Kramer Levin Secures Injunction to Protect Constitutional Rights of Children and Indigent Adults

On July 25, 2022, Justice Lisa S. Headley of the Supreme Court of the State of New York for New York County granted 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 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. The bar associations’ motion for a preliminary injunction, filed on Feb. 2, 2022, explained that the State and the City have not met their obligation to ensure such representation because they have failed to increase the compensation for assigned counsel for more than 18 years. Before the Court’s July 25, 2022, Order, assigned counsel received $60 per hour for misdemeanors and $75 per hour for other work. They received only one increase in compensation in the last 35 years, and that occurred only after the Court ordered it in 2002. The failure to increase their compensation caused a crisis in the Family and Criminal Courts and in the assigned counsel system, because there are not enough lawyers who are prepared to do the work at those rates, and the lawyers who continue to do so have more work than they can handle.

Kramer Levin submitted more than 40 affidavits and affirmations in support of the motion for injunctive relief, including (i) eight from retired judges, together with the testimony of three other judges; (ii) six from experts, together with a report from a seventh; and (iii) 27 from present and former members of the assigned private counsel panels of New York City. These affirmations and plaintiffs’ other evidence detailed the devastating consequences of the assigned counsel crisis, from indigent defendants facing incarceration and lengthy delays while waiting for the disposition of their charges to children being separated from their parents for longer than they should be. The motion also showed that the constitutional violation has a disparate impact on people of color.

Justice Headley found the motion established, inter alia, that children and indigent adult litigants would suffer severe and irreparable harm if an injunction were not granted. The Court ordered the State and the City to increase the compensation of assigned counsel to $158 per hour — the rate currently paid to federal CJA panel attorneys — retroactive to Feb. 2, 2022, the date the motion for a preliminary injunction was filed. Justice Headley also directed the State and the City, on a going-forward basis, to revisit increases in compensation for assigned counsel at the same time that federal assigned counsel receive increases in their compensation.