U.S. Pro Bono: A Growing Focus on Access to Justice

by Michael J. Dell (Partner) and Nathan Schwartzberg (Associate) - Kramer Levin Naftalis & Frankel LLP
Monday, 6 February 2023 09:59 GMT

In the United States, there is increasing focus on access to justice and the right to counsel.  The true measure of any society can be found in how it treats its most vulnerable members.  Almost 60 years ago, the U.S. Supreme Court, in its landmark decision in Gideon v. Wainwright, held that the Sixth and Fourteenth Amendments to the U.S. Constitution require the States to provide adequate legal representation to indigent defendants charged with felonies.  The New York Court of Appeals later extended that right to all criminal cases and to family court proceedings implicating liberty interests. 

But those rights are meaningless if effective legal representation is not provided. That is what happened in New York.  For 35 years, successive governors and legislators failed to increase the compensation for private counsel assigned to represent children and indigent adults.  The only increase during that period occurred in 2003 after a court order.  The result of this failure was inevitable - dedicated lawyers were unable to continue to afford to provide these services, and those who remained were enormously overburdened.  As New York’s Chief Judge explained: “The state’s continuing failure to raise [assigned counsel] rates has . . . created a severe shortage of assigned counsel that is, without doubt, disrupting the efficient operation of our high-volume criminal and family courts, . . . harming litigants of limited means seeking vital services in those courts . . . and [causing] an overall substandard quality of representation that contributes directly to . . . inequitable, dehumanizing conditions.”  The Chief Administrative Judge of the New York City Family Court explained that this “perpetuate[s] a dehumanizing experience that has had a disparate impact on Black and Latinx litigants which has created a second-class system of justice for people of color in New York State.”

In July 2021, our firm filed a lawsuit against the State and the City for a coalition of ten bar associations who said enough is enough.  It is long past the time to bend the arc of our moral universe back towards the justice to which children and indigent adults are entitled in our family and criminal courts. 

On February 2, 2022, we filed a motion for a preliminary injunction to prevent the State and City from continuing to violate the constitutional rights of children and indigent adults to meaningful and effective legal representation by assigned counsel. 

On July 25, 2022, the Court granted our motion and ordered the State and the City to more than double the compensation of assigned counsel to $158 per hour - the rate paid to assigned counsel in our federal courts - retroactive to the date we filed our motion.  The Court also directed the State and the City to consider future increases at the same rate and at the same time that federal assigned counsel receive future compensation increases.

This landmark decision is likely to be cited to try to improve access to justice in other States as well.

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