Kramer Levin Sues State on Behalf of the New York State Bar Association to Stop Widespread Violation of Children and Indigent Adults’ Right to Counsel

On Nov. 30, Kramer Levin filed a lawsuit on behalf of the New York State Bar Association (NYSBA) against the state of New York, alleging it has failed to ensure that children and indigent adults are provided adequate legal representation in family and criminal court proceedings as required by the New York and U.S. constitutions.

The 56-page complaint, filed in New York state court in Manhattan, explains that the state has not met its obligation to ensure such representation because it has failed to increase the compensation for assigned counsel for more than 18 years. As a result, many assigned counsel can no longer afford to represent children and indigent adults, and those who continue to do so have excessive workloads. The only exception is in New York City. On July 25, in response to an earlier lawsuit filed by Kramer Levin in 2021 on behalf of the New York County Lawyers Association and nine other bar associations, Justice Lisa Headley issued a preliminary injunction ordering the state and the city to increase assigned counsel pay in the city to $158 per hour. The court found “that severe and irreparable harm to children and indigent adult litigants would occur without an injunction” and that protecting their constitutional rights is of “paramount importance.”

The NYSBA’s lawsuit asks the court to protect the constitutional right to counsel of children and indigent adults in the 57 counties outside New York City by ordering that their assigned counsel be paid the same $158 per hour. In those counties, assigned counsel are currently paid $60 per hour for misdemeanor cases and $75 per hour for felony cases, the same rates that have applied since 2004. In contrast, during the period since 2004, assigned counsel rates in the federal courts in New York have been increased 14 times to the current rate of $158 per hour. The NYSBA’s complaint details how this inadequate compensation has resulted in an exodus of attorneys from assigned counsel panels in the 57 counties outside New York City, and explains that those who remain are overburdened and “struggle to perform critical tasks, such as meeting with clients before court appearances, maintaining contact with clients outside of court, engaging in pre-trial discovery practice, and independently investigating the case.” The complaint also explains that this calamity is visited most heavily and disproportionately on people of color.

The New York Law Journal and Law360 reported on the filing of the complaint on Wednesday.