In Cohen v. Cohen (33 Misc 3d 448, 932 NYS2d 311 [Sup Ct, Nassau County 2011]), the court noted, when considering appointment of assigned counsel, if "facts of financial ability [to pay] are brought to the court's attention, the court may not ignore the information."

The court held that there was a "clear distinction between those who cannot pay legal fees and require representation and those who choose not to pay legal fees, and misstate their finances to secure representation without cost." (Id. at 451-452.)

An unwarranted appointment of publicly-financed counsel to an applicant in a contested family proceeding created a grave danger of "more compelling . . . circumstances" in which one spouse receives free legal services and the other spouse pays for their own legal representation. (Id. at 452.) "Such a scenario," the court wrote, can "obliterate the level playing field, a basic tenet of matrimonial law, as articulated by the Court of Appeals" (Id.)

The judge in Cohen v. Cohen reminded trial judges to carefully evaluate a litigant's finances when there are doubts about their veracity:

"The expense of court-appointed counsel, borne here by the public at large, is wholly misspent and limited public resources are unduly wasted when compensation for legal services is provided under circumstances where the litigant's true and accurate financial status at the time of appointment is misstated, concealed or, as in this case, wholly misrepresented." (Cohen v. Cohen at 452.)

The court added that the following should be considered: "the personal and business resources available . . . his realized earning capacity, his existing corporate entity, his stated living expenses, and the purported support he receives from family and friends." (Id. at 453.)

In this litany of resources, the court included "realized earning capacity," a suggestion that the applicant's reduced income at the time of the application could be revised upward before declaring him unable to retain counsel.

In Cohen v. Cohen, the Court, searching for a standard to evaluate a litigant's finances for purposes of determining eligibility for appointed counsel, combined the concept of income imputation, as developed in spousal or child support litigation, with the eligibility requirements of the County Law.