Two methods currently used in New York State to recover all or part of the cost of representation from criminal defendants are partial payment, a practice narrowly circumscribed by statute, and recoupment, unauthorized under New York State law. [28]
Partial payment--requiring "partially" eligible defendants to contribute to the cost of their representation before disposition of the case--is a practice codified in County Law § 722d, but intended to be of very limited scope.
The plain language of the statute indicates that it is within the sole discretion of defense counsel whether to disclose to the court changes in a client's financial ability to afford counsel. Case law interpreting 722d likewise provides that a court order to terminate an assignment or to require partial payment can only be triggered by the report of defense counsel. Matter of Legal Aid Society v. Samenga, 39 A.D.2d 912 (2d Dept. 1972).
The statute further provides that only the court is permitted to terminate an assignment or direct partial payment. Significantly, the court's obligation in this regard, like defense counsel's, is purely discretionary and guided by the "interests of justice." N.Y. County Law § 722d [(McKinney 1991)].
Since the intended application of 722d is thus quite narrow, creation and implementation of routine, administrative partial payment plans is unauthorized under New York Law. Such illegal fee collection schemes tend to impose stricter eligibility standards than is legally permissible. That is, defendants with minimal financial resources, who would otherwise be eligible for appointed counsel without charge, may nonetheless be required to pay for a portion of their representation. [29]
Moreover, there is substantial doubt that partial payment procedures are an effective means of containing the cost of public defense representation. There is evidence that the amount that can be collected under partial payment programs is negligible. When the administrative cost of collection is taken into account, there is considerable doubt that such programs are cost effective. See ABA Standards for Criminal Justice, Providing Defense Services 5-6.2 and Commentary (1990); NLADA Standards for the Administration of Assigned Counsel Systems, 2.4 (1989).
A particularly egregious misapplication of the limited authority conferred by County Law § 722d occurs in Nassau County, where defendants determined to be partially eligible for appointed counsel are required to sign partial fee agreements stating that they will pay a designated amount directly to their appointed attorney (Appendix at 45). Attorneys are encouraged to aggressively attempt to collect their fees from these clients (Appendix at 45). Active involvement by appointed counsel in collection of fees from clients should, however, be prohibited, since it may interfere with the integrity of the attorneyclient relationship, and implicitly encourages assigned counsel to give preference to clients who pay their fees. ABA Standards For Criminal Justice, Providing Defense Services, 5-7.2 (Commentary) (1990). See, N.Y. County Law § 722d; N.Y. Judiciary Law § 35 (2).
Recoupment involves compelling defendants who are fully eligible for appointed counsel to reimburse the county for the cost of their representation after the case is concluded. This practice may require an eligible defendant, who acquires some meager financial resources after the disposition of his case, to make payments long after the representation is over. Recoupment schemes, which are wholly unauthorized under New York law (see N.Y.S. Atty Gen'l Inf. Op. 78 (1985), are condemned as improper since they may discourage defendants from exercising their right to counsel, interfere with the defendants' rehabilitation, and hinder the defendants' efforts to become financially independent. See ABA Standards for Criminal Justice, Providing Defense Services 5-7.2 (Commentary) (1990); NLADA Standards for the Administration of Assigned Counsel Systems, 2.3 and Commentary (1989). Although there is neither statutory nor decisional authority for recoupment plans, many counties indicate that they nonetheless employ them (Appendix at 49-52).
Most jurisdictions that employ recovery procedures seeking partial payment or recoupment initially require the public defense provider to attempt to collect the fee directly from the client. Clients are generally required to submit payment either to the county treasurer's office, or to the public defense office, which then forwards it to the county treasurer (Appendix at 43-52).
In some counties, the collection process ends there, whether or not the client has made payment. In other counties, if the client fails to pay, the matter is turned over to the county attorney for collection. At least two counties report that the county attorney may actually commence a lawsuit in order to recover the money (Appendix at 43-52).
Most counties do not aggressively seek cost recovery because they recognize that such practices are simply not costeffective. The amount of money collected from lowincome people is generally far surpassed by the resources required to enforce collection. [30] The data reveal that the majority of jurisdictions who report having partial payment and/or recoupment provisions, in fact recover no money. Of those that report actually collecting fees from clients, the average amount collected annually ranges from $200.00 to $24,000, with the median amount collected being $500.00 (Appendix at 43-52).
29 Moreover, although 722d contemplates partial payment only after
the eligibility determination and appointment of counsel have
already been made, the concept of partial payment is frequently
employed as a factor in the eligibility determination itself.
Indeed, nearly half the jurisdictions in New York State have a
partial payment provision. Clearly, some of these counties improperly
employ partial payment schemes as part of their eligibility determinations
(Appendix at 43-48).
Many counties also erroneously employ the concepts of partial
payment and recoupment interchangeably (Appendix at 43-52), issuing
an order (mistakenly invoking the authority of 722d) requiring
the defendant to make payments for all or part of his representation
either directly to the county or to his attorney.
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30 The Onondaga County Bar Association Assigned Counsel Program,
for example, reported that in previous years the cost of collecting
monies from partial payments was four to five times the amount
of money actually collected. During the past year, the county
has required the assigned counsel program to implement enhanced
collection procedures. While these enhanced procedures have increased
the amount of monies collected, they have also significantly increased
the cost of collection. In fact, the procedures now used for collecting
partial payments cost Onondaga County as much as the amount of
money recovered.
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