YH v. ES, 2022 NY Slip Op 22211 - NY: Supreme Court, Putnam 2022:
"This is a matrimonial action. Both parties have been granted "poor
person" relief pursuant to CPLR §1101 and are represented by attorneys
assigned on a pro bono basis pursuant to CPLR §1102(a) and the
9th Judicial District program for assignment of counsel to indigent
parties in matrimonial actions. By Order dated March 16, 2022, this
Court, in its capacity as Supervising Judge for Matrimonial Cases in the
9th Judicial District, assigned David Bliven, Esq. to represent
Defendant herein "without any compensation from Defendant, without
prejudice to motion by counsel for compensation pursuant to CPLR
§1102(d), DRL §237, Judiciary Law §35, or otherwise as provided by law."
Mr. Bliven asserts that there is no basis in New York law for the assignment of counsel on a pro bono
basis, and further, that his assignment herein without compensation is
violative of his rights under the 5th, 13th and 14th Amendments to the
United States Constitution. He accordingly seeks an order relieving him
as attorney for the Defendant, or, alternatively, directing payment from
the public purse for his services and fixing the prescribed hourly rate
therefor. Because Mr. Bliven's application calls into question the
lawfulness of the 9th Judicial District program for assignment of
counsel to indigent parties in matrimonial actions, the Court directed
that notice thereof be given inter alia to the New York State
Attorney General's office and to the Westchester County Bar Association.
The Attorney General responded, taking no position on the matter. The
Bar Association filed no response.
THE 9th JUDICIAL DISTRICT PROGRAM FOR ASSIGNMENT OF PRO BONO COUNSEL IN MATRIMONIAL ACTIONS
The Supervising Judge for Matrimonial Cases in the 9th Judicial District administers this District's program for assignment of pro bono counsel in matrimonial actions. Among the salient elements of the program are the following:
• Parties to matrimonial actions may file a combined
application for "poor person" relief and assignment of counsel pursuant
to Article 11 of the Civil Practice Law and Rules.
• Some litigants file on their own, others with the
assistance of one of the local legal services agencies. In either case,
the application must satisfy the requirements of CPLR §1101(a).
• As a general matter, indigent persons with income up to
200% of the Federal Poverty Guidelines are deemed eligible for the
assignment of counsel. However, in determining whether to assign
counsel, the Court considers all relevant circumstances, including the
applicant's income, assets, expenses and family situation, and exercises
its discretion pursuant to In re Smiley, 36 NY2d 433 (1975). From February 1, 2022 to date approximately 150 assignments of counsel have been made through the program.
• Attorneys with significant experience in matrimonial cases
are deemed eligible for assignment in the county wherein their office
is located (or a contiguous county), and in counties where their court
filings evidence a significant matrimonial practice. The roster of
eligible attorneys is derived from recent RJI filings and other sources.
• To the extent possible, no attorney is tasked with more than one pro bono
assignment at any given time. In the event an assigned attorney
establishes that a prior assignment is still ongoing, the Court may
issue an amended order relieving that attorney and defer further
assignment until after the conclusion of the existing matter.
• The Court recognizes that a pro bono assignment may
result in the imposition of an undue burden in circumstances including a
more-than-usual crush of business; impending retirement or transition
in legal practice; recent completion of another pro bono
assign-ment; sickness; family issues; etc. The Court readily
accommodates attorneys in such circumstances by deferring assignment or,
if appropriate, removing them from the roster of those eligible for
assignment.
• Attorneys who complete a pro bono assignment are entitled to CLE credit therefor.
NEW YORK LAW REGARDING ASSIGNMENT AND COMPENSATION OF COUNSEL FOR INDIGENT PERSONS
Article 11 of the Civil Practice Law and Rules is entitled "Poor
Persons." CPLR §1101(a) provides that the court in which an action is
triable may grant any person permission "to proceed as a poor person"
therein. CPLR §1102(a) provides that "[t]he court in its order
permitting a person to proceed as a poor person may assign an attorney."
Section 1102(a) authorizes the assignment of counsel to indigent
parties in matrimonial actions. See, In re Smiley, 36 NY2d 433, 440 (1975); Jacox v. Jacox, 43 AD2d 716, 717 (2d Dept. 1974); Medina v. Medina, 109 AD2d 691 (1st Dept. 1985).
CPLR §1102(d) further provides that "[a] poor person shall not be
liable for the payment of any costs or fees unless a recovery by
judgment or by settlement is had in his favor in which event the court
may direct him to pay out of the recovery a reasonable sum for the
services and expenses of his attorney" Article 11 makes no other
provision for the compensation of the assigned attorney.
The New York legislature has authorized compensation of counsel for
indigent persons from the public purse in specifically defined
circumstances. Judiciary Law §35 establishes a statutory right to
counsel for indigent persons in a variety of cases, including habeas
corpus; commitment, custody or adoption proceedings; criminal
proceedings; Family Court proceedings wherein the party is entitled to
counsel pursuant to the Family Court Act; Surrogate's Court proceedings
wherein the party is entitled to counsel pursuant to the Surrogate's
Court Procedure Act; and proceedings under Article 10 of the Mental
Hygiene Law. In such cases, the statute provides that "[a]ll expenses
for compensation and reimbursement under this section shall be a state
charge to be paid out of funds appropriated to the administrative office
for the courts for that purpose." Judiciary Law §35(5).[1]
So far as may pertain to matrimonial actions in Supreme Court, Judiciary Law §35(8) states:
Whenever Supreme Court shall exercise jurisdiction over a
matter which the Family Court might have exercised jurisdiction had such
action or proceeding been commenced in Family Court or referred thereto
pursuant to law, and under circumstances whereby, if such proceedings
were pending in Family Court, such court would be required by Section
262 of the Family Court Act to appoint counsel, Supreme Court shall also
appoint counsel and such counsel shall be compensated in accordance
with the provisions of this section.
Family Court Act §262(a) in turn establishes a statutory right to the
assistance of counsel in child custody and visitation proceedings (see, id., subdivision [v]), and contempt proceedings (see id.,
subdivision [vi]). However, matrimonial litigants are accorded no such
statutory right to counsel on the financial issues — equitable
distribution, maintenance, child support, etc. — by Judiciary Law §35,
the Family Court Act, County Law §722 et seq. or otherwise. There is of
course a constitutional right to counsel in some circumstances, and Family Court Act §262(b) further provides:
In addition to the cases listed in subdivision (a) of this
section, a judge may assign counsel to represent any adult in a
proceeding under this act if he determines that such assignment of
counsel is mandated by the constitution of the state of New York or of
the United States, and includes such determination in the order
assigning counsel.
As a general matter, however, there is no constitutional right to assigned counsel in matrimonial actions. See, In re Smiley, supra, 36 NY2d 433, 439-440 (1975).
Consequently, where an attorney is assigned pursuant to CPLR §1102(a)
as counsel for an indigent matrimonial litigant, compensation for his
services is authorized (1) from the client, pursuant to CPLR §1102(d),
out of his/her recovery (if any) in the matrimonial action; (2) from the
client's adversary, pursuant to Domestic Relations Law §237, to the
extent that an award of attorney's fees is available under the terms of
that statute (see, e.g., O'Shea v. O'Shea, 93 NY2d 187 (1999);
and/or (3) from the public purse, pursuant to Family Court Act §262(a)
and Judiciary Law §35(8), insofar as the attorney's services are
rendered in connection with child custody/visitation proceedings and
contempt proceedings — but not otherwise. In the absence of statutory
authorization for the expenditure of funds for assigned counsel, New
York courts are without power to direct that compensation for assigned
counsel's services be paid from the public purse. See, In re Smiley, supra, 36 NY2d at 438; Application of Sullivan, 297 NY 190, 195-196 (1948); People ex rel. Ransom v. Niagara County Sup'rs, 78 NY 622 (1879); People ex rel. Hadley v. Albany County Sup'rs, 28 How. Pr 22 (1864); Jacox v. Jacox, supra, 43 AD2d at 717; Matter of Enrique R., 126 AD2d 169, 175 (1st Dept. 1987); Wood v. Cordello, 91 AD2d 1178, 1179 (4th Dept. 1983); Morgenthau v. Garcia, 148 Misc 2d 900, 903 (Sup. Ct. NY Co. 1990).
Where there is no statutory mechanism for compensation of assigned
counsel, New York courts have historically assigned counsel in
appropriate cases to serve without compensation in reliance on the
longstanding professional obligation of the Bar to the poor.
Inherent in the courts and historically associated with the
duty of the Bar to provide uncompensated services for the indigent has
been the discretionary power of the courts to assign counsel in a proper
case to represent private indigent litigants. Such counsel serve
without compensation. Statutes codify the inherent power of the courts
(CPLR 1102, subd. [a])
The courts have a broad discretionary power to assign
counsel without compensation in a proper case (CPLR 1102, subd. [a]).
Voluntary organizations and Federally-funded programs play their role.
As for the Bar they follow, as they are obliged to do, the canons of
their profession in performing obligations to the indigent and duties
imposed by assignment of the courts. If more is required, the relief
must be provided by the Legislature.
In re Smiley, supra, 36 NY2d at 438, 441.
Absent statutory authority for the payment of assigned
counsel in matrimonial actions and the appropriation of funds to
implement such authority, counsel must be provided by the Bar through
the personal obligation of its members, traditionally recognized, to
willingly accept assignments made by the Bench to help those who cannot
afford financially to help themselves.
Jacox v. Jacox, supra, 43 AD2d at 717. See also, Matter of Enrique R., supra, 126 AD2d at 175 (quoting Jacox); Farrell v. Farrell, supra, 55 AD2d at 586 (quoting Jacox and recognizing need "for the Bar, as of old, to fulfill its longtime duty").
There has been no time in the governmental history of this
State when the court lacked power to assign counsel for the defense of
indigent persons charged with crime [cit.om.]; and it has been part of
the obligation assumed by counsel upon their admission to the bar to
defend poor prisoners upon assignment by the court. Until the passage of
the statute now under consideration, such service was rendered by
counsel so assigned without pecuniary compensation, and such service,
however onerous, created no legal liability against the county in favor
of the person rendering the same.
People ex rel. Acritelli v. Grout, 87 AD 193, 195-196 (1st Dept. 1903), aff'd 177 NY 587 (1904).
[A]t common law, attorneys were obligated to represent indigent parties without compensation (People ex rel. Acritelli v. Grout, 87 App.Div. 193, 196, aff'd 177 NY 587; People v. Fernandez, 202 Misc. 190; People v. Marx, 10 Misc 2d 1053).
In re Guardianship of Mark V., 80 Misc 2d 986, 990 (Surr. Ct. Nassau Co. 1975).
From very early times, the performance of gratuitous service
for the poor has been regarded as part of the obligation assumed by
counsel upon his admission to the Bar.
People v. Marx, 10 Misc 2d 1053, 1057 (County Ct. Queens Co. 1957).
Contrary to the movant's assertion, then, there is ample basis in New York law for the assignment of counsel on a pro bono
basis for indigent parties in matrimonial actions. Since the Court is
without power to order compensation from the public purse, the question
arises whether, as movant contends, the Court's order of assignment
herein is violative of his rights under the 5th, 13th and/or 14th
Amendments to the United States Constitution. Since the movant has not
framed his constitutional arguments in more precise terms, the Court
construes his claim to be that his assignment without compensation (1)
imposes involuntary servitude, and/or (2) amounts to an unconstitutional
taking of private property for a public purpose.
CONSTITUTIONALITY OF THE 9th JUDICIAL DISTRICT PRO BONO PROGRAM
I A Court Order Requiring Counsel to Serve Pro Bono Does Not Impose "Involuntary Servitude"
In Butler v. Perry, 240 U.S. 328 (1916), the Supreme Court wrote:
[T]he 13th Amendment declares that neither slavery nor
involuntary servitude shall exist. This Amendment was adopted with
reference to conditions existing since the foundation of our government,
and the term "involuntary servitude" was intended to cover those forms
of compulsory labor akin to African slavery which, in practical
operation, would tend to produce like undesirable results. It introduced
no novel doctrine with respect of services always treated as
exceptional, and certainly was not intended to interdict enforcement of
those duties which individuals owe to the state, such as services in the
army, militia, on the jury, etc. The great purpose in view was liberty
under the protection of effective government, not the destruction of the
latter by depriving it of essential powers.
Id., 240 U.S. at 332-333.
Citing Butler v. Perry and other authority, the Second Circuit in Immediato v. Rye Neck School District, 73 F.3d 454 (2d Cir. 1996) observed that a state's requiring attorneys to work pro bono does not impose a condition of involuntary servitude in violation of the Thirteenth Amendment:
In application, courts have consistently found the
involuntary servitude standard is not so rigorous as to prohibit all
forms of labor that one person is compelled to perform for the benefit
of another. The Thirteenth Amendment does not bar labor that an
individual may, at least in some sense, choose not to perform, even
where the consequences of that choice are "exceedingly bad." [United States v. Shackney, 333 F.2d 475 (2d Cir. 1964)] at 486 [cit.om.]. For example, a state may require an attorney to work pro bono, United States v. 30.64 Acres of Land, 795 F.2d 796, 800-01 (9th Cir. 1986) (attorney may, in the alternative, choose not to practice law), or a doctor who has accepted scholarship funds to perform pro bono
services [cit.om.]. The government may also require the performance of
"civic duties" such as military service [cit.om.], jury duty [cit.om.],
and upkeep of local public roads [cit.om.], without trenching upon the
Thirteenth Amendment.
Immediato v. Rye Neck School District, supra, 73 F.3d at 459 (boldface emphasis added). See also, White v. United States Pipe & Foundry Co., 646 F.2d 203, 205 n.3 (5th Cir. 1981); Boyle v. Town of Hammond, 2008 WL 11416992 at *5 (N.D.NY, Oct. 24, 2008).
II A Court Order Requiring Counsel to Serve Pro Bono Is Not Per Se an Unconstitutional Taking of the Attorney's Time, Labor or Services Without Just Compensation
"The Takings Clause of the Fifth Amendment, made applicable to the
States through the Fourteenth provides that private property shall not
`be taken for public use without just compensation.'" Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 536 (2005). The threshold question in Fifth Amendment "takings" analysis is: What is the "property" interest at stake?
A. The Lawyer's Public Duty as an Officer of the Court to Represent Indigent Parties Upon Court Order Without Compensation
In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992),
the Supreme Court observed that its "takings" jurisprudence "has
traditionally been guided by the understandings of our citizens
regarding the content of, and the State's power over, the `bundle of
rights' that they acquire when they obtain title to property." Id., at 1027. Thus, in Hurtado v. United States, 410 U.S. 578 (1973),
the Supreme Court held that "the Fifth Amendment does not require that
the Government pay for the performance of a public duty that is already
owed" (id., at 588), and as an example thereof cited the "representation of indigents by court-appointed attorney[s]" (id., at 589), referencing United States v. Dillon, 346 F.2d 633 (9th Cir. 1965) (boldface emphasis added), cert. denied 382 U.S. 978 (1966).
In Dillon, the Ninth Circuit wrote:
[T]he obligation of the legal profession to serve indigents
on court order is an ancient and established tradition, and [ ]
appointed counsel have generally been compensated, if at all, only by
statutory fees which would be inadequate under just compensation
principles, and which are usually payable only in limited types of
cases. Further, the vast majority of the courts which have passed on the
question have denied claims of appointed counsel for nonstatutory just
compensation, pointing out that representation of indigents under court
order, without a fee, is a condition under which lawyers are licensed to
practice as officers of the court,[2]
and that the obligation of the legal profession to serve without
compensation has been modified only by statute. An applicant for
admission to practice law may justly be deemed to be aware of the
traditions of the profession which he is joining, and to know that one
of these traditions is that a lawyer is an officer of the court
obligated to represent indigents for little or no compensation upon
court order. Thus, the lawyer has consented to, and assumed, this
obligation and when he is called upon to fulfill it, he cannot contend
that it is a "taking of his services."
United States v. Dillon, supra, 346 F.2d at 635 (boldface emphasis added). Accord, United States v. 30.64 Acres of Land, More or Less, 795 F.2d 796, 800-801 (9th Cir. 1986); Williamson v. Vardeman, 674 F.2d 1211, 1214-15 (8th Cir. 1982); Tyler v. Lark, 472 F.2d 1077, 1079 (8th Cir. 1973); Dolan v. United States, 351 F.2d 671, 672 (5th Cir. 1965).
Inasmuch as Dillon's Fifth Amendment holding is predicated on
the "tradition[ ] of the profession" that "a lawyer is an officer of the
court obligated to represent indigents for little or no compensation
upon court order" (see id., 346 F.2d at 635), it is wholly in accord with our Court of Appeals' view that the discretionary power of New York courts to assign pro bono
counsel in appropriate cases is "historically associated with the duty
of the Bar to provide uncompensated services for the indigent" See, In re Smiley, supra, 36 NY2d at 438. See also, Scheehle v. Justices of the Supreme Court of Arizona, 508 F.3d 887, 896 (9th Cir. 2007)
("[T]he `bundle of rights' a person acquires with admission to a bar
does not include a right to compensation under the Fifth Amendment for
duties that he or she owes to the courts").
B. The Debate Over the Theoretical and Historical
Underpinning of Courts' Authority to Assign Counsel to Represent
Indigents Without Compensation
In 1987, the Supreme Court of Kansas wrote:
The judiciary across the nation has struggled to find the
appropriate balance between the ethical obligation of the legal
profession to make legal services available and the rights of attorneys
to just compensation.
State ex rel. Stephan v. Smith, 747 P.2d 816, 841 (Kan. 1987).
During the 1980's and 1990's, as the demand for legal services for
indigent persons became acute, there was a considerable debate over the
theoretical and historical underpinning of courts' authority to assign
counsel to represent indigents without compensation.
Appended to the Ninth Circuit's decision in United States v. Dillon, supra,
is a treatise which purports to trace back to 15th century England and
colonial America the historical foundations of an obligation on the part
of the legal profession to represent indigents upon court order,
without compensation, as a condition under which lawyers are licensed to
practice as "officers of the court." See, id., 346 F.2d at 636-638. Perhaps the most thorough-going judicial challenge to the pillars of the Dillon Court's analysis is set forth in an en banc decision of the Supreme Court of Missouri in State ex rel. Scott v. Roper, 688 S.W.2d 757 (Mo. 1985). The Missouri court made inter alia the following points:
First: The standards of professional responsibility adopted by the American Bar Association do not require mandatory pro bono service. See id., 688 S.W.2d at 763-764.
• Canon 2 of the Code of Professional Responsibility (1969)
provides that "[a] lawyer should assist the legal profession in
fulfilling its duty to make legal counsel available." The Preamble
states that "[t]he Canons are statements of axiomatic norms, expressing
in general terms the standards of professional conduct expected of
lawyers in their relation-ships with the public, with the legal system,
and with the legal profession."
EC 2-25 provides: "Historically, the need for legal services
of those unable to pay reasonable fees has been met in part by lawyers
who donated their services or accepted court appointments on behalf of
such individuals. The basic responsibility for providing legal services
for those unable to pay ultimately rests upon the individual lawyer The
rendition of free legal services to those unable to pay reasonable fees
continues to be an obligation of each lawyer."
EC 2-29 provides: "When a lawyer is appointed by a court or
requested by a bar association to undertake representation of a person
unable to obtain counsel, whether for financial or other reasons, he
should not seek to be excused from undertaking the representation except
for compelling reasons."
The Preamble states that "[t]he Ethical Considerations are
aspirational in character and represent the objectives toward which
every member of the profession should strive."
• Rule 6.1 of Model Rules of Professional Conduct (1983),
entitled "Voluntary Pro Bono Publico Service," provides that "[e]very
lawyer has a professional responsibility to provide legal services to
those unable to pay. A lawyer should aspire to render at least (50)
hours of pro bono publico legal services per year. In fulfilling this
responsibility, the lawyer should (a) provide a substantial majority of
the (50) hours of legal services without fee or expectation of fee to
(1) persons of limited means"
• Until 2009, New York's Code of Professional Responsibility
included Canon 2 from the 1969 ABA Code, but modified EC 2-25
(renumbered 2-34) to provide that "[e]ach lawyer should aspire to
provide at least 20 hours of pro bono services annually by providing
legal services at no fee and without expectation of fee to (1) persons
of limited financial means, or (2) not for profit, governmental or
public service organizations, where the legal services are designed
primarily to address the legal and other basis needs of persons of
limited financial means, or (3) organizations specifically designed to
increase the avail-ability of legal services to persons of limited
financial means."
• In 2009, New York adopted Rule 6.1 of the New York Rules
of Professional Conduct, entitled "Voluntary Pro Bono Services." It
provides: "Lawyers are strongly encouraged to provide pro bono legal
services to benefit poor persons. (a) Every lawyer should aspire to: (1)
provide at least 50 hours of pro bono legal services each year to poor
persons."
Second: The Missouri Court rejected the theory that a duty to render
gratuitous service may be premised on the notion that licensing to
practice law grants lawyers "a monopoly to practice before the courts." See id., 688 S.W.2d at 764-765. The Court wrote:
The reasons underlying the monopoly argument are fraught
with conceptual difficulties. First, no individual is personally denied
the opportunity to argue his own cause. Although the complex nature of
many legal issues may seem to make the presence of a person trained in
law essential, anyone is free to either pursue a career in law or obtain
the requisite legal knowledge. This fact has led a noted scholar in
this area, Professor Geoffrey Hazard, to dismiss the monopoly argument
as "absurd." [cit.om.]. Second, limiting the persons who can provide
services in this and other professions is not for the personal advantage
of its members but rather for the protection of the public. [cit.om.].
Third, the monopoly argument must necessarily rest upon some unstated
assumption, otherwise members of all occupations licensed by the state
could be compelled to render gratuitous service. [cit.om]. Doctors, for
example, might then be required to treat patients without receiving a
fee.
Id., at 766.
Third: Following Professor Shapiro ["The Enigma of the Lawyer's Duty
to Serve," 55 N.Y.U. L.Rev. 735 (1980)], the Missouri Court rejected the
theory that a lawyer may be required to render gratuitous service as an
"officer of the court" because the English historical precedent cited
for this practice is not germane to American law. See id., 688 S.W.2d at 765-767.
The Court noted that: "The role of the English barrister most closely
resembles today's American trial attorney. Barristers have at no time in
English history been treated as officers of the court" (Id., at
766); and further, that the English "attorneys" and "serjeants-at-law"
who were treated as "officers of the court" were effectively court staff
or public officials with "no counterpart" in American practice. See id., at 765-766.
Fourth: The Missouri Court also questioned the American historical antecedents on which Dillon had relied. The Court wrote:
[T]here is little or no substantiated evidence that
uncompensated appointments either were or should have been compelled in
civil cases. To the contrary, the strictness with which the fee system
developed during colonial times illustrates little sympathy for the
pauper. [cit.om.]. While one author suggests that colonial records
indicate that "in some instances counsel was assigned in forma pauper in
civil litigation," the father of modern American legal history, James
Willard Hurst, contends that "[t]he common law, and in some states a few
early statutes, held out to the poor the help of counsel assigned by
the court. But by the later 19th century this practice had long fallen
into disuse in civil cases." [cit.om.]
Id., at 768.
Fifth: Finally, the Missouri Court argued that historical practice
has only a limited bearing on the question of the constitutionality of
assignment of counsel pro bono for indigent parties because "the nature of law practice has changed dramatically over the last 50 to 100 years." See, id., 688 S.W.2d at 767.
The Court noted in this regard that the burden on assigned counsel is
greater today due to the "greater degree of complexity" introduced by
modern jurisprudence; that lawyers are faced with "[s]kyrocketing
overhead costs"; and that the Bar has become "increasingly specialized,"
in consequence of which a smaller segment of the profession must bear
the burden of representing indigents. See, id.
Based inter alia on the foregoing, the Missouri Supreme Court
held (without reaching the federal constitutional issues) that Article
1, §2 of the Missouri Constitution — which per the Court "protects an
individual's services by providing `that all persons have a natural
right to the enjoyment of the gains of their own industry'" — deprived
Missouri courts of authority to compel attorneys to serve in civil cases
without compensation. Id., 688 S.W.2d at 769. See, DeLisio v. Alaska Superior Court, 740 P.2d 437, 438, 439 n.3, 441-443 (holding that per Alaska Const. art.1, §18 ["[p]rivate property shall not be taken or damaged
for public use without just compensation"] a private attorney may not
be compelled to represent a criminal defendant without just
compensation, and that an attorney may not be denied reasonable
compensation solely on the basis of the traditional/historical position
of the attorney as an "officer of the court"). See also, Ex Parte Brown, 711 S.E.2d 899, 903-904 (S. Car. 2011); Simmons v. State Public Defender, 791 N.W.2d 69, 86 (Iowa 2010); Arnold v. Kemp, 813 S.W.2d 770 (Ark. 1991).
2. A Defense of the Courts' Traditional Authority
Perhaps the most thoughtful, and full-throated, judicial rejoinder in
support of the courts' traditional authority to assign counsel to
represent indigent persons without compensation was made in Bothwell v. Republic Tobacco Co., 912 F.Supp. 1221 (D. Neb. 1995). Addressing itself to (1) the "officer of the court" doctrine on which the Dillon
Court relied, (2) lawyers' "monopoly" by virtue of state licensing of
legal practice in courts of law, and (3) the ethical obligation of
lawyers to provide representation for the poor, the Bothwell
Court concluded that there is ample historical and theoretical
justification for the courts' inherent power to compel representation of
indigent litigants, and further, that such power is essential to
maintaining the legitimacy of the civil justice system.
Concerning the "officer of the court" doctrine, the Bothwell Court wrote:
The critics' challenges to the validity of the
officer-of-the-court doctrine, while forceful, are flawed in several
respects. First, the claim that there is no direct counterpart to the
serjeants-at-law in the American legal system actually serves to
underscore the void in needed representation of indigent litigants.
Because there is no special class of attorneys in the American system
whose primary task is to provide such representation in civil cases,
and, as discussed above, the realistic opportunities available to the
poor to participate in the civil justice system are, at best, extremely
limited, there simply is, at present, no other source than the private
bar capable of providing representation to indigents.
Second, even assuming that the historical foundation for the
officer-of-the-court doctrine is not as solid as once thought, the fact
remains that court-compelled appointments for indigents have been made
for centuries. See, Dillon, 346 F.2d at 636-37.
In fact, one legal historian has traced the requirement of indigent
representation back to the ecclesi-astical courts of the thirteenth
century. [cit.om.]
Third, quite apart from any role the officer-of-the-court
doctrine may have played in England or the colonies, that doctrine has
become and is part of the fabric of American jurisprudence. [Citing
among other case authorities Powell v. State of Alabama, supra, 287 U.S. 45 (1932), Williamson v. Vardeman, supra, 674 F.2d 1211, 1214-15 (8th Cir. 1982), and People ex rel. Karlin v. Culkin, 248 NY 465 (1928) (Cardozo, J.)
("[t]he appellant was received into that ancient fellowship for
something more than private gain [h]e became an officer of the court,
and, like the court itself, an instrument or agency to advance the ends
of justice") ].
Finally, critics of the officer-of-the-court doctrine have
failed to recognize the role that the availability of lawyers has played
and continues to play in maintaining the integrity of the civil justice
system. Because the ready availability of lawyers is necessary to
ensuring the perception, and indeed the reality, of fairness, their
accessibility as officers of the court is necessary not only to the
preservation of the justice system itself but to the ordered liberty of
our society. See Luban, supra, at 251 ("if the have-nots
are excluded from access to the legal system, `the end whereof to
protect and redress the innocent', their alternative is the law of the
streets, of resistance that is entirely rightful"), quoting John Locke, Second Treatise of Government, In Two Treatises of Government
§20 at 322 (Cambridge University Press [1960]). For all of the
foregoing reasons, I conclude that it is inappropriate to discard the
officer-of-the-court doctrine as a justification for compelled
representation of the indigent.
Bothwell v. Republic Tobacco Co., supra, 912 F.Supp. at 1231-32.
Concerning the "Monopoly of Lawyers," the Bothwell Court wrote:
A further justification which has been advanced for the view
that attorneys are obligated to comply with court-ordered appointments
is the monopoly theory. Under that theory, attorneys must provide legal
services to indigents without compensation by virtue of the exclusive
privilege they have been granted to practice law. See United States v. Accetturo, 842 F.2d 1408, 1413 (3d Cir. 1988)
("[a]ttorneys who have the privilege of practicing before the court
have a correlative obligation to be available to serve the court");
[cit.om.]. Regulation of attorney licensing limits the number of
individuals who may practice law. As a result, those relatively few
individuals who are licensed benefit financially, thereby compensating
them for any financial losses incurred by representing indigents.
[cit.om.]. Also, because meaningful access to the courts can be had only
through these licensed attorneys, they are required to represent those
who are unable to afford representation. [cit.om.].
Bothwell, supra, 912 F.Supp. at 1232. The Court acknowledged and addressed criticism of the "monopoly theory":
[C]ritics have argued that no monopoly actually exists
because every individual is free to represent themselves in court or,
alternatively, to pursue a legal career. [cit.om.] However, even if
theoretically each potential litigant in the population at large had the
intellectual capacity to become a lawyer, it is quite improbable that
either their opponents or the courts in which they are embattled would
stay the pursuit of claims while they did so. As discussed supra,
meaningful access to the courts often requires representation by
someone previously trained, if not experienced, in the practice of law.
Thus, while the monopoly may not prevent a party from gaining access to
the courts, it very well may prevent the administration of equal
justice.
. . .
Finally, critics claim that other groups enjoying monopolies
as a result of state licensing, such as doctors, nurses, teachers,
insurance agents, brokers, and pharmacists, do not bear an obligation to
provide free services to the poor. [cit.om.] While that is true, it
misses the point. The practice of law — that is, the representation of
others before the civil courts — is not simply a private enterprise. It
is, in addition, a contribution to society's ability to manage its
domestic affairs, a necessary condition of any civilized culture.
Attorneys have a unique relationship to government not shared by other
licensed groups. [cit.om.] This relationship, which has been described
as "symbiotic," [cit.om.], places attorneys in "an intermediary position
between the court and the public" where they are "inextricably linked
to the public sector despite [their] dual position as a private
businessperson." [cit.om.] "The practice of law in the broad sense, both
in and out of the courts, is a necessary part of and is inexorably
connected with the exercise of the judicial power." [cit.om.] (quoting In re Integration of the Bar, 5 Wis,2d 618 (1958)).
By virtue of this special relationship between the bench and
the bar, courts are dependent upon attorneys to aid in carrying out the
administration of justice. While other professions also contribute to
private gain and to the betterment of society's standards of living, no
other group hold the exclusive key to meaningful participation in a
branch of govern-ment and the protection of rights. This monumental
difference between attorneys and other licensed groups justifies
imposition of different conditions on the practice of the profession.
Bothwell, supra, 912 F.Supp. at 1232-33.
Finally, the Bothwell Court addressed the ethical obligations
of lawyers to provide representation to indigent litigants as codified
in the Code of Professional Responsibility (Canon 2, EC 2-25, EC 2-29),
noting that "[w]hile these obligations are not expressed in mandatory
terms, they clearly indicate that service to the indigent is an
essential characteristic of any ethical attorney." Id., 912 F.Supp. at 1234. The Court continued:
First, these moral and ethical obligations to provide legal
services to the poor do not exist merely to prompt the practicing lawyer
to be a "good" person, respected in the profession. Rather, they are a
recognition of the critical role of the lawyer in ensuring the fair and
just adjudication of disputes, and the need for such advocacy in
ensuring the existence of the system. [cit.om.].
Second, these obligations are not self-executing. Platitudes
are nice, of course, but if these aspirational "goals" are to be
achieved and to have any meaning in fact, there must be some mechanism
for gaining compliance. It makes little sense to give only lip service
to these ideals while the legitimacy of the court system is being
challenged by other means of resolving private disputes. If our society
is to have a legitimate civil justice system, the courts must be
empowered to take necessary measures to create and maintain it I view
the attorney's ethical obligation to render services to the poor as the
"flip side" of the court's inherent authority to provide "instruments"
to ensure fairness and justice, and to maintain the relevance of the
court system in resolving civil disputes.
Id., at 1234. The Bothwell Court concluded:
Our governmental system is built partially upon the concept
of citizens being able to redress their grievances and resolve their
civil disputes in courts. A judiciary committed to observing notions of
fairness, justice, and equality before the law is of paramount
importance in maintaining public confidence in that system. Lawyers are
essential in maintaining the system because the only realistic way the
populace at large can obtain "equal justice" is through the advocacy of
those trained in the law. If public confidence in the system wanes, in
time, people will find, and indeed have already found, other, less
civil, methods of resolving their differences. [cit.om.] Thus, attorneys
occupy a unique role in preserving the ordered liberty included in the
concept of "domestic tranquility." They are therefore vital to
preserving the viability of the third branch of government. [cit.om.]
In accordance with the foregoing discussion, I conclude
that, despite authority suggesting otherwise [cit.om.], this court
possesses the inherent power to compel representation of an indigent
litigant. I further conclude that there are ample historical and
theoretical justifications for the existence of that power.
Id., at 1234-35.
In accord with Bothwell, courts in various states — including
New York, New Jersey, Florida, California, Arizona and others — continue
to uphold their traditional authority to authority to assign counsel to
represent indigent persons without compensation. See, e.g., In re Smiley, supra, 36 NY2d at 441; Madden v. Township of Delran, 601 A.2d 211 (N.J. 1992); State v. Rush, 217 A.2d 441 (N.J. 1966); In re Amendments to Rules Regulating the Florida Bar, 573 So.2d 800 (Fla. 1991); Payne v. Superior Court, 17 Cal.3d 908, 920 n.6, 553 P.2d 565 (Cal. 1976); San Diego County DSS v. Superior Court, 36 Cal.Rptr.3d 761, 766 (Cal. App. 2005); County of Tulare v. Ybarra, 192 Cal.Rptr. 49, 53 (Cal. App. 1983); Scheehle v. Justices of the Supreme Court of Arizona, 120 P.3d 1092 (Ariz. 2005).
C. Conclusion
New York State Constitution Art. 1 §6, which provides that "[n]o
person shall be deprived of life, liberty or property without due
process of law," and Art. 1 §7, which provides that "[p]rivate property
shall not be taken for public use without just compensation," are
essentially identical to their counterparts in the Fifth Amendment to
the United States Constitution. This Court perceives no reason to depart
as a matter of New York law from the federal view that court orders
requiring attorneys to represent indigent parties without compensation
do not per se involve an unconstitutional taking of the attorney's time, labor or services in violation of the Fifth Amendment. See, Hurtado v. United States, supra; United States v. Dillon, supra; United States v. 30.64 Acres of Land, More or Less, supra; Williamson v. Vardeman, supra; Tyler v. Lark, supra; Dolan v. United States, supra.
In support of the courts' traditional authority to assign counsel to
represent indigent persons without compensation, the Court finds
especially compelling the following considerations, outlined above:
• Court-compelled appointments of counsel for indigents have been made for centuries.
• The "officer of the court" doctrine is part of the fabric
of American jurisprudence, and specifically of New York jurisprudence,
as Judge Cardozo recognized in People ex rel. Karlin v. Culkin, supra.
• Thus, as the Dillon Court observed, an applicant
for admission to practice law may justly be deemed to be aware of the
tradition of his profession that a lawyer may be obligated to represent
indigents for little or no compensation upon court order.
• Since the practice of law is restricted to licensed
attorneys, and meaningful access to the courts can be had only through
licensed attorneys, lawyers may justly be required to represent those
who are unable to afford legal counsel.
• Lawyers may legitimately be treated differently in that
regard from other licensed professionals by virtue of their unique
relationship to the government. Lawyers hold "the exclusive key to
meaningful participation in a branch of government and the protection of
rights." Hence, the practice of law is not a purely private enterprise
but is "inexorably connected with the exercise of judicial power"
because courts are dependent upon attorneys in carrying out the
administration of justice.
• Although a lawyer's ethical obligation to provide
representation to the poor without compensation is "aspirational," it is
grounded in a "recognition of the critical role of the lawyer in
ensuring the fair and just adjudication of disputes." In appropriate
cases, New York courts may properly call upon attorneys to fulfill their
ethical obligation to the poor to achieve fairness, justice and
equality in the administration of the civil justice system.
III Court Orders Requiring Pro Bono Service May Potentially Result in an Unconstitutional Taking of the Attorney's Right to Practice Law
Our Court of Appeals recognized in In re Smiley, supra,
that "the undue burden which may be placed on the private Bar by
assignments under CPLR 1102, may also become intolerable and some might
say rank as a violation of the constitutional rights of lawyers." Id., 36 NY2d at 441. The Smiley Court cited Menin v. Menin, 79 Misc 2d 285 (Sup. Ct. Westchester Co. 1974), aff'd 48 AD2d 904 (2d Dept. 1975),
wherein Justice Joseph Gagliardi held that "the policy of assigning
uncompensated counsel to matrimonial litigants must give way to the
Constitutional rights of counsel as protected under the Due Process
Clauses of the Fourteenth Amendment to the Federal Constitution and
Article 1, Section 6 of this State's Constitution." Id., 79 Misc 2d at 293.
Although Justice Gagliardi's decision contains an admirable survey of
the legal landscape at that time, including authority for and against
the conclusion he reached (id., at 286-293), the only discernible
ground for his ultimate choice between one body of authority over the
other is his observation that the attorney's right to practice the
profession of law is a property right protected by the constitution and
laws of New York as well as the Federal Constitution:
It has been said that the right to practice in any
profession is `a valuable property right, in which, under the
constitution and laws of the State, one is entitled to be protected and
secured' [cit.om.]. Whether an attorney's right to practice is regarded
as a property right or a privilege [cit.om.], such right is protected by
the Federal Constitution [cit.om.] since `lawyers also enjoy
first-class citizenship' [cit.om.]. Admission to the bar is not a matter
of grace [cit.om.].
Menin, supra, 79 Misc 2d at 292. Accord, Family Div. Trial Lawyers of Superior Court — D.C. v. Moultrie, 725 F.2d 695, 706 (D.C. Cir. 1984)
("[T]he right to conduct a business and enter a profession is
considered a property right within the meaning of various constitutional
provisions"); State ex rel. Stephan v. Smith, supra, 747 P.2d 816, 841 (Kan. 1987)
("One who practices his profession has a property interest in that
pursuit which may not be taken from him or at the whim of the government
without due process").
However, Justice Gagliardi's legal analysis was incomplete. Having
identified an attorney's right to practice law as a "property" interest
protected by the Fifth Amendment Takings Clause, he was obliged to go
further and consider whether the governmental intrusion upon that
property interest — to wit, a court order requiring representation of an
indigent matrimonial litigant without compensation — is of such a
nature as to be deemed a "taking" which requires "just compensation."
A. Court Order Requiring Pro Bono Service Does Not Effect a Per Se Taking of the Attorney's Right to Practice Law
"[G]overnment regulation of private property may, in some instances,
be so onerous that its effect is tantamount to a direct appropriation or
ouster — and such `regulatory takings' may be compensable under the
Fifth Amendment." Lingle v. Chevron U.S.A., Inc., supra, 544 U.S. at 537. See, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). In Lingle, the Supreme Court discussed the question when governmental regulation of or intrusion upon property interests may constitute a per se taking under the Fifth Amendment. The Court wrote:
Our precedents stake out two categories of regulatory action that generally will be deemed per se
takings for Fifth Amendment purposes. First, where government requires
an owner to suffer a permanent physical invasion of her property —
however minor — it must provide just compensation. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) A second categorical rule applies to regulations that completely deprive an owner of "all economically beneficial us[e]" of her property. Lucas [v. South Carolina Coastal Council], 505 U.S. [1003], at 1019 [1992]
Lingle v. Chevron U.S.A., Inc., supra, 544 U.S. at 538 (boldface emphasis added).
Quite plainly, a court order requiring pro bono representation
of an indigent matrimonial litigant in a discrete case is not
tantamount to a "permanent physical invasion" of the attorney's law
license or private legal practice; neither does it deprive him of "all
economically beneficial use" of his law license or legal practice. Cf., Scheehle v. Justices of the Supreme Court of Arizona, 508 F.3d 887, 894 (9th Cir. 2007). Therefore, it does not effect a per se "taking" of the attorney's right to practice law.
B. A Court Order Requiring Pro Bono Service May Effect
an Unconstitutional Taking of the Attorney's Right to Practice Law If
It Substantially Interferes with his Legal Practice
"Takings" which do not involve a permanent physical invasion of
property or deprive the owner of all economically beneficial use of the
property are analyzed, for Fifth Amendment purposes, under the standards
set forth in Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). See, Lingle v. Chevron U.S.A., Inc., supra, 544 U.S. 528, 538 (2005).
In Penn Central, the Supreme Court wrote:
While this Court has recognized that the "Fifth Amendment
guarantee [is] designed to bar Government from forcing some people alone
to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole," Armstrong v. United States, 364 U.S. 40, 49 (1960),
this Court, quite simply, has been unable to develop any "set formula"
for determining when "justice and fairness" require that economic
injuries caused by public action be compensated by the government,
rather than remain disproportionately concentrated on a few persons. See
Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962).
Indeed, we have frequently observed that whether a particular
restriction will be rendered invalid by the government's failure to pay
for any losses proximately caused by it depends largely "upon the
particular circumstances [in that] case." United States v. Central Eureka Mining Co., 357 U.S. 155, 168 (1958); See United States v. Caltex, Inc., 344 U.S. 149, 156 (1952).
In engaging in these essentially ad hoc, factual inquiries,
the Court's decisions have identified several factors that have
particular significance. The economic impact of the regulation on the
claimant and, particularly, the extent to which the regulation has
interfered with distinct investment-backed expectations are, of course,
relevant considerations. [cit.om.]. So, too, is the character of the
governmental action. A "taking" may more readily be found when the
interference with property can be characterized as a physical invasion
by the government [cit.om.], than when the interference arises from some
public program adjusting the benefits and burdens of economic life to
promote the common good.
Penn Central Transp. Co., supra, 438 U.S. at 123-124 (boldface emphasis added). See also, Lingle v. Chevron U.S.A., Inc., supra.
To the mind of this Court the 9th Judicial District program for
assignment of counsel to indigent parties in matrimonial actions is a
"public program adjusting the benefits and burdens of economic life to
promote the common good" which effects no "physical invasion" of
attorneys' right to practice law. Under Penn Central, then, the "takings" inquiry requires analysis of the economic impact of pro bono
assignment upon the movant, and more specifically of the extent to
which it has "interfered with distinct investment-backed expectations." See, id., 438 U.S. at 123-124. Hence, only if the burden of uncompensated pro bono
assignments were to interfere substantially with an attorney's private
practice of law would they potentially effect an unconstitutional taking
of property under the Penn Central "regulatory takings" test. See, Scheehle v. Justices of the Supreme Court of Arizona, supra, 508 F.3d 887, 892-893 (9th Cir. 2007); Family Div. Trial Lawyers of Superior Court — D.C. v. Moultrie, supra, 725 F.2d 695, 705-706 (D.C. Cir. 1984). See also, State ex rel. Stephan v. Smith, supra, 747 P.2d 816, 841-842 (Kan. 1987).
Thus, in Family Div. Trial Lawyers of Superior Court — D.C. v. Moultrie, supra, the Court wrote:
As the scope of the constitutionally mandated right to counsel has expanded, and the concomitant burden of providing pro bono
representation imposed on attorneys has grown, several state courts
have recognized that at some point the burden on particular attorneys
could become so excessive that it might rise to the level of a "taking"
of property. See, e.g., People ex rel. Conn. v. Randolph, 35 Ill.2d 24, 219 N.E.2d 337 (1966); Bias v. State, 568 P.2d 1269 (Okla. 1977); State ex rel. Partain v. Oakley, 227 S.E.2d 314 (W.Va. 1976); cf. Menin v. Menin, 79 Misc 2d 285 (Sup. Ct. 1974)
(appointment of counsel in civil case not mandated since such
appointment would abridge appointed attorneys' property rights). And,
although the appellants here have no expectation of compensation for
their services in appointed cases that rises to the level of a property
interest, "the right to conduct a business and enter a profession is
considered a property right within the meaning of various constitutional
provisions." Menin, 359 NYS2d at 729; [cit.om.]. Thus, while the
District may enact regulations that affect property interests, where
those regulations unreasonably "frustrate distinct investment-backed
expectations" they may "amount to a `taking.'" Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 127 (1978)
In short, if the superior court appointment system effectively denies
the appellantsthe opportunity to maintain a remunerative practice as
family lawyers before the Family Division, and that specialty practice
is determined to be a "property" interest, it might effect an
unconstitutional "taking."
Moultrie, supra, 725 F.2d at 705-706 (boldface emphasis added).
In a similar vein, the Supreme Court of Kansas, in State ex rel. Stephan v. Smith, supra, analyzed the Fifth Amendment issue in the following terms:
Attorneys, like the members of any other profession, have
for sale to the public an intangible — their time, advice, and counsel.
One who practices his profession has a property interest in
that pursuit which may not be taken from him or her at the whim of the
government without due process.Attorneys make their living through their
services. Their services are the means of their livelihood When
attorneys' services are conscripted for the public good, such a taking
is akin to the taking of food or clothing from a merchant or the taking
of services from any other professional for the public good We conclude
that attorneys' services are property, and are thus subject to Fifth
Amendment protection.
Id., 747 P.2d at 841, 842. The Court accordingly held:
[W]hen at attorney is required to spend an unreasonable
amount of time on indigent appointments so that there is genuine and
substantial interference with his or her private practice, the system
violates the Fifth Amendment.
Id., at 842 (boldface emphasis added).
In Scheehle v. Justices of the Supreme Court of Arizona, supra,
the Ninth Circuit addressed the question whether the state of Arizona's
appointment system, whereby certain attorneys were required to serve
without pay as arbitrators in civil cases, constituted a "taking" of the
attorney's property without just compensation in violation of the Fifth
Amendment. Applying the Penn Central "regulatory takings" test, the Scheehle Court wrote:
When the regulatory takings test factors are applied to
Scheehle's claim, the compelled conclusion is that there has been no
constitutional taking. First, the economic impact of the imposition on
Scheehle is negligible. He is required to devote two days out of the 365
days in a year to arbitration. Moreover, there is no showing or
suggestion that this obligation interfered with any existing legal work.
Second, the obligation does not interfere with any "distinct
investment-backed expectations." To the contrary, in accepting admission
to the Arizona Bar, and in practicing before the Maricopa Superior
Court, Scheehle voluntarily became an officer of the court with the
concomitant obligation to render service to the court when requested. See United States v. Dillon, 346 F.2d 633, 635 (9th Cir. 1965); see also Powell v. Alabama, 287 U.S. 45, 65 (1932).
Third, the Appointment System "merely affects property interests
through `some public program adjusting the benefits and burdens of
economic life to promote the public good.'" Lingle, 544 U.S. at 539
In return for a license to practice law in Arizona, Scheehle is
obligated to serve for two days a year as an arbitrator — a position
that his training as a lawyer (despite his subsequent specialization),
admission to the bar, and years of practice make him particularly
qualified to perform. There is no suggestion, nor will the record
support the suggestion, that this two-day obligation remotely outweighs
the benefits conferred by admission to the practice of law. In sum, the
Appointment System's imposition on Scheehle when evaluated under the
regulatory takings test is not a "taking" under the Fifth Amendment that
requires compensation.
Scheehle, supra, 508 F.3d at 892-893.
IV The Movant Has Failed to Demonstrate that This Court's
Order Assigning Him To Represent an Indigent Matrimonial Litigant
Without Compensation Violates His Constitutional Rights
In what the Court construes to be the movant's effort to demonstrate that a pro bono assignment of any kind
would unconstitutionally interfere with "distinct investment-backed
expectations" upon which he has built his legal practice, the movant
avers that he has 3½ staff persons on his payroll, annual expenses of
more than one-half million dollars and almost $9,000 annually in student
loan debt (Bliven Aff. ¶16). The Court is sympathetic to the burdens
faced by hard-working sole practitioners — indeed, in administering the
9th Judicial District program it takes pains to accommodate attorneys
operating under such burdens. Nevertheless, the Court must point out the
deficiencies in the movant's showing: (1) in light of In re Smiley and United States v. Dillon, supra, the movant can have no legitimate investment-backed expectation that he will never receive a pro bono assignment in a matrimonial case; and (2) he has wholly failed to demonstrate that the particular pro bono
assignment at issue here will substantially interfere with his private
legal practice or impede in any meaningful way his ability to meet the
referenced financial obligations.
In In re Smiley, supra, our Court of Appeals observed:
As in so many things it is the existence of assets or income
which creates complications, and so it does in matrimonial litigation.
Hence, in the absence of disputes over money or the custody or children,
matrimonial litigation is likely to be quite simple, and if a lawyer is
required, his task quite simple.
Id., 36 NY2d at 440. Although Smiley
predates the advent of the Equitable Distribution Law in 1980, the
Court's observation is nevertheless fundamentally sound and has a
significant bearing on the constitutional issues surrounding the 9th
Judicial District pro bono assignment program.
Complex matrimonial litigation requiring the substantial investment
of a lawyer's time and labor generally involves disputes over assets or
child custody. If his indigent client's adversary has assets, then there
is a potential source of funds for payment of the movant's attorney's
fees via an award pursuant to DRL §237, or pursuant to CPLR §1102(d)
from his own client's equitable distribution award. Similarly, if there
is litigation over custody of the children of the marriage, then
attorney's fees are payable from the public purse, pursuant to Family
Court Act §262(a)(v) and Judiciary Law §35(8), for services rendered by
the movant in connection with the custody proceedings. The point is that
the very circumstances giving rise to time-consuming matrimonial
litigation carry with them the potential for payment of the movant's
attorney's fees. Conversely, in the absence of those complicating
circumstances the movant's task should be simpler and the pro bono
assignment considerably less burdensome. If in such cases there is no
ready source of funds for payment of attorney's fees, neither is there a
prospect that a substantial commitment of the movant's time and labor
will be required.
In this case, both parties are indigent and represented by assigned pro bono
counsel, so there should be no time-intensive litigation over assets.
The record shows that there is one unemancipated child of the marriage.
In the event there is litigation over custody of the child, attorney's
fees are payable, as noted above, for those proceedings pursuant to
Family Court Act §262(a)(v) and Judiciary Law §35(8). In view of the
circumstances, the movant has failed to demonstrate that undertaking
this pro bono representation will be unduly burdensome for him,
much less that it will effect an unconstitutional taking of property
without just compensation in violation of the Fifth Amendment.
The Court accordingly concludes that the March 16, 2022 Order wherein
this Court assigned David Bliven, Esq. to represent Defendant herein
"without any compensation from Defendant, without prejudice to motion by
counsel for compensation pursuant to CPLR §1102(d), DRL §237, Judiciary
Law §35, or otherwise as provided by law" is not violative of the
movant's constitutional rights.
It is therefore
ORDERED, that the application of David Bliven, Esq., assigned counsel
for defendant E.S., for an Order declaring unlawful the Court's
assignment of counsel pro bono for indigent parties in
matrimonial actions, and directing that he be relieved as counsel for
Defendant, or alternatively, directing payment from the public purse for
his services and fixing the prescribed hourly rate therefor, is in all
respects denied.
The foregoing constitutes the decision and order of the Court.
[1]
Article 18-B of the County Law establishes a mechanism for the
assignment and compensation of counsel in some cases. County Law §722
requires counties to implement "a plan for providing counsel to person
charged with a crime or who are entitled to counsel pursuant to Section
262 or 1120 of the Family Court Act, Article 6-C of the Correction Law,
Section 407 of the Surrogate's Court Procedure Act or Article 10 of the
Mental Hygiene Law, who are financially unable to obtain counsel."
County Law §722-b provides for the compensation and reimbursement of
attorneys providing representation in those cases.
[2] In Powell v. State of Alabama, 287 U.S. 45 (1932),
which involved the appointment of counsel in a capital case, the
Supreme Court stated that "[a]ttorneys are officers of the court, and
are bound to render service when required by such an appointment." Id., at 53."
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