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A01063 Summary:

BILL NOA01063
 
SAME ASNo Same As
 
SPONSORRosenthal
 
COSPNSR
 
MLTSPNSR
 
Add Art 18-C 723 - 723-f, amd 717, County L
 
Requires counties and/or cities to establish a plan for providing legal counsel to persons who are defendants or respondents in eviction, ejectment and foreclosure proceedings and who are financially unable to obtain counsel; eligible person is one whose gross individual income is not in excess of one hundred twenty-five percent of the federal income official poverty line; requires the state to match dollar for dollar the amount counties appropriate for their plans.
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A01063 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1063
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 10, 2017
                                       ___________
 
        Introduced  by  M.  of  A.  ROSENTHAL  --  read once and referred to the
          Committee on Judiciary
 
        AN ACT to amend the county law, in relation to the  provision  of  legal
          representation  to certain persons in eviction, ejectment and foreclo-
          sure proceedings
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  The county law is amended by adding a new article 18-C to
     2  read as follows:
 
     3                                ARTICLE 18-C
     4      REPRESENTATION OF PERSONS IN EVICTION, EJECTMENT AND FORECLOSURE
     5                                 PROCEEDINGS
     6  Section 723. Definitions.
     7          723-a. Plan for representation.
     8          723-b. Compensation and reimbursement for representation.
     9          723-c. Services other than counsel.
    10          723-d. Duration of assignment.
    11          723-e. Expenses.
    12          723-f. Annual reports.
    13    § 723. Definitions. For purposes of this article the  following  terms
    14  shall have the following meanings:
    15    1.  "Covered  proceeding"  means  any  action or special proceeding to
    16  evict an eligible individual, including those seeking possession for the
    17  non-payment of rent or holdover, or proceedings for ejectment  or  fore-
    18  closure.
    19    2.  "Eligible  person" means an occupant of a rental dwelling unit, an
    20  owner of shares of a cooperative corporation who occupies  the  dwelling
    21  unit  to  which  such  shares are allocated, the owner and occupant of a
    22  dwelling unit owned as a condominium or the owner and occupant of a one-
    23  or two-family dwelling who is a defendant or  respondent  in  a  covered
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00005-02-7

        A. 1063                             2
 
     1  proceeding  and  whose  gross  individual income is not in excess of one
     2  hundred twenty-five percent of the federal income official poverty line.
     3    3. "Counsel" means a lawyer or lawyers licensed to practice law in New
     4  York state.
     5    §  723-a.  Plan  for representation. The governing body of each county
     6  and the governing body of the city in which a county is wholly contained
     7  shall place in operation throughout the  county  a  plan  for  providing
     8  legal counsel to eligible persons who are defendants or respondents in a
     9  covered  proceeding  and  who  are financially unable to obtain counsel.
    10  Each plan  shall  also  provide  for  investigative,  expert  and  other
    11  services  necessary, where appropriate. The plan shall conform to one of
    12  the following:
    13    1. Representation by a public defender appointed pursuant to  subdivi-
    14  sion three of section seven hundred seventeen of this chapter.
    15    2.  (a) Representation by counsel furnished pursuant to either or both
    16  of the following: a plan of a bar association in each county or the city
    17  in which a county is wholly  contained  whereby:  (i)  the  services  of
    18  private  counsel  are  rotated  and coordinated by an administrator, and
    19  such administrator may be compensated for such  service;  or  (ii)  such
    20  representation is provided by an office of conflict defender.
    21    (b)  Any  plan  of  a bar association must receive the approval of the
    22  state administrator before the plan is placed in operation. When consid-
    23  ering approval of an  office  of  conflict  defender  pursuant  to  this
    24  section, the state administrator shall employ the guidelines established
    25  by  the  office  of indigent legal services pursuant to paragraph (d) of
    26  subdivision three of section eight hundred thirty-two of  the  executive
    27  law.
    28    (c)  Any county operating an office of conflict defender, as described
    29  in subparagraph (ii) of paragraph (a) of this subdivision, as  of  March
    30  thirty-first,  two  thousand  ten  may  continue to utilize the services
    31  provided by such office provided that the county submits a plan  to  the
    32  state  administrator  within one hundred eighty days after the promulga-
    33  tion of criteria for the provision of conflict defender services by  the
    34  office  of  indigent  legal  services.  The authority to operate such an
    35  office pursuant to this paragraph shall expire when the  state  adminis-
    36  trator  approves  or disapproves such plan. Upon approval, the county is
    37  authorized to operate such office in accordance with paragraphs (a)  and
    38  (b) of this subdivision.
    39    3. When a county or city in which a county is wholly contained has not
    40  placed  in  operation  any  plan  conforming  to that prescribed in this
    41  section, a judge, justice or magistrate may assign any attorney in  such
    42  county  or  city and, in such event, such attorney shall receive compen-
    43  sation and reimbursement from such county or city which shall be at  the
    44  same  rate  as  is prescribed in section seven hundred twenty-three-b of
    45  this article.
    46    4. Representation according to a plan containing a combination of  any
    47  of the foregoing.
    48    §  723-b.  Compensation  and reimbursement for representation. 1.  All
    49  counsel assigned in accordance with a plan of a bar association conform-
    50  ing to the requirements of section seven hundred twenty-three-a of  this
    51  article  whereby the services of private counsel are rotated and coordi-
    52  nated by an administrator shall at the conclusion of the  representation
    53  receive:
    54    (a) for representation of a person entitled to representation pursuant
    55  to this article for an eviction or ejectment proceeding, compensation at
    56  a  rate of sixty dollars per hour for time expended in court or before a

        A. 1063                             3
 
     1  magistrate, judge or justice,  and  sixty  dollars  per  hour  for  time
     2  reasonably  expended  out  of court, and shall receive reimbursement for
     3  expenses reasonably incurred; and
     4    (b) for representation of a person entitled to representation pursuant
     5  to  this article for a foreclosure proceeding, compensation at a rate of
     6  seventy-five dollars per hour for time expended in court before a magis-
     7  trate, judge or justice and  seventy-five  dollars  per  hour  for  time
     8  reasonably  expended  out  of court, and shall receive reimbursement for
     9  expenses reasonably incurred.
    10    2. Except as otherwise provided in this section, compensation for time
    11  expended in providing representation:
    12    (a) pursuant to paragraph (a) of subdivision one of this section shall
    13  not exceed an amount established by the state administrator; and
    14    (b) pursuant to paragraph (b) of subdivision one of this section shall
    15  not exceed four thousand four hundred dollars.
    16    3. For representation on an  appeal,  compensation  and  reimbursement
    17  shall  be  fixed  by  the appellate court. For all other representation,
    18  compensation and reimbursement shall be fixed by the trial court  judge.
    19  In  extraordinary  circumstances  a trial or appellate court may provide
    20  for compensation in excess of the foregoing limits and  for  payment  of
    21  compensation and reimbursement for expenses before the completion of the
    22  representation.
    23    4. Each claim for compensation and reimbursement shall be supported by
    24  a  sworn  statement  specifying  the  time  expended, services rendered,
    25  expenses incurred and  reimbursement  or  compensation  applied  for  or
    26  received  in  the  same  case from any other source. No counsel assigned
    27  hereunder shall seek or accept any fee for representing  the  party  for
    28  whom he or she is assigned without approval of the court as provided.
    29    § 723-c. Services other than counsel. 1. Upon a finding in an ex parte
    30  proceeding  that  investigative,  expert or other services are necessary
    31  and that the eligible individual, is financially unable to obtain  them,
    32  the court shall authorize counsel, whether or not assigned in accordance
    33  with  a  plan,  to  obtain  the  services  on behalf of the defendant or
    34  respondent. The court upon a finding that timely procurement  of  neces-
    35  sary  services  could  not  await  prior authorization may authorize the
    36  services nunc pro tunc. The court  shall  determine  reasonable  compen-
    37  sation  for  the  services and direct payment to the person who rendered
    38  them or to the person entitled to reimbursement. Only  in  extraordinary
    39  circumstances  may  the  court provide for compensation in excess of one
    40  thousand dollars per investigative, expert or other service provider.
    41    2. Each claim for compensation shall be supported by a sworn statement
    42  specifying the time expended, services rendered, expenses  incurred  and
    43  reimbursement  or  compensation applied for or received in the same case
    44  from any other source.
    45    § 723-d. Duration of assignment. Whenever it appears that the  defend-
    46  ant  or  respondent  is  financially  able  to obtain counsel or to make
    47  partial payment for the representation or other  services,  counsel  may
    48  report this fact to the court and the court may terminate the assignment
    49  of  counsel  or  authorize  payment,  as  the  interests  of justice may
    50  dictate, to the public defender, private legal aid  bureau  or  society,
    51  private attorney, or otherwise.
    52    §  723-e.  Expenses.  All  expenses for providing counsel and services
    53  under this article appropriated by a county or a city in which a  county
    54  is wholly contained shall be matched dollar for dollar by the state.
    55    §  723-f.  Annual  reports. 1. A public defender appointed pursuant to
    56  article eighteen-A of this chapter, a private legal aid bureau or socie-

        A. 1063                             4
 
     1  ty designated by a county or city pursuant to subdivision two of section
     2  seven hundred twenty-three-a of this article, and an administrator of  a
     3  plan  of  a  bar  association  appointed  pursuant to subdivision two of
     4  section seven hundred twenty-three-a of this article shall file an annu-
     5  al  report with the judicial conference at such times and in such detail
     6  and form as the judicial conference may direct.
     7    2. (a) The county executive or chief executive officer of each  county
     8  or,  in  the  case of a county wholly contained within a city, such city
     9  shall file an annual report which specifies in detail and  certifies  to
    10  the  state  comptroller  the  total expenditures of such county or city,
    11  identifying "local funds", as defined  in  subdivision  two  of  section
    12  ninety-eight-b  of the state finance law, state funds, federal funds and
    13  funds received from a "private source" as described in  subdivision  two
    14  of  section ninety-eight-b of the state finance law, for providing legal
    15  representation to persons who were financially unable to afford counsel,
    16  pursuant to this article.  Such annual report shall be made  on  a  form
    17  developed for such purpose by the state comptroller.
    18    (b)  Such annual report, detailing expenditures for the period January
    19  first through December thirty-first of the previous calendar year, shall
    20  be filed on or before the first day of March  of  each  year,  provided,
    21  however,  that  the  first  report  required  by  this subdivision shall
    22  contain the required information, separately stated, for the two preced-
    23  ing calendar years.
    24    § 2. Section 717 of the county law is amended by adding a new subdivi-
    25  sion 3 to read as follows:
    26    3. The public defender shall also  represent,  without  charge,  in  a
    27  proceeding in court in the county or counties where such public defender
    28  serves, any person entitled to counsel pursuant to article eighteen-C of
    29  this  chapter, who is financially unable to obtain counsel. When repres-
    30  enting such person, the public defender shall counsel and represent  him
    31  at every stage of the proceedings, shall initiate such proceedings as in
    32  the  judgment of the public defender are necessary to protect the rights
    33  of such person, and may prosecute any appeal when, in his  judgment  the
    34  facts and circumstances warrant such appeal.
    35    § 3. Severability. If any clause, sentence, paragraph, section or part
    36  of  this act shall be adjudged by any court of competent jurisdiction to
    37  be invalid and after exhaustion of  all  further  judicial  review,  the
    38  judgment  shall  not affect, impair or invalidate the remainder thereof,
    39  but shall be confined in its operation to the  clause,  sentence,  para-
    40  graph,  section or part of this act directly involved in the controversy
    41  in which the judgment shall have been rendered.
    42    § 4. This act shall take effect on the one hundred eightieth day after
    43  it shall have become a law.  Effective immediately, the addition, amend-
    44  ment and/or repeal of any rule or regulation necessary for the implemen-
    45  tation of this act on its effective date is authorized to  be  made  and
    46  completed on or before such effective date.
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