Will the Reduction of Fees Affect the Representation of Capital Defendants by Qualified Attorneys ?
In Matter of New York State Assn. of Criminal Defense Lawyers v. Kaye, 269 AD2d 14, the Supreme Court of Albany County granted a bar association standing in its attempt to bring a CPLR article 78 petition challenging an administrative order set forth by the Administrative Board of the Courts, which includes the four Appellate Division Presiding Justices and Chief Judge Judith S. Kaye, that had approved a reduction in a proposed fee schedule applicable to assigned private counsel in capital cases.
The bar association alleged, based on a single self-generated survey, that reduced fees would impinge on a capital defendant obtaining effective assistance of counsel.
The Appellate Division, Third Department, reversed, holding that the legislative intent of Judiciary Law 35-b (5) (a) was "to ensure that qualified attorneys are available to represent [capital] defendants." (Kaye, supra at 17.)
The injury claimed by the attorneys was monetary, and "therefore ... not within the zone of interest required to confer standing." (Id.)
Unlike Judiciary Law 35-b (5) (a), which imposes on each screening panel of the respective Appellate Divisions the obligation to promulgate and periodically update a schedule of fees to be paid attorneys with the approval of the Administrative Board, County Law 722-b provides a statutory cap and fixed rates, and was designed to ease the burden of lawyers who serve, rendering Kaye distinguishable. (See generally, People v. Perry, 27 AD2d 154 [P Js 1st & 2d Depts]; Werfel v. Agresta, supra.)