By Raga Justin | Times Union, Albany
Albany, N.Y. — Attorneys who represent low-income clients and children are facing mounting caseloads and a workforce that is leaving in droves, according to public defenders who are urging the state Legislature and Gov. Kathy Hochul to raise the rates of hourly pay for assigned counsel.
Kevin Stadelmaier, a public defender with the Erie County Assigned Counsel Program, said that county has experienced a 33 percent decrease in attorneys who take on criminal cases as assigned counsel since 2004 — the last time rates were raised. Assigned counsel are tasked with representing clients who cannot afford to hire private defense attorneys.
“I get calls every single week from assigned counsel programs who can no longer recruit attorneys ... to take care of the cases they’ve gotten,” Stadelmaier said, adding that the programs are “basically begging us to send them attorneys.”
Stadelmaier said it’s “promising” that each chamber has a proposal to fund the assigned counsel program — but the proposals don’t fully address what public defenders view as necessary.
Hochul’s proposal would increase rates to $158 per hour downstate and $119 for attorneys upstate. The Assembly and the Senate’s proposals diverge: The Senate’s proposal raises the rate to $180 for downstate counties and $158 upstate over a five-year phased period, while the Assembly increases assigned counsel rates to $164 for all counties.
Of the three, most public defenders back the Assembly’s plan. Public defenders have pushed back against divergent rates between upstate and downstate counties and said that long phase-ins would do little to rectify the immediate needs. As the Assembly proposal lays out, they want to make $164 per hour. They also want a yearly cost-of-living increase.
The implications are dire, Stadelmaier said. Programs that offer legal services will go out of business and existing attorneys will have to take on more cases, resulting in more backlogs in places like Family Court.
“I would love to tell you this is a ‘want,’” Stadelmaier said. “And maybe five or six years ago ... it was. But it’s no longer a want. We absolutely need this.”
The state, meanwhile, is facing litigation pushing for a similar pay raise. The New York State Bar Association sued in November to raise hourly rates from $75 per hour for court-appointed attorneys to $158 per hour — which is what their counterparts in federal court cases make.
Legislators at a news conference earlier this week agreed that the system was underfunded, pointing to violations of the constitutional “right to representation.”
“We have truly failed as a state government to provide the resources in order to make quality representation of low-income defendants possible,” said state Sen. Brad Hoylman-Sigal, a Manhattan Democrat who chairs the Senate’s Judiciary Committee, adding that he is working to get the Senate’s proposal through.
Susan Bryant, executive director of the New York State Defenders Association, said a third of all cases that are handled by public defenders in New York are in Family Court, where highly consequential decisions are often made — including child removal and the termination of parental rights.
Bryant called those decisions often “devastating” and said the system has historically hurt low-income children and families of color the most.
“We have families that are separated for life,” Bryant said. “We’re asking for funding to make sure that defenders ... can get them services if that’s what the families need, not put them into foster care.”
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