AMERICAN BAR ASSOCIATION · Law Addressing Authorizaton or Requirement to Appoint Counsel in Specifc Types of Civil Proceedings.2 1. ... Costello, 523 N.Y.S.2d 374 (Civ. Ct. 1987),

ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS NEW YORK 2018

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AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of

Counsel in State Civil Proceedings

NEW YORK

Copyright © 2018 American Bar Association

All rights reserved.

American Bar Association Standing Committee on Legal Aid and Indigent Defendants

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Chicago, IL 60610

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http://www.americanbar.org/groups/legal_aid_indigent_defendants.html The materials herein may be reproduced, in whole or in part, provided that such use is for informational, non-commercial purposes only and any copy of the materials or portion thereof acknowledges original publication by the American Bar Association and includes the title of the publication, the name of the author, and the legend “Copyright 2014 American Bar Association. Reprinted by permission.” Requests to reproduce materials in any other manner should be addressed to: Copyrights and Contracts Department, American Bar Association, 321 N. Clark Street, Chicago, IL 60610; Phone: 312-988-6102; FAX: 312-988-6030; E-mail: [email protected].


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NEW YORK

Table of Contents

Preface .......................................................................................................................................................... 1 Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 3

1. SHELTER ........................................................................................................................................... 3 2. SUSTENANCE .................................................................................................................................... 6 3. SAFETY AND/OR HEALTH ................................................................................................................. 8

A. Domestic Violence Protection Order Proceedings ...................................................................... 8 B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings .................................... 9 C. Civil Commitment or Involuntary Mental Health Treatment Proceedings ............................... 11 D. Sex Offender Proceedings ......................................................................................................... 14 E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings ........................................... 14

4. CHILD CUSTODY ............................................................................................................................. 15 A. Appointment of Counsel for Parent—State-Initiated Proceedings ........................................... 15 B. Appointment of Counsel for Parent—Privately Initiated Proceedings ..................................... 19 C. Appointment of Counsel for Child—State-Initiated Proceedings ............................................. 21 D. Appointment of Counsel for Child—Privately Initiated Proceedings ........................................ 23

5. MISCELLANEOUS ............................................................................................................................ 25 A. Civil Contempt Proceedings ....................................................................................................... 25 B. Paternity Proceedings ................................................................................................................ 28 C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion......... 29 D. Proceedings Involving Child Support ......................................................................................... 29 E. Juvenile Delinquency, Status Offenses, or Child in Need of Supervision Proceedings ............. 30 F. Proceedings Involving Persons in Military Service .................................................................... 31 G. Marriage Dissolution/Divorce Proceedings ............................................................................... 31 H. Forfeiture Proceedings Seeking Recovery of Proceeds ............................................................. 33 I. Personal Injury Suits .................................................................................................................. 33 J. Civil Conversion Claims .............................................................................................................. 34 K. Parole Revocation Proceedings ................................................................................................. 34 L. Proceedings Involving Claims by or Against Prisoners .............................................................. 34 M. Marriage of Minors ............................................................................................................... 35 N. Truancy ...................................................................................................................................... 35

Law Addressing Authorization or Requirement to Appoint Counsel in Civil Proceedings Generally ......... 37


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Preface

Important Information to Read Before Using This Directory

The ABA Directory of Law Governing Appointment of Counsel in State Civil Proceedings (Directory) is a compilation of existing statutory provisions, case law, and court rules requiring or permitting judges to appoint counsel for civil litigants. The Directory consists of 51 detailed research reports—one for each state plus D.C.—that present information organized by types of civil proceedings. Prior to using the Directory, please read the Introduction, at the Directory’s home page, for the reasons behind the development of the Directory, the various sources of authority from which judicial powers to appoint counsel in civil proceedings may derive, and the structure used to organize information within each of the research reports.

Terms of Use/Disclaimers

This Directory should not be construed as providing legal advice and the ABA makes no warranties concerning the information contained therein, which has been updated to reflect the law through early 2018. The Directory does not seek to address all conceivable subsidiary issues in each jurisdiction, but some such issues were researched and addressed, including: notification of right to counsel; standards for waiver of right to counsel; standard of review on appeal for improper denial of counsel at trial; whether “counsel” for a child means a client-directed attorney or a “best interests” attorney/attorney ad litem; and federal court decisions finding a right to counsel. Similarly, the research did not exhaustively identify all law regarding the issue of compensation of appointed counsel in each jurisdiction, though discussion of such law does appear within some of the reports.

The Directory attempts to identify as “unpublished” any court decisions not published within an official or unofficial case reporter. Discussion of unpublished cases appears only for those jurisdictions where court rules currently permit their citation in briefs or opinions. Limitations on the use of unpublished opinions vary by jurisdiction (e.g., whether unpublished cases have value as precedent), and such limits were not exhaustively researched. Users should conduct independent, jurisdiction-specific research both to confirm whether a case is published and to familiarize themselves with all rules relating to the citation and use of unpublished or unreported cases.

Acknowledgments

This Directory was a multi-year project of the ABA’s Standing Committee on Legal Aid and Indigent Defendants (SCLAID). We are indebted to our partner in this project, the National

http://www.ambar.org/civilrighttocounsel


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Coalition for a Civil Right to Counsel (NCCRC), for sharing the body of research that was adapted to form the Directory’s reports. The Acknowledgments, at the Directory’s home page, details additional specific contributions of the many individuals involved in this project.

http://www.ambar.org/civilrighttocounsel


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Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings

1. SHELTER

State Statutes and Court Decisions Interpreting Statutes

Intro 214-b, enacted in 2017 by New York City, adds N.Y.C. Admin. Code § 26-1301 et seq. N.Y.C. Admin. Code § 26-1302(a) provides that:

Subject to appropriation, the coordinator shall establish a program to provide access to legal services for covered individuals in covered proceedings in housing court and shall ensure that, no later than July 31, 2022,

1. all covered individuals receive access to brief legal assistance no later than their first scheduled appearance in a covered proceeding in housing court, or as soon thereafter as is practicable; and

2. all income-eligible individuals receive access to full legal representation no later than their first scheduled appearance in a covered proceeding in housing court, or as soon thereafter as is practicable.

“Covered individual” is defined as “a tenant of a rental dwelling unit located in the city, including any tenant in a building operated by the New York city housing authority, who is a respondent in a covered proceeding,” while “covered proceeding” is defined as “any summary proceeding in housing court to evict a covered individual, including a summary proceeding to seek possession for the non-payment of rent or a holdover, or an administrative proceeding of the New York city housing authority for termination of tenancy.” § 26-1301.

A New York statute grants the state’s courts a discretionary power to appoint unpaid counsel to in forma pauperis litigants in any civil case. N.Y. C.P.L.R. § 1102(a) (“The court in its order permitting a person to proceed as a poor person may assign an attorney.”). In deciding whether to appoint counsel as a discretionary matter, a trial court stated in a published opinion that “proper case[s] . . . would include cases where indigent civil litigants face grievous forfeiture or loss of a fundamental right.” Morgenthau v. Garcia, 561 N.Y.S.2d 867, 869 (Sup. Ct. 1990), discussed infra Part 5.H. In New York City Housing Authority v. Johnson, 565 N.Y.S.2d 362, 365 (App. Div. 1990) (per curiam), the court denied appointed counsel under section 1102 in an eviction from public housing proceeding. The court’s refusal was based primarily on its belief that the tenant had failed to articulate a meritorious defense. See id.


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The courts also may appoint an attorney to represent a person in military service who does not appear due to his or her military service, in any proceeding or action in which such person is a party. N.Y. Mil. Law § 303(1). This right extends to appointed attorneys in eviction proceedings in landlord/tenant court. 444 W. 54th St. Tenants Ass’n v. Costello, 523 N.Y.S.2d 374, 381 (Civ. Ct. 1987).

In 2009, the legislature passed N.Y. C.P.L.R. § 3408(b), which states that any foreclosure defendant appearing pro se at the mandatory conference is presumed to have filed a motion to proceed as a poor person, or in forma pauperis, under § 1101, and for appointment of counsel, under § 1102(a). If the court appoints counsel in the foreclosure matter, it is required to “adjourn the conference to a date certain for appearance of counsel and settlement discussions[.]” Id.

Federal Statutes and Court Decisions Interpreting Statutes

The federal Fair Housing Act, contained within Title VIII of the Civil Rights Act of 1968, provides that “[a]n aggrieved person may commence a civil action in an appropriate United States district court or State court[.]” 42 U.S.C. § 3613(a)(1)(A). Further, “[u]pon application by a person alleging a discriminatory housing practice or a person against whom such a practice is alleged, the court may . . . appoint an attorney for such person[.]” § 3613(b)(1).

State Court Decisions Addressing Constitutional Due Process or Equal Protection

In Costello, the court considered whether it should appoint counsel pursuant to the discretionary appointment provision of N.Y. Mil. Law § 303 in an eviction case. 523 N.Y.S.2d at 374. In making this determination, the court launched into a constitutional analysis, discussing the court’s inherent powers, the New York high court’s due process decisions in various cases, the cutbacks to legal services that made the court reluctant to burden such agencies with new appointments (as part of a discussion of whether it could order payment for any attorney it appointed), and the Lassiter v. Department of Social Services, 452 U.S. 18 (1981) balancing test. Id. at 377-81. The court suggested that while the New York Court of Appeals in In re Smiley, 330 N.E.2d 53 (N.Y. 1975) (discussed infra Part 5.G) had stated that “counsel is Constitutionally required only when the state is proceeding against a litigant who has at risk liberty or other ‘grievous forfeiture,’” such a stance had been “made uncertain by the 1981 United States Supreme Court determination in Lassiter . . . Under the Lassiter test, . . . even if liberty is not at stake, there is only a rebuttable presumption that counsel is not mandatory.” Id. at 378. The Costello court’s reliance on Lassiter suggests that it was relying on an interpretation of the Fourteenth Amendment. The Costello court also pointed out:


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Certainly, even in the Smiley decision, then Chief Judge Breitel recognized that one's right to a home involves a vital private interest. Perhaps in keen foresight of the many homeless indigents who dwell on the streets of our nation, he said that there are various “kinds of private litigation which may drastically affect indigent litigants.... Eviction from homes, revocation of licenses affecting one's livelihood, mortgage foreclosures, repossession of important assets purchased on credit, and any litigation which may result in the garnishment of income may be significant and ruinous for an otherwise indigent litigant.”

Id. at 379.

The Costello court concluded by finding appointment both an appropriate exercise of discretion as well as a constitutional right in the instant case (and possibly all cases involving evictions of military personnel):

[I]t is clear that this Court chooses to exercise whatever discretion it has in directing appointment of an attorney for the litigant in military service. Indeed, it is held that such appointment is mandated by public policy considerations and is also Constitutionally required due to the potential grievous forfeiture of a vital private interest of one in the military service of our country—the rebuttable Lassiter presumption . . . has been rebutted under the facts of this case . . . thereby mandating appointment of counsel.

Id. at 381. The court also concluded that:

Although the Smiley majority indicated . . . that courts lacked authority to direct expenditure for assigned civil counsel from public funds (see also In Re Goresen v. Gallagher, supra), earlier Court of Appeals decisions held that the power to incur legal expenses necessarily implies the power to direct payment for those expenses, especially in fulfilling a Constitutional mandate[.]

Id. at 378.

Conversely, the appellate division in New York City Housing Authority v. Johnson held that under the federal and state Due Process Clauses an indigent person does not have the right to counsel in eviction proceedings. 565 N.Y.S.2d 362, 364 (App. Div. 1990). The state court found that “while [the] tenant’s property interest in continued possession is certainly significant, it is not so fundamental an interest mandating a due process right to assigned counsel.” Id. The court relied on Lassiter as well as In re Smiley, and noted that Smiley had said in dicta that “‘eviction from homes’ is ordinarily one of ‘the many kinds of private litigation


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which may drastically affect indigent litigants,’ but for which appointed counsel is not constitutionally required.” Id. (quoting Smiley, 330 N.E.2d at 57). The holding in Johnson overruled the court’s prior holding in Hotel Martha Washington Mgmt. Co. v. Swinick, which found a right to counsel in eviction cases. 322 N.Y.S.2d 139, 141 (Sup. Ct. 1971) (holding that “the right of an indigent tenant to assigned counsel under the 14th Amendment of the U.S. Constitution, to defend his right to remain in possession of his dwelling” had been established by several U.S. Supreme Court holdings, including Boddie v. Connecticut). The Johnson court noted that “[o]ur prior extrapolation there of Boddie v. Connecticut . . . to mandate the assignment of counsel if indigent tenants, faced with eviction, have a meritorious defense and are unable to obtain free counsel, was rejected years later by the Court of Appeals in Smiley.” Johnson, 565 N.Y.S.2d at 364.

A number of cases have failed to find a right to counsel for indigent tenants in eviction proceedings. Brown v. Popolizio, 569 N.Y.S.2d 615, 620-21 (App. Div. 1991) (“While an indigent tenant does not have a constitutional right to assigned counsel,” the tenant must still be provided adequate procedural safeguards to satisfy due process); 170 W. 85th St. Tenants Ass’n v. Cruz, 569 N.Y.S.2d 705, 707 (App. Div. 1991) (rejecting respondent’s claim that he was entitled to counsel in eviction proceeding under due process clause, noting “the appointment of counsel is ancillary to an order granting leave to proceed in forma pauperis and is entirely within the discretion of the motion court”); Donaldson v. New York, 548 N.Y.S.2d 676, 678 (App. Div. 1989) (recognizing the “absence of a declaration by [the] Supreme Court of a right to assigned counsel for indigent tenants in Housing Court, whether derived from the Federal or State Constitution”); Williams v. White Plains Housing Auth., 309 N.Y.S.2d 454, 460 (Sup. Ct. 1970) (although due process requires that low-income housing tenant have opportunity to be heard at housing termination hearing and right to be heard by counsel, housing authority has no obligation to provide such counsel); Jagr v. Kubus, 481 N.Y.S.2d 977, 979 (Just. Ct. 1984) (finding no due process or equal protection right to counsel under state constitution in a proceeding to evict a nursing home resident, reasoning there was insufficient state action to trigger a right to counsel); In re Enrique R., 512 N.Y.S.2d 837, 841 (App. Div. 1987) (relying on Smiley for proposition that Family Court lacked power to appoint attorney for mother in order to seek public housing necessary to retain custody).

2. SUSTENANCE


New York law states that “[t]he court shall appoint an attorney” for an unrepresented claimant for unemployment insurance in the following cases, “except when the claimant takes an appeal to the court of appeals”:


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(1) On an appeal from a decision of the appeal board in favor of the claimant.

(2) On a motion for leave to appeal to the court of appeals from a decision of the appellate division of the supreme court which relates to a decision of the appeal board in favor of the claimant.

(3) On an appeal to the court of appeals from a decision of the appellate division of the supreme court which relates to a decision of the appeal board in favor of the claimant.

N.Y. Lab. Law § 538(1)(d)-(e). “In addition to any fee which may be allowed by the appeal board for services rendered to the claimant, an attorney representing a claimant [in the above cases] shall be entitled to a fee not to exceed the sum of [$500] and necessary printing and other disbursements[.]” § 538(1)(d).1 “[T]he court shall allow a fee and disbursements only if it finds the appeal to have been meritorious.” Id. “Fees and disbursements provided in such [cases] shall be fixed by the court in which the appeal is taken or the motion for leave to appeal is made. Such fees and disbursements shall be paid by the commissioner as part of the expenses incurred in the administration of” the unemployment insurance law. § 538(1)(e).


Title VII of the Civil Rights Act of 1964 prohibits employment discrimination. While nearly all Title VII claims are brought in federal court, the U.S. Supreme Court has specified that state courts have concurrent jurisdiction with federal courts for Title VII claims. Yellow Freight Sys. Inc. v. Donnelly, 494 U.S. 820, 825-26 (1990).

Title VII provides that “[u]pon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant[.]” 42 U.S.C. § 2000e-5(f)(1). In Poindexter v. FBI, the D.C. Circuit observed:

Title VII’s provision for attorney appointment was not included simply as an afterthought; it is an important part of Title VII’s remedial scheme, and therefore courts have an obligation to consider requests for appointment with care. In acting on such requests, courts must remain mindful that appointment of an attorney may be essential for a plaintiff to fulfill “the role of ‘a private attorney

1 An amendment introduced by New York State Senator Marisol Alcantara on March 15, 2017 would “adjust this level of compensation . . . to provide assigned counsel with a fee at the rate of $75 per hour subject to a cap in any one case of $2,000. As adjusted, compensation would continue to be funded by the State through the court system budget.” https://www.nysenate.gov/legislation/bills/2017/s5199/amendment/original.


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general,’ vindicating a policy ‘of the highest priority.’” . . . Once the plaintiff has triggered the attorney appointment provision, “courts must give serious consideration” to the plaintiff’s request. . . . “such discretionary choices are not left to a court’s ‘inclination, but to its judgment; and its judgment is to be guided by sound legal principles.’” . . . Furthermore, in exercising this discretion, the court should clearly indicate its disposition of the request for appointment and its basis for that disposition.

737 F.2d 1173, 1183-85 (D.C. Cir. 1984) (citations omitted).


New York’s highest court did not find a due process or equal protection right to counsel under either the state or Federal Constitution during a welfare termination hearing, holding that the fair hearing held according to the statute and regulations provided the indigent claimant with due process. Brown v. Lavine, 333 N.E.2d 374, 377 (N.Y. 1975). The court also rejected an equal protection argument:

Petitioner’s argument that denial of counsel because of indigency violates equal protection falls, we think, with the due process claim. . . . The right to a fair hearing does not turn on the financial ability to retain counsel and the equal protection clauses do not impose on the State an absolute duty to give to some whatever others can afford.

Id.

3. SAFETY AND/OR HEALTH

A. Domestic Violence Protection Order Proceedings


An indigent petitioner or respondent in any proceeding under Article 8 of the Family Court Act dealing with domestic violence or family offenses, or on appeal of such action, has the right to appointed counsel. N.Y. Fam. Ct. Act § 262(a)(ii); § 1120(a). Where these proceedings take place in the New York Supreme Court, the petitioners and respondents have these same rights to appointed counsel. N.Y. Jud. Law § 35(8) (providing for fees to be paid to appoint counsel when the supreme court exercises jurisdiction over family court matter “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”).


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B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings


Article 81 of the New York Mental Hygiene Laws provides for counsel in a procedure to determine whether someone is incapacitated and provides a guardian for those determined to be incapacitated. N.Y. Mental Hyg. Law §§ 81.10; 81.11(e) (requiring appointment of counsel where requested, where a petition is contested, where the court thinks it would be helpful, where “the court is not satisfied that the person is capable of making an informed decision regarding the appointment of counsel”, or some other scenarios specified in the statute); In re Turner, 730 N.Y.S.2d 188, 190 (N.Y. Sup. Ct. 2001) (“[I]ndigent defendants in the Criminal and Family Courts, and poor [allegedly incapacitated persons] and [incapacitated persons] in Article 81 proceedings have the right to appointment of effective counsel.”). The Turner court also suggested that counsel is provided when the guardianship is being modified. See id. at 189. See also Matter of Azzi (Trapani), 141 A.D.3d 1159, 1162 (N.Y. App. Div. 4th Dep't July 8, 2016) (reversing guardianship where no counsel appointed because “[w]e cannot agree with petitioner that the Surrogate’s errors are harmless based on the AIP [allegedly incapacitated person]’s agreement to her appointment as guardian . . . The petition itself avers that the AIP is ‘easily influenced and persuaded by others’ and that the disclaimer is invalid in part because the AIP ‘did not have the benefit of his own independent counsel’ before signing the disclaimer. In our view, the failure to appoint independent counsel for the AIP renders it impossible to determine whether the AIP’s agreement to petitioner's appointment as guardian was an informed decision.”); In Re Diurno, 182 Misc.2d 205, 211 (NY.Sup.Ct. 1999) (procedural safeguards for guardianship on review are “essentially the same”). Additionally, the state provides a mental hygiene legal service in each judicial department “provid[ing] legal assistance to patients or residents of a [mental] facility[.]” N.Y. Mental Hyg. Law § 47.01(a).

For guardianships conducted pursuant to Article 17-A of the Surrogate's Court Procedure Act, which is utilized where there is a diagnosis of a developmental or intellectual disability, appointment of counsel is governed by N.Y. Surr. Ct. Proc. Act § 407(1)(b), which states that the court appoints counsel if the judge determines that such assignment of counsel is mandated by the federal or state constitution.

Mentally ill and/or physically impaired adults seeking temporary protection from abuse and neglect are entitled to legal representation, and “the court shall assign counsel to assist the respondent.” N.Y. Soc. Serv. Law §473-a(5)(b)(iv). New York state law provides that residents of mental health facilities are entitled to “initiate and take any legal action deemed necessary


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to safeguard the right of any patient or resident to protection from abuse or mistreatment.” N.Y. Mental Hyg. Law § 47.03(e).2

The Appellate Division in In re St. Luke’s-Roosevelt Hosp. Ctr (finding constitutional right to counsel for involuntary guardianship) ordered the city to pay for appointed counsel, 640 N.Y.S.2d 73, 74 (App. Div. 1996), a ruling that was upheld by the Court of Appeals. 675 N.E.2d 1209, 1210 (N.Y. 1996) (“We conclude that the Legislature, by providing for the assignment of counsel for indigents in the Mental Hygiene Law, intended, by necessary implication, to authorize the court to compensate counsel.”).


In In re St. Luke’s-Roosevelt Hosp. Ctr., the court held that, under Lassiter v. Department of Social Services, 452 U.S. 18 (1981), and the Fourteenth Amendment, an indigent elderly person was entitled to representation by counsel before the imposition of a guardian to handle an involuntary transfer to a nursing home, after applying the balancing test from Mathews v. Eldridge, 424 U.S. 319 (1976). 607 N.Y.S.2d 574, 577-80 (Sup. Ct. 1993) (“[A]t least where an Article 81 petition seeks powers for a guardian of the person to either place the [allegedly impaired person] in a nursing home or other institutional facility, or to make major medical decisions, an indigent [allegedly impaired person] is constitutionally entitled to the appointment of counsel at state expense.”), decision modified and remanded, 627 N.Y.S.2d 357 (1995). After applying the balancing test from Mathews, the court found that the privacy interests and risks of erroneous deprivation were high—because involuntary nursing home placement is dangerous to the person’s health and because it implicates the person’s liberty interests—while the state’s interests (primarily the cost of providing the guardian) were low. Id. The court found that a forced relocation to a nursing home implicated a fundamental right akin to physical liberty. Id.

In Matter of Leon, 53 Misc. 3d 1204(A), 43 N.Y.S.3d 769, 2016 WL 5724234, at *1 (N.Y. Sur. 2016), the court held that an indigent proposed ward in a guardianship proceeding within Surrogate Court3 is entitled to appointed counsel. The court noted that NY CLS SCPA § 407(1)(b) gives the Surrogate Court the authority to appoint counsel in any case where the judge "determines that such assignment of counsel is mandated by the constitution of this state

2 A set of parallel bills in the New York State Senate and Assembly would alter this wording to include the word “youth” as follows: “initiate and take any legal action deemed necessary to safeguard the right of any patient, resident or youth to protection from abuse or mistreatment.” 2017 NY S.B. 2225 (NS); 2017 NY A.B. 6980 (NS). 3 Guardianships initiated pursuant to Article 17-A of the Surrogate's Court Procedure Act, which only apply where there is a diagnosis of a developmental or intellectual disability, are not covered by N.Y. Mental Hyg. Law §§ 81.10 and 81.11(e), which provide a right to counsel.


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or of the United States,” and the court held that this case fit that description. Id. at *1, *5. The court observed that ”Gideon’s due process mandate has been extended to civil proceedings and quasi-criminal proceedings when fundamental interests no less important than freedom from incarceration are threatened,” and the court noted past NY cases finding a right to counsel for cases involving termination of parental rights, transfers of mental health patients, parole revocation proceedings, and others. Id. at *2 (citing Gideon v. Wainwright, 372 U.S. 335 (1963)). The court also pointed to the recent efforts around Intro 214 (which as of 2017 provides a right to counsel in NYC housing cases), and noted former Chief Judge Lippman’s support for a civil right to counsel as well as the NY Legislature’s endorsement of the civil right to counsel principle. Id. at *3 & n.6. The court concluded:

Given that the right to assigned counsel is recognized in a myriad of quasi-criminal and civil proceedings, ranging from military eviction and child custody, to involuntary commitment and employment litigation, there is no question that in Article 17-A proceedings, where a person’s decision-making authority in every aspect of life is at stake, constitutional protections are warranted. The resulting deprivation of fundamental liberty interests inherent in the appointment of an Article 17-A guardian constitutes a loss of liberty as significant as those which previously have triggered the appointment of counsel. . . . The fundamental liberty interests of an individual to self-determination, privacy, and autonomy are certainly equal to, if not greater than, the private interests implicated in proceedings involving the rights of parents in neglect proceedings or of tenants in housing court. Article 17-A guardianship infringes on a person’s fundamental right to privacy . . . , a fundamental right to refuse unwanted medical treatment . . . , and a fundamental right to make personal decisions regarding marriage, procreation, contraception, family relationship, child rearing, and education[.]

Id. at *3 (citations and quotations omitted).

The court also held that appointment of a guardian ad litem would not satisfy the due process need for a “vigorous advocate on the respondent’s behalf[.]” Id. at *5.

See also In re Zhuo, 42 N.Y.S.3d 530, 2016 N.Y. Slip Op. 263091 (N.Y. Surr. Ct. 2016) (court holds an indigent adult subject to guardianship proceedings within Surrogate Court was entitled to assigned counsel).

C. Civil Commitment or Involuntary Mental Health Treatment Proceedings



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A hospital may involuntarily admit a patient suffering from mental illness on the medical certification of two doctors. N.Y. Mental Hyg. Law § 9.27(a). In addition:

The mental hygiene legal service in each judicial department of the state shall perform the following duties:

. . .

(b) To inform patients or residents . . . of the patients’ or residents’ right . . . to be represented by legal counsel . . .

(c) To provide legal services and assistance to patients or residents and their families related to the admission, retention, and care and treatment of such persons, to provide legal services and assistance to subjects of a petition or patients subject to section 9.60 of this chapter, and to inform patients or residents, their families and, in proper cases, others interested in the patients’ or residents’ welfare of the availability of other legal resources which may be of assistance in matters not directly related to the admission, retention, and care and treatment of such patients or residents

§ 47.03(b)-(c).4 See also § 9.27(f) (“Following admission to a hospital, no patient may be sent to another hospital by any form of involuntary admission unless the mental hygiene legal service has been given notice thereof.”); § 9.39(a)(2) (when person is alleged to be mentally ill and involuntarily admitted to hospital pursuant to emergency procedure, mental health legal service is notified and can schedule a hearing).

A court also may appoint counsel “in a civil proceeding to commit or transfer a person to or retain him in a state institution when such person is alleged to be mentally ill, mentally defective or a narcotic addict[.]” N.Y. Jud. Law § 35(1)(a).

People subject to court-ordered “assisted outpatient treatment”5 are guaranteed the right to counsel. N.Y. Mental Hyg. Law § 9.60(g) (“The subject of the petition shall have the

5 Assisted outpatient treatments are defined as follows:

case management services or assertive community treatment team services to provide care coordination, and may also include any of the following categories of services: medication; periodic blood tests or urinalysis to determine compliance with prescribed medications; individual or group therapy; day or partial day programming activities; educational and vocational training or activities; alcohol or substance abuse treatment and counseling and periodic tests for the presence of alcohol or illegal drugs for persons with a


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right to be represented by the mental hygiene legal service, or privately financed counsel, at all stages of a proceeding commenced under this section.”).

Patients involuntarily committed to a facility, whose objections to their care and treatment were overruled, have a right to request that legal counsel represent them to appeal the treatment decision, although it is not clear whether this right includes appointed counsel if indigent. N.Y. Comp. Codes R. & Regs. tit. 14, § 27.8(d); see also N.Y. Correct. Law § 402(3) (right for prisoners being transferred to mental health facility “to be represented by counsel,” but not clarifying whether right includes appointment of counsel if indigent).


In Rivers v. Katz, 495 N.E.2d 337, 344 (N.Y. 1986), the New York Court of Appeals noted that the patient has a strong liberty interest in controlling his treatment (and thus refusing antipsychotic medication) that cannot be overruled absent a compelling interest, despite the fact that the patient was involuntarily committed. The court concluded that the patient had a right, under the state constitution, to a hearing determining whether his treatment should include the involuntary administration of psychotropic medication. Id. The court added that for the hearing, “the patient should be afforded representation by counsel,” but it cited to Judiciary Law § 35, see id., making it unclear whether it was relying on a statutory provision at the time that already provided for counsel or was grafting a due process right onto the statute. But see also People ex rel Rogers v. Stanley, 17 N.Y.2d 256, 259 (1966) (citing various U.S. Supreme Court cases such as Gideon v. Wainwright, Douglas v. People of State of California, and Griffin v. People of State of Illinois, to hold that “an indigent mental patient, who is committed to an institution, is entitled, in a habeas corpus proceeding (brought to establish his sanity), to the assignment of counsel as a matter of constitutional right”); Matter of Andrea B., 405 N.Y.S.2d 977, 982 (Fam. Ct. 1978) (in case involving juvenile subject to involuntary commitment, court cites to Stanley as well as Powell v. State of Ala., 287 U.S. 45 (1932), for holding that “the right to counsel, including assigned counsel for the indigent is a due process right”); In re Rodriguez, 607 N.Y.S.2d 567, 568 (Sup. Ct. 1992) (relying on Stanley to hold that “an alleged incompetent has a fundamental right to representation by counsel . . . in opposing a

history of alcohol or substance abuse; supervision of living arrangements; and any other services within a local or unified services plan developed pursuant to article forty-one of this chapter, prescribed to treat the person’s mental illness and to assist the person in living and functioning in the community, or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in suicide or the need for hospitalization.

§ 9.60(a)(1).


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proceeding for a committeeship” and further noting that “[a] proceeding to declare a person incompetent effectively results in a complete loss of personal liberty and property”).

D. Sex Offender Proceedings


Sex offenders determined to need civil commitment or other forms of civil management are entitled to counsel in any hearing or trial conducted to so determine. See N.Y. Mental Hyg. Law § 10.06(c) (“[U]pon the filing of a sex offender civil management petition, or upon a request to the court by the attorney general for an order . . . that a respondent submit to an evaluation by a psychiatric examiner, whichever occurs earlier, the court shall appoint counsel in any case where the respondent is financially unable to obtain counsel.”); § 10.08(g) (“In preparing for or conducting any hearing or trial pursuant to the provisions of this article, and in preparing any petition under the provisions of this article, the respondent shall have the right to have counsel represent him or her, provided that the respondent shall not be entitled to appointment of counsel prior to the time provided in section 10.06 of this article.”); N.Y. Correct. Law §§ 168-d(2); 168-k(2) (right to appointed counsel for sex offender registration classification hearing). In the event of an appeal, “a respondent who is or becomes financially unable to obtain counsel shall have the right to have appellate counsel appointed[.]” N.Y. Mental Hyg. Law § 10.13(c). There is also a right to appointed counsel for hearings relating to sex offender registration. N.Y. Correct. Law § 168-n(3).6

E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings


The New York City Health Code provides for a right to counsel to those subjected to orders relating to communicable disease. See N.Y.C. Health Code § 11.21(e) (“In any court proceeding to enforce a Commissioner’s order for the removal or detention of a person issued pursuant to this subsection or for review of the continued detention of a person, the Commissioner shall prove the particularized circumstances constituting the necessity for such detention by clear and convincing evidence. Any person who is subject to a detention order shall have the right to be represented by counsel and upon the request of such person, counsel shall be provided.”); § 11.21(f)(2) (“an order for the removal and detention of a person shall: . .

6 Two separate pieces of proposed legislation would add the following phrase to notice of right to counsel for a sex offender in advance of a determination proceeding: “You have a right to be represented by counsel at that hearing. Counsel will be provided if you are financially unable to retain counsel.” 2017 NY S.B. 949 (NS); 2017 NY A.B. 4087 (NS).


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. (iv) advise the person being detained that he or she has the right to arrange to be represented by counsel or to have counsel provided, and that if he or she chooses to have counsel provided, that such counsel will be notified that the person has requested legal representation; (v) be accompanied by a separate notice which shall include but not be limited to the following additional information: . . . (B) that he or she has the right to arrange to be advised and represented by counsel or to have counsel provided, and that if he or she chooses to have counsel provided, that such counsel will be notified that the person has requested legal representation”).


One New York court ruled that an indigent person has a due process right to have counsel assigned in an involuntary hospitalization proceeding for disease since his liberty is in jeopardy. Rapoport v. G.M., 657 N.Y.S.2d 748, 748-49 (App. Div. 1997) (involuntary hospitalization under N.Y. Pub. Health Law § 2120 for communicable disease). The court cited to both Lassiter v. Department of Social Services, 452 U.S. 18 (1981) and to Rivers v. Katz, 495 N.E.2d 337 (N.Y. 1986), discussed supra Part 3.C. Id.

4. CHILD CUSTODY

A. Appointment of Counsel for Parent—State-Initiated Proceedings


New York statutes provide for the right to appointed counsel for the following indigent parties:

• The respondent and parents, foster parents, or others with physical or legal custody of the child in child protective hearings, child abuse hearings, or permanency hearings for foster children under Article 10 and Article 10-A of the Family Court Act. N.Y. Fam. Ct. Act § 262(a)(i), (iv).

o Section 1022-a extends this right to counsel to non-respondent parents who appear in court, and provides that the right to counsel for any parent can be waived, while § 1035(d) requires parents to be advised of this right.

• The petitioner (such as the non-custodial parents or grandparents) in any proceeding, under Part 8 of Article 10 of the Family Court Act, dealing with visitation of minor children in foster care. § 262(a)(i).


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• The respondent in any proceeding, under Part 3 of Article 6 of the Family Court Act, regarding custody of a minor child. § 262(a)(iii).7

• A parent, foster parent, or other person with physical or legal custody of the child in proceedings under Social Services Law Sections 358-a, 384, and 384-b concerning dependent children in foster care, guardianship and custody of children not in foster care when committed to an authorized agency, or guardianship and custody of destitute or dependent children. § 262(a)(iv).

• The respondent in any proceeding under Social Services Law Section 384-b concerning guardianship and custody of destitute or dependent children. N.Y. Surr. Ct. Proc. Act § 407(1)(a)(i).

• The respondent in any proceeding under Social Services Law Section 384 for the approval of a surrender instrument concerning guardianship and custody of children not in foster care. § 407(1)(a)(ii).

• A non-custodial parent or grandparent served with notice of transfer of custody or care under Social Services Law Section 384-a(2)(e). N.Y. Fam. Ct. Act § 262(a)(iv).

• “[T]he parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child, in any proceeding[.]” § 262(a)(v); N.Y. Surr. Ct. Proc. Act § 407(1)(a)(iv).

• “[T]he parent of a child in any adoption proceeding who opposes the adoption of such child.” N.Y. Fam. Ct. Act § 262(a)(vii); N.Y. Surr. Ct. Proc. Act § 407(1)(a)(iii). See also N.Y. Soc. Serv. Law § 384-b(3)(e) (requiring notice to parents “of their right to the assistance of counsel, including any right they may have to have counsel assigned by the court in any case where they are financially unable to obtain counsel” in a proceeding to free a destitute or dependent child for adoption).

• Any of the above parties on appeal of the action. N.Y. Fam. Ct. Act § 1120(a). See also N.Y. Surr. Ct. Proc. Act § 407(a)(v).

7 In Wilson v. Bennett, 282 A.D.2d 933, 934 (2001), the court clarified that “although . . . the word ‘visitation’ does not appear anywhere in Family Court Act § 262, a proceeding to modify a prior order of visitation plainly is a proceeding under Family Court Act article 6, part 3 and, hence, falls within the purview of the assigned counsel statute.”


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Where any of the above proceedings take place in the New York Supreme Court, the parties have these same rights to appointed counsel. N.Y. Jud. Law § 35(8) (providing for fees to be paid to appointed counsel when the supreme court exercises jurisdiction over family court matter “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”).

According to § 35(1)(a), the trial court may appoint counsel when the court orders a hearing “in any adoption or custody proceeding if it determines that assignment of counsel in such cases is mandated by the constitution of this state or of the United States[.]”

An indigent parent is not entitled to substitute appointed counsel when there is no good cause shown for the original counsel’s release. Mooney v. Mooney, 663 N.Y.S.2d 676, 677 (App. Div. 1997); see also Matter of Pacheco v. Stearns, 803 N.Y.S.2d 287, 288 (App. Div. 2005) (respondent’s right to counsel was not violated when he was advised of his rights with regard to legal representation, denied assigned counsel based upon financial information provided to Family Court, and granted adjournment to obtain counsel but two months later appeared in court without counsel).

Under N.Y. Jud. Law § 35(1)(a), the trial court may appoint counsel for such parties unable to afford one if the trial court:

orders a hearing for the commitment of the guardianship and custody of a child to an authorized agency by reason of the mental illness or mental retardation of a parent, or when it orders a hearing to determine whether consent to the adoption of a child shall be required of a parent who is alleged to be mentally ill or mentally retarded, or . . . to determine the best interests of a child when the parent of the child revokes a consent to the adoption of such child and such revocation is opposed


The federal Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court,8 provides:

8 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. § 1912(b) contemplates that state law may not provide for appointment of counsel. Additionally, subsection (a) states: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested,


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In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding. . . . Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary [of the Interior] upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to [25 U.S.C. §] 13.

25 U.S.C. § 1912(b).

State and Federal Court Decisions Addressing Constitutional Due Process or Equal Protection

In In re Ella B., 285 N.E.2d 288, 290 (N.Y. 1972), the New York high court held that under the Due Process Clause (it did not indicate whether it was addressing the state or federal constitution, or both),9 an indigent person is entitled to appointed counsel in neglect proceedings where that person faces a loss of child custody. Although this case was decided before Lassiter v. Department of Social Services, 452 U.S. 18 (1981), courts since Lassiter have relied upon Ella B. (and its progeny) to hold there is a right to counsel for parents in termination and neglect cases, and have not mentioned Lassiter. See, e.g., In re Evan F., 815 N.Y.S.2d 697, 699 (App. Div. 2006); People v. Smith, 465 N.E.2d 336, 339 (N.Y. 1984) (holding that “due process and equal protection require the assistance of counsel when rights and interests as fundamental as those involved in the parent-child relationship are at stake,” and citing Ella B., 285 N.E.2d 288 (N.Y. 1972)).

The Ella B. court found that “an indigent parent, faced with the loss of a child’s society, as well as the possibility of criminal charges, is entitled to the assistance of counsel.” 285 N.E.2d at 290. The court reasoned that under due process analysis, “[a] parent’s concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right to be relinquished to the State without the opportunity for a hearing, with assigned

of the pending proceedings and of their right of intervention.” These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings. 9 The court in St. Luke’s listed Ella B. among the cases extending a right to counsel in certain types of civil cases, but when it then noted how some of these cases rested on the state constitution, it did not include Ella B in that second list. See In re St. Luke’s-Roosevelt Hosp. Ctr., 607 N.Y.S.2d 574, 576-77 (Sup. Ct. 1993), aff’d, 89 N.Y.2d 889 (N.Y. 1996). However, later in the opinion, the court commented: “In Lassiter, . . . the Supreme Court held that counsel was not inevitably required even in termination proceedings. However, our Court of Appeals has held counsel mandated both in termination and neglect proceedings, thus demonstrating a greater commitment to the protection of liberty interests under the state constitution than is necessarily required under the Federal constitution.” Id. at 578 n.5.


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counsel if the parent lacks the means to retain a lawyer.” Id. (internal citations omitted) (holding that denial of counsel was in violation of both due process and equal protection); see also Orneika J. v. Harriet J., 491 N.Y.S.2d 639, 640 (App. Div. 1985) (citing Ella B.). The Ella B. court also addressed the Equal Protection Clause briefly, saying that in addition to a violation of due process, the denial of counsel to an indigent parent facing the loss of custody of a child is, “in light of the express statutory provision for legal representation for those who can afford it, a denial of equal protection of the laws as well.” 285 N.E.2d at 290. And the court added that:

Once the conclusion is reached that one has a right to be represented by assigned counsel . . . it follows that one is entitled to be so advised. If the rule were otherwise, if the party before the court was not apprised of his right to assigned counsel, there could be no assurance either that he knew he had such a right or that he had waived it.

Id.

In Nicholson v. Williams, 203 F. Supp. 2d 153, 239 (E.D.N.Y. 2002), a federal district court found a due process right to counsel for mothers accused of neglect based on domestic violence committed against them by child’s father. The court applied the Mathews v. Eldridge, 424 U.S. 319, 335 (1976) factors and noted the strong interests at stake: “The government's interests are particularly weak; its actions are motivated by bureaucratic pusillanimity and ignorance that harm rather than help the interests of the child. The risk of error, which in this case constitutes protracted unnecessary removals, is high, given that ACS caseworkers rely on deficient training and official policies.” Id. at 255. In another case, where a minor had been provided an attorney during a child abuse proceeding about which she was the subject, the court held that she was entitled to effective assistance of counsel. In re Jamie TT, 599 N.Y.S.2d 892, 894-95 (App. Div. 1993) (“[T]he Due Process Clauses of the Federal and State Constitutions . . . mandate that there be some form of legal representation of Jamie’s interests in the proceedings on the petition. . . . Her constitutional and statutory rights to be represented by counsel were not satisfied merely by the State’s supplying a lawyer’s physical presence in the courtroom[.]” (emphasis in original)). In this case, the child-subject of an abuse proceeding was represented by an attorney during the proceeding, but her attorney did not cross-examine the respondent and failed to challenge or offer any evidence to support the child’s allegations of abuse. Id. at 895. The court found that the child’s rights at stake during the proceedings—which could have restored primary custody to her alleged abuser—were too great to allow her attorney to stand mute. Id. at 894-95.

B. Appointment of Counsel for Parent—Privately Initiated Proceedings


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An indigent respondent in any proceeding, under Part 3 of Article 6 of the Family Court Act, regarding custody of a minor child, or on appeal of such action, has the right to appointed counsel. N.Y. Fam. Ct. Act § 262(a)(iii); § 1120(a). Additionally, “the parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child, in any proceeding” or on appeal of such action, has the right to appointed counsel. § 262(a)(v); § 1120(a); N.Y. Surr. Ct. Proc. Act § 407(1)(a)(iv). Where these proceedings take place in the New York Supreme Court, the parties have these same rights to appointed counsel. N.Y. Jud. Law § 35(8) (providing for fees to be paid to appoint counsel when the supreme court exercises jurisdiction over family court matter “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”); see, e.g., Borkowski v. Borkowski, 396 N.Y.S.2d 962, 963 (Sup. Ct. 1977) (holding that defendant husband in a divorce proceeding had a right to assigned counsel in the Supreme Court only as to the issue of custody of the two children under Family Court Act section 262).

An indigent parent is not entitled to substitute appointed counsel when there is no good cause shown for the original counsel’s release. Mooney v. Mooney, 663 N.Y.S.2d 676, 677 (App. Div. 1997); see also Matter of Pacheco v. Stearns, 803 N.Y.S.2d 287, 288 (App. Div. 2005) (respondent’s right to counsel was not violated when he was advised of his rights with regard to legal representation, denied assigned counsel based upon financial information provided to Family Court, and granted adjournment to obtain counsel but two months later appeared in court without counsel).


In McGee v. McGee, a divorce case, the court addressed whether the failure by the New York Supreme Court (which has concurrent jurisdiction with the Family Court over custody cases) to apply the Family Court Act section 262, which provides a right to counsel in the Family Court, was a denial of equal protection under the law. 694 N.Y.S.2d 269, 277 (Sup. Ct. 1999). The defendant conceded that neither the State nor Federal Constitution required appointment of free legal counsel in the New York State Supreme Court. Id. at 276. However, she reasoned that “the Legislature wrongly created two classes: ‘one class of poor custody-case litigants (parties in Family Court)’ where free legal counsel is available while denying such free legal counsel to ‘a similarly situated class of poor custody-case litigants (parties in Supreme Court)’” because the Supreme Court has no rule appointing counsel. Id. The court disagreed, holding that the defendant’s premise was “faulty” and that the proper “‘class’ is comprised of indigent persons in child custody litigation” and concluding that the defendant was arguing “forum not class.” Id. Thus, the court in McGee chose not to “open the Pandora’s box of free counsel for


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indigent litigants in civil actions where the litigant claims an unenumerated Constitutional right.” Id. at 279. This issue was subsequently obviated by the passage of N.Y. Jud. Law § 35(8), which extends section 262 rights to counsel to supreme court cases.

One court declined to find a constitutional right to counsel for indigents seeking visitation rights. Ward v. Jones, 757 N.Y.S.2d 127, 128-29 (App. Div. 2003) (citing Lassiter and holding that under the state constitution, there is no right “to the appointment of assigned counsel for all indigent parents seeking visitation with their children”).

Relying on Ella B. and Lassiter, the Surrogate’s Court held that a respondent-mother has a due process right to counsel in a private guardianship proceeding that could terminate her right to custody and care of her child. In re Guardianship of Daley, 473 N.Y.S.2d 114, 115-16 (Surr. Ct. 1984) (“[B]asic concepts of fairness warrant that respondent have the aid of counsel.”). The court first noted that, “[w]hile guardianship does not have the legal finality of adoption, nevertheless the granting of guardianship of the person of an infant to a non-parent over the objection of a parent will de facto extinguish the basic parental right of rearing one’s own child.” Id. at 115. Because the parent-child relationship is constitutionally protected, the court held that the “sanctity of the right” warranted the aid of counsel for the mother. Id. Although the court did not clarify which constitution it rested its decision upon, its citation to both Ella B. and Lassiter may make it a holding on both constitutions. See id.

C. Appointment of Counsel for Child—State-Initiated Proceedings


In accordance with N.Y. Fam. Ct. Act. § 249(a), the court shall appoint counsel10 for a minor “if independent legal representation is not available to such minor” in the following situations:

• in child protective proceedings and permanency hearings;

• in any proceeding concerning dependent children in foster care, guardianship and custody of children in foster care, guardianship and custody of children not in foster

10 Previously, the statute referred to “law guardians”, but this was changed in 2010 to “attorney.” Apart from the statutory change, it had been unclear until recently whether law guardians advocated for the child’s best interest or for the child’s expressed position, but “[i]n October 2007 . . . Judge Kaye issued a new court rule making clear that law guardians should act as an attorney for the child.” Laura Abel, Toward a Right to Counsel in Civil Cases in New York State: A Report of the New York State Bar Association 15 (2008), available at http://www.brennancenter.org/sites/default/files/legacy/Justice/081101.FinalStateBarReport.pdf (citing N.Y. Ct. R. 7.2).

http://www.brennancenter.org/sites/default/files/legacy/Justice/081101.FinalStateBarReport.pdf


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care when committed to an authorized agency, or guardianship and custody of destitute or dependent children under sections 358-a, 383-c, 384, and 384-b of the Social Services Law; and

• when a minor is sought to be placed in protective custody under New York Family Court Act section 158; or if the minor is sought to be placed in protective custody, if independent legal representation is not available to such minor.

Where the above proceedings take place in the New York Supreme Court or Surrogate’s Court, the minor has the same rights to appointed counsel. N.Y. Jud. Law § 35(7).

Attorneys appointed under section 249 also continue their representation of the child in the event of an appeal. N.Y. Fam. Ct. Act. § 1120(b).


The Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court,11 provides the following with regard to any removal, placement, or termination of parental rights proceeding:

The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary [of the Interior] upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to [25 U.S.C. §] 13.

25 U.S.C. § 1912(b).

The federal Child Abuse Prevention and Treatment Act (CAPTA) provides:

11 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. § 1912(b) refers to state law not providing for appointment of counsel. Additionally, 25 U.S.C. § 1912(b) states: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings.


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A State plan submitted under paragraph (1) shall contain a description of the activities that the State will carry out using amounts received under the grant to achieve the objectives of this subchapter, including . . . an assurance in the form of a certification by the Governor of the State that the State has in effect and is enforcing a State law, or has in effect and is operating a statewide program, relating to child abuse and neglect that includes . . . provisions and procedures requiring that in every case involving a victim of child abuse or neglect which results in a judicial proceeding, a guardian ad litem, who has received training appropriate to the role, including training in early childhood, child, and adolescent development, and who may be an attorney or a court appointed special advocate who has received training appropriate to that role (or both), shall be appointed to represent the child in such proceedings.

42 U.S.C. § 5106a(b)(2)(B)(xiii).

State Court Rules and Court Decisions Interpreting Court Rules

N.Y. Ct. Rules § 7.2 clarifies that the “law guardians” who are appointed for minors act as an attorney for the child, as opposed to advocating for the child’s best interest. Note that the code provisions referenced by N.Y. Ct. Rules § 7.2 (such as section 249 of the Family Court Act) no longer use the term “law guardian,” and instead use “attorney for child.”

D. Appointment of Counsel for Child—Privately Initiated Proceedings


In accordance with N.Y. Fam. Ct. Act. § 249(a), the court shall appoint counsel12 for a minor “if independent legal representation is not available to such minor” where revocation of an adoption consent is opposed by the adoptive parents under New York Domestic Relations Law section 115-b.

N.Y. Fam. Ct. Act. § 249(a) states:

In any other proceeding in which the court has jurisdiction, the court may appoint an attorney to represent the child, when, in the opinion of the family court judge, such representation will serve the purposes of this act, if independent legal

12 See supra note 5.


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counsel is not available to the child. The family court on its own motion may make such appointment.

See Wilson v. Bennett, 282 A.D.2d 933, 934 (2001) (applying this provision to private custody dispute); see also Wright v. Walker, 103 A.D.3d 1087, 1088 (2013) (affirming Wilson for Fourth Department). This discretionary appointment can extend to the appeal. N.Y. Fam. Ct. Act § 1120(a). Where these proceedings take place in the New York Supreme Court or Surrogate’s Court, the minor has the same rights to counsel as identified above. N.Y. Jud. Law § 35(7).13

In New York, appointed counsel act as attorneys for minors, advocating the minor’s position, as opposed to advocating counsel’s view of what is in the best interest of the child. See N.Y. Ct. Rules § 7.2(c)-(d) (“In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child. . . . In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the child’s position.”).

A few cases have addressed whether each child is entitled to a separate attorney and have held that it may be required where the children’s interests actually diverge from each other. See, e.g., Matter of Smith v Anderson, 28 N.Y.S.3d 732, 736 (N.Y. App. Div. 2016) (in private custody case, “[w]hile siblings' divergent interests may warrant separate representation . . . , the attorney for the children here had represented their interests for a number of years, was well acquainted with the parties' history, inquired of the children as to their wishes and reported the children's preferences to Family Court. Under these circumstances, we have no quarrel with Family Court's decision to continue the joint representation[.]”); Barbara ZZ. v. Daniel A., 64 A.D.3d 929, 933-34 (N.Y. App. Div. 2009) (“we find that the Law Guardian appropriately and tirelessly represented each of the children, with whom she has had close, active attorney-client relationships for over six years. At all stages, the Law Guardian helped

13 A few cases have dealt with the issue of compensation for child attorneys appointed for custody cases and come to different conclusions. Compare Plovnick v. Klinger, 10 A.D.3d 84, 89 (N.Y. App. Div. 2d Dep't 2004) (“We are [] persuaded that the alternative method for compensation of attorneys permitted by Judiciary Law § 35 (3) vests the Family Court with authority to require litigants, who are financially able to do so, to make full or partial payment of fees to the law guardians assigned to represent their children in custody proceedings.”) with Redder v. Redder, 17 A.D.3d 10, 14-15 (N.Y. App. Div. 3d Dep’t 2005) (“[U]ntil the Legislature or Court of Appeals provides otherwise, we are persuaded that the current statutory and regulatory framework should be interpreted as limiting compensation to law guardians appointed pursuant to the Law Guardian Program in a contested custody proceeding to payment by the state[.]”) and Lynda A.H. v. Diane T.O., 243 A.D.2d 24, 27 (N.Y. App. Div. 4th Dep't 1998) (“Family Court's authority to award compensation to Law Guardians is limited by section 35 of the Judiciary Law. . . . ‘All expenses for compensation and reimbursement under [Judiciary Law § 35] 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]).”).


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them effectively express their wishes to Supreme Court, while zealously advocating separately for their particular wishes and interests . . . . The Law Guardian made innumerable efforts to monitor the children's well-being and communicate with the parents, mediated between them and, over the years, negotiated various custodial and parenting arrangements to address the serious ongoing and escalating problems experienced by the children. Contrary to the father's claim, raised for the first time on appeal, we see no error in the Law Guardian representing both children given the absence of any potential conflict of interest[.]”); Matter of James I. (Jennifer I.), 128 A.D.3d 1285, 1286 (N.Y. App. Div. 2015) (“During the course of the permanency proceedings, it became clear that James and Jessie had divergent interests with regard to where and with whom they preferred to live and that the attorney for the children was ultimately going to have to take a position contrary to that of one of them. Because the children were entitled to appointment of separate attorneys to represent their conflicting interests, the underlying order must be reversed and the matter remitted for further proceedings[.]”); Corigliano v. Corigliano, 297 A.D.2d 328, 329 (N.Y. App. Div. 2002) (“The Supreme Court also erred in denying that branch of the father's cross motion which was to appoint a law guardian to represent the subject child separately from his siblings. As the law guardian adopted the position that the subject child remain with the mother and his two siblings at the outset of the proceeding, without making an appropriate inquiry, the potential conflict of interest in the law guardian's continued representation of the subject child warrants the appointment of an independent law guardian for the subject child.”); In re Brian S., 141 A.D.3d 1145, 1148 (N.Y. App. Div. 2016) (“[A]lthough the record does not reveal whether the trial [attorney for the child] consulted with Katie, it is clear that Katie's position with respect to the neglect proceeding differed from that of her siblings. Under the circumstances, it was impossible for the trial [attorney for the child] to advocate zealously the children's unharmonious positions and, thus, ‘the children were entitled to appointment of separate attorneys to represent their conflicting interests.’”).


N.Y. Ct. Rules § 7.2 clarifies that the “law guardians” who are appointed for minors act as an attorney for the child, as opposed to advocating for the child’s best interest. Note that the code provisions referenced by N.Y. Ct. Rules § 7.2 (such as section 249 of the Family Court Act) no longer use the term “law guardian,” and instead use “attorney for child.”

5. MISCELLANEOUS

A. Civil Contempt Proceedings



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Any indigent person subject to contempt for failure to comply with a child support order (or other order of the family court) is entitled to appointed counsel. N.Y. Fam. Ct. Act § 262(a)(vi); see In re Broome County Dep’t of Soc. Servs. v. Mitchell, 847 N.Y.S.2d 692, 693 (App. Div. 2007) (commitment of respondent to a jail term of six months was reversed because “he was not fully advised of his right to counsel upon his first appearance and was deprived of his right to counsel in later proceedings.”); Circe v. Circe, 733 N.Y.S.2d 315, 316 (App. Div. 2001) (“An indigent person facing incarceration for violation of a court order has a right to the assignment of counsel . . . and Family Court Act § 262(a)(vi) makes [this] specific provision.”).14 See also N.Y. Fam. Ct. Act § 453(b) (in child support enforcement proceedings: “The notice shall . . . advise the respondent of the right to counsel, and the right to assigned counsel, if indigent.”); DeMarco v. Raftery, 242 A.D.2d 625, 626 (N.Y. App. Div. 1997) (“[T]he court made a finding of indigence at a late stage in the proceedings and only then assigned counsel; this was, in our opinion, inadequate. The hearing before the Hearing Examiner had already concluded, and findings of fact had already been made. The right of counsel implies that the court will give a respondent and his counsel a reasonable opportunity to appear and present evidence and arguments.”).

In other forms of civil contempt not handled in family court, the court must “inform the offender that he or she has the right to the assistance of counsel,” and the statute states that the court has the discretion to appoint counsel if the offender is financially unable to do so. N.Y. Jud. Law § 770. While this sounds discretionary, one court has said that § 770 “require[s] the court to make a choice once indigency is found: either retain the power to punish the offender with a term of imprisonment by assigning counsel, or surrender that power by proceeding without assignment of counsel.” Holmes v. Holmes, 454 N.Y.S.2d 22, 23 (App. Div. 1982) (remanding order of contempt so that court could make finding of indigency on issue of appointment of counsel); see also Clemens v. Clemens, 817 N.Y.S.2d 87, 88 (App. Div. 2006) (instructing the appointment of counsel under section 770 for a “defendant, appearing pro se, [who] asked for the assistance of assigned counsel on the ground that he was unemployed and had no income or assets”); Lundgren v. Lundgren, 127 A.D.3d 938, 941 (N.Y. App. Div. 2015) (“[A]s there is no evidence in the record which would establish that the Supreme Court informed the defendant of his right to the assistance of counsel in connection with the contempt proceedings (see Judiciary Law § 770; Matter of Bader v. Hazzis, 77 A.D.3d 742, 909 N.Y.S.2d 121), the defendant must be fully advised of his right to counsel, and his right to

14 The references to civil contempt in Part 5.A exclude summary contempt, where the contempt was committed in front of the judge.


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appointed counsel must be adequately explored, with counsel to be provided if appropriate[.]”).

In Carney v. Carney, 38 N.Y.S.3d 765, 773 (Sup. Ct. 2016), in which an applicant for counsel in a civil contempt and child custody hearing held advanced degrees and substantial job skills but was not employed on a full-time basis, the court held that it was appropriate to impute income to the applicant for the purposes of determining whether the applicant was “financially unable to obtain counsel.”

N.Y. Fam. Ct. Act § 433(a) provides a “right to counsel” for the respondent in proceedings to set the amount of support, including proceedings where the respondent is brought to the court on a warrant. It does not mention appointment of counsel for indigent respondents, and while a series of cases have cited this provision in support of such a right,15 all of those cases were actually civil contempt proceedings, not proceedings to establish the support amount.

In In re: Richard N., 994 N.Y.S.2d 514, 521 (Sup. Ct. 2014), the court considered whether there was a right to counsel at a recalcitrant juror sanction hearing. The court held that such a right to counsel was to be determined on a case-by-case basis and depended on factors such as “whether there is a statutory right to counsel; whether the alleged offender faces incarceration; whether he or she is capable of speaking for himself/herself; whether the issues involved are complex; and/or whether the denial of counsel would result in fundamental unfairness.” Id.


Various cases have found a right to counsel for indigents in civil contempt proceedings under the federal constitution. Dep’t of Hous. Preservation & Dev. v. Lamison, 462 N.Y.S.2d 109, 111 (Civ. Ct. 1983) (case involved landlord failing to comply with court order ask to making repairs; court held, based on Sixth Amendment and its state constitutional equivalent, that “it is undoubtedly and reasonably clear in the judgment of this court that an indigent respondent who faces the prospect of imprisonment in a civil contempt proceeding is entitled to the assistance of counsel and this court holds that under such circumstances, it is required and mandated, as a matter of law, to assign counsel to assist, advise and participate in these proceedings in behalf of the respondent”); People ex rel. Lobenthal v. Koehler, 516 N.Y.S.2d 928,

15 See People ex rel. Amendola v. Jackson, 74 Misc.2d 797, 800 (1973) (interpreting “right to counsel” in § 433 to include right to appointed counsel in civil contempt cases); Matter of Emerick v. Emerick, 24 A.D.2d 872, 872 (1965) (citing—without discussion—to § 433 in support of right to counsel in civil contempt); Matter of Bruno v Bruno, 50 A.D.2d 701, 701 (1975) (relying in part on Emerick); Matter of Garris v. Garris, 51 A.D.2d 627, 628 (1976) (relying on Bruno).


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930 (App. Div. 1987) (holding in child support case that “With the exception of a narrowly limited category of contempts, where the contemptuous conduct is committed in open court, in the presence of the Judge, and immediate punishment is necessary to uphold the court's authority, due process pursuant to the Fifth and Fourteenth Amendments demands that a person charged with contempt . . . have the right to be represented by counsel[.]” (citation omitted; emphasis in original)); Ullah v. Entezari-Ullah, 836 N.Y.S.2d 18, 22 (N.Y. App. Div. 2007) (holding in case involving contempt for failing to pay mortgage that “[a] respondent in a civil contempt proceeding facing the possibility of the imposition of a term of incarceration, however short, is entitled to the assignment of counsel upon a finding of indigence,” and citing in part to Argersinger v. Hamlin, 407 U.S. 25 (1972)); Jennings v. Jennings, 344 N.Y.S.2d 93, 94 (App. Div. 1973) (relying on In re Ella B., 285 N.E.2d 288, 290 (N.Y. 1972) (discussed supra Part 4.A), in finding a right to counsel in a proceeding to enforce child support where incarceration is an issue); Rudd v. Rudd, 356 N.Y.S.2d 136, 138 (App. Div. 1974) (relying on Ella B. and federal cases for proposition in child support contempt case that “The manner in which these proceedings were conducted contravened appellants’ constitutional rights under both the New York State and Federal Constitutions. At the new hearings which we are directing, each appellant should be advised that if he is indigent he has the right to the assistance of assigned counsel[.]”); Hickland v. Hickland, 393 N.Y.S.2d 192, 195 (App. Div. 1977) (stating in case involving contempt for failure to pay alimony that “one subject to possible contempt and imprisonment has an absolute right to counsel . . . and if one appears Pro se, as here, he is entitled to be advised that he has the right to counsel, and, if indigent, to assigned counsel,” and citing to Rudd (citations omitted)).

These are all in some doubt after the U.S. Supreme Court’s ruling in Turner v. Rogers, 131 S.Ct. 2507, 2520 (2011) (Fourteenth Amendment does not require right to counsel in civil contempt, at least where opponent is neither the state nor represented and matter is not “especially complex”), given that they are Fourteenth Amendment cases. But Lamison might still be intact if the New York State Constitution’s Sixth Amendment equivalent is broader and Lamison is adjudged to have made an independent state constitutional decision. Additionally, if Ella B. is interpreted to be a state constitutional case, then cases relying on Ella B. may also be valid.

B. Paternity Proceedings


An indigent respondent in any proceeding to establish paternity under Article 5 of the Family Court Act, or on appeal of such action, has the right to appointed counsel. N.Y. Fam. Ct. Act § 262(a)(viii); § 1120(a). Where these proceedings take place in the New York Supreme


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Court, the respondent has these same rights to appointed counsel. N.Y. Jud. Law § 35(8) (providing for fees to be paid to appoint counsel when the supreme court exercises jurisdiction over family court matter “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”).

State Court Decisions Addressing State Constitution’s Open Courts Provision

A few courts have found a constitutional right to counsel for an indigent putative father in paternity proceedings. See Madeline G. v. David R., 407 N.Y.S.2d 414, 416 (Fam. Ct. 1978) (where petitioner provided with counsel or “other paternity or support services” by the state, court holds that “this is sufficient ‘state action’ to trigger both the state and federal constitutional guarantees of due process and to mandate that an indigent respondent be afforded the right to counsel at public expense” and distinguishing In re Smiley, 330 N.E.2d 53, 65 (N.Y. 1975) (discussed infra Part 5.G), because Smiley dealt with the right to assigned counsel in divorce actions in which no significant state action was involved); Dep’t of Soc. Servs. v. Witzel, 398 N.Y.S.2d 86, 87 (Fam. Ct. 1977) (finding right to counsel for putative father based on equal protection, since the mother was provided counsel by statute and important interests were at stake); Clinton L.C. v. Lisa B., 741 N.Y.S.2d 834, 837 (Fam. Ct. 2002) (finding that father seeking to establish paternity had right to counsel; court reasons that because protection of paternity rights is entitled to counsel under section 262, “[e]stablishing the entitlement to parental rights should be no less constitutionally protected than defending against diminution of those rights, especially when, as here, there are legal challenges to be addressed before blood tests can even be ordered”). But see Miller v. Gordon, 397 N.Y.S.2d 500, 501 (App. Div. 1977) (following Smiley in holding that an indigent had no right to counsel in a paternity proceeding because “[p]aternity proceedings in this state are civil, not quasi-criminal as appellant contends”); Bido v. Albizu, 318 N.Y.S.2d 547, 548 (App. Div. 1971) (finding no right to counsel due to civil nature of paternity proceedings).

C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion

No law could be located regarding the appointment of counsel for indigent litigants in civil proceedings involving judicial bypass of parental consent for a minor to obtain an abortion. However, this jurisdiction might be one that does not require parental consent.

D. Proceedings Involving Child Support



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In Reid v. Moodie, 103 A.D.3d 441, 441 (N.Y.A.D. 2013), the court clarified that an indigent litigant does not have a right to counsel under N.Y. Fam. Ct. Act § 262 in a case to terminate an order of child support.


In Comm'r of Soc. Servs. v. Remy K. Y., 748 N.Y.S.2d 732, 734 (App. Div. 2002), the court held that under Lassiter v. Department of Social Services, 452 U.S. 18 (1981), the respondent’s interest in decreasing child support payments is not sufficiently important to support a federal constitutional mandate that assigned counsel be provided; the court did not address whether the respondent would have a right under the state constitution.

E. Juvenile Delinquency, Status Offenses, or Child in Need of Supervision Proceedings


In accordance with N.Y. Fam. Ct. Act. § 249(a), the court shall appoint counsel16 for a minor “if independent legal representation is not available to such minor” in proceedings concerning whether a person17 is in need of supervision. Where these proceedings take place in the New York Supreme Court or Surrogate’s Court, the minor has these same rights to appointed counsel. N.Y. Jud. Law § 35(7).

In New York, appointed counsel act as attorneys for minors, advocating the minor’s position, as opposed to advocating counsel’s view of what is in the best interest of the child. See N.Y. Ct. Rules § 7.2(c)-(d) (“In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child. . . . In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the child’s position.”). Attorneys appointed under section 249 also continue their representation of the child in the event of an appeal. N.Y. Fam. Ct. Act. § 1120(b).


N.Y. Ct. Rules § 7.2 clarifies that the “law guardians” who are appointed for minors act as an attorney for the child, as opposed to advocating for the child’s best interest. Note that

16 Previously, the statute referred to “law guardians,” but this was changed in 2010 to “attorney.” 17 Despite the reference to “person,” the statutes cited by § 249 apply to minors.


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the code provisions referenced by § 7.2 (such as section 249 of the Family Court Act) no longer use the term “law guardian,” and instead use “attorney for child.”

F. Proceedings Involving Persons in Military Service


The court may appoint an attorney to represent a person in military service who does not appear, due to his or her military service, in any proceeding or action in which such person is a party. N.Y. Mil. Law § 303(1). This provision extends to appointed attorneys in eviction proceedings in landlord/tenant court. 444 W. 54th St. Tenants Ass’n v. Costello, 523 N.Y.S.2d 374, 381 (Civ. Ct. 1987), discussed supra Part 1; Dahmen v. Gregory, 55 N.Y.S.2d 311, 313 (Sup. Ct. 1945) (“The words ‘any action or proceeding commenced in any court’ are all-embracing and must be taken to include all types of actions and proceedings.”).

An accused military service person is also entitled to appointment of counsel upon the review of court martial or sentence to bad-conduct discharge or confinement. N.Y. Mil. Law § 130.67(a).

G. Marriage Dissolution/Divorce Proceedings


New York courts have a discretionary power to appoint unpaid counsel to in forma pauperis litigants. N.Y. C.P.L.R. § 1102(a) (“The court in its order permitting a person to proceed as a poor person may assign an attorney.”). This power is “broad . . . in a proper case.” In re Smiley, 330 N.E.2d 53, 58 (N.Y. 1975). In Smiley, the court held in a 4-3 opinion that a divorce case did not warrant the discretionary appointment of counsel. Id. at 55. However, a few court decisions have held otherwise. See, e.g., Cerami v. Cerami, 355 N.Y.S.2d 861, 862 (App. Div. 1974) (in case involving indigent prisoner defendant to divorce, “defendant’s circumstances clearly warrant the assignment of counsel by the court”); Brounsky v. Brounsky, 308 N.Y.S.2d 72, 73 (App. Div. 1970) (holding in a divorce case that “inasmuch as defendant is imprisoned without the State, and since his claim of indigency is uncontradicted, the denial of his request for the assignment of counsel was, in our view, an improvident exercise of discretion”); Zeff v. Zeff, 92 N.Y.S.2d 609, 610 (App. Div. 1949) (appointing counsel for allegedly insane wife in divorce proceeding). These cases preceded Smiley, but Brounsky and Cerami may be distinguishable from Smiley based on the fact that the defendant was incarcerated and Zeff may be distinguishable on the ground of mental illness. The court in Farrell v. Farrell acknowledged Smiley, but held that, under the circumstances of that divorce case, “counsel should have been assigned in accordance with the Bar’s traditional responsibility to willingly


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accept assignments . . . to help those who cannot afford financially to help themselves.” 390 N.Y.S.2d 87, 88 (App. Div. 1976) (citations and quotations omitted). The court did not explain precisely what circumstances warrant appointment. See id. The court in Kaminski v. Kaminski, 366 N.Y.S.2d 848, 849 (Sup. Ct. 1975), also acknowledged Smiley but appointed a member of the bar to represent the defendant without compensation in that divorce case.


New York does not recognize a due process right to counsel in divorce proceedings. In re Smiley, 330 N.E.2d 53, 55-56 (N.Y. 1975) (holding in a 4-3 opinion, based apparently on both state and federal constitutional doctrines, that the due process clause does not require appointment of counsel in divorce proceedings). In Smiley, the court upheld the lower court’s holding that “absent a statute therefor, there is no power in the courts to direct the provision of counsel or to require the compensation of retained counsel for the indigent wives out of public funds.” Id. at 55.

The Smiley court held that the right to counsel under due process attached “when the State or Government proceeds against the individual with risk of loss of liberty or grievous forfeiture.” Id. Although the U.S. Supreme Court held in Boddie v. Connecticut, 401 U.S. 371, 387 (1971), that because the state regulates marriage and divorce, it could not deny access to state courts in those proceedings (such as through court fees), the court in Smiley found that this did not give rise to “an obligation of the State to assign, let alone compensate, counsel as a matter of constitutional right.” Smiley, 330 N.E.2d at 56. Although the Smiley court recognized that it had the discretionary power to appoint counsel to represent a civil indigent party without compensation pursuant to N.Y. C.P.L.R. § 1102(a), it held there “is no absolute right to assigned counsel” in matrimonial/civil cases absent statutory requirement. Id. at 55.

A lower court in 444 W. 54th St. Tenants Ass’n v. Costello, discussed supra Part 1, noted that Smiley appeared to hold that “assigned counsel is constitutionally required only when the state is proceeding against a litigant who has at risk liberty or other ‘grievous forfeiture’” and that such holding “has been made uncertain by the 1981 United States Supreme Court determination in Lassiter . . . . Under the Lassiter test . . . even if liberty is not at stake, there is only a rebuttable presumption that counsel is not mandatory.” 523 N.Y.S.2d 374, 378 (Civ. Ct. 1987) (emphasis in original).

State Court Decisions Addressing Court’s Inherent Authority

According to the court in In re Smiley, discussed supra, absent a statute providing funding for counsel, courts may not “under the State Constitution. . . arrogate the power to


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appropriate and provide funds[.]” 330 N.E.2d 53, 56 (N.Y. 1975). See also Menin v. Menin, 359 N.Y.S.2d 721, 724-25 (Sup. Ct. 1974) (court in a divorce case states that “[i]n the absence of a statute, the Court lacks power to award attorney’s fees to assigned counsel,” relying on another divorce case, Jacox v. Jacox, 350 N.Y.S.2d 435, 436-37 (App. Div. 1973)). As a result, courts have appointed attorneys to represent indigents without pay, rather than ordering the county or state to pay. See, e.g., Bartlett v. Kitchin, 352 N.Y.S.2d 110, 114-15 (Sup. Ct. 1973) (court in a divorce case states that “[a]ttorneys, unlike newspaper editors or other third parties, are officers of the court. Prior to the adoption of [statutory remedies], it was considered the duty of the bar to accept court appointments in criminal cases, acting without compensation”; court also states that civil attorneys have same obligation). Regarding this practice, the Menin court observed: “I am in full accord with the increasing number of jurisdictions that have adjudicated as constitutionally infirm the present system of court-appointed uncompensated counsel in civil cases.” 359 N.Y.S.2d at 730. But see In re Farrell, 486 N.Y.S.2d 130, 131 (Sup. Ct. 1985) (court in divorce case states that “[a]bsent a showing . . . that counsel has a compelling reason to seek to be excused or that the assignment of counsel, as a general practice, has become intolerable . . . , the assignment of counsel without compensation does not violate an attorney’s constitutional rights.[”] (citations omitted)).

In 444 W. 54th St. Tenants Ass’n v. Costello, a lower court observed that “[a]lthough the Smiley majority indicated . . . that courts lacked authority to direct expenditure for assigned civil counsel from public funds . . . , earlier Court of Appeals decisions held that the power to incur legal expenses necessarily implies the power to direct payment for those expenses, especially in fulfilling a Constitutional mandate.” 523 N.Y.S.2d 374, 378 (Civ. Ct. 1987) (citations omitted).

H. Forfeiture Proceedings Seeking Recovery of Proceeds


New York courts have a discretionary power to appoint unpaid counsel to in forma pauperis litigants. N.Y. C.P.L.R. § 1102(a) (“The court in its order permitting a person to proceed as a poor person may assign an attorney.”). In Morgenthau v. Garcia, a forfeiture action seeking recovery of proceeds, the court declined to appoint counsel and noted that “proper case[s]" meriting a discretionary appointment “would include cases where indigent civil litigants face grievous forfeiture or loss of a fundamental right.” 561 N.Y.S.2d 867, 869 (Sup. Ct. 1990) (quotation omitted).

I. Personal Injury Suits


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New York courts have a discretionary power to appoint unpaid counsel to in forma pauperis litigants. N.Y. C.P.L.R. § 1102(a) (“The court in its order permitting a person to proceed as a poor person may assign an attorney.”). The court declined to appoint counsel as a discretionary matter in Wills v. City of Troy (involving a personal injury claim), noting that the test for appointment is whether the indigent “litigant is faced with a ‘grievous forfeiture or loss of a fundamental right.’” 686 N.Y.S.2d 154, 155 (App. Div. 1999) (quoting Morgenthau v. Garcia, 561 N.Y.S.2d 867, 869 (Sup. Ct. 1990), discussed supra Part 5.H).

J. Civil Conversion Claims


New York courts have a discretionary power to appoint unpaid counsel to in forma pauperis litigants. N.Y. C.P.L.R. § 1102(a) (“The court in its order permitting a person to proceed as a poor person may assign an attorney.”). In deciding whether to appoint counsel as a discretionary matter, “proper case[s] . . . would include cases where indigent civil litigants face grievous forfeiture or loss of a fundamental right.” Morgenthau v. Garcia, 561 N.Y.S.2d 867, 869 (Sup. Ct. 1990) (quotation omitted), discussed supra Part 5.H. In Davis v. Hanna, 468 N.Y.S.2d 729, 731 (App. Div. 1983), the Appellate Division required that counsel be appointed for the defendant as a discretionary matter in a civil conversion claim, following criminal charges of aiding/abetting in stolen property, in which nothing more than “a substantial amount of money” was at stake.

K. Parole Revocation Proceedings


The New York high court has held that “a parolee is entitled to an attorney under the provisions of section 6 of article I of the New York State Constitution ‘pertaining to the right to counsel and its guarantee of due process’” in proceedings involving revocation of probation. People ex rel. Menechino v. Warden, 267 N.E.2d 238, 240 n.5 (N.Y. 1971).

L. Proceedings Involving Claims by or Against Prisoners


New York courts have a discretionary power to appoint unpaid counsel to in forma pauperis litigants. N.Y. C.P.L.R. § 1102(a) (“The court in its order permitting a person to


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proceed as a poor person may assign an attorney.”). The court in Wilson v. State, 422 N.Y.S.2d 347, 349 (Ct. Cl. 1979), which involved a prisoner suing for damages related to an alleged assault, denied appointed counsel under section 1102 where the claimant had retained counsel pursuant to a contingency fee agreement.

In Ellis v. Gardner, the court denied an inmate’s request for assigned counsel because keeplock detention did not implicate “liberty interests . . . raise[d] to the level of a grievous forfeiture of loss of a fundamental right[.]” 38 N.Y.S.3d 830, 2016 WL 2338547, at *1 (N.Y. Sup. Ct. 2016) (unpublished table opinion) (quotations and citations omitted).


In Warmus v. Heit, 824 N.Y.S.2d 770, 2006 WL 2389540, at *5 (N.Y. Sup. Ct. 2006) (unpublished table opinion), the court held that under the due process balancing test in St. Luke’s-Roosevelt Hospital Center, 607 N.Y.S.2d 574, 582 (Sup. Ct. 1993), aff’d, 89 N.Y.2d 889 (N.Y. 1996), discussed supra Part 3.B, a pro se prisoner was not entitled to appointed counsel to assist in filing suit against her retained criminal appellate attorney to recover unearned legal fees because the private interests in recovering money were relatively small compared to the state interests in preventing an onslaught of potential suits by inmates.


In Stephens v. State, 404 N.Y.S.2d 536, 537 (Ct. Cl. 1978), the court found that exercising the court’s inherent power to assign counsel to a prisoner in a civil case without compensation could “be an infringement on the attorney’s civil rights.”

M. Marriage of Minors

A bill passed in 2017 amended N.Y. Dom. Rel. Law § 15-a to raise the legal age for marriage from sixteen to seventeen, and added § 15(3)(b), which specifies that where approval for marriage is sought by a 17-year-old, “[t]he justice of the supreme court or the judge of the family court shall appoint an attorney for the child for each minor party immediately upon the application for approval. The attorney for the child must have received training in domestic violence including a component on forced marriage.”

N. Truancy


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Pursuant to N.Y. Fam. Ct. Act § 712(a), truancy in New York is treated as "person in need of supervision" matter. And under N.Y. Fam. Ct. Act § 741(a), children have a right to appointed counsel regardless of indigence in such proceedings.


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Law Addressing Authorization or Requirement to Appoint Counsel in Civil Proceedings Generally


A Family Court judge has the discretion to appoint counsel to represent any adult in any proceeding under the Family Court Act if the judge determines that the New York or United States Constitution mandates such an assignment. N.Y. Fam. Ct. Act § 262(b); see also N.Y. Surr. Ct. Proc. Act § 407(1)(b) (allowing a judge to appoint counsel to represent any adult in a proceeding under Surrogate’s Court Procedure Act if the judge determines that such assignment of counsel is mandated by federal or state constitution). Family Court judges also have the discretion to appoint an attorney for the child in any proceedings where “such representation will serve the purposes of” the Family Court Act. N.Y. Fam. Ct. Act § 249(a).

Additionally, New York courts have a discretionary power to appoint unpaid counsel to in forma pauperis litigants in any type of civil matter. N.Y. C.P.L.R. § 1102(a) (“The court in its order permitting a person to proceed as a poor person may assign an attorney.”). This power is “broad . . . in a proper case.” In re Smiley, 330 N.E.2d 53, 58 (N.Y. 1975); see also Morgenthau v. Garcia, 561 N.Y.S.2d 867, 869 (Sup. Ct. 1990) (noting that “proper case[s] . . . would include cases where indigent civil litigants face grievous forfeiture or loss of a fundamental right”); Planck v. County of Schenectady, 51 A.D.3d 1283, 1283 (N.Y. App. Div. 2008) (“plaintiff’s complaints do not implicate the liberty interests that have been found to merit assignment of counsel in civil cases”). One legal commentator has suggested that where “(1) indigent status is not disputed . . . (2) prima facie merit of the claim or defense is indicated, and (3) counsel from federally-funded or other free legal services organizations is unavailable, failure to assign counsel . . . is an abuse of discretion.” Andrew Scherer, Gideon’s Shelter: The Need to Recognize a Right to Counsel for Indigent Defendants in Eviction Proceedings, 23 Harv. C.R.-C.L. L. Rev. 557, 586 n.122 (1988) (citing Yearwood v. Yearwood, 387 N.Y.S.2d 433, 434 (App. Div. 1977)); see also In re Romano, 438 N.Y.S.2d 967, 970 (Surr. Ct. 1981) (a finding of merit in the indigent’s case “does not call for a showing of substantial probability of success,” but instead requires that the court be satisfied the claim is not frivolous).

Although the authority to appoint counsel under section 1102(a) is “broad,” it is limited in practice. Smiley, 330 N.E.2d at 58. As the Court of Appeals held, “there is no absolute right to assigned counsel; whether in a particular case counsel shall be assigned lies instead in the discretion of the court.” Id. at 55. The major practical limitation in appointing counsel, even in meritorious cases, is the lack of public funds to compensate attorneys appointed under this section. Garcia, 561 N.Y.S.2d at 868 (“[W]hile the court has discretion to assign counsel under


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CPLR 1102, if it were to assign such counsel in this civil action, there is no mechanism by which the court may direct the county, the state or any other agency to pay his fee.”).

In deciding whether to appoint counsel as a discretionary matter, courts have looked to whether the indigent “litigant is faced with a ‘grievous forfeiture or loss of a fundamental right.’” Wills v. City of Troy, 686 N.Y.S.2d 154, 155 (App. Div. 1999) (quoting Garcia, 561 N.Y.S.2d at 867). Cases not meeting this test have included divorce actions (Smiley, discussed supra Part 5.G), forfeiture actions seeking recovery of proceeds (Garcia, discussed supra Part 5.H), eviction from public housing (N.Y. City Hous. Auth. v. Johnson, 565 N.Y.S.2d 362, 363-64 (App. Div. 1990), discussed supra Part 1), and personal injury suits (Wills, discussed supra Part 5.I). Furthermore, the court in Wilson v. State, 422 N.Y.S.2d 347, 349 (Ct. Cl. 1979), discussed supra Part 5.K, denied appointed counsel under section 1102 where the claimant had retained counsel pursuant to a contingency fee agreement. But, in at least one civil case (a civil conversion claim, following criminal charges of aiding/abetting in stolen property) in which nothing more than “a substantial amount of money” was at stake, the Appellate Division required that counsel be appointed for the defendant as a discretionary matter. See Davis v. Hanna, 468 N.Y.S.2d 729, 731 (App. Div. 1983), discussed supra Part 5.J.

Despite Smiley’s holding that a divorce case did not warrant the discretionary appointment of counsel, there have been a few cases holding otherwise, as discussed supra Part 5.G. See, e.g., Cerami v. Cerami, 355 N.Y.S.2d 861, 862 (App. Div. 1974) (in case involving indigent prisoner defendant to divorce, “defendant’s circumstances clearly warrant the assignment of counsel by the court”); Brounsky v. Brounsky, 308 N.Y.S.2d 72, 73 (App. Div. 1970) (holding in a divorce case that “inasmuch as defendant is imprisoned without the State, and since his claim of indigency is uncontradicted, the denial of his request for the assignment of counsel was, in our view, an improvident exercise of discretion”); Zeff v. Zeff, 92 N.Y.S.2d 609, 610 (App. Div. 1949) (appointing counsel for allegedly insane wife in divorce proceeding); Farrell v. Farrell, 390 N.Y.S.2d 87, 88 (App. Div. 1976) (acknowledging Smiley, but holding that under that divorce case, “counsel should have been assigned in accordance with the Bar’s traditional responsibility to willingly accept assignments . . . to help those who cannot afford financially to help themselves.” (citations and quotations omitted)); Kaminski v. Kaminski, 366 N.Y.S.2d 848, 849 (Sup. Ct. 1975) (acknowledging Smiley but appointing member of bar to represent defendant without compensation in that divorce case).

In 2009, the New York State Assembly passed N.Y. C.P.L.R. § 3408(b), discussed supra Part 1, which states that any foreclosure defendant appearing pro se at the mandatory conference is presumed to have filed a motion for appointment of counsel under section 1101. If the court appoints counsel, it is required to “adjourn the conference to a date certain for appearance of counsel and settlement discussions[.]” Id.


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In 2003, the New York State Assembly increased the fees for appointed counsel in proceedings under § 722-b of the New York County Law, § 245 New York Family Court Act, and § 35 of the New York Judiciary Law to $75 per hour, for work performed both in and out of court. 2003 Sess. Law News of N.Y. Ch. 62 (A. 2106-B, S. 1406-B); N.Y. County Law § 722-b; N.Y. Jud. Law § 35(3). This rate, unchanged since 2003, remains below the rate that a federal district court judge in Nicholson v. Williams stated to be the minimal level to protect constitutional interests. 203 F. Supp. 2d 153, 256 (E.D.N.Y. 2002), discussed infra.


As part of the federal Servicemembers Civil Relief Act (SCRA), which applies to each state,18 50 U.S.C. § 3931 applies to all civil proceedings (including custody),19 and provides:

If in an action covered by this section it appears that the defendant is in military service, the court may not enter a judgment until after the court appoints an attorney to represent the defendant. If an attorney appointed under this section to represent a servicemember cannot locate the servicemember, actions by the attorney in the case shall not waive any defense of the servicemember or otherwise bind the servicemember.

§ 3931(b)(2).

Additionally, § 3932, which also applies to all civil proceedings (including custody),20 specifies that a service member previously granted a stay may apply for an additional stay based on a continuing inability to appear, while subsection (d)(2) states: “If the court refuses to grant an additional stay of proceedings under paragraph (1), the court shall appoint counsel to represent the servicemember in the action or proceeding.”

State and Federal Court Decisions Addressing Constitutional Due Process or Equal Protection

In N.Y. County Lawyers’ Ass’n v. State, after analyzing the shortage of attorneys, the problems it caused (such as delays, the failure to raise meritorious claims, and the inability of

18 50 U.S.C. § 3912(a)(2) states: “This chapter applies to . . . each of the States, including the political subdivisions thereof[.]” 19 Subsection 3931(a) states: “This section applies to any civil action or proceeding, including any child custody proceeding, in which the defendant does not make an appearance.” 20 Section 3932 “applies to any civil action or proceeding, including any child custody proceeding, in which the plaintiff or defendant at the time of filing an application under this section . . . (1) is in military service or is within 90 days after termination of or release from military service; and (2) has received notice of the action or proceeding.” § 3932(a).


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appointed counsel to properly prepare due to their enormous caseload), and the connection to the compensation rate, the New York Supreme Court found that removal of the caps and increase of the pay for appointed counsel in proceedings under § 722-b of the New York County Law, § 245 New York Family Court Act, and § 35 of the New York Judiciary Law were necessary to ensure constitutionally adequate representation and due process in these types of proceedings. 763 N.Y.S.2d 397, 399 (Sup. Ct. 2003). These statutes had no provisions for automatic increases, requiring “recurrent visitation by the Legislature;” as of 2003, an increase had not occurred in 17 years. Id. at 399-400, 415, 418. The court issued a permanent injunction to increase the pay rates that would last “until the Legislature acts to address the issue.” Id. at 399. The court also noted that the statute governing appointment in family court proceedings expressly referred to the “infringements of fundamental interests and rights” and the “constitutional right to counsel in such proceedings”—implying that insufficient funding was endangering these fundamental rights. Id. at 411 n.10 (internal quotations and citation omitted). The court expressed some reluctance at so intruding into the legislature’s province, but ultimately issued a declaratory judgment and permanent injunction, directing “payment of $90.00 an hour without distinction between in and out-of-court work, and without ceilings on total per case compensation, until the Legislature acts to address the issue.” Id. at 410. The court noted that “[t]he failure of the Legislature to address the rates since 1986 ignores . . . realities.” Id.

In 2002, Judge Weinstein, Federal District Judge in the Eastern District of New York, also found that the compensation allowed under N.Y. County Law § 722-b (also referred to as County Art. 18-B) for appointed counsel deprived the litigants of their constitutionally guaranteed right to effective counsel. Nicholson v. Williams, 203 F. Supp. 2d 153, 256 (E.D.N.Y. 2002). The statute set limits of $40/hour for in-court work and $25/hour for out-of-work. Id. at 224. In a class action by mothers whose children had been removed by the state child protective service, the District Court found that:

The 18-B compensation rules, as currently applied, systematically deprive indigents of effective counsel. As applied to subclass A mothers, who have a federal constitutional right to appointed counsel in New York, the 18-B compensation system violates the right to effective counsel, as guaranteed by the Fourteenth and Sixth Amendments of the United States Constitution.

Id. at 256; see also In re Nicholson, 181 F. Supp. 2d 182, 187 (E.D.N.Y. 2002) (describing “the overwhelming consensus of state officials, judicial officers, legal experts, and court opinions, as well as the evidence, that the current statutory rates do not permit 18-B lawyers to provide competent representation to their clients, and that as a result mothers are consistently denied their constitutional rights”). Judge Weinstein found it particularly troublesome that by offering


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ineffective counsel, the state was putting the mothers in a worse position had no counsel been offered at all:

If the State did not provide mothers with appointed counsel, a mother might be driven to obtain help from friends or a religious advisor or even argue strongly on her own behalf. When the mother must speak through appointed counsel she is lulled into not acting for herself; and then sold-out by the system.

Williams, 203 F. Supp. 2d at 257. The court then issued an injunction, requiring that appointed attorneys be paid $90 per hour, for time both in and out of court—the “minimal level which will protect the constitutional rights of indigent mothers.” Id. at 260. In 2003, the New York State Assembly increased the pay rate to $75 per hour, for work performed both in and out of court. 2003 Sess. Law News of N.Y. Ch. 62 (A. 2106-B, S. 1406-B); N.Y. County Law § 722-b; N.Y. Jud. Law § 35(3).


As discussed supra, N.Y. C.P.L.R. § 1102 provides New York courts with a broad discretionary power to appoint counsel in civil cases, but no funds with which to pay the attorneys, and courts have hesitated to order payment for court-appointed counsel where the legislature has not provided for payment. See N.Y. C.P.L.R. § 1102; In re Smiley, 330 N.E.2d 53, 56 (N.Y. 1975) (noting that if the court ordered payment for counsel appointed under N.Y. C.P.L.R. § 1102(a), it would “arrogate the power to appropriate and provide funds” that properly rests with the legislature), discussed supra Part 5.G. See also In re Enrique R., 512 N.Y.S.2d 837, 841 (App. Div. 1987) (relying on Smiley for proposition that Family Court does not have power to appoint attorney for mother in order to seek public housing necessary to retain custody, nor could Family Court order payment for appointed attorney out of state/county resources absent legislative authority), discussed supra Part 1.

For those cases where the court is empowered to appoint counsel, but no funds exist to pay for such an attorney, courts have appointed attorneys to represent the indigents without pay, rather than ordering the county or state to pay.21 See, e.g., Bartlett v. Kitchin, 352 N.Y.S.2d

21 In one case where grandparents sought visitation of their grandchild, a lower court ordered the child’s attorney’s fees to be paid by the grandparents, notwithstanding the lack of statutory authority to so order. People ex rel. KM v. SF, 917 N.Y.S.2d 827, 833 (Sup. Ct. 2011). The grandparents had argued that the court could only order the parents, or alternatively the state, to pay such attorney. Id. at 830-31. The court noted that:

It is true that there is no statute which specifically authorizes a court to direct a grandparent to pay the fees of the child’s attorney in a proceeding brought under DRL Section 72. In fact, there is no explicit statutory authority to direct a parent to pay for the child’s attorney in any custody or


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110, 114-15 (Sup. Ct. 1973), discussed supra Part 5.G. Courts have turned to this solution because “[i]n the absence of a statute, the Court lacks power to award attorney’s fees to assigned counsel[.]” Menin v. Menin, 359 N.Y.S.2d 721, 724-25 (Sup. Ct. 1974) (divorce case relying on another divorce case, Jacox v. Jacox, 350 N.Y.S.2d 435, 436-37 (App. Div. 1973)), discussed supra Part 5.G. See also Smiley, 330 N.E.2d at 56.

However, some New York courts have found it an unconstitutional taking to appoint uncompensated counsel in civil cases. See Menin, 359 N.Y.S.2d at 729-30; Stephens v. State, 404 N.Y.S.2d 536, 537 (Ct. Cl. 1978) (assigning counsel to a prisoner in a civil case without compensation could “be an infringement on the attorney’s civil rights”), discussed supra Part 5.M. But see In re Farrell, 486 N.Y.S.2d 130, 131 (Sup. Ct. 1985) (in divorce case, court states, “[a]bsent a showing . . . that counsel has a compelling reason to seek to be excused or that the assignment of counsel, as a general practice, has become intolerable the assignment of counsel without compensation does not violate an attorney’s constitutional rights.” (citation omitted)).

In the absence of statutory authority or funding, many New York decisions “suggest that the judiciary should, except in extreme cases, defer to the legislature’s power over the expenditure of public funds, even where counsel is constitutionally mandated[.]” In re St. Luke’s-Roosevelt Hosp. Ctr., 607 N.Y.S.2d 574, 582 (Sup. Ct. 1993), aff’d, 89 N.Y.2d 889 (N.Y. 1996), (citing Smiley, 330 N.E.2d 53), discussed supra Part 3.B.22 Indeed, many New York courts have held that “[t]here is neither constitutional nor statutory authority for” the court to “require a municipality to pay the fee of counsel assigned to an indigent party in such an action or, a fortiori, the fee of counsel selected personally by the indigent.” Jacox v. Jacox, 350 N.Y.S.2d 435, 436 (App. Div. 1973). “However, . . . where constitutionally mandated, courts

visitation proceeding, except for subsection (3) of Judiciary Law Section 35, which applies only where the parents are preliminarily determined by the court to be indigent.

Id. at 830. The court relied on an earlier appellate decision from New York, which this lower court perceived as “relying on the courts’ inherent parens patriae obligation to safeguard the health and well-being of children[.]” Id. at 831. The court concluded, “[i]f the court believes that appointment of an attorney for the child will enhance its ability to make a decision in that child’s best interests, acting as a wise, affectionate, and careful parent, then it must exercise its discretion to appoint an attorney and allocate the cost reasonably between the parties (or, as in the case at bar, among them)[.]” Id. at 832 (quotation omitted). 22 However, the Supreme Court in St. Luke’s did ultimately order the city to pay for appointed counsel, a ruling that was upheld by the appellate and highest court. In re St. Luke’s-Roosevelt Hosp. Ctr., 640 N.Y.S.2d 73 (App. Div. 1996), aff’d, 675 N.E.2d 1209, 1210 (N.Y. 1996) (“We conclude that the Legislature, by providing for the assignment of counsel for indigents in the Mental Hygiene Law, intended, by necessary implication, to authorize the court to compensate counsel.”).


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have also not hesitated to direct payment by appropriate officials of fees or counsel reimbursement when such fees or reimbursement were required in order to satisfy constitutionally protected rights.” St. Luke’s-Roosevelt Hosp. Ctr., 607 N.Y.S.2d at 583 (relying on, among other things, broad language in New York statutes designed to provide counsel to civil litigants, such as N.Y. Jud. Law § 35); see also 444 W. 54th Street Tenants Ass’n v. Costello, 523 N.Y.S.2d 374, 378 (Civ. Ct. 1987) (suggesting in housing case that court may be empowered to direct payment in some circumstances, because “the power to incur legal expenses necessarily implies the power to direct payment for those expenses, especially in fulfilling a Constitutional mandate . . . . If the [Lassiter] presumption is rebutted, the Lassiter defined Constitutional directive has been invoked and the court may mandate payment from public funds.”). But see Smiley, 330 N.E.2d at 56 (absent statute providing funding for counsel, courts may not “under the State Constitution. . . arrogate the power to appropriate and provide funds”); Goresen v. Gallagher, 485 N.Y.S.2d 664, 665 (App. Div. 1985).

Documents

AMERICAN BAR ASSOCIATION · Law Addressing Authorizaton or Requirement to Appoint Counsel in Specifc Types of Civil Proceedings.2 1. ... Costello, 523 N.Y.S.2d 374 (Civ. Ct. 1987),