New York hasn’t raised the attorneys’ fees since 2004, creating a shortage that has denied the most vulnerable their constitutional right to a lawyer.
For the past two years, Amanda Sanchez’s right to see her young son has depended on the crowded calendar of Helen Bua, the lawyer appointed to represent her in New York’s family court.
In the spring of 2020, Ms. Sanchez left her son, Ricky, then 2, with his father, an ex-boyfriend, while she underwent an operation that kept her in intensive care for nearly a month. When she got out, her ex refused to let Ricky go until Ms. Bua obtained an order that forced him to.
But at other times, Ms. Bua — who earlier this year had 129 other clients, 30 of them children — has been out of reach. And on one such occasion, Ms. Sanchez, unable to turn to Ms. Bua for advice, felt she had no choice but to hand Ricky back over to her ex.
“He was acting crazy, cursing at me,” said Ms. Sanchez, 32, a student in the Bronx. “I ended up sending my son, because I didn’t want to get in trouble, and that weekend he didn’t feed my son.”
Ms. Bua has stopped taking on new cases, as she agrees that she is often stretched too thin. “The work is never done,” she said in a court filing. “I rarely feel completely prepared.”
Lawyers like Ms. Bua, who are known as panel attorneys and who represent children and indigent adults, have been departing the system by the dozens over the past decade, leaving many of the most vulnerable New Yorkers without their constitutionally guaranteed right to counsel. The attorneys say that their ranks are thinning because their salaries have not risen in close to two decades, and they are now fighting in court to change that.
In a hearing last week, Michael J. Dell, a lawyer for several New York-based bar associations asked a State Supreme Court judge to set new salary rates and to remove restrictive caps that can keep such lawyers from being paid for cases when they exceed a certain number of hours. The judge, Lisa Headley, has yet to make a decision.
Panel attorneys can represent children or adults who cannot afford to pay their own legal fees in family and criminal cases. In New York City’s family court — where across five courthouses, hundreds of cases are heard each day — such lawyers are on call on specific days to take on new cases.
New York’s panel attorneys have not received a raise since 2004, when their hourly rates were set at $75 for felonies and family court matters, and $60 for misdemeanors. Even if those sums had simply risen with inflation, they would be about $114 and $93 per hour.
Panel attorneys in South Dakota, where the cost of living is half what it is New York, are paid $101 per hour.
Because these attorneys are independent contractors, unaffiliated with organizations like the Legal Aid Society or Bronx Defenders, they have to pay for their own health care, office spaces and other expenses, further driving down their effective salaries.
As a result, there are fewer lawyers willing to work these high-stress, high-stakes jobs.
Cynthia Godsoe, a professor at Brooklyn Law School who previously worked in family court, said that the failure to raise the rates reflected the fundamental indifference of New York City political authorities to the lives of the most vulnerable.
“Family court, where these court cases happen, is a poor people’s court, by definition,” she said. “Not paying these attorneys remotely close to what they need to be able to do a good job, reflects either ignorance about or disdain for those people’s fundamental rights as parents and their lives as families.”
Over the past six years in Manhattan alone, the number of panel attorneys available to take on new cases in family court has nearly halved, to 39 from 70. In the Bronx, during that period, the number dropped to 48 from 80. And each borough has added only one new panel attorney since January 2021. Brooklyn and Queens have each lost about a fifth of their panel attorneys since 2011.
The lack of lawyers has left those who remain vastly overworked, with several refusing to take on new cases altogether. When attorneys are not available, catastrophe often follows. In a letter filed in court, one panel attorney, Fredericka Bashir, said that consequences frequently included:
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Victims of domestic violence being denied protection from abusers, leaving those people vulnerable to being harmed again.
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Children being held in foster care, because there were no lawyers to seek their return to their parents or guardians.
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People being wrongly accused of domestic violence who, because an order of protection has been issued, are forced to leave their homes without being heard in court.
When called to elaborate last week, Ms. Bashir was, of course, in the midst of a trial. When she was able to speak, she gave a specific example, of a client who had come to court without a lawyer several times, seeking an order of protection against a live-in boyfriend.
The woman, Ms. Bashir said, was too embarrassed when filing petitions with the court to describe the extreme physical and sexual violence that she had endured, and restricted her descriptions of the behavior to the things the man had said. The man remained in her home.
“She was ashamed and she didn’t know how to articulate that she was actually undergoing horrible abuse,” Ms. Bashir said. “It was horrible what she was undergoing.”
Ms. Bashir said that without the help of a lawyer, her client would not have been able to bar the boyfriend from her home.
Without Judge Headley granting the rates and removing the caps as the lawyers have asked, it would be up to the state legislature and Gov. Kathy Hochul to raise the panel attorneys’ salaries. The state did not include that money in its recently passed budget.
At the hearing last week, a lawyer for the state, Anjali Bhat, said that the governor and legislature were working on a solution and that Ms. Hochul “does not oppose doubling the rates,” but did not provide any more information. A spokeswoman for the governor, Hazel Crampton-Hays, said that Ms. Hochul supports “a fair rate” and is “working to reach a solution to ensure indigent parties have effective assistance of counsel.”
Last week, for three days, panel attorneys all over New York declined to take on new clients, seeking to call attention to the issue. On Thursday, they mounted demonstrations in New York City, Syracuse, Long Island and a suburb of Rochester.
Jane Pearl, a family court judge for more than 20 years before she retired in December, saw a similar crisis about two decades ago, in the litigation that resulted in the current salaries. That bump, she said, brought fresh panel attorneys into courthouses.
If the lawyers fail to get their raise, it is their clients who will bear the brunt.
DeWayne Murreld, a 42-year old community organizer who lives in Brooklyn, recounted the impact an overworked attorney had on his custody battle for his two daughters several years ago. Though he was happy with the outcome, his attorney had been so rushed that Mr. Murreld had been forced to make a key judgment about his future with his family in just minutes.
“I don’t think people are being served by the system the way it is right now,” he said. “This is deciding your life with your kids, your family, your children. There’s no way that can be acceptable.”
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Family Court Lawyers Flee Low-Paying Jobs. Parents and Children Suffer. - The New York Times
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