Headley’s order, concluding that the retroactive relief “reasonably serves the purpose of [Kramer Levin’s] requested injunctive relief, which was to increase the incentives for attorneys to participate in the 18-B Assigned Counsel Plan that is necessary to adequately protect the constitutional right of indigent litigants to effective legal representation.” Law360 reported on Kramer Levin’s victory.