[*1]
Matter of Zeigler
2011 NY Slip Op 52312(U) [34 Misc 3d 1201(A)]
Decided on August 16, 2011
Supreme Court, Onondaga County
Brunetti, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through January 3, 2012; it will not be published in the printed Official Reports.


Decided on August 16, 2011
Supreme Court, Onondaga County


In the Matter of the Application of Jason B. Zeigler pursuant to County Law §722-b(2)(b) for compensation for services in People v. Robert Rahrle.




XXXXX

John Brunetti, J.

INTRODUCTION

Jason Ziegler applies to the court, pursuant to County Law 722-b, for approval of compensation in the amount of $1387.50 and expenses in the amount of $1.32 in People v. Robert Rahrle. For the reasons that, the application is granted in part and denied in part.

FACTS


By "Notice of Voucher Review Committee Recommendation," the Assigned Counsel Program recommends compensation in the amount of $997.50 and expenses of $0.00, based upon a variety of factors including: possible duplicate charges; non-billable charges, such as travel, correspondence with Assigned Counsel Program, billing and routine postage; other, consisting of prep for court, prep for hearing; research; correspondence with the court; meeting with client more than one hour.

Upon receipt of the report of the Voucher Review Committee Recommendation, the court corresponded with the Assigned Counsel Programby letter dated July 27, 2011, inviting the ACP to submit any documents, legal authority or anything else that it would be willing to submit concerning this matter, and enclosed an incomplete rough draft of a portion of this Decision/Order.

By letter dated August 1, 2011, with enclosure, the ACP submitted the

following points:





[*2]





Upon receipt of the ACP's submission, the court sent a second letter dated August 2, 2011, requesting a response from the Assigned Counsel Program as to Mr. Zeigler's assertion that "ACP's attempt to dictate what an attorney can and cannot bill violates County Law §722," and setting forth additional analysis that is also set forth in this final Decision/Order. None was received.

LAW

The following excerpts from Article 18-B of the County Law control here:

[1]County Law 722: "The governing body of each county.....shall place in operation throughout the county a plan for providing counsel to persons charged with a crime or who are entitled to counsel.....who are financially unable to obtain counsel.....The plan shall conform to one of the following: (3) (a) Representation by counsel furnished pursuant to..... a plan of a bar association.....whereby: (I) the services of private counsel are rotated and coordinated by an administrator. (b) Any plan of a bar association must receive the approval of the state administrator before the plan is placed in operation."

[2]County Law 722-b: "All counsel assigned in accordance with a plan of a bar association conforming to the requirements of section seven hundred twenty-two of this article whereby the services of private counsel are rotated and coordinated by an administrator shall at the conclusion of the representation receive: (b) for representation of a person.....compensation at a rate of seventy-five dollars per hour for time expended in court..... and seventy-five dollars per hour for time reasonably expended out of court, and shall receive reimbursement for expenses reasonably incurred. (4) Each claim for compensation and reimbursement shall be supported by a sworn statement specifying the time expended, services rendered, expenses incurred and reimbursement or compensation applied for or received in the same case from any other source."

All plans called for by the County Law Article 18-b are ones for

"providing counsel" to indigent defendants, not for payment of those counsel. Our local plan is one where "services of private counsel are rotated and coordinated by an [*3]administrator". Once the plan is established and approved by the chief administrator of the Courts,[FN1] County Law 722-b applies.

Under County Law 722-b, "[a]ll counsel assigned in accordance with a plan of a bar association conforming to the requirements" of County Law 722 are entitled to compensation in accordance with the remaining provisions of County Law 722-b. As is obvious from the foregoing quoted statutory language, the purview of a plan is statutorily limited to the method of assignment. By statute, the plan has nothing to do with payment, except that a lawyer must have been assigned in accordance with an approved one in order to have a claim approved by a court.

Simply put, once a lawyer is placed on the Assigned Counsel list, and is assigned in accordance with the plan, all compensation issues are controlled by Section 722-b without reference to the plan. County Law Section §722-b is a free-standing statute unaffected by any plan for compensation or reimbursement of expenses that may be implemented by a county. Neither a county's audit powers set forth in County Law 369 [FN2] nor the Rules of the Chief Administrator [FN3] nor those of the [*4]Fourth Department [FN4] apply to the voucher at issue here.

The requirement that the lawyer be assigned in accordance with a plan

in order to be eligible to submit a claim for compensation was the lynch pin for the Fourth Department's rejection of Mr. Parry's quest in Parry v. County of Onondaga [FN5] to "compel the courts of respondent County of Onondaga (County) to assign counsel to indigent persons and to compel the County to pay assigned counsel without reference to the assigned counsel plan implemented by the County and administered by respondent Onondaga County Bar Association Assigned Counsel Program." However, a plan for the rotational assignment of counsel, even if approved by the chief administrator, may not overrule, regulate, supercede or impair the "inherent authority"[FN6] granted unconditionally to the court in County Law Section 722-b(2) to entertain and approve claims for compensation made by counsel assigned in accordance with an approved plan. Article 18-b requires that counsel be assigned in accordance with an approved plan, not that they be paid in accordance with that plan.The court concludes not only that it is not bound by the ACP compensation rules, but further that were the court to exercise its approval authority constrained by them, it would be violating County Law 722-b in two respects.

First, since counsel "shall.....receive....for representation of a person..... compensation at a rate of seventy-five dollars per hour for time expended in court..... and seventy-five dollars per hour for time reasonably expended out of court," the court must determine what constitutes "representation of a person" and "time reasonably expended out of court" without reference to any external authority such as the ACP rules.

Second, since the only paperwork required by statute is "a claim for [*5]compensation and reimbursement ..... supported by a sworn statement specifying the time expended, services rendered, expenses incurred and reimbursement or compensation applied for or received in the same case from any other source," for the court to require anything more would be to substitute its judgement for that of the Legislature. Under County Law 722-b, the approving court does not act like an Article 78 court reviewing an administrative determination by the ACP made pursuant to its regulations. The approving court examines the claim de novo in accordance with County Law 722-b.

The ACP submitted a copy of its Rules and a contract signed by Jason Zeigler wherein Mr. Zeigler agreed to "fully comply with [the ACP] rules and regulations of the OCBA Assigned Counsel Program, Inc., as a condition of participating as an independent contractor in the Assigned Counsel Program". The court finds that, in reviewing a County Law 722-b claim for compensation, it may not consider a contract signed by counsel in order to be assigned in accordance with a plan if that contract contravenes the inherent authority granted to the court in County Law 722-b——something the contract clearly does here. In addition, the court finds that even if it were permitted to consider such a contract, the court is not bound by it since the court is not a signatory to it nor may it restrict the court's "inherent authority" under law. Should the ACP conclude that the contract is enforceable in all respects against Mr. Zeigler, and that Mr. Zeigler has violated it, then the ACP's remedy is to strike his name from the Assigned Counsel List pursuant to the removal clause on page 28 of the Rules [FN7] and assert the contract to withstand any litigation that Mr. Zeigler may commence.

The critical fact that invokes the court's power to approve a voucher is

that the counsel be assigned in accordance with the plan.[FN8] Once that assignment [*6]occurs, payment of compensation and reimbursement is governed by County Law 722-b which grants the trial court the authority to set the compensation according to the standard set forth therein,[FN9] except in extraordinary circumstances where administrative rules may apply.[FN10] The court does not read the Fourth Department's decision in Parry v. County of Onondaga [FN11] to hold otherwise.

In Parry, the Petitioner sought to "compel the courts of respondent County of Onondaga (County) to assign counsel to indigent persons and to compel the County to pay assigned counsel without reference to the assigned counsel plan implemented by the County and administered by respondent Onondaga County Bar Association Assigned Counsel Program." The holding was as follows: "[W]e conclude that, in establishing and operating the ACP, respondents are not violating County Law § 722 or otherwise infringing upon the court's inherent authority to provide assigned counsel in criminal cases."[FN12] (Emphasis added). [*7]

There are two components of the holding in Parry: [1] the trial court has the "inherent authority to provide assigned counsel in criminal cases"; and [2] that "in establishing and operating the ACP, respondents are not violating County Law § 722 or otherwise infringing upon" that inherent authority. Neither component concerns compensation. They both concern the court's authority to "provide assigned counsel," not compensate assigned counsel. However, even if the phrase "provide assigned counsel" includes compensation of assigned counsel, a conclusion that the ACP "is not not violating County Law § 722" does not affect the court's inherent authority under County Law 722-b. Indelible proof of that fact is the very title of the document forwarded to the court: "Notice of Voucher Review Committee Recommendation".

RULING

In exercising its inherent authority here, the court agrees with the Assigned Counsel Program that any time spent dealing with the Assigned Counsel Office, either by phone, by letter, or the preparation of a voucher, does not fall within the definition of compensable activity as set forth in County Law §722-b. Since dealings with the Assigned Counsel Office do not constitute "representation of a person,"[FN13] they are not compensable. Since postage is reasonably incurred in the representation of a person, assuming that the postage had nothing to do with correspondence with the Assigned Counsel Program, it is reimbursable.[FN14] All other hours are found to have been reasonably expended.[FN15] Since there is no explanation of "possible duplicate charges," those are not treated in this decision.

Non-compensable hours are :Letter to ACP for .2 hours on 4/25; letter to the ACP for .3 hours on 6/7; preparation of ACP form .8 hours on 6/14, and letter from Assigned Counsel for .1 hours on 11/8. Non-compensable hours total 1.4 hours, times $75.00 per hour equals $105.00, which shall be deducted from $1387.50, for a net amount of $1282.50, plus postage in the amount of $.44, assuming that it was not postage for correspondence to the Assigned Counsel Program.[*8]

John Brunetti

Acting Supreme Court Justice

Dated: August ......, 2011

Footnotes


Footnote 1:County Law §722(3)(a)(b). "By letter dated April 6, 2006, Chief Administrative Judge Lippman stated, in pertinent part, as follows: I have received the proposed revised Onondaga County Bar Association Assigned Counsel Program, Inc., handbook of policies, rules and procedures (effective February 1, 2006) pursuant to Section 722 of the County Law ... I hereby approve the proposed handbook of policies, rules and procedures for the Onondaga County Bar Association Assigned Counsel Program, Inc. (effective February 1, 2006)." See Parry v. County of Onondaga 2009 WL 4432563 (N.Y.Sup.,2009)

Footnote 2:People v. Ward, 199 AD2d 683 (3d Dep't 1993)["As for the County's contention that County Law § 369(2) invests it with the power to review and deny payment of a charge such as this one, we find that to be unpersuasive. That statutory section, which only allows such review [e]xcept as otherwise provided by law', is expressly overridden by the language of County Law § 722-b, which, in keeping with the constitutional provisions vesting complete administrative control over trial courts in the Chief Judge and Chief Administrator, confers upon the trial court the authority to decide the matter of compensation in the first instance ( see, Matter of Kindlon v. County of Rensselaer, 158 AD2d 178, 180, 558 N.Y.S.2d 286). Given this statutory scheme, once a charge has been approved by the court, it is by definition a lawful county charge' (County Law § 369[1] ), subject only to revocation of that approval in the course of appropriate administrative review.'].

Footnote 3:22 NYCRR 127.2. Compensation of Counsel and Other Providers in Extraordinary Circumstances: (a) Whenever an attorney, psychiatrist, psychologist, physician or social worker, or a person providing investigative, expert or other services, seeks compensation in excess of the statutory limits prescribed by Article 18-B of the County Law or section 35 of the Judiciary Law, because of extraordinary circumstances, he or she shall submit with his or her claim a detailed affidavit stating the nature of the proceeding, the manner in which the time was expended, the necessity therefor, and all other facts that demonstrate extraordinary circumstances. If the claim is by an attorney, the attorney shall state the disposition of the matter. (b) The order of the trial judge with respect to a claim for compensation in excess of the statutory limits may be reviewed by the appropriate administrative judge, with or without application, who may modify the award if it is found that the award reflects an abuse of discretion by the trial judge. Any order modifying a trial judge's award shall be in writing. (c) An application for review may be made by any person or governmental body affected by the order.

Footnote 4: 22 NYCRR 1022(12).

Footnote 5:Parry v. County of Onondaga, 51 AD3d 1385 (4th Dept. 2008).

Footnote 6:Parry v. County of Onondaga, 51 AD3d 1385 (4th Dept. 2008).

Footnote 7:"The ACP Board of directors as the duty and obligation to exclude or remove from the Panel Lists any attorney..... who does not fully comply with these rules".

Footnote 8:See Smith v. Tormey, 83 AD3d 1425 (4th Dep't 2011), leave granted,NY3d, 2011 WL 2473299.[" Petitioner's second request for relief, i.e., a judgment determining that the [p]etitioner be paid for his services ... in accordance with' County Court's March order, is rendered unnecessary by our annulment of the administrative determination. Although the County and ACP contend that County Court's appointment of petitioner as assigned counsel was unauthorized inasmuch as petitioner was not "qualified" under ACP rules and therefore was not assigned in accordance with a plan of a bar association conforming to the requirements of [County Law § 722]" (County Law § 722—b [1] [emphasis added] ), the validity of that contention is not an issue that is properly before us in this proceeding. Rather, the County and/or ACP should have commenced a CPLR article 78 proceeding seeking a writ of prohibition on the ground that County Court was acting in the absence or in excess of its jurisdiction pursuant to County Law § 722 ( see generally Matter of McNamara v. Tormey, 42 AD3d 971, 972, 839 N.Y.S.2d 386), or should have sought leave to appeal from County Court's order ( see CPLR 5701[c] ). The County and/or ACP failed to do so, and the time within which to seek leave to appeal or to commence a CPLR article 78 proceeding has expired ( see CPLR 217[1]; 5513[b] ). We therefore conclude that the County and ACP are bound by County Court's order, and that relief in the form of mandamus is unnecessary."].

Footnote 9:People v. Ward, 199 AD2d 683 (3d Dep't 1993).

Footnote 10:E.g., 22 NYCRR 127.2; 22 NYCRR 1022.12.

Footnote 11:Parry v. County of Onondaga, 51 AD3d 1385 (4th Dept. 2008).

Footnote 12:The Court adapted the following quote from Stream v. Beisheim, 34 AD2d 329 (2d Dep't 1970): "It should be emphasized that Article 18-B (ss 722-722-f) of the County Law, like Section 35 of the Judiciary Law, is merely cumulative. They are both new statutes designed to facilitate and implement the court's exercise of its inherent power. They serve to provide a constant, ready source of available counsel; to define the amount and source of their compensation, and the manner of payment. But they do not and cannot entrench upon the court's inherent power and fundamental duty to provide counsel to an indigent defendant." In Parry, the Fourth Department substituted the statutes with assigned counsel programs as follows: "Such assigned counsel plans are designed to facilitate and implement the court's exercise of its inherent power [to assign counsel, inasmuch as such plans] serve to provide a constant, ready source of available counsel[,] to define the amount and source of [assigned counsels'] compensation, and the manner of payment' ( Matter of Stream v. Beisheim, 34 AD2d 329, 334, 311 N.Y.S.2d 542)."

Footnote 13:County Law 722-b: "All counsel .....shall at the conclusion of the representation receive: (b) for representation of a person."

Footnote 14:County Law 722-b: "All counsel .....shall at the conclusion of the representation receive: (b).....compensation at a rate of seventy-five dollars per hour for time reasonably expended out of court."

Footnote 15:County Law 722-b: "All counsel .....shall at the conclusion of the representation receive: (b).....compensation at a rate of seventy-five dollars per hour for time reasonably expended out of court, and shall receive reimbursement for expenses reasonably incurred.