In the Matter of Achilles S. and Others.

Family Court, Kings County, September 2, 2022

Appearances of counsel omitted for purposes of publication.

The attorney for the child (AFC) in the above-captioned matters seeks enhanced compensation for her work on the two cases. Her application in Jeremi C. states that she was assigned to the matter August 15, 2019, though court records indicate that she was actually assigned on October 10, 2018. That case was closed in court when the petition was dismissed on July 20, 2021. Her representation of Achilles S. started December 25, 2017, and she added the representation of siblings Athena C. and Ariez F. when they were born in 2019 and 2020, respectively; some of the matters in that file have concluded, but others remain open.

New York law provides for a statutory rate for attorneys who represent children in child protective matters. The hourly fee is set at $75, with a maximum per-case cap of $4,400, chargeable to the State. The standard for ordering compensation in excess of the statutory limits is "extraordinary circumstances." (Judiciary Law § 35 [3].) This pay structure was recently held likely to [*2]violate the statutory guarantee of right to counsel, and a preliminary injunction was entered requiring the State to compensate AFCs at a higher rate of $158/hour. (New York County Lawyers Assn. v State of New York, 2022 NY Slip Op 32476[U] [Sup Ct, NY County 2022] [NYCLA]; NY St Cts Elec Filing [NYSCEF] Doc No. 136, in New York County Lawyers Assn. v State of New York, Sup Ct, NY County, index No. 156916/2021.) Supreme Court's order is retroactive to February 2, 2022, and the State has not appealed it.^[FN1]

The AFC in this case asks this court to award her enhanced compensation in the amount of $158/hour for work that occurred{**76 Misc 3d at 818} prior to the effective date of the preliminary injunction in the NYCLA suit. The basis for her application is, in essence, that the statutory rate in effect during the period she worked on this case, $75/hour, was unjust.^[FN2] Similar arguments were made to Supreme Court in the context of the preliminary injunction motion and were found persuasive. This court is certainly not unsympathetic to the plight of assigned counsel who have been paid too little, of their clients for having overworked attorneys, and of the system of justice that relies on quality representation of all litigants in cases of constitutional magnitude.

However, it is not the role of one Family Court judge to make determinations that are quite clearly policy based and not tied specifically to the merits of the specific matters before them. This court disagrees with the approach taken in Matter of Dutchess County Dept. of Social Servs. (187 Misc 2d 348, 354 [Fam Ct, Dutchess County 2001]), which held that the unjust system of compensation for assigned counsel itself presented an "extraordinary circumstance" warranting a Family Court order granting across-the-board enhanced rates for all lawyers in all cases in one county. Obviously, the AFC here does not seek such sweeping relief, but it should be noted that she has submitted identical claims in both of these cases, making the same policy-based arguments and not citing anything specific about her work in either matter. Thus, it appears that counsel is attempting to have Family Court enter what is essentially injunctive relief and extend Supreme Court's order back in time prior to February 2, 2022. This is beyond the jurisdiction of Family Court. Matter of Joshua AA. (187 Misc 2d 216 [Fam Ct, Clinton County 2001]), while more limited in scope than Matter of Dutchess County, nevertheless also went beyond the jurisdiction of Family Court by purporting to address systemic deficiencies in the assigned counsel program, and this court will not adopt its reasoning here.

A finding of extraordinary circumstances under Judiciary Law § 35 or County Law[*3]§ 722-b should be rare. It should be made in cases where several criteria of extraordinariness are present as well as "manifested to a significant extent. Some examples of such situations would be cases that involve lengthy hearings and/or trials, cases which present multiple extraordinarily{**76 Misc 3d at 819} complex legal issues and cases where there are" complicated pleadings and serious charges. (People v Brisman, 173 Misc 2d 573, 590 [Sup Ct, NY County 1996].)

Here, the AFC offers no assertion that any of these criteria were present in these cases or her work on them. Her arguments are solely about the woefully under-market compensation rates set forth in the law and the systemic problems they engender, for clients and lawyers alike. These equitable claims deserve the most careful consideration from the public and our elected leaders. It is the legislature which sets the pay rates for assigned counsel, with the approval of the Governor. It is Supreme Court which has equitable powers to enter system-wide relief when the other branches' actions or inactions violate the constitutional rights of entire classes of people. That Supreme Court has already done so, at least as of February 2, 2022, proves the point: Family Court, which enters rulings on a case-by-case basis, lacks the power to change the system on which it relies every day for justice to be done.

Earlier this year, the chairs of the Judiciary Committees in the State Assembly and State Senate proposed a constitutional amendment which would have transformed today's Family Court into a division of Supreme Court, granting it all the statutory and equitable jurisdiction of that sister court. (See 2021 NY Senate Bill S8424, 2021 NY Assembly Bill A9401.) These proposals did not receive so much as a hearing in either committee, and insofar as the legislature is no longer in session, they are presumed dead. Family Court is thus left to do the best it can within an inherently inequitable system, working mightily on a case-by-case basis to do justice for children and families. Sadly, it cannot grant the pending application, meaning that this fine AFC and her colleagues will go under-compensated for their many heroic efforts over the past several years. The solution to all these problems lies with the political branches of government.