Providing free legal representation to people who cannot afford a lawyer in the United States is guaranteed in the U.S. Constitution.

But that representation still has to be paid for by state and local governments.

What You Need To Know

  • In 2023, New York state more than doubled the hourly rate for assigned attorneys

  • Assigned attorneys are private lawyers who volunteer to take on certain types of cases when public defenders aren't available

  • Counties and the state are footing the bill for assigned counsel - the state budget provided $92 million to support half of the eligible expenditures related to the increase

Public defenders, who are government employees, often fill the role. But sometimes there is a need for private attorneys to step in as assigned counsel.

In 2023 New York state doubled the hourly rate for assigned attorneys.

One difference between public defenders and assigned counsel is that public defenders or government employees assigned attorneys are private lawyers who volunteer to take on certain types of cases when public defenders aren't available. And their pay rate is not the same as a public defender.

“If we don't have attorneys who can help people, especially in rural areas or depressed, economically depressed areas, we've got an access to justice problem," said Richard Lewis, the immediate past president of the New York State Bar Association.

These attorneys need to be familiar with the law being practiced, licensed to practice law in our state, and they need to have malpractice insurance.

He said there is a lot on the plates of assigned counsel, doing what any lawyer would have to do when handling a case.

“It can be extremely time-consuming," Lewis said.

The payment for their time has increased from $60 or $75 an hour – depending on the matter – to $158 an hour.

Lewis points out lawyers have many expenses from rent to malpractice insurance, staff costs and more.

“It’s up to $158 per hour now," Lewis said. "Quite candidly, that’s still not enough. There may have been a slight increase in the number of people who are willing to take on these cases, many of which are very, very complicated very contentious, very difficult but we’re still short."

Lewis said the increase is progress, but should be higher, and paid for by the state. 

Right now, counties and the state are footing the bill – the state budget provided $92 million to support half of the eligible expenditures related to the increase.

“It's a difficult situation that puts the counties a little bit behind the eight ball," said Lewis.

Some county leaders across the state aren’t thrilled about the increase.

Oneida County Executive Anthony Picente said they need to restructure the Office of the Civil Defender.

“We can't hire attorneys, plain and simple fact," Picente said. "We're short to, about to be three in the county attorney's office. We're down four in the social services attorney. The D.A. is down seven."

Lewis said rural areas in particular are being impacted, and so incentives like student loan forgiveness opportunities are being suggested.

“The New York State Bar Association has suggested a resolution at the ABA level, the American Bar Association, and we have been joined almost unanimously to come up with some kind of forgiveness that would hopefully encourage young lawyers to move to rural areas," Lewis said.

When it comes to other counties, in Erie County, a working group was formed to study ways to provide representation most cost-effectively.

The administrator of the Albany County Assigned Counsel Program, Thomas DeBose, said that while the increase was necessary.

"It's impossible for this not to be a concern from a budgetary standpoint going forward," he said. "A commitment from the state to split the full fee would be a fairer solution."