| Roulan v County of Onondaga |
| 2011 NY Slip Op 09696 [90 AD3d 1617] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| Timothy A. Roulan, Appellant, v County of Onondaga etal., Respondents. |
—[*1] Bond, Schoeneck & King, PLLC, Syracuse (Jonathan B. Fellows of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Onondaga County (John C. Cherundolo, A.J.),entered October 5, 2010. The order, among other things, granted plaintiff's motion for leave torenew and, upon renewal, adhered to its prior order denying plaintiff's motion for partialsummary judgment on the declaratory judgment cause of action and granting defendants' crossmotion seeking partial summary judgment dismissing the declaratory judgment cause of action.
It is hereby ordered that the order so appealed from is modified on the law by denyingdefendants' cross motion for partial summary judgment dismissing the declaratory judgmentcause of action, reinstating that cause of action and granting judgment in favor of defendants asfollows:
It is Adjudged and declared that the assigned counsel plan established by defendantOnondaga County Bar Association Assigned Counsel Program, Inc., incorrectly sued as theAssigned Counsel Program, Inc., is valid with the exception of section D (2) under the"Assignment by Court and Client Eligibility" heading, by granting plaintiff's motion for partialsummary judgment on the declaratory judgment cause of action in part and granting judgment infavor of plaintiff as follows:
It is adjudged and declared that section D (2) under the "Assignment by Court and ClientEligibility" heading of the assigned counsel plan is invalid, and as modified the order is affirmedwithout costs.
Memorandum: Plaintiff commenced this action seeking, inter alia, a declaration that varioussections of the assigned counsel plan in defendant County of Onondaga (County) were invalid.Defendant Onondaga County Bar Association Assigned Counsel Program, Inc., incorrectly suedas the Assigned Counsel Program, Inc. (ACP), established that plan (hereafter, ACP Plan)pursuant to County Law article 18-B through a contract with the Onondaga County BarAssociation (OCBA).[*2]
Plaintiff moved for partial summary judgment seeking adeclaration that the contract and handbook containing the ACP Plan were "illegal, ultra viresand/or a nullity, and that they [were], as written, unconstitutional." Defendants then cross-movedfor partial summary judgment dismissing the declaratory judgment cause of action. Thereafter,plaintiff cross-moved for partial summary judgment on the breach of contract cause of action.Supreme Court, inter alia, denied plaintiff's motion and cross motion and granted defendants'cross motion. Following additional discovery, plaintiff moved for leave to renew his prior motionand cross motion, as well as his opposition to defendants' cross motion. Defendants cross-movedfor summary judgment dismissing the remaining causes of action. Although the court purportedlydenied plaintiff's motion for leave to renew, improperly denominated in the order as a "motion torenew and reargue," it is clear from the decision that the court actually granted the motion and,upon renewal, adhered to its original decision. The court also granted defendants' cross motion.
We note at the outset that the court erred in dismissing the declaratory judgment cause ofaction rather than declaring the rights of the parties with respect thereto (see Pless v Town ofRoyalton, 185 AD2d 659, 660 [1992], affd 81 NY2d 1047 [1993]). We conclude,however, that one section of the ACP Plan is invalid. We therefore modify the order by denyingdefendants' cross motion for partial summary judgment dismissing the declaratory judgmentcause of action, reinstating that cause of action and declaring that the ACP Plan is valid with theexception of section D (2) under the "Assignment by Court and Client Eligibility" heading. Wefurther modify the order by granting plaintiff's motion for partial summary judgment on thedeclaratory judgment cause of action in part and declaring that section D (2) under the"Assignment by Court and Client Eligibility" heading of the ACP Plan is invalid.
As a matter of background, we note that County Law article 18-B was enacted in 1965 as ameans to compensate attorneys who were assigned to represent certain indigent litigants. Beforearticle 18-B was enacted, attorneys admitted to practice law in the State of New York wererequired, by virtue of their admission to the bar, to represent indigent litigants without anycompensation (see Matter of Smiley, 36 NY2d 433, 438 [1975]; Matter of Stream vBeisheim, 34 AD2d 329, 333 [1970]; Mitchell v Fishbein, 377 F3d 157, 168 [2004]).Courts had the inherent power and a constitutional obligation to appoint counsel for indigentcriminal defendants (see Mitchell, 377 F3d at 168; see also Smiley, 36 NY2d at437-438), and "such service, however onerous, created no legal liability against the county infavor of the person rendering the same" (Stream, 34 AD2d at 333 [internal quotationmarks omitted]). Following the decisions of the United States Supreme Court in Gideon vWainwright (372 US 335 [1963]) and the Court of Appeals in People v Witenski (15NY2d 392 [1965]), both of which established that indigent criminal defendants had aconstitutional right to counsel, it became apparent "that the private [b]ar could not carry theburden of uncompensated representation for the large numbers of defendants involved.Consequently, legislation was enacted to provide systematic representation of defendants byassigned counsel and for their compensation" (Smiley, 36 NY2d at 438; see Repof NY St Bar Assn Comm on St Legislation, Bill Jacket, L 1965, ch 878, at 16).
Pursuant to County Law § 722, a governing body of a county shall put in operation aplan (hereafter, 18-B plan) to provide counsel to, inter alia, persons charged with a crime who arefinancially unable to obtain counsel. The statute provides four options for such a plan, and the18-B plan enacted in the County was a bar association plan whereby "the services of privatecounsel are rotated and coordinated by an administrator" (§ 722 [3] [a] [i]). Compensationof attorneys assigned pursuant to such a plan, other than for representation on appeal, "shall befixed by the trial court judge" (§ 722-b [3]) in accordance with certain statutory rates(see § 722-b [2]). In the event that an attorney has not been assigned pursuant to an18-B plan, the court lacks the power to order that the attorney be compensated because theLegislature, which controls the public purse, has provided that only those attorneys appointedpursuant to an 18-B plan may be [*3]compensated from publicfunds (see Mitchell, 377 F3d at 168-169; Matter of Goodman v Ball, 45 AD2d 16[1974], lv denied 34 NY2d 519 [1974]; cf. People v Ward, 199 AD2d 683, 684[1993]). Regardless of any limits on the compensation of assigned attorneys, nothing in CountyLaw article 18-B or the ACP Plan limits the inherent power of the court to assign counsel to anindigent criminal defendant.
With that background, we address the issues relevant to this appeal, some of which aresimilar to issues we addressed in Matterof Parry v County of Onondaga (51 AD3d 1385 [2008]). In that case, the petitioner, whois plaintiff's attorney in this action, commenced an original proceeding pursuant to CPLR article78 seeking relief in the nature of prohibition and mandamus. We concluded that the petitionerfailed to establish " 'a clear legal right to the relief sought' " and dismissed the petition(id. at 1387). We noted, however, that the petition also must be dismissed to the extentthat it sought a declaration and that such relief must be sought in a declaratory judgment action(see id.). Aside from the plaintiff in this case, the petitioner in Parry isrepresenting another attorney in a declaratory judgment action (see Cagnina v OnondagaCounty, 90 AD3d 1626 [2011]). The two actions seek similar declarations, inasmuch as eachplaintiff challenges the validity of various sections of the ACP Plan. Contrary to defendants'contention, our decision in Parry, addressing the issue whether the ACP Plan violatedCounty Law § 722 or infringed upon the court's inherent power to assign counsel, does notpreclude our review of issues raised in this action because they are separate and distinct fromthose addressed in Parry. We also reject defendants' contention that the declaratoryjudgment cause of action is not the proper procedural vehicle to challenge the ACP Plan.Plaintiff's challenges involve constitutional questions, as well as the meaning of various sectionsof County Law article 18-B (see Matter of Morgenthau v Erlbaum, 59 NY2d 143, 150[1983], cert denied 464 US 993 [1983]; Dun & Bradstreet, Inc. v City of NewYork, 276 NY 198, 206 [1937]).
Plaintiff contends that the ACP Plan is invalid because it conflicts with both the federal andstate constitutions by depriving criminal defendants of their right to counsel and it violatesCounty Law article 18-B in several different respects. To the extent that plaintiff asserts theclaims of criminal defendants concerning deprivation of the right to counsel underGideon (372 US 335), plaintiff has no standing to assert those claims (see generallySociety of Plastics Indus. v County of Suffolk, 77 NY2d 761, 773 [1991]; cf. New YorkCounty Lawyers' Assn. v State of New York, 294 AD2d 69, 74-76 [2002]). In any event,there is a class action pending on behalf of all indigent criminal defendants in the Countyaddressing the same issues raised by plaintiff herein, and thus we see no need to entertainplaintiff's indirect claims on behalf of those same criminal defendants (Hurrell-Harring v State of New York,15 NY3d 8 [2010]).
With respect to plaintiff's contentions concerning the ACP Plan as a whole, we havepreviously concluded that the ACP Plan is a statutorily authorized plan of a bar associationpursuant to County Law § 722 (3) (Parry, 51 AD3d at 1386), and plaintiff hasfailed to establish that the ACP Plan has not been properly approved as it exists. He submitted noevidence that the ACP Plan has been amended since April 2006, when it was approved by thechief administrative judge of the State of New York, and defendants submitted sworn statementsestablishing that, although administrative approval has been sought for amendments, no suchamendments have been made.
Plaintiff's reliance on Goehler vCortland County (70 AD3d 57 [2009]) to challenge the ACP Plan as a whole ismisplaced. There, Cortland County had enacted a local law that created the office of conflictattorney and set forth a procedure for assigning counsel to indigent criminal defendants when thepublic defender had a conflict of interest (id. at 58-59). The Third Department concludedthat the local law was invalid because it did "not conform to any of the four exclusive methodsauthorized by [County Law § ] 722 for the provision of counsel to indigent litigants"(id. at 60). In addition, the local law violated Municipal Home Rule Law § 11 (1)(e) because it superseded a state statute and "[a]pplie[d] to or affect[ed] the courts" (seeGoehler, 70 AD3d at 60). The decision in Goehler is relevant only because itestablished that courts "have the authority to review challenges related to the court'spower to assign and compensate counsel pursuant to a plan or statute" (id. at 61).
With respect to the merits of plaintiff's challenges to specific provisions of the ACP Plan, weagree with plaintiff that section D (2) under the "Assignment by Court and Client Eligibility"heading should be declared invalid. That section prohibits attorneys from representingnonincarcerated criminal defendants until there has been a determination of their eligibility, andthus it requires attorneys to violate the indelible right to counsel that attaches at arraignment(see Hurrell-Harring, 15 NY3d at 20-22; People v Grimaldi, 52 NY2d 611, 616[1981]). Further, that section violates one of the purposes of County Law article 18-B, which isto provide indigent criminal defendants with legal representation "from the time that [they] firstappear[ ] in court to be arraigned on the charge[s]" (Atty Gen Mem in Support, Bill Jacket, L1965, ch 878, at 6). Finally, that section requires attorneys to violate rule 1.3 of the Rules ofProfessional Conduct (22 NYCRR 1200.0), which mandates that an attorney act with diligence atall points in time during the representation.
Plaintiff further contends that the ACP Plan effectively denies representation to indigentcriminal defendants under age 21 by conditioning their eligibility for assigned counsel on anassessment of their parents' finances. We reject that contention. Parents of unemancipatedchildren under age 21 are responsible and chargeable for the support of those children (seeFamily Ct Act §§ 413, 416), including the payment of their legal fees (see Matter of Plovnick v Klinger, 10AD3d 84, 90 [2004]). We therefore conclude that the ACP may consider the resources of theparents of an unemancipated criminal defendant under age 21 when considering that defendant'seligibility for assigned counsel. We further conclude that the ACP can recover from the parentsof such a defendant any sums expended for his or her legal services in accordance with CountyLaw § 722-d (see People v Kearns, 189 Misc 2d 283, 286-290 [2001]; 1989 OpsAtty Gen No. 89-44).
Plaintiff contends that the ACP Plan usurps the trial court's authority to determine thecompensation for assigned counsel by granting the ACP the power to review vouchers, to refuseto pay "disallowed" charges and to reduce the amount of compensation sought in the voucher.According to plaintiff, the ACP's refusal to pay charges for disallowed services or expenses,when combined with delays in processing vouchers being reviewed for allegedly inappropriatecharges, encourages attorneys assigned pursuant to the ACP Plan to undercharge for services inorder to avoid delays in payment. County Law § 722-b establishes the rates ofcompensation for attorneys assigned pursuant to article 18-B, and section 722-b (3) explicitlydirects that "compensation and reimbursement shall be fixed by the trial court judge." Wetherefore agree with plaintiff that County Law § 722-b grants courts the authority todetermine the amount of compensation. The ACP Plan, however, contains extensive rules forvoucher billing by assigned counsel, and plaintiff contends that those rules impermissiblyinterfere with the power of the court to determine compensation. That contention lacks merit.The power to determine compensation is vested in the trial court judges in order to "shield[ that]important function from extrajudicial influences and considerations" (People v Brisman,173 Misc 2d 573, 586 [1996]; see also Matter of Director of Assigned Counsel Plan of Cityof N.Y. [Bodek], 87 NY2d 191, 194 [1995]). Thus, although the ACP cannot refuse toprocess vouchers even in the event that those vouchers contain charges that are disallowed by theACP Plan, we conclude that there is nothing in section 722-b that prohibits the ACP frommaking recommendations concerning the propriety of specific items in the vouchers. Anychallenge to the trial court's final determination with respect to the amount of compensation mustbe raised "by application . . . to the appropriate [a]dministrative [j]udges and evento the [a]dministrative [b]oard of the court system" (Matter of Werfel v [*4]Agresta, 36 NY2d 624, 627 [1975]).
Plaintiff further contends that the ACP Plan violates County Law article 18-B and the Rulesof Professional Conduct by requiring assigned counsel to divulge the client's confidentialfinancial information and by permitting the ACP access to a client's case file for informationrelevant to the payment of a voucher. That contention lacks merit. First, nothing in article 18-Bprohibits such disclosure. Second, although rule 1.6 (a) of the Rules of Professional Conductprohibits attorneys from knowingly revealing confidential information, section (a) (1) of that rulepermits disclosure where, as here, the client gives informed consent to such disclosure(see 22 NYCRR 1200.0). Pursuant to the ACP Plan, those individuals seeking assignedcounsel complete an application in which they specifically authorize the disclosure of suchinformation to the ACP.
We also reject plaintiff's contention that the ACP illegally dictates when a case may bebilled, thereby improperly delaying payment to assigned counsel. County Law § 722-b (1)specifically states that assigned counsel is to be paid "at the conclusion of the representation."The statute, however, permits an attorney to seek interim compensation where "extraordinarycircumstances" exist (§ 711-b [3]). Thus, so long as the ACP does not refuse to processrequests for interim compensation, there is no violation of article 18-B. We conclude that theACP's directive that assigned counsel submit vouchers within 90 days of completion of thesubject case falls within coordination of the services of assigned counsel (see § 722[3] [a]), and it does not directly contravene any provision of article 18-B. We note, however, thatthe ultimate determination concerning payment must lie with the trial court judge.
Plaintiff further contends that the ACP's rules concerning eligibility of attorneys forparticipation on the ACP panels usurps the trial court judge's authority to assign counsel. Wereject that contention. County Law article 18-B merely provides a means to compensate thoseassigned attorneys. As noted above, nothing in the ACP Plan impedes the inherent authority andconstitutional obligation of the court to assign counsel to indigent criminal defendants (seegenerally Gideon, 372 US 335; Witenski, 15 NY2d 392). Further, the power toauthorize the expenditure of public funds comes from the Legislature (see Smiley, 36NY2d at 439; Mitchell, 377 F3d at 168-169), and the Legislature has limitedcompensation to counsel who are assigned pursuant to an 18-B plan (see § 722-b).County Law § 722 (3) (a) (i) provides that the services of counsel will be "rotated andcoordinated by an administrator," and we conclude that establishing criteria for participation inthe ACP Plan is an integral part of the coordination thereof. Certainly, a court is free to appointan attorney who is not on an 18-B panel to represent an indigent defendant, but that attorney willnot be entitled to publicly funded compensation.
Plaintiff further contends, based on the decision in Ward (199 AD2d 683), that theACP Plan unlawfully prohibits the compensation of attorneys who have represented to the courtthat they were retained or who have previously accepted a fee in relation to the matter pendingbefore the court. In Ward, the defendant retained an attorney but, by the time of juryselection, the defendant had become indigent. The court then assigned the previously retainedattorney to continue to represent the indigent defendant, subject to a post-trial inquiry into thedefendant's indigency (id. at 684). Following the defendant's acquittal, the attorneysubmitted a request for fees pursuant to County Law § 722-b (id.). The courtapproved the request, but the county refused to approve the expenditure (id.). The courtthen issued an order directing payment and denied the county's subsequent motion to vacate thatorder. The Third Department dismissed the appeal on the ground that it "lack[ed] jurisdiction toentertain appeals involving the 'assignment and compensation of counsel in criminal matters' "(id., quoting Werfel, 36 NY2d at 626). Despite its holding, however, the ThirdDepartment "[p]arenthetically" addressed the merits (id.), and it concluded that the court had thepower to assign counsel and that the county did not have [*5]thepower to review or deny payment (see id. at 684-685). The record on appeal inWard establishes that the attorney in question was not a part of that county's barassociation plan for assigned counsel, and we thus conclude that the dicta in Ward shouldnot be followed. As noted above, courts lack the authority to order compensation for attorneyswho have not been assigned pursuant to one of the plans set forth in section 722.
In Goodman (45 AD2d 16), we recognized the inherent power of the court to appointan attorney regardless of whether that attorney was assigned pursuant to the county's 18-B plan,but we stated that "[a]rticle 18-B of the County Law does not authorize the court to pay for thelegal services and disbursements of retained counsel" (id. at 17). It should be noted thatthe attorney in Goodman was not part of the county's 18-B plan, and thus the court couldnot have ordered any payment to him pursuant to County Law § 722-b. The fact that hehad been previously retained was not necessarily decisive.
We therefore conclude that neither Ward nor Goodman is controlling withrespect to the issue whether an attorney who is a member of the ACP Plan may submit a voucherfor payment pursuant to County Law § 722-b when that attorney has previously accepted afee for the matter or has, at any time, represented to the court that he or she has been retained onthe matter. We conclude that section C (4) under the "Assignment by Court and ClientEligibility" heading of the ACP Plan, which prohibits such compensation, is not invalid. Article18-B "was not intended to provide a basis for public compensation of privately retained counsel"(People v Smith, 114 Misc 2d 258, 261 [1982]), and it "is not a form of fee insuranceguaranteeing payment to counsel for failure or inability of a retained client to completely honor afee arrangement" (People v Berkowitz, 97 Misc 2d 277, 281 [1978]; see Smith,114 Misc 2d at 262). To conclude otherwise would allow 18-B plan attorneys to "unfairlycompete with private practitioners" inasmuch as they could accept lower-paying clients and laterseek compensation from the county (Rep of NY St Bar Assn Comm on St Legislation, BillJacket, L 1965, ch 878, at 16). As a matter of public policy, previously retained attorneys shouldnot be able to seek compensation in the event that their clients run out of money.
The County has chosen to utilize a bar association plan as its method for providing indigentcriminal defendants with representation. The ACP, in coordinating the ACP Plan, is authorizedto establish certain criteria for attorneys who desire to be assigned pursuant thereto. We can findno statutory prohibition, no contractual limitation and no constitutional impediment that wouldpreclude a provision in a bar association plan prohibiting payment to attorneys who havepreviously been retained or previously accepted a fee.
We have considered plaintiff's remaining contentions and conclude that they are withoutmerit.
All concur except Green and Martoche, JJ., who dissent in part and vote to modify inaccordance with the following memorandum.
Green and Martoche, JJ. (dissenting in part). We respectfully dissent in part. We agree withthe majority except insofar as the majority concludes that section C (4) under the "Assignment byCourt and Client Eligibility" heading of the assigned counsel plan established by defendantOnondaga County Bar Association Assigned Counsel Program, Inc., incorrectly sued as theAssigned Counsel Program, Inc. (hereafter, ACP Plan) is valid. Pursuant to that section, anattorney may not present a voucher for payment if that attorney has been previously retained ascounsel or has accepted any remuneration for representation on the particular matter for whichthe voucher is submitted. We do not dispute the majority's conclusion that nothing in CountyLaw article 18-B or the ACP Plan limits the inherent power of the court to assign an attorney toindigent criminal defendants. We conclude, however, that restricting the authority of the court toassign an attorney who is otherwise eligible for assignment simply because that attorney was[*6]previously retained by the defendant, who has since becomeindigent and thus eligible for assigned counsel, circumvents article 18-B and unduly restricts theinherent power of the court to assign an attorney to indigent defendants (see generally Peoplev Ward, 199 AD2d 683 [1993]). The concerns of the majority with respect to article 18-Battorneys competing with private practitioners can and should be addressed by the trial court,which has the authority to assign and compensate counsel.
We therefore would further modify the order by declaring that section C (4) under the"Assignment by Court and Client Eligibility" heading of the ACP Plan is invalid.Present—Scudder, P.J., Smith, Green, Gorski and Martoche, JJ. [Prior Case History:2010 NY Slip Op 33031(U).]