STATE OF NEW YORK ________________________________________________________________________ 3418 2019-2020 Regular Sessions IN SENATE February 6, 2019 ___________ Introduced by Sen. HOYLMAN -- read twice and ordered printed, and when printed to be committed to the Committee on Local Government 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. LBD01020-01-9S. 3418 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 aS. 3418 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-S. 3418 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 are authorized to be made and 46 completed on or before such effective date.