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New York Appellate Term Justice Lucindo Suarez, in a groundbreaking decision, has issued a preliminary injunction requiring that court-appointed lawyers for the poor in New York City be paid $90 an hour. Suarez, who sits in the Appellate Term for the Bronx and Manhattan, ordered the rate hike, finding that the state’s compensation rates are so low as to imperil the constitutional right to counsel of criminal defendants and parents accused of abusing their children. The ruling is the first to order that the fees be raised for all proceedings in any court. Only one prior ruling, issued by Eastern District of New York Judge Jack B. Weinstein, had been grounded upon a finding of a likely constitutional infirmity. Many judges had ordered rate hikes in individual cases, citing a statutory provision in Article 18-B of the County Law permitting a raise in the rates for extraordinary purposes. And several judges had issued orders stating that they would pay all 18-B lawyers that they appointed a rate of $75 an hour, but, in the city at least, those orders were administratively reversed. Suarez’ order could be affected by a pending appeal in the Appellate Division, 1st Department. The order for $90 an hour is significantly higher than all but a handful of the prior state judges’ orders, and applies to both in-court and out-of-court work. The ruling comes in the face of a legislative impasse that has lasted for more than a year. In January 2001, New York Gov. George Pataki, Assembly Speaker Sheldon Silver, D-Manhattan, and Senate Leader Joseph Bruno, R-Rensselaer, named their top aides to a panel with a mandate to come up with a new rate structure. Initially there was great optimism that after 16 years the pay rates for 18-B lawyers would be raised from their current rates of $40 an hour for work in court and $25 an hour for preparatory and motion work. But with the state’s mounting fiscal woes in the wake of the Sept. 11 attack on the twin towers, that optimism has long since faded. The New York County Lawyers’ Association, many of whose members practice in the Family and Criminal Courts in New York City, brought the case in February 2000, seeking an order raising the rates in Family Court and criminal proceedings in New York City. Suarez in New York City County Lawyers’ Association v. State of New York, 102987/00, found a likelihood that the current rates are not high enough to attract sufficient numbers of qualified lawyers in New York City, and ordered the city to bear the cost of the increase. In addition, he ordered the state to pick up the cost of an increase in pay to $90 an hour for law guardians in Family Court. Under Article 35 of the Judiciary Law, the state bears the cost of appointing lawyers to represent children before that court. Zachary S. McGee, one of the lawyers from Davis Polk & Wardwell representing the County Lawyers, explained that though the rates are in effect statewide, the lawsuit was limited to New York City proceedings because that is “where the crisis is worst and the shortage of lawyers most severe.” Suarez’s ruling will have precedential value statewide, he added. Earlier this year, the federal government raised from $75 to $90 an hour the pay given to lawyers who represent indigent criminal defendants in federal courts in the Southern and Eastern Districts of New York — a rate that, like the one ordered by Suarez, is well above the $75 an hour for in-court work and $60 an hour for out-of-court work proposed by Chief Judge Judith S. Kaye in her State of the Judiciary Address in 2000. One federal judge, Jack B. Weinstein of the Eastern District, last year ordered a rate of $90 an hour after he found that current assigned counsel fees in New York were causing constitutional harm to indigent clients. The judge’s ruling in In re Sharwline Nicholson, CV 00-2229, which has been stayed pending appeal, would apply only to 18-B attorneys working on cases where children might be placed in foster care because their mothers were victims of domestic violence. STATE LEVEL At the state level, numerous criminal and family court judges have ordered across-the-board fee increases to $75 an hour, saying that the Legislature’s failure to increase rates since 1986 has created an “extraordinary circumstance.” Those rulings sparked a dispute with the Office of Court Administration, which last April authorized administrative judges to review fee awards by trial judges that surpassed the statutory limits. At the time the rule was adopted, Supreme Criminal Court Justice Marcy L. Kahn had ruled in favor of the $75 rate for all work by 18-B attorneys, as well as all three Family Court judges in New York’s Dutchess County and a Family Court judge in Clinton County, N.Y. But those rulings were soon struck down by administrative judges, who said that approving higher rates simply because the rates were so low, rather than because of case-specific facts, was unwarranted. In the case of Justice Kahn, Administrative Judge Micki A. Scherer, who oversees the Criminal Term of State Supreme Court in Manhattan, said that “a judicial declaration that enhancements will be awarded in all cases is not the exercise of discretion contemplated by the statute.” But Scherer, who also knocked down numerous other awards, found that a rate of $100 an hour could be warranted in appropriate circumstances. According to a November 1999 survey prepared for the American Bar Association by the Spangenberg Group, New York’s rates were among the lowest in the nation. While New Jersey, Maryland and Massachusetts paid less per hour for court work in felony cases than New York, several states, known for their parsimonious approach to compensating lawyers, paid more, according to the 1999 study. Among them were Arkansas, at $80 to 85 per hour; Georgia, at $60 per hour; and Alabama, paying $50 per hour.

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