To Monroe County Bar Association president Langston McFadden, the state’s recent rate hike for private-practice lawyers assigned to represent poor criminal defendants deserves one hearty cheer.
With passage of Gov. Kathy Hochul’s 2023-24 budget, the rate paid to such lawyers, known as assigned counsel, jumps from $60 an hour to represent misdemeanor defendants and $75 for felony cases to $158 for felony or misdemeanor cases.
The increase, to be paid retroactively to April 1, was “beyond long overdue,” says McFadden, whose organization is working with the Monroe County Legislature to overhaul the county’s assigned counsel program. Still, he adds, in some ways it falls short.
The last time the state hiked the assigned counsel rate was in 2004. The new rate, to be paid to lawyers assigned to represent indigent defendants facing criminal charges in the state court system, is $6 shy of the federal court hourly rate, which increased to $164 from $158 in January.
The federal rate has increased 15 times since 2004. New York’s 2004 rate hike was the only increase the state had approved in the 35 years before it agreed to the April 1 hike.
While finally addressing a long ill-served need, says McFadden, the state’s assigned counsel rate hike only partially fills gaps that are virtually certain to create problems for the county and for indigent defendants, who often are persons of color.
Unlike the federal assigned counsel rate, New York’s has no provision for regular cost-of-living adjustments. It also puts half of the burden of paying for the increase on counties, which already paid for the $60 and $75 hourly assigned counsel rates.
In the first year, the state will pay for half of the increased cost of the new rate. In year two and thereafter, the entire $158-an-hour cost must be borne by counties.
Because counties are required to provide attorneys for indigent criminal defendants, McFadden sees the assigned counsel expense effectively as an unfunded mandate.
The right of criminally charged persons to be represented by an attorney is guaranteed by the U.S. Constitution’s Sixth Amendment. Initially, that right was enforced only for defendants facing federal charges. That changed in 1963, when the U.S. Supreme Court unanimously ruled that defendants facing criminal charges in state courts were also so entitled.
After the 1963 ruling, New York passed a law requiring counties to provide defense to indigents. Monroe County set up a public defender office in 1968. But such offices cannot always entirely meet the need.
In its 2022 annual report, the Monroe County Public Defender said that to meet staffing needs, it revised hiring standards to accept law school graduates who had taken the state bar exam but not yet been told that they had passed. It also shifted some Rochester City Court cases to the Monroe County Conflict Defender’s Office.
In addition to maintaining lists of attorneys in private practice willing to take assigned counsel cases, the Conflict Defender’s Office employs 20 staff attorneys who handle indigent defense cases, roughly matching the Public Defender’s legal staff.
As its name implies, the Conflict Defender’s office handles indigent criminal defense cases that the public defender can’t take because of a conflict. A public defender might, for example, represent a client who might testify against another indigent defendant. McFadden says such situations are not uncommon.
In the past, says McFadden, citing the low hourly rates, the list of lawyers has often not been long enough. Area criminal defense attorneys’ hourly rates for private work range from $200 to $500 an hour. Lawyers with small offices or in solo practice often cannot afford to work for much less.
Conflict Defender Mark Funk confirms that his lists of area lawyers willing to take assigned counsel cases has steadily declined, going from 173 in 2018 to 130 last year.
Most of the 10 or more lawyers who have dropped out of the program annually complained that they could no longer afford to take cases for $60 or $75 an hour. Funk says that even some members of a cohort of lawyers who had chiefly relied on assigned counsel work dropped out of the program to seek better-paying jobs elsewhere.
Still, the demand for indigent defense keeps going up. The county is planning to split the Conflict Defender Office into two agencies, one to handle on-staff attorneys and another to manage the assigned counsel program. When the county finds a replacement to take over as Conflict Defender, Funk plans to assume responsibility for the assigned counsel agency.
The state’s assigned counsel rate increase came four months after the state Bar Association sued to force the state to up the rate.
“Attorneys who still participate in the Family and Criminal Court Panels throughout the counties handle caseloads that far exceed the limits (the New York Office of Indigent Legal Services) determined would allow counsel to provide meaningful and adequate representation to each of their many clients,” the NYSBA argued in the complaint.
It remains to be seen how much difference the higher rate will make and continue to make as it remains static until the next time the Legislature agrees to increase the assigned counsel rate.
Like County Bar Association president McFadden, Funk praises the state’s assigned counsel rate hike as a long overdue boon that will chiefly benefit poor defendants.
Will Astor is Rochester Beacon senior writer.The Beacon welcomes comments and letters from readers who adhere to our comment policy including use of their full, real name. Submissions to the Letters page should be sent to [email protected].