Current through Register Vol. 46, No. 12, March 20, 2024
A person entitled to publicly funded counsel pursuant to
section 262 of the Family Court Act, section 407 of the Surrogate's Court
Procedure Act or section
35(8) of the Judiciary Law
shall be financially eligible for counsel when the person's current available
resources are insufficient to pay for a qualified private attorney, the
expenses necessary for effective representation, and the reasonable living
expenses of the person and any dependents in the relevant jurisdiction. Counsel
shall be provided unless the person is conclusively ineligible based upon the
criteria in this section. The provisions of this section shall be applied
uniformly, consistently, and with transparency.
(a) Timely access to counsel.
1). Counsel shall be provided at the first
court appearance or immediately following the request for counsel, whichever is
earlier. Eligibility determinations shall be made in a timely fashion so that
representation by counsel is not delayed.
2). Counsel shall be provided to persons who
have not obtained counsel prior to initiation of a proceeding which may result
in detention, in removal of children from their care or where there is an
unavoidable delay in the eligibility determination, subject to judicial
approval once the court proceeding has begun. For timely access to counsel, a
person seeking counsel prior to the filing of a petition shall be provided with
the contact information of the entity which has the primary responsibility in
the jurisdiction for providing representation.
3). A parent or legally responsible person,
as defined by law, shall be entitled to and provided with immediate
representation by counsel:
(i) upon the filing
of a petition or pre-petition request under Article 10 of the Family Court Act
for an order for immediate removal of a child or temporary order of
protection;
(ii) where the court
has received notice of an extra-judicial emergency removal of a child;
or
(iii) upon the filing of a
petition alleging abuse or neglect against the parent or person legally
responsible. In accordance with this entitlement, counsel shall be provided
sufficiently in advance of the person's first court appearance, and shall also
be provided for parents during a child protective agency investigation,
consistent with paragraph (2) of this
subdivision.
(b)
Presumptions of eligibility. The following presumptions of eligibility shall
apply and are rebuttable only where there is compelling evidence that the
person seeking counsel has the financial resources sufficient to pay for a
qualified private attorney, the expenses necessary for effective representation
in this and related proceedings, and the reasonable living expenses of the
party and any dependents in the relevant jurisdiction:
1). The person's net income is at or below
250% of the Federal Poverty Guidelines, provided, however, that a person with
an income in excess of 250% of the guidelines shall not be denied counsel if
other criteria are met;
2). The
person is incarcerated, detained, or confined to a mental health
institution;
3). The person is
currently receiving, or has recently been deemed eligible pending receipt of,
need-based public assistance, including but not limited to Family Assistance
(TANF), Safety Net Assistance (SNA), Supplemental Nutrition Assistance (SNAP),
Supplemental Security Income (SSI)/New York State Supplemental Program (SSP),
Medicaid, or Public Housing assistance; or
4). The person has, within the past six
months, been deemed financially eligible for counsel in another court
proceeding in that jurisdiction or another jurisdiction.
(c) Additional considerations. The following
factors shall be considered in determining a person's financial eligibility for
publicly funded counsel:
1). Debts and other
financial obligations, including the obligation to provide reasonable living
expenses of the person and his or her dependents in the relevant jurisdiction;
and
2). The actual cost of
retaining a private attorney in the relevant jurisdiction for the type of
matter for which publicly funded counsel is sought.
(d) Exclusions from assets of an applicant
seeking publicly funded counsel.
1).
Non-liquid assets shall not be considered unless such assets have demonstrable
monetary value and are readily convertible to cash without impairing the
person's ability to provide for the reasonable living expenses of themselves
and their dependents in the relevant jurisdiction. Ownership of a vehicle shall
not be considered where such vehicle is necessary for basic life activities.
The person's primary residence shall not be considered unless the fair market
value of the home is significant, there is substantial equity in the home, and
the person is able to access the equity in an amount and within a timeframe
sufficient to retain private counsel promptly.
2). Any income from receipt of child support
or need-based public assistance shall not be considered in determining
eligibility for publicly funded counsel.
3). Third-party resources. The resources of a
third party shall not be considered available to the person seeking publicly
funded counsel unless the third party expressly states a present intention to
pay for counsel, the person seeking counsel gives informed consent to this
arrangement, and the arrangement does not interfere with the person's
representation or jeopardize the confidentiality of the attorney-client
relationship. Neither the resources of a spouse nor the resources of a parent
of a person seeking publicly funded counsel shall be considered, except as
provided in this subdivision.
(e) Process for determining eligibility.
1). Each judicial district shall establish a
process for determining eligibility in accordance with this rule and which
utilizes a screening tool promulgated and approved by the Chief Administrative
Judge. The court has the ultimate authority to determine eligibility but may
delegate the responsibility for screening and making an eligibility
recommendation to entities that are independent and conflict-free, including,
but not limited to, entities providing representation.
2). The eligibility process, including the
documentation required to be submitted, shall not be unduly burdensome for the
person seeking publicly funded counsel. Counsel shall not be denied where the
person has made a good faith, but unsuccessful, effort to produce required
documentation or has made minor inadvertent or technical errors. Nor shall a
person be required to demonstrate an unsuccessful effort to retain private
counsel to be deemed financially eligible for publicly funded
counsel.
3). The court or delegated
screening entity shall preserve the confidentiality of the information
presented as part of the financial eligibility determination and shall take
steps to ensure that the screening and determination are done in a confidential
setting and that information identifying the person seeking counsel is not
accessible to the public or other parties, except as otherwise provided by the
court.
(f)
Reconsideration and review of a denial of publicly funded counsel or expenses.
1). A determination denying counsel by either
the court or delegated screening entity or a determination by the court denying
expenses under section
722-c of the County Law shall be in
writing, shall include reasons for the denial and procedure for seeking
reconsideration, and shall be provided to the person seeking counsel or
expenses.
2). In addition to a
procedure for seeking prompt reconsideration from the court or delegated
screening entity, each judicial district shall establish a procedure for prompt
supervisory administrative review upon request by a person who has been denied
publicly funded counsel under section
722-b of the County Law or expenses under
section
722-c of the County Law or for whom an
order for payment under section
722-d of the County Law has been issued.
These procedures shall be in writing, shall be posted on the judiciary's public
website and in each courthouse, and shall be furnished to any person who has
been denied publicly funded counsel or expenses or who has been issued an order
directing payment under sections 722-b, 722-c or 722-d of the County Law,
respectively.
(g) Nothing
in this rule shall impair or prevent a party from seeking or obtaining an award
of counsel fees and expenses as a non-monied spouse, former spouse or parent
for counsel of their choice pursuant to section 438 of the Family Court Act or
section
237 of the Domestic Relations Law, instead
and in place of publicly funded counsel pursuant to section 262 of the Family
Court Act or section
35(8) of the Judiciary
Law.
