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Y.H., Plaintiff, v. E.S., Defendant.
On the application of David Bliven, Esq., assigned counsel for defendant E.S., for an Order declaring unlawful the Court's assignment of counsel pro bono for indigent parties in matrimonial actions, and directing that he be relieved as counsel for Defendant, or alternatively, directing payment from the public purse for his services and fixing the prescribed hourly rate therefor, it is ORDERED that the application is disposed of as follows:
This is a matrimonial action. Both parties have been granted “poor person” relief pursuant to CPLR § 1101 and are represented by attorneys assigned on a pro bono basis pursuant to CPLR § 1102(a) and the 9th Judicial District program for assignment of counsel to indigent parties in matrimonial actions. By Order dated March 16, 2022, this Court, in its capacity as Supervising Judge for Matrimonial Cases in the 9th Judicial District, assigned David Bliven, Esq. to represent Defendant herein “without any compensation from Defendant, without prejudice to motion by counsel for compensation pursuant to CPLR § 1102(d), DRL § 237, Judiciary Law § 35, or otherwise as provided by law.”
Mr. Bliven asserts that there is no basis in New York law for the assignment of counsel on a pro bono basis, and further, that his assignment herein without compensation is violative of his rights under the 5th, 13th and 14th Amendments to the United States Constitution. He accordingly seeks an order relieving him as attorney for the Defendant, or, alternatively, directing payment from the public purse for his services and fixing the prescribed hourly rate therefor. Because Mr. Bliven's application calls into question the lawfulness of the 9th Judicial District program for assignment of counsel to indigent parties in matrimonial actions, the Court directed that notice thereof be given inter alia to the New York State Attorney General's office and to the Westchester County Bar Association. The Attorney General responded, taking no position on the matter. The Bar Association filed no response.
THE 9th JUDICIAL DISTRICT PROGRAM FOR ASSIGNMENT OF PRO BONO COUNSEL IN MATRIMONIAL ACTIONS
The Supervising Judge for Matrimonial Cases in the 9th Judicial District administers this District's program for assignment of pro bono counsel in matrimonial actions. Among the salient elements of the program are the following:
• Parties to matrimonial actions may file a combined application for “poor person” relief and assignment of counsel pursuant to Article 11 of the Civil Practice Law and Rules.
• Some litigants file on their own, others with the assistance of one of the local legal services agencies. In either case, the application must satisfy the requirements of CPLR § 1101(a).
• As a general matter, indigent persons with income up to 200% of the Federal Poverty Guidelines are deemed eligible for the assignment of counsel. However, in determining whether to assign counsel, the Court considers all relevant circumstances, including the applicant's income, assets, expenses and family situation, and exercises its discretion pursuant to In re Smiley, 36 N.Y.2d 433, 369 N.Y.S.2d 87, 330 N.E.2d 53 (1975). From February 1, 2022 to date approximately 150 assignments of counsel have been made through the program.
• Attorneys with significant experience in matrimonial cases are deemed eligible for assignment in the county wherein their office is located (or a contiguous county), and in counties where their court filings evidence a significant matrimonial practice. The roster of eligible attorneys is derived from recent RJI filings and other sources.
• To the extent possible, no attorney is tasked with more than one pro bono assignment at any given time. In the event an assigned attorney establishes that a prior assignment is still ongoing, the Court may issue an amended order relieving that attorney and defer further assignment until after the conclusion of the existing matter.
• The Court recognizes that a pro bono assignment may result in the imposition of an undue burden in circumstances including a more-than-usual crush of business; impending retirement or transition in legal practice; recent completion of another pro bono assignment; sickness; family issues; etc. The Court readily accommodates attorneys in such circumstances by deferring assignment or, if appropriate, removing them from the roster of those eligible for assignment.
• Attorneys who complete a pro bono assignment are entitled to CLE credit therefor.
NEW YORK LAW REGARDING ASSIGNMENT AND COMPENSATION OF COUNSEL FOR INDIGENT PERSONS
Article 11 of the Civil Practice Law and Rules is entitled “Poor Persons.” CPLR § 1101(a) provides that the court in which an action is triable may grant any person permission “to proceed as a poor person” therein. CPLR § 1102(a) provides that “[t]he court in its order permitting a person to proceed as a poor person may assign an attorney.” Section 1102(a) authorizes the assignment of counsel to indigent parties in matrimonial actions. See, In re Smiley, 36 N.Y.2d 433, 440, 369 N.Y.S.2d 87, 330 N.E.2d 53 (1975); Jacox v. Jacox, 43 A.D.2d 716, 717, 350 N.Y.S.2d 435 (2d Dept. 1973); Medina v. Medina, 109 A.D.2d 691, 487 N.Y.S.2d 23 (1st Dept. 1985). CPLR § 1102(d) further provides that “[a] poor person shall not be liable for the payment of any costs or fees unless a recovery by judgment or by settlement is had in his favor in which event the court may direct him to pay out of the recovery a reasonable sum for the services and expenses of his attorney” Article 11 makes no other provision for the compensation of the assigned attorney.
The New York legislature has authorized compensation of counsel for indigent persons from the public purse in specifically defined circumstances. Judiciary Law § 35 establishes a statutory right to counsel for indigent persons in a variety of cases, including habeas corpus; commitment, custody or adoption proceedings; criminal proceedings; Family Court proceedings wherein the party is entitled to counsel pursuant to the Family Court Act; Surrogate's Court proceedings wherein the party is entitled to counsel pursuant to the Surrogate's Court Procedure Act; and proceedings under Article 10 of the Mental Hygiene Law. In such cases, the statute provides that “[a]ll expenses for compensation and reimbursement under this section shall be a state charge to be paid out of funds appropriated to the administrative office for the courts for that purpose.” Judiciary Law § 35(5).1
So far as may pertain to matrimonial actions in Supreme Court, Judiciary Law § 35(8) states:
Whenever Supreme Court shall exercise jurisdiction over a matter which the Family Court might have exercised jurisdiction had such action or proceeding been commenced in Family Court or referred thereto pursuant to law, and under circumstances whereby, if such proceedings were pending in Family Court, such court would be required by Section 262 of the Family Court Act to appoint counsel, Supreme Court shall also appoint counsel and such counsel shall be compensated in accordance with the provisions of this section.
Family Court Act § 262(a) in turn establishes a statutory right to the assistance of counsel in child custody and visitation proceedings (see, id., subdivision [v]), and contempt proceedings (see id., subdivision [vi]). However, matrimonial litigants are accorded no such statutory right to counsel on the financial issues — equitable distribution, maintenance, child support, etc. — by Judiciary Law § 35, the Family Court Act, County Law § 722 et seq. or otherwise. There is of course a constitutional right to counsel in some circumstances, and Family Court Act § 262(b) further provides:
In addition to the cases listed in subdivision (a) of this section, a judge may assign counsel to represent any adult in a proceeding under this act if he determines that such assignment of counsel is mandated by the constitution of the state of New York or of the United States, and includes such determination in the order assigning counsel.
As a general matter, however, there is no constitutional right to assigned counsel in matrimonial actions. See, In re Smiley, supra, 36 N.Y.2d 433, 439-440, 369 N.Y.S.2d 87, 330 N.E.2d 53 (1975).
Consequently, where an attorney is assigned pursuant to CPLR § 1102(a) as counsel for an indigent matrimonial litigant, compensation for his services is authorized (1) from the client, pursuant to CPLR § 1102(d), out of his/her recovery (if any) in the matrimonial action; (2) from the client's adversary, pursuant to Domestic Relations Law § 237, to the extent that an award of attorney's fees is available under the terms of that statute (see, e.g., O'Shea v. O'Shea, 93 N.Y.2d 187, 689 N.Y.S.2d 8, 711 N.E.2d 193 (1999)); and/or (3) from the public purse, pursuant to Family Court Act § 262(a) and Judiciary Law § 35(8), insofar as the attorney's services are rendered in connection with child custody/visitation proceedings and contempt proceedings — but not otherwise. In the absence of statutory authorization for the expenditure of funds for assigned counsel, New York courts are without power to direct that compensation for assigned counsel's services be paid from the public purse. See, In re Smiley, supra, 36 N.Y.2d at 438, 369 N.Y.S.2d 87, 330 N.E.2d 53; Application of Sullivan, 297 N.Y. 190, 195-196, 78 N.E.2d 467 (1948); People ex rel. Ransom v. Niagara County Sup'rs, 78 N.Y. 622 (1879); People ex rel. Hadley v. Albany County Sup'rs, 28 How. Pr 22 (1864); Jacox v. Jacox, supra, 43 A.D.2d at 717, 350 N.Y.S.2d 435; Matter of Enrique R., 126 A.D.2d 169, 175, 512 N.Y.S.2d 837 (1st Dept. 1987); Wood v. Cordello, 91 A.D.2d 1178, 1179, 459 N.Y.S.2d 150 (4th Dept. 1983); Morgenthau v. Garcia, 148 Misc. 2d 900, 903, 561 N.Y.S.2d 867 (Sup. Ct. N.Y. Co. 1990).
Where there is no statutory mechanism for compensation of assigned counsel, New York courts have historically assigned counsel in appropriate cases to serve without compensation in reliance on the longstanding professional obligation of the Bar to the poor.
Inherent in the courts and historically associated with the duty of the Bar to provide uncompensated services for the indigent has been the discretionary power of the courts to assign counsel in a proper case to represent private indigent litigants. Such counsel serve without compensation. Statutes codify the inherent power of the courts (CPLR 1102, subd. [a])
The courts have a broad discretionary power to assign counsel without compensation in a proper case (CPLR 1102, subd. [a]). Voluntary organizations and Federally-funded programs play their role. As for the Bar they follow, as they are obliged to do, the canons of their profession in performing obligations to the indigent and duties imposed by assignment of the courts. If more is required, the relief must be provided by the Legislature.
In re Smiley, supra, 36 N.Y.2d at 438, 441, 369 N.Y.S.2d 87, 330 N.E.2d 53.
Absent statutory authority for the payment of assigned counsel in matrimonial actions and the appropriation of funds to implement such authority, counsel must be provided by the Bar through the personal obligation of its members, traditionally recognized, to willingly accept assignments made by the Bench to help those who cannot afford financially to help themselves.
Jacox v. Jacox, supra, 43 A.D.2d at 717, 350 N.Y.S.2d 435. See also, Matter of Enrique R., supra, 126 A.D.2d at 175, 512 N.Y.S.2d 837 (quoting Jacox); Farrell v. Farrell, 55 A.D.2d 586, 390 N.Y.S.2d 87 (1976) (quoting Jacox and recognizing need “for the Bar, as of old, to fulfill its longtime duty”).
There has been no time in the governmental history of this State when the court lacked power to assign counsel for the defense of indigent persons charged with crime [cit.om.]; and it has been part of the obligation assumed by counsel upon their admission to the bar to defend poor prisoners upon assignment by the court. Until the passage of the statute now under consideration, such service was rendered by counsel so assigned without pecuniary compensation, and such service, however onerous, created no legal liability against the county in favor of the person rendering the same.
People ex rel. Acritelli v. Grout, 87 A.D. 193, 195-196, 84 N.Y.S. 97 (1st Dept. 1903), aff'd 177 N.Y. 587, 70 N.E. 1105 (1904).
[A]t common law, attorneys were obligated to represent indigent parties without compensation (People ex rel. Acritelli v. Grout, 87 App.Div. 193, 196, 84 N.Y.S. 97, aff'd 177 N.Y. 587, 70 N.E. 1105 (1904); People v. Fernandez, 202 Misc. 190, 109 N.Y.S.2d 561 (1951); People v. Marx, 10 Misc. 2d 1053, 168 N.Y.S.2d 562).
In re Guardianship of Mark V., 80 Misc. 2d 986, 990, 365 N.Y.S.2d 463 (Surr. Ct. Nassau Co. 1975).
From very early times, the performance of gratuitous service for the poor has been regarded as part of the obligation assumed by counsel upon his admission to the Bar.
People v. Marx, 10 Misc. 2d 1053, 1057, 168 N.Y.S.2d 562 (County Ct. Queens Co. 1957).
Contrary to the movant's assertion, then, there is ample basis in New York law for the assignment of counsel on a pro bono basis for indigent parties in matrimonial actions. Since the Court is without power to order compensation from the public purse, the question arises whether, as movant contends, the Court's order of assignment herein is violative of his rights under the 5th, 13th and/or 14th Amendments to the United States Constitution. Since the movant has not framed his constitutional arguments in more precise terms, the Court construes his claim to be that his assignment without compensation (1) imposes involuntary servitude, and/or (2) amounts to an unconstitutional taking of private property for a public purpose.
CONSTITUTIONALITY OF THE 9th JUDICIAL DISTRICT PRO BONO PROGRAM
I A Court Order Requiring Counsel to Serve Pro Bono Does Not Impose “Involuntary Servitude”
In Butler v. Perry, 240 U.S. 328, 36 S.Ct. 258, 60 L.Ed. 672 (1916), the Supreme Court wrote:
[T]he 13th Amendment declares that neither slavery nor involuntary servitude shall exist. This Amendment was adopted with reference to conditions existing since the foundation of our government, and the term “involuntary servitude” was intended to cover those forms of compulsory labor akin to African slavery which, in practical operation, would tend to produce like undesirable results. It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers.
Id., 240 U.S. at 332-333, 36 S.Ct. 258.
Citing Butler v. Perry and other authority, the Second Circuit in Immediato v. Rye Neck School District, 73 F.3d 454 (2d Cir. 1996) observed that a state's requiring attorneys to work pro bono does not impose a condition of involuntary servitude in violation of the Thirteenth Amendment:
In application, courts have consistently found the involuntary servitude standard is not so rigorous as to prohibit all forms of labor that one person is compelled to perform for the benefit of another. The Thirteenth Amendment does not bar labor that an individual may, at least in some sense, choose not to perform, even where the consequences of that choice are “exceedingly bad.” [United States v. Shackney, 333 F.2d 475 at 486 (2d Cir. 1964)] [cit.om.]. For example, a state may require an attorney to work pro bono, United States v. 30.64 Acres of Land, 795 F.2d 796, 800-01 (9th Cir. 1986) (attorney may, in the alternative, choose not to practice law), or a doctor who has accepted scholarship funds to perform pro bono services [cit.om.]. The government may also require the performance of “civic duties” such as military service [cit.om.], jury duty [cit.om.], and upkeep of local public roads [cit.om.], without trenching upon the Thirteenth Amendment.
Immediato v. Rye Neck School District, supra, 73 F.3d at 459 (boldface emphasis added). See also, White v. United States Pipe & Foundry Co., 646 F.2d 203, 205 n.3 (5th Cir. 1981); Boyle v. Town of Hammond, 2008 WL 11416992 at *5 (N.D.N.Y., Oct. 24, 2008).
II A Court Order Requiring Counsel to Serve Pro Bono Is Not Per Se an Unconstitutional Taking of the Attorney's Time, Labor or Services Without Just Compensation
“The Takings Clause of the Fifth Amendment, made applicable to the States through the Fourteenth provides that private property shall not ‘be taken for public use without just compensation.’ ” Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 536, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). The threshold question in Fifth Amendment “takings” analysis is: What is the “property” interest at stake?
A. The Lawyer's Public Duty as an Officer of the Court to Represent Indigent Parties Upon Court Order Without Compensation
In Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), the Supreme Court observed that its “takings” jurisprudence “has traditionally been guided by the understandings of our citizens regarding the content of, and the State's power over, the ‘bundle of rights’ that they acquire when they obtain title to property.” Id., at 1027, 112 S.Ct. 2886. Thus, in Hurtado v. United States, 410 U.S. 578, 93 S.Ct. 1157, 35 L.Ed.2d 508 (1973), the Supreme Court held that “the Fifth Amendment does not require that the Government pay for the performance of a public duty that is already owed” (id., at 588, 93 S.Ct. 1157), and as an example thereof cited the “representation of indigents by court-appointed attorney[s]” (id., at 589, 93 S.Ct. 1157), referencing United States v. Dillon, 346 F.2d 633 (9th Cir. 1965) (boldface emphasis added), cert. denied 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966).
In Dillon, the Ninth Circuit wrote:
[T]he obligation of the legal profession to serve indigents on court order is an ancient and established tradition, and [ ] appointed counsel have generally been compensated, if at all, only by statutory fees which would be inadequate under just compensation principles, and which are usually payable only in limited types of cases. Further, the vast majority of the courts which have passed on the question have denied claims of appointed counsel for nonstatutory just compensation, pointing out that representation of indigents under court order, without a fee, is a condition under which lawyers are licensed to practice as officers of the court,2 and that the obligation of the legal profession to serve without compensation has been modified only by statute. An applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order. Thus, the lawyer has consented to, and assumed, this obligation and when he is called upon to fulfill it, he cannot contend that it is a “taking of his services.”
United States v. Dillon, supra, 346 F.2d at 635 (boldface emphasis added). Accord, United States v. 30.64 Acres of Land, More or Less, 795 F.2d 796, 800-801 (9th Cir. 1986); Williamson v. Vardeman, 674 F.2d 1211, 1214-15 (8th Cir. 1982); Tyler v. Lark, 472 F.2d 1077, 1079 (8th Cir. 1973); Dolan v. United States, 351 F.2d 671, 672 (5th Cir. 1965).
Inasmuch as Dillon’s Fifth Amendment holding is predicated on the “tradition[ ] of the profession” that “a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order” (see id., 346 F.2d at 635), it is wholly in accord with our Court of Appeals’ view that the discretionary power of New York courts to assign pro bono counsel in appropriate cases is “historically associated with the duty of the Bar to provide uncompensated services for the indigent” See, In re Smiley, supra, 36 N.Y.2d at 438, 369 N.Y.S.2d 87, 330 N.E.2d 53. See also, Scheehle v. Justices of the Supreme Court of Arizona, 508 F.3d 887, 896 (9th Cir. 2007) (“[T]he ‘bundle of rights’ a person acquires with admission to a bar does not include a right to compensation under the Fifth Amendment for duties that he or she owes to the courts”).
B. The Debate Over the Theoretical and Historical Underpinning of Courts’ Authority to Assign Counsel to Represent Indigents Without Compensation
In 1987, the Supreme Court of Kansas wrote:
The judiciary across the nation has struggled to find the appropriate balance between the ethical obligation of the legal profession to make legal services available and the rights of attorneys to just compensation.
State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816, 841 (1987). During the 1980's and 1990's, as the demand for legal services for indigent persons became acute, there was a considerable debate over the theoretical and historical underpinning of courts’ authority to assign counsel to represent indigents without compensation.
1. A Critique of United States v. Dillon
Appended to the Ninth Circuit's decision in United States v. Dillon, supra, is a treatise which purports to trace back to 15th century England and colonial America the historical foundations of an obligation on the part of the legal profession to represent indigents upon court order, without compensation, as a condition under which lawyers are licensed to practice as “officers of the court.” See, id., 346 F.2d at 636-638. Perhaps the most thorough-going judicial challenge to the pillars of the Dillon Court's analysis is set forth in an en banc decision of the Supreme Court of Missouri in State ex rel. Scott v. Roper, 688 S.W.2d 757 (Mo. 1985). The Missouri court made inter alia the following points:
First: The standards of professional responsibility adopted by the American Bar Association do not require mandatory pro bono service. See id., 688 S.W.2d at 763-764.
• Canon 2 of the Code of Professional Responsibility (1969) provides that “[a] lawyer should assist the legal profession in fulfilling its duty to make legal counsel available.” The Preamble states that “[t]he Canons are statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relation-ships with the public, with the legal system, and with the legal profession.”
EC 2-25 provides: “Historically, the need for legal services of those unable to pay reasonable fees has been met in part by lawyers who donated their services or accepted court appointments on behalf of such individuals. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer.”
EC 2-29 provides: “When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, he should not seek to be excused from undertaking the representation except for compelling reasons.”
The Preamble states that “[t]he Ethical Considerations are aspirational in character and represent the objectives toward which every member of the profession should strive.”
• Rule 6.1 of Model Rules of Professional Conduct (1983), entitled “Voluntary Pro Bono Publico Service,” provides that “[e]very lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should (a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to (1) persons of limited means”
• Until 2009, New York's Code of Professional Responsibility included Canon 2 from the 1969 ABA Code, but modified EC 2-25 (renumbered 2-34) to provide that “[e]ach lawyer should aspire to provide at least 20 hours of pro bono services annually by providing legal services at no fee and without expectation of fee to (1) persons of limited financial means, or (2) not for profit, governmental or public service organizations, where the legal services are designed primarily to address the legal and other basis needs of persons of limited financial means, or (3) organizations specifically designed to increase the avail-ability of legal services to persons of limited financial means.”
• In 2009, New York adopted Rule 6.1 of the New York Rules of Professional Conduct, entitled “Voluntary Pro Bono Services.” It provides: “Lawyers are strongly encouraged to provide pro bono legal services to benefit poor persons. (a) Every lawyer should aspire to: (1) provide at least 50 hours of pro bono legal services each year to poor persons.”
Second: The Missouri Court rejected the theory that a duty to render gratuitous service may be premised on the notion that licensing to practice law grants lawyers “a monopoly to practice before the courts.” See id., 688 S.W.2d at 764-765. The Court wrote:
The reasons underlying the monopoly argument are fraught with conceptual difficulties. First, no individual is personally denied the opportunity to argue his own cause. Although the complex nature of many legal issues may seem to make the presence of a person trained in law essential, anyone is free to either pursue a career in law or obtain the requisite legal knowledge. This fact has led a noted scholar in this area, Professor Geoffrey Hazard, to dismiss the monopoly argument as “absurd.” [cit.om.]. Second, limiting the persons who can provide services in this and other professions is not for the personal advantage of its members but rather for the protection of the public. [cit.om.]. Third, the monopoly argument must necessarily rest upon some unstated assumption, otherwise members of all occupations licensed by the state could be compelled to render gratuitous service. [cit.om]. Doctors, for example, might then be required to treat patients without receiving a fee.
Id., at 766.
Third: Following Professor Shapiro [“The Enigma of the Lawyer's Duty to Serve,” 55 N.Y.U. L.Rev. 735 (1980)], the Missouri Court rejected the theory that a lawyer may be required to render gratuitous service as an “officer of the court” because the English historical precedent cited for this practice is not germane to American law. See id., 688 S.W.2d at 765-767. The Court noted that: “The role of the English barrister most closely resembles today's American trial attorney. Barristers have at no time in English history been treated as officers of the court” (Id., at 766); and further, that the English “attorneys” and “serjeants-at-law” who were treated as “officers of the court” were effectively court staff or public officials with “no counterpart” in American practice. See id., at 765-766.
Fourth: The Missouri Court also questioned the American historical antecedents on which Dillon had relied. The Court wrote:
[T]here is little or no substantiated evidence that uncompensated appointments either were or should have been compelled in civil cases. To the contrary, the strictness with which the fee system developed during colonial times illustrates little sympathy for the pauper. [cit.om.]. While one author suggests that colonial records indicate that “in some instances counsel was assigned in forma pauper in civil litigation,” the father of modern American legal history, James Willard Hurst, contends that “[t]he common law, and in some states a few early statutes, held out to the poor the help of counsel assigned by the court. But by the later 19th century this practice had long fallen into disuse in civil cases.” [cit.om.]
Id., at 768.
Fifth: Finally, the Missouri Court argued that historical practice has only a limited bearing on the question of the constitutionality of assignment of counsel pro bono for indigent parties because “the nature of law practice has changed dramatically over the last 50 to 100 years.” See, id., 688 S.W.2d at 767. The Court noted in this regard that the burden on assigned counsel is greater today due to the “greater degree of complexity” introduced by modern jurisprudence; that lawyers are faced with “[s]kyrocketing overhead costs”; and that the Bar has become “increasingly specialized,” in consequence of which a smaller segment of the profession must bear the burden of representing indigents. See, id.
Based inter alia on the foregoing, the Missouri Supreme Court held (without reaching the federal constitutional issues) that Article 1, § 2 of the Missouri Constitution -- which per the Court “protects an individual's services by providing ‘that all persons have a natural right to the enjoyment of the gains of their own industry’ ” -- deprived Missouri courts of authority to compel attorneys to serve in civil cases without compensation. Id., 688 S.W.2d at 769. See, DeLisio v. Alaska Superior Court, 740 P.2d 437, 438, 439 n.3, 441-443 (1987) (holding that per Alaska Const. art.1, § 18 [“[p]rivate property shall not be taken or damaged for public use without just compensation”] a private attorney may not be compelled to represent a criminal defendant without just compensation, and that an attorney may not be denied reasonable compensation solely on the basis of the traditional/historical position of the attorney as an “officer of the court”). See also, Ex Parte Brown, 393 S.C. 214, 711 S.E.2d 899, 903-904 (S. Car. 2011); Simmons v. State Public Defender, 791 N.W.2d 69, 86 (Iowa 2010); Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991).
2. A Defense of the Courts’ Traditional Authority
Perhaps the most thoughtful, and full-throated, judicial rejoinder in support of the courts’ traditional authority to assign counsel to represent indigent persons without compensation was made in Bothwell v. Republic Tobacco Co., 912 F.Supp. 1221 (D. Neb. 1995). Addressing itself to (1) the “officer of the court” doctrine on which the Dillon Court relied, (2) lawyers’ “monopoly” by virtue of state licensing of legal practice in courts of law, and (3) the ethical obligation of lawyers to provide representation for the poor, the Bothwell Court concluded that there is ample historical and theoretical justification for the courts’ inher
ent power to compel representation of indigent litigants, and further, that such power is essential to maintaining the legitimacy of the civil justice system.
Concerning the “officer of the court” doctrine, the Bothwell Court wrote:
The critics’ challenges to the validity of the officer-of-the-court doctrine, while forceful, are flawed in several respects. First, the claim that there is no direct counterpart to the serjeants-at-law in the American legal system actually serves to underscore the void in needed representation of indigent litigants. Because there is no special class of attorneys in the American system whose primary task is to provide such representation in civil cases, and, as discussed above, the realistic opportunities available to the poor to participate in the civil justice system are, at best, extremely limited, there simply is, at present, no other source than the private bar capable of providing representation to indigents.
Second, even assuming that the historical foundation for the officer-of-the-court doctrine is not as solid as once thought, the fact remains that court-compelled appointments for indigents have been made for centuries. See, Dillon, 346 F.2d at 636-37. In fact, one legal historian has traced the requirement of indigent representation back to the ecclesiastical courts of the thirteenth century. [cit.om.]
Third, quite apart from any role the officer-of-the-court doctrine may have played in England or the colonies, that doctrine has become and is part of the fabric of American jurisprudence. [Citing among other case authorities Powell v. State of Alabama, supra, 287 U.S. 45, 53 S.Ct. 55 (1932), Williamson v. Vardeman, supra, 674 F.2d 1211, 1214-15 (8th Cir. 1982), and People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487 (1928) (Cardozo, J.) (“[t]he appellant was received into that ancient fellowship for something more than private gain [h]e became an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice”)].
Finally, critics of the officer-of-the-court doctrine have failed to recognize the role that the availability of lawyers has played and continues to play in maintaining the integrity of the civil justice system. Because the ready availability of lawyers is necessary to ensuring the perception, and indeed the reality, of fairness, their accessibility as officers of the court is necessary not only to the preservation of the justice system itself but to the ordered liberty of our society. See Luban, supra, at 251 (“if the have-nots are excluded from access to the legal system, ‘the end whereof to protect and redress the innocent’, their alternative is the law of the streets, of resistance that is entirely rightful”), quoting John Locke, Second Treatise of Government, In Two Treatises of Government § 20 at 322 (Cambridge University Press ). For all of the foregoing reasons, I conclude that it is inappropriate to discard the officer-of-the-court doctrine as a justification for compelled representation of the indigent.
Bothwell v. Republic Tobacco Co., supra, 912 F.Supp. at 1231-32.
Concerning the “Monopoly of Lawyers,” the Bothwell Court wrote:
A further justification which has been advanced for the view that attorneys are obligated to comply with court-ordered appointments is the monopoly theory. Under that theory, attorneys must provide legal services to indigents without compensation by virtue of the exclusive privilege they have been granted to practice law. See United States v. Accetturo, 842 F.2d 1408, 1413 (3d Cir. 1988) (“[a]ttorneys who have the privilege of practicing before the court have a correlative obligation to be available to serve the court”); [cit.om.]. Regulation of attorney licensing limits the number of individuals who may practice law. As a result, those relatively few individuals who are licensed benefit financially, thereby compensating them for any financial losses incurred by representing indigents. [cit.om.]. Also, because meaningful access to the courts can be had only through these licensed attorneys, they are required to represent those who are unable to afford representation. [cit.om.].
Bothwell, supra, 912 F.Supp. at 1232. The Court acknowledged and addressed criticism of the “monopoly theory”:
[C]ritics have argued that no monopoly actually exists because every individual is free to represent themselves in court or, alternatively, to pursue a legal career. [cit.om.] However, even if theoretically each potential litigant in the population at large had the intellectual capacity to become a lawyer, it is quite improbable that either their opponents or the courts in which they are embattled would stay the pursuit of claims while they did so. As discussed supra, meaningful access to the courts often requires representation by someone previously trained, if not experienced, in the practice of law. Thus, while the monopoly may not prevent a party from gaining access to the courts, it very well may prevent the administration of equal justice.
Finally, critics claim that other groups enjoying monopolies as a result of state licensing, such as doctors, nurses, teachers, insurance agents, brokers, and pharmacists, do not bear an obligation to provide free services to the poor. [cit.om.] While that is true, it misses the point. The practice of law — that is, the representation of others before the civil courts — is not simply a private enterprise. It is, in addition, a contribution to society's ability to manage its domestic affairs, a necessary condition of any civilized culture. Attorneys have a unique relationship to government not shared by other licensed groups. [cit.om.] This relationship, which has been described as “symbiotic,” [cit.om.], places attorneys in “an intermediary position between the court and the public” where they are “inextricably linked to the public sector despite [their] dual position as a private businessperson.” [cit.om.] “The practice of law in the broad sense, both in and out of the courts, is a necessary part of and is inexorably connected with the exercise of the judicial power.” [cit.om.] (quoting In re Integration of the Bar, 5 Wis.2d 618, 93 N.W.2d 601 (1958)).
By virtue of this special relationship between the bench and the bar, courts are dependent upon attorneys to aid in carrying out the administration of justice. While other professions also contribute to private gain and to the betterment of society's standards of living, no other group hold the exclusive key to meaningful participation in a branch of government and the protection of rights. This monumental difference between attorneys and other licensed groups justifies imposition of different conditions on the practice of the profession.
Bothwell, supra, 912 F.Supp. at 1232-33.
Finally, the Bothwell Court addressed the ethical obligations of lawyers to provide representation to indigent litigants as codified in the Code of Professional Responsibility (Canon 2, EC 2-25, EC 2-29), noting that “[w]hile these obligations are not expressed in mandatory terms, they clearly indicate that service to the indigent is an essential characteristic of any ethical attorney.” Id., 912 F.Supp. at 1234. The Court continued:
First, these moral and ethical obligations to provide legal services to the poor do not exist merely to prompt the practicing lawyer to be a “good” person, respected in the profession. Rather, they are a recognition of the critical role of the lawyer in ensuring the fair and just adjudication of disputes, and the need for such advocacy in ensuring the existence of the system. [cit.om.].
Second, these obligations are not self-executing. Platitudes are nice, of course, but if these aspirational “goals” are to be achieved and to have any meaning in fact, there must be some mechanism for gaining compliance. It makes little sense to give only lip service to these ideals while the legitimacy of the court system is being challenged by other means of resolving private disputes. If our society is to have a legitimate civil justice system, the courts must be empowered to take necessary measures to create and maintain it I view the attorney's ethical obligation to render services to the poor as the “flip side” of the court's inherent authority to provide “instruments” to ensure fairness and justice, and to maintain the relevance of the court system in resolving civil disputes.
Id., at 1234. The Bothwell Court concluded:
Our governmental system is built partially upon the concept of citizens being able to redress their grievances and resolve their civil disputes in courts. A judiciary committed to observing notions of fairness, justice, and equality before the law is of paramount importance in maintaining public confidence in that system. Lawyers are essential in maintaining the system because the only realistic way the populace at large can obtain “equal justice” is through the advocacy of those trained in the law. If public confidence in the system wanes, in time, people will find, and indeed have already found, other, less civil, methods of resolving their differences. [cit.om.] Thus, attorneys occupy a unique role in preserving the ordered liberty included in the concept of “domestic tranquility.” They are therefore vital to preserving the viability of the third branch of government. [cit.om.]
In accordance with the foregoing discussion, I conclude that, despite authority suggesting otherwise [cit.om.], this court possesses the inherent power to compel representation of an indigent litigant. I further conclude that there are ample historical and theoretical justifications for the existence of that power.
Id., at 1234-35.
In accord with Bothwell, courts in various states — including New York, New Jersey, Florida, California, Arizona and others — continue to uphold their traditional authority to authority to assign counsel to represent indigent persons without compensation. See, e.g., In re Smiley, supra, 36 N.Y.2d at 441, 369 N.Y.S.2d 87, 330 N.E.2d 53; Madden v. Township of Delran, 126 N.J. 591, 601 A.2d 211 (1992); State v. Rush, 46 N.J. 399, 217 A.2d 441 (1966); In re Amendments to Rules Regulating the Florida Bar, 573 So.2d 800 (Fla. 1991); Payne v. Superior Court, 17 Cal.3d 908, 920 n.6, 553 P.2d 565 (1976); San Diego County DSS v. Superior Court, 134 Cal.App.4th 761, 766, 36 Cal.Rptr.3d 294 (2005); County of Tulare v. Ybarra, 192 Cal.Rptr. 49, 53, 143 Cal.App.3d 580 (1983); Scheehle v. Justices of the Supreme Court of Arizona, 211 Ariz. 282, 120 P.3d 1092 (2005).
New York State Constitution Art. 1 § 6, which provides that “[n]o person shall be deprived of life, liberty or property without due process of law,” and Art. 1 § 7, which provides that “[p]rivate property shall not be taken for public use without just compensation,” are essentially identical to their counterparts in the Fifth Amendment to the United States Constitution. This Court perceives no reason to depart as a matter of New York law from the federal view that court orders requiring attorneys to represent indigent parties without compensation do not per se involve an unconstitutional taking of the attorney's time, labor or services in violation of the Fifth Amendment. See, Hurtado v. United States, supra; United States v. Dillon, supra; United States v. 30.64 Acres of Land, More or Less, supra; Williamson v. Vardeman, supra; Tyler v. Lark, supra; Dolan v. United States, supra.
In support of the courts’ traditional authority to assign counsel to represent indigent persons without compensation, the Court finds especially compelling the following considerations, outlined above:
• Court-compelled appointments of counsel for indigents have been made for centuries.
• The “officer of the court” doctrine is part of the fabric of American jurisprudence, and specifically of New York jurisprudence, as Judge Cardozo recognized in People ex rel. Karlin v. Culkin, supra.
• Thus, as the Dillon Court observed, an applicant for admission to practice law may justly be deemed to be aware of the tradition of his profession that a lawyer may be obligated to represent indigents for little or no compensation upon court order.
• Since the practice of law is restricted to licensed attorneys, and meaningful access to the courts can be had only through licensed attorneys, lawyers may justly be required to represent those who are unable to afford legal counsel.
• Lawyers may legitimately be treated differently in that regard from other licensed professionals by virtue of their unique relationship to the government. Lawyers hold “the exclusive key to meaningful participation in a branch of government and the protection of rights.” Hence, the practice of law is not a purely private enterprise but is “inexorably connected with the exercise of judicial power” because courts are dependent upon attorneys in carrying out the administration of justice.
• Although a lawyer's ethical obligation to provide representation to the poor without compensation is “aspirational,” it is grounded in a “recognition of the critical role of the lawyer in ensuring the fair and just adjudication of disputes.” In appropriate cases, New York courts may properly call upon attorneys to fulfill their ethical obligation to the poor to achieve fairness, justice and equality in the administration of the civil justice system.
III Court Orders Requiring Pro Bono Service May Potentially Result in an Unconstitutional Taking of the Attorney's Right to Practice Law
Our Court of Appeals recognized in In re Smiley, supra, that “the undue burden which may be placed on the private Bar by assignments under CPLR 1102, may also become intolerable and some might say rank as a violation of the constitutional rights of lawyers.” Id., 36 N.Y.2d at 441, 369 N.Y.S.2d 87, 330 N.E.2d 53. The Smiley Court cited Menin v. Menin, 79 Misc. 2d 285, 359 N.Y.S.2d 721 (Sup. Ct. Westchester Co. 1974), aff'd 48 AD2d 904 (2d Dept. 1975), wherein Justice Joseph Gagliardi held that “the policy of assigning uncompensated counsel to matrimonial litigants must give way to the Constitutional rights of counsel as protected under the Due Process Clauses of the Fourteenth Amendment to the Federal Constitution and Article 1, Section 6 of this State's Constitution.” Id., 79 Misc. 2d at 293, 359 N.Y.S.2d 721.
Although Justice Gagliardi's decision contains an admirable survey of the legal landscape at that time, including authority for and against the conclusion he reached (id., at 286-293, 359 N.Y.S.2d 721), the only discernible ground for his ultimate choice between one body of authority over the other is his observation that the attorney's right to practice the profession of law is a property right protected by the constitution and laws of New York as well as the Federal Constitution:
It has been said that the right to practice in any profession is ‘a valuable property right, in which, under the constitution and laws of the State, one is entitled to be protected and secured’ [cit.om.]. Whether an attorney's right to practice is regarded as a property right or a privilege [cit.om.], such right is protected by the Federal Constitution [cit.om.] since ‘lawyers also enjoy first-class citizenship’ [cit.om.]. Admission to the bar is not a matter of grace [cit.om.].
Menin, supra, 79 Misc. 2d at 292, 359 N.Y.S.2d 721. Accord, Family Div. Trial Lawyers of Superior Court–D.C.,Inc. v. Moultrie, 725 F.2d 695, 706 (D.C. Cir. 1984) (“[T]he right to conduct a business and enter a profession is considered a property right within the meaning of various constitutional provisions”); State ex rel. Stephan v. Smith, supra, 747 P.2d 816, 841 (Kan. 1987) (“One who practices his profession has a property interest in that pursuit which may not be taken from him or at the whim of the government without due process”).
However, Justice Gagliardi's legal analysis was incomplete. Having identified an attorney's right to practice law as a “property” interest protected by the Fifth Amendment Takings Clause, he was obliged to go further and consider whether the governmental intrusion upon that property interest — to wit, a court order requiring representation of an indigent matrimonial litigant without compensation — is of such a nature as to be deemed a “taking” which requires “just compensation.”
A. Court Order Requiring Pro Bono Service Does Not Effect a Per Se Taking of the Attorney's Right to Practice Law
“[G]overnment regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster — and such ‘regulatory takings’ may be compensable under the Fifth Amendment.” Lingle v. Chevron U.S.A., Inc., supra, 544 U.S. at 537, 125 S.Ct. 2074. See, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). In Lingle, the Supreme Court discussed the question when governmental regulation of or intrusion upon property interests may constitute a per se taking under the Fifth Amendment. The Court wrote:
Our precedents stake out two categories of regulatory action that generally will be deemed per se takings for Fifth Amendment purposes. First, where government requires an owner to suffer a permanent physical invasion of her property — however minor — it must provide just compensation. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) A second categorical rule applies to regulations that completely deprive an owner of “all economically beneficial us[e]” of her property. Lucas [v. South Carolina Coastal Council], 505 U.S. , at 1019 [112 S.Ct. 2886 1992]
Lingle v. Chevron U.S.A., Inc., supra, 544 U.S. at 538, 125 S.Ct. 2074 (boldface emphasis added).
Quite plainly, a court order requiring pro bono representation of an indigent matrimonial litigant in a discrete case is not tantamount to a “permanent physical invasion” of the attorney's law license or private legal practice; neither does it deprive him of “all economically beneficial use” of his law license or legal practice. Cf., Scheehle v. Justices of the Supreme Court of Arizona, 508 F.3d 887, 894 (9th Cir. 2007). Therefore, it does not effect a per se “taking” of the attorney's right to practice law.
B. A Court Order Requiring Pro Bono Service May Effect an Unconstitutional Taking of the Attorney's Right to Practice Law If It Substantially Interferes with his Legal Practice
“Takings” which do not involve a permanent physical invasion of property or deprive the owner of all economically beneficial use of the property are analyzed, for Fifth Amendment purposes, under the standards set forth in Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). See, Lingle v. Chevron U.S.A., Inc., supra, 544 U.S. 528, 538, 125 S.Ct. 2074 (2005).
In Penn Central, the Supreme Court wrote:
While this Court has recognized that the “Fifth Amendment guarantee [is] designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960), this Court, quite simply, has been unable to develop any “set formula” for determining when “justice and fairness” require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons. See Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). Indeed, we have frequently observed that whether a particular restriction will be rendered invalid by the government's failure to pay for any losses proximately caused by it depends largely “upon the particular circumstances [in that] case.” United States v. Central Eureka Mining Co., 357 U.S. 155, 168, 78 S.Ct. 1097, 2 L.Ed.2d 1228 (1958); See United States v. Caltex, Inc., 344 U.S. 149, 156, 73 S.Ct. 200, 97 L.Ed. 157 (1952).
In engaging in these essentially ad hoc, factual inquiries, the Court's decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. [cit.om.]. So, too, is the character of the governmental action. A “taking” may more readily be found when the interference with property can be characterized as a physical invasion by the government [cit.om.], than when the interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.
Penn Central Transp. Co., supra, 438 U.S. at 123-124, 98 S.Ct. 2646 (boldface emphasis added). See also, Lingle v. Chevron U.S.A., Inc., supra.
To the mind of this Court the 9th Judicial District program for assignment of counsel to indigent parties in matrimonial actions is a “public program adjusting the benefits and burdens of economic life to promote the common good” which effects no “physical invasion” of attorneys’ right to practice law. Under Penn Central, then, the “takings” inquiry requires analysis of the economic impact of pro bono assignment upon the movant, and more specifically of the extent to which it has “interfered with distinct investment-backed expectations.” See, id., 438 U.S. at 123-124, 98 S.Ct. 2646. Hence, only if the burden of uncompensated pro bono assignments were to interfere substantially with an attorney's private practice of law would they potentially effect an unconstitutional taking of property under the Penn Central “regulatory takings” test. See, Scheehle v. Justices of the Supreme Court of Arizona, supra, 508 F.3d 887, 892-893 (9th Cir. 2007); Family Div. Trial Lawyers of Superior Court–D.C. v. Moultrie, supra, 725 F.2d 695, 705-706 (D.C. Cir. 1984). See also, State ex rel. Stephan v. Smith, supra, 747 P.2d 816, 841-842 (Kan. 1987).
Thus, in Family Div. Trial Lawyers of Superior Court–D.C. v. Moultrie, supra, the Court wrote:
As the scope of the constitutionally mandated right to counsel has expanded, and the concomitant burden of providing pro bono representation imposed on attorneys has grown, several state courts have recognized that at some point the burden on particular attorneys could become so excessive that it might rise to the level of a “taking” of property. See, e.g., People ex rel. Conn. v. Randolph, 35 Ill.2d 24, 219 N.E.2d 337 (1966); Bias v. State, 568 P.2d 1269 (Okla. 1977); State ex rel. Partain v. Oakley, 159 W.Va. 805, 227 S.E.2d 314 (1976); cf. Menin v. Menin, 79 Misc. 2d 285, 359 N.Y.S.2d 721 (Sup. Ct. 1974) (appointment of counsel in civil case not mandated since such appointment would abridge appointed attorneys’ property rights). And, although the appellants here have no expectation of compensation for their services in appointed cases that rises to the level of a property interest, “the right to conduct a business and enter a profession is considered a property right within the meaning of various constitutional provisions.” Menin, 359 N.Y.S.2d at 729; [cit.om.]. Thus, while the District may enact regulations that affect property interests, where those regulations unreasonably “frustrate distinct investment-backed expectations” they may “amount to a ‘taking.’ ” Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 127, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) In short, if the superior court appointment system effectively denies the appellants the opportunity to maintain a remunerative practice as family lawyers before the Family Division, and that specialty practice is determined to be a “property” interest, it might effect an unconstitutional “taking.”
Moultrie, supra, 725 F.2d at 705-706 (boldface emphasis added).
In a similar vein, the Supreme Court of Kansas, in State ex rel. Stephan v. Smith, supra, analyzed the Fifth Amendment issue in the following terms:
Attorneys, like the members of any other profession, have for sale to the public an intangible — their time, advice, and counsel.
One who practices his profession has a property interest in that pursuit which may not be taken from him or her at the whim of the government without due process. Attorneys make their living through their services. Their services are the means of their livelihood When attorneys’ services are conscripted for the public good, such a taking is akin to the taking of food or clothing from a merchant or the taking of services from any other professional for the public good We conclude that attorneys’ services are property, and are thus subject to Fifth Amendment protection.
Id., 747 P.2d at 841, 842. The Court accordingly held:
[W]hen at attorney is required to spend an unreasonable amount of time on indigent appointments so that there is genuine and substantial interference with his or her private practice, the system violates the Fifth Amendment.
Id., at 842 (boldface emphasis added).
In Scheehle v. Justices of the Supreme Court of Arizona, supra, the Ninth Circuit addressed the question whether the state of Arizona's appointment system, whereby certain attorneys were required to serve without pay as arbitrators in civil cases, constituted a “taking” of the attorney's property without just compensation in violation of the Fifth Amendment. Applying the Penn Central “regulatory takings” test, the Scheehle Court wrote:
When the regulatory takings test factors are applied to Scheehle's claim, the compelled conclusion is that there has been no constitutional taking. First, the economic impact of the imposition on Scheehle is negligible. He is required to devote two days out of the 365 days in a year to arbitration. Moreover, there is no showing or suggestion that this obligation interfered with any existing legal work. Second, the obligation does not interfere with any “distinct investment-backed expectations.” To the contrary, in accepting admission to the Arizona Bar, and in practicing before the Maricopa Superior Court, Scheehle voluntarily became an officer of the court with the concomitant obligation to render service to the court when requested. See United States v. Dillon, 346 F.2d 633, 635 (9th Cir. 1965); see also Powell v. Alabama, 287 U.S. 45, 65, 53 S.Ct. 55 (1932). Third, the Appointment System “merely affects property interests through ‘some public program adjusting the benefits and burdens of economic life to promote the public good.’ ” Lingle, 544 U.S. at 539, 125 S.Ct. 2074 In return for a license to practice law in Arizona, Scheehle is obligated to serve for two days a year as an arbitrator — a position that his training as a lawyer (despite his subsequent specialization), admission to the bar, and years of practice make him particularly qualified to perform. There is no suggestion, nor will the record support the suggestion, that this two-day obligation remotely outweighs the benefits conferred by admission to the practice of law. In sum, the Appointment System's imposition on Scheehle when evaluated under the regulatory takings test is not a “taking” under the Fifth Amendment that requires compensation.
Scheehle, supra, 508 F.3d at 892-893.
IV The Movant Has Failed to Demonstrate that This Court's Order Assigning Him To Represent an Indigent Matrimonial Litigant Without Compensation Violates His Constitutional Rights
In what the Court construes to be the movant's effort to demonstrate that a pro bono assignment of any kind would unconstitutionally interfere with “distinct investment-backed expectations” upon which he has built his legal practice, the movant avers that he has 3 1/212 staff persons on his payroll, annual expenses of more than one-half million dollars and almost $9,000 annually in student loan debt (Bliven Aff. ¶16). The Court is sympathetic to the burdens faced by hard-working sole practitioners — indeed, in administering the 9th Judicial District program it takes pains to accommodate attorneys operating under such burdens. Nevertheless, the Court must point out the deficiencies in the movant's showing: (1) in light of In re Smiley and United States v. Dillon, supra, the movant can have no legitimate investment-backed expectation that he will never receive a pro bono assignment in a matrimonial case; and (2) he has wholly failed to demonstrate that the particular pro bono assignment at issue here will substantially interfere with his private legal practice or impede in any meaningful way his ability to meet the referenced financial obligations.
In In re Smiley, supra, our Court of Appeals observed:
As in so many things it is the existence of assets or income which creates complications, and so it does in matrimonial litigation. Hence, in the absence of disputes over money or the custody or children, matrimonial litigation is likely to be quite simple, and if a lawyer is required, his task quite simple.
Id., 36 N.Y.2d at 440, 369 N.Y.S.2d 87, 330 N.E.2d 53. Although Smiley predates the advent of the Equitable Distribution Law in 1980, the Court's observation is nevertheless fundamentally sound and has a significant bearing on the constitutional issues surrounding the 9th Judicial District pro bono assignment program.
Complex matrimonial litigation requiring the substantial investment of a lawyer's time and labor generally involves disputes over assets or child custody. If his indigent client's adversary has assets, then there is a potential source of funds for payment of the movant's attorney's fees via an award pursuant to DRL § 237, or pursuant to CPLR § 1102(d) from his own client's equitable distribution award. Similarly, if there is litigation over custody of the children of the marriage, then attorney's fees are payable from the public purse, pursuant to Family Court Act § 262(a)(v) and Judiciary Law § 35(8), for services rendered by the movant in connection with the custody proceedings. The point is that the very circumstances giving rise to time-consuming matrimonial litigation carry with them the potential for payment of the movant's attorney's fees. Conversely, in the absence of those complicating circumstances the movant's task should be simpler and the pro bono assignment considerably less burdensome. If in such cases there is no ready source of funds for payment of attorney's fees, neither is there a prospect that a substantial commitment of the movant's time and labor will be required.
In this case, both parties are indigent and represented by assigned pro bono counsel, so there should be no time-intensive litigation over assets. The record shows that there is one unemancipated child of the marriage. In the event there is litigation over custody of the child, attorney's fees are payable, as noted above, for those proceedings pursuant to Family Court Act § 262(a)(v) and Judiciary Law § 35(8). In view of the circumstances, the movant has failed to demonstrate that undertaking this pro bono representation will be unduly burdensome for him, much less that it will effect an unconstitutional taking of property without just compensation in violation of the Fifth Amendment.
The Court accordingly concludes that the March 16, 2022 Order wherein this Court assigned David Bliven, Esq. to represent Defendant herein “without any compensation from Defendant, without prejudice to motion by counsel for compensation pursuant to CPLR § 1102(d), DRL § 237, Judiciary Law § 35, or otherwise as provided by law” is not violative of the movant's constitutional rights.
It is therefore
ORDERED, that the application of David Bliven, Esq., assigned counsel for defendant E.S., for an Order declaring unlawful the Court's assignment of counsel pro bono for indigent parties in matrimonial actions, and directing that he be relieved as counsel for Defendant, or alternatively, directing payment from the public purse for his services and fixing the prescribed hourly rate therefor, is in all respects denied.
The foregoing constitutes the decision and order of the Court.
1. Article 18-B of the County Law establishes a mechanism for the assignment and compensation of counsel in some cases. County Law § 722 requires counties to implement “a plan for providing counsel to person charged with a crime or who are entitled to counsel pursuant to Section 262 or 1120 of the Family Court Act, Article 6-C of the Correction Law, Section 407 of the Surrogate's Court Procedure Act or Article 10 of the Mental Hygiene Law, who are financially unable to obtain counsel.” County Law § 722-b provides for the compensation and reimbursement of attorneys providing representation in those cases.
2. In Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), which involved the appointment of counsel in a capital case, the Supreme Court stated that “[a]ttorneys are officers of the court, and are bound to render service when required by such an appointment.” Id., at 53, 53 S.Ct. 55.
Victor G. Grossman, J.
Response sent, thank you
Docket No: Index No. 61743/2021
Decided: July 11, 2022
Court: Supreme Court, Putnam County, New York.
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