Court-appointed lawyers say they’re stretched too thin to effectively serve their clients
Claiming they’ve worked for almost 20 years without adequate compensation, 10 New York bar associations representing court-appointed attorneys in the family courts have resorted to filing a lawsuit against the city and state to increase their pay and what they can provide clients.
In legal filings working their way through the state Supreme Court in Manhattan, the lawyers who represent parents in thousands of child abuse and neglect proceedings say a pay increase is long overdue. Denying them fair pay, the suit claims, amounts to a “violation of the constitutional right of children and indigent adults to meaningful and effective legal representation.”
The original lawsuit was filed in July, and amended in late September.
A representative from the New York State Attorney General’s office declined to comment on the pending litigation, stating that their response to the amended complaint is not due until Nov. 17.
Bar associations from every city borough filed the complaint, including the Metropolitan Black Bar Association, the Latino Lawyers Association of Queens County and the Asian American Bar Association of New York. The lawyers for low-income parents fighting for custody of their children say their clients are the ones who suffer when their legal counsel is not properly funded.
Overloaded attorneys have to take on too many cases to make ends meet, and do not have enough time to meet in person with clients. With high caseloads, there is also limited ability to do the out-of-courtroom work required to best represent clients. Citing a local nonprofit legal assistance organization, a statewide report says the situation “incentivizes accepting a high volume of cases and necessitates picking up private pay cases to supplement their earnings in order to make a living.”
Currently, these court-appointed attorneys are paid a maximum of $75 per hour for family cases and felonies and $60 per hour for misdemeanors when they appear in criminal court. In contrast, attorneys appointed in federal court receive $155 per hour, a rate that’s been increased 14 times in the last 20 years, according to court documents.
Family court lawyers have received the same hourly rate for 17 years, the suit alleges, even though a 2019 report written for the state’s chief judge has recommended their current rate be doubled.
“It’s tough,” said Sarah Tirgary, who represents parents in Queens from her private practice, juggling more than 90 criminal and family court cases. “I would like to be able to hire support staff to help with legal drafting of legal orders. But I just can’t afford it with the little bit of money they pay us.”
Consistent representation is key in the high-stakes, high-stress world of the family courts — where judges weigh whether children have been harmed at home, and families’ futures are on the line. Legal advocates stress that without adequate compensation, attorney turnover and burnout will plague the field and resign kids unnecessarily to life in foster care. Clients of the family courts overseeing the foster care system are mostly people of color.
Anne-Marie Jolly, administrative judge of the New York City Family Court is quoted in the lawsuit stating earlier this year that the failure to increase 2004 rates “perpetuates a dehumanizing experience that has a disparate impact on Black and Latino litigants.”
The suit before the Supreme Court, which is New York’s trial court system, is being led by Kramer Levin Naftalis & Frankel on a pro bono basis.
Lead attorney Michael Dell said the number of plaintiffs on the case is noteworthy. “I’m not aware of any other case where so many bar associations have joined to protect the fundamental right to counsel,” he said, adding that members represent clients city-wide.
The complaint is brought against the state, the city, the city’s Department of Finance and its commissioner, Sherif Soliman. The defendants are represented by the New York Attorney General and the New York City Law Department did not respond to inquiries.
Local bar associations have long fought for better pay from the state.
As early as 2001, the New York County Lawyers Association filed a complaint against the state and the city because attorney pay hadn’t been increased since 1986. The state ultimately raised compensation after the courts found that resistance to increasing attorneys’ rates had a ripple effect on clients, “failing to instill confidence and reliability in our system of justice.”
The New York State Office of Indigent Legal Services, which works to improve the quality of court-appointed representation, has also weighed in. Two years ago, the oversight office contributed to a statewide research, describing clients who wait days before meeting with their assigned attorney for the first time.
“The impact on New York’s families can be devastating, as parents represented by overburdened assigned counsel are often unable to maintain stable employment, access services, or have any sense of stability if they are engaged in protracted litigation.”
Such concerns were included in the 2019 report to Chief Judge Janet DiFiore by the Commission on Parental Legal Representation. Commissioners called on New York state to increase court-appointed attorneys’ hourly rate to $150, and to review compensation each year, as is done in federal courts.
According to the commission’s report, without adequate pay, lawyers fail to complete daily responsibilities such as filing motions, monitoring appeals and meeting in person with clients.
Responding to the commission, Chief Judge DiFiore wrote to former Gov. Andrew Cuomo (D) and the state Legislature, calling the current work standards an “ongoing crisis.”
“Assigned counsel rolls continue to struggle across the state exacerbating already excessive caseloads, endangering the quality of legal representation for indigent litigants and contributing to the backlogs that impair the operational efficiencies of our criminal and family courts,” DiFiore wrote.