Often, at the $75 an hour rate and the $4400 cap, and a case with an extensive records - pretrial motions, transcripts of pretrial hearings, transcripts of the trial - an attorney exhausts the allowed limit of compensation after $58.66 hours of work, which is just 8 full working days for an attorney, while work on an appeal can take MONTHS, see, voucher forms from the New York State Appellate Division 3rd Judicial Department for compensation of assigned attorneys in criminal defense and Family Court cases.
Here is a voucher form for criminal cases:
The voucher form has a "note" that "The limit of compensation without showing an extraordinary circumstances is $4,400. Claims for payment above the statutory cap must be accompanied by an affidavit in support of the excess fee claim". I supplied once such an affidavit, showing an extraordinarily long record I was supposed to read, and, since the record was so large, an extraordinary fee I paid out of my own pocket for the required number of copies to reproduce it - the court only compensated 1/5 of what I paid out of pocket. So, next time an attorney who would be so burned, would not opt for a "full record" option, but would go with an "Appendix" option which allows the court to skip its review by reviewing only a certain pages from the record, but not the entire record.
Judges of this court are not dummies, and they do realize when creating such a cap that any criminal case that made it to the appellate level will have a record that requires more than 8 days of work for an attorney to create a proper appeal, so with this voucher form and policy this court incentivizes (1) dishonesty in attorneys - since an attorney must claim he or she has read the full record to base the appeal on it, which is, if not paid, most often assigned attorneys simply do not do, and (2) poor work on behalf of the poor.
It goes without saying that this amount does not even come close to compensating an attorney's time for WestLaw research, which can cost up to $3400 an hour (!), and I do not mean that the attorney will charge that fee, but it will be an out-of-pocket expense of the attorney to pay in order to do proper research for a client in an assigned case, with a hope of compensation from the court in the future, when the appeal goes through and is decided, which will usually take months.
Not only the court system forces attorneys to finance the court system by not paying attorneys interest on fees generated, but not paid for for months, but attorneys are supposed to pay out of pocket, and provide diligent representation, where such diligent representation REQUIRES costly research - which the attorney knows will never be compensated.
So, assigned appellate attorneys are vigorously encouraged in New York to provide substandard representation for the poor, where, in a private appeal, an attorney will have full and often advance compensation from a client (through a retainer and advances as the work proceeds) for all necessary expenses AND attorney's own work.
Discriminatory compensation rules are no different in assigned cases in Family Court than in criminal court.
Here is a voucher form for civil cases:
The same "note" at the bottom.
As I said above, an attorney may exhaust the compensation cap by just be reading the record, noting the issues and before he even begins researching them, or through just a couple of hours of research, which is inadequate for a serious criminal or Family Court appeal, almost always fraught with multiple complex constitutional issues.
As a result, there arises a huge conflict of interest for attorneys - to do their job properly, and then lose time (and opportunity to earn money in other cases, while having their own bills to pay and their own families to support) and do unpaid work for their clients, because the case requires more than the cap pays for - or to pretend you did your job, knowing that it is unlikely the higher appellate court will reverse on ineffective assistance of counsel issue if an appellate attorney will put in just some appellate brief, whether properly articulating all necessary issues the record raises or not.
Apparently, this problem has been brewing not only in New York State.
Recently, an appellate attorney in Utah asked to allow him to withdraw from a DEATH PENALTY case, because the appellate court capped compensation in that death penalty case.
In other words, like in New York, much of the work required by the death penalty case in question would have been unpaid work, and the attorney could not afford it, since he had to support his own family, naturally.
Of course, the press disrespectfully claimed "lamenting" the legitimate claim of the attorney that a huge conflict of interest arises when an attorney must pick whether he can properly represent his client, but then go unpaid - in a case where he is supposed to be FULLY paid by the government for his work as a constitutionally required counsel for his condemned client.
We are not talking about a greedy attorney not wanting to do his job.
We are talking about, potentially, hours, days, weeks, possibly, months of unpaid work.
Nobody should be required to do that.
13th Amendment prohibits slavery in this country, and that equally applies to attorneys.
And, if counsel is constitutionally required in certain cases, they must be FULLY paid for their jobs.
Anything else, any situation where a financial incentive is created for an attorney for the poor to do less to avoid being forced to work for free, is unconstitutional deprivation of counsel of the poor.
Which is happening all over the country for decades as we speak, and I do not see any demonstrations in the streets about it.
Of course, demonstrating to fell a statute that was not a bother for over a hundred years is more fun and will gain more political capital than protecting constitutional rights of the poor.
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