Standards for Determining Financial Eligibility for Assigned Counsel
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Standards for Determining Financial Eligibility for Assigned Counsel February 16, 2021 NEW YORK STATE OFFICE OF INDIGENT LEGAL SERVICES Standards for Determining Financial Eligibility for Assigned Counsel TABLE OF CONTENTS ACKNOWLEDGEMENTS.........................................................................................................1 INTRODUCTION ......................................................................................................................2 The Hurrell-Harring v. The State of New York Lawsuit and Settlement .................................7 ILS Authority and Obligation to Issue Financial Eligibility Standards ...................................8 The Process ILS Used to Develop These Eligibility Standards ...............................................9 1. Review of existing reports, eligibility guidelines, professional standards, and case law .9 2. Surveys of Courts and Providers ................................................................................. 10 3. Public Hearings .......................................................................................................... 11 4. Themes that emerged from the surveys, applications, and public hearings................... 11 The Scope of the Right to Assigned Counsel in Criminal Matters ........................................ 15 The Scope of the Right to Assigned Counsel in Family Matters ........................................... 17 STANDARDS FOR DETERMINING ASSIGNED COUNSEL ELIGIBILITY (Black Letter) 18 STANDARDS FOR DETERMINING ASSIGNED COUNSEL ELIGIBILITY (with Commentary)................................................................................................................. 23 I. Standard for assigned counsel eligibility ........................................................................... 23 II. Presumptions of eligibility ................................................................................................ 25 A. Income ..................................................................................................................... 26 B. Incarceration, detention, mental health institution .................................................... 29 C. Receipt of need-based public assistance ................................................................... 29 D. Eligibility for assignment of counsel in another case ................................................ 30 III. Immediate assignment of counsel, and presumptive entitlement to counsel in child welfare proceedings. ......................................................................................................... 31 IV. Ability to post bond .......................................................................................................... 35 V. Third party resources ........................................................................................................ 37 VI. Non-liquid assets .............................................................................................................. 42 VII. Income from child support and need-based public assistance ......................................... 43 VIII. Debts and other financial obligations ............................................................................. 44 IX. Actual cost of retaining a private attorney ...................................................................... 45 X. Uniform, consistent and transparent application ............................................................. 47 XI. Responsibility for screening and making initial recommendation ................................... 48 XII. Maintaining the confidentiality of financial information ................................................ 51 XIII. Unduly burdensome or onerous requirements ................................................................ 53 XIV. Written decision and right to review .............................................................................. 55 XV. Eligibility re-examinations: County Law § 722-d ......................................................... 57 XVI. Procedure for maintaining data ...................................................................................... 59 Appendices Appendix A: Survey Reponses and Application Forms Received by Counties Appendix B: Notice of Public Hearings Appendix C: Public Hearings: Witnesses and Written Submissions Appendix D: Application for Assignment of Counsel under County Law Article 18-B, and Instructions Appendix E: Sample Notice of Eligibility Recommendation Appendix F: Sample Notice of Right to Seek Review Appendix G: Sample Notice of Judge’s Ineligibility Decision ACKNOWLEDGEMENTS In an effort to learn as much as possible about the current process for determining financial eligibility for the assignment of counsel in New York State, in 2015 and again in 2019, the Office of Indigent Legal Services (ILS) surveyed judges and providers, conducted public hearings, and elicited written commentary. We are indebted to the Office of Court Administration for its assistance in distributing surveys to judges and securing venues for the public hearings, and to members of the ILS Board and the New York State Unified Court System’s Commission on Parental Legal Representation (hereinafter, the “DiFiore Commission”) for participating in the hearing process. We wish to acknowledge the many magistrates, judges, and providers of mandated representation who took the time and made the effort to complete the surveys. We also wish to acknowledge the many people who participated in the public hearings, either through oral testimony, written commentary, or both. These individuals are identified in Appendix C to these Standards. Additionally, we are grateful for the tremendous guidance that we received from various reports, including: the National Legal Aid and Defender Association’s 1976 report, Guidelines for Legal Defense Systems in the United States; the Third Judicial Department’s 1977 Memorandum entitled, Assignment of Attorneys to Represent Individuals Who are Financially Unable to Obtain Counsel; the American Bar Association, Standards for Criminal Justice: Providing Defense Services (3d ed. 1992); the New York State Defenders Association 1994 report, Determining Eligibility for Appointed Counsel in New York State: A Report from the Public Defense Backup Center; the ABA Ten Principles of a Public Defense Delivery System (2002); the Brennan Center for Justice’s 2008 report, Eligible for Justice: Guidelines for Appointing Defense Counsel; New York State Bar Association Task Force on Family Court Final Report (2013); and the Commission on Parental Legal Representation Interim Report to Chief Judge DiFiore (2019). We particularly want to thank the staff of the New York State Defenders Association, who have studied this issue for over three decades, and whose insight and experiences proved invaluable to the development of these Standards. 1 | Page INTRODUCTION “Standards are the key to uniform quality in all essential governmental functions. In the indigent defense area, uniform application of standards at the state or national level is an important means of limiting arbitrary disparities in the quality of representation based solely on the location in which a prosecution is brought.” -Redefining Leadership for Equal Justice: Final Report of the National Symposium on Indigent Defense 2000, Office of Justice Programs/Bureau of Justice Assistance, U.S. Department of Justice 2001, at 14. In accordance with federal and New York State law, article 18-B of the County Law provides for free legal representation in criminal cases and certain family law matters for people who cannot afford to pay for a lawyer. ILS, with the approval of its Board, issues the following Standards (rev. December 2020) pursuant to its responsibility under Executive Law § 832(3)(c) to establish “criteria and procedures to guide courts in determining whether a person is eligible” for publicly funded legal representation. In 1963, the United States Supreme Court pronounced that “[t]he right of one charged with a crime to counsel may not be deemed fundamental and essential to a fair trial in some countries, but it is in ours.”1 Thus, held the Court, individuals charged with a felony who cannot afford counsel must have one appointed to them. Two years later, the New York State Court of Appeals made it clear that the right to appointed counsel applies in non-felony as well as felony cases, and that defendants must be explicitly told at arraignment that if they cannot afford counsel, one will be appointed to them.2 The New York State Legislature responded by enacting County Law Article 18-B, which imposes upon counties the responsibility – and hence the costs – of providing counsel for defendants who are entitled to assigned counsel. In 1972, the New York State Court of Appeals recognized that parents involved in child welfare proceedings have a right to assigned counsel under the New York State Constitution.3 In 1975 1 Gideon v. Wainwright, 372 U.S. 335, 344 (1963). 2 People v. Witenski, 15 N.Y.2d 392 (1965). Witenski involved the case of three teenaged boys who were “surprised in an orchard at about 10:30 P.M. in the act of stealing a half bushel of apples, [valued at] … $2.” 15 N.Y.2d at 394. All three boys pleaded guilty at the arraignment held later that night and were sentenced to 30 days in jail and a fine. Since none of them could pay the fine, the sentence for each was 55 days total. While the boys were advised at arraignment that they had a right