        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1275
CA 11-00086
PRESENT: SCUDDER, P.J., SMITH, GREEN, GORSKI, AND MARTOCHE, JJ.


TIMOTHY A. ROULAN, PLAINTIFF-APPELLANT,

                     V                             MEMORANDUM AND ORDER

COUNTY OF ONONDAGA AND THE ASSIGNED COUNSEL
PROGRAM, INC., DEFENDANTS-RESPONDENTS.


JEFFREY R. PARRY, SYRACUSE, FOR PLAINTIFF-APPELLANT.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (JONATHAN B. FELLOWS OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County (John
C. Cherundolo, A.J.), entered October 5, 2010. The order, among other
things, granted plaintiff’s motion for leave to renew and, upon
renewal, adhered to its prior order denying plaintiff’s motion for
partial summary judgment on the declaratory judgment cause of action
and granting defendants’ cross motion seeking partial summary judgment
dismissing the declaratory judgment cause of action.

     It is hereby ORDERED that the order so appealed from is modified
on the law by denying defendants’ cross motion for partial summary
judgment dismissing the declaratory judgment cause of action,
reinstating that cause of action and granting judgment in favor of
defendants as follows:

          It is ADJUDGED and DECLARED that the assigned counsel
     plan established by defendant Onondaga County Bar
     Association Assigned Counsel Program, Inc., incorrectly sued
     as The Assigned Counsel Program, Inc., is valid with the
     exception of section D (2) under the “Assignment by Court
     and Client Eligibility” heading,

by granting plaintiff’s motion for partial summary judgment on the
declaratory judgment cause of action in part and granting judgment in
favor of plaintiff as follows:

          It is ADJUDGED and DECLARED that section D (2) under
     the “Assignment by Court and Client Eligibility” heading of
     the assigned counsel plan is invalid,

and as modified the order is affirmed without costs.

     Memorandum:   Plaintiff commenced this action seeking, inter alia,
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                                                         CA 11-00086

a declaration that various sections of the assigned counsel plan in
defendant County of Onondaga (County) were invalid. Defendant
Onondaga County Bar Association Assigned Counsel Program, Inc.,
incorrectly sued as The Assigned Counsel Program, Inc. (ACP),
established that plan (hereafter, ACP Plan) pursuant to County Law
article 18-B through a contract with the Onondaga County Bar
Association (OCBA).

     Plaintiff moved for partial summary judgment seeking a
declaration that the contract and handbook containing the ACP Plan
were “illegal, ultra vires and/or a nullity, and that they [were], as
written, unconstitutional.” Defendants then cross-moved for partial
summary judgment dismissing the declaratory judgment cause of action.
Thereafter, plaintiff cross-moved for partial summary judgment on the
breach of contract cause of action. Supreme Court, inter alia, denied
plaintiff’s motion and cross motion and granted defendants’ cross
motion. Following additional discovery, plaintiff moved for leave to
renew his prior motion and cross motion, as well as his opposition to
defendants’ cross motion. Defendants cross-moved for summary judgment
dismissing the remaining causes of action. Although the court
purportedly denied plaintiff’s motion for leave to renew, improperly
denominated in the order as a “motion to renew and reargue,” it is
clear from the decision that the court actually granted the motion
and, upon renewal, adhered to its original decision. The court also
granted defendants’ cross motion.

     We note at the outset that the court erred in dismissing the
declaratory judgment cause of action rather than declaring the rights
of the parties with respect thereto (see Pless v Town of Royalton, 185
AD2d 659, 660, affd 81 NY2d 1047). We conclude, however, that one
section of the ACP Plan is invalid. We therefore modify the order by
denying defendants’ cross motion for partial summary judgment
dismissing the declaratory judgment cause of action, reinstating that
cause of action and declaring that the ACP Plan is valid with the
exception of section D (2) under the “Assignment by Court and Client
Eligibility” heading. We further modify the order by granting
plaintiff’s motion for partial summary judgment on the declaratory
judgment cause of action in part and declaring that section D (2)
under the “Assignment by Court and Client Eligibility” heading of the
ACP Plan is invalid.

     As a matter of background, we note that County Law article 18-B
was enacted in 1965 as a means to compensate attorneys who were
assigned to represent certain indigent litigants. Before article 18-B
was enacted, attorneys admitted to practice law in the State of New
York were required, by virtue of their admission to the bar, to
represent indigent litigants without any compensation (see Matter of
Smiley, 36 NY2d 433, 438; Matter of Stream v Beisheim, 34 AD2d 329,
333; Mitchell v Fishbein, 377 F3d 157, 168). Courts had the inherent
power and a constitutional obligation to appoint counsel for indigent
criminal defendants (see Mitchell, 377 F3d at 168; see also Smiley, 36
NY2d at 437-438), and “such service, however onerous, created no legal
liability against the county in favor of the person rendering the
same” (Stream, 34 AD2d at 333 [internal quotation marks omitted]).
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                                                         CA 11-00086

Following the decisions of the United States Supreme Court in Gideon v
Wainwright (372 US 335) and the Court of Appeals in People v Witenski
(15 NY2d 392), both of which established that indigent criminal
defendants had a constitutional right to counsel, it became apparent
“that the private [b]ar could not carry the burden of uncompensated
representation for the large numbers of defendants involved.
Consequently, legislation was enacted to provide systematic
representation of defendants by assigned counsel and for their
compensation” (Smiley, 36 NY2d at 438; see Rep of NY State Bar Assn
Comm on State Legislation, Bill Jacket, L 1965, ch 878, at 16).

     Pursuant to County Law § 722, a governing body of a county shall
put in operation a plan (hereafter, 18-B plan) to provide counsel to,
inter alia, persons charged with a crime who are financially unable to
obtain counsel. The statute provides four options for such a plan,
and the 18-B plan enacted in the County was a bar association plan
whereby “the services of private counsel are rotated and coordinated
by an administrator” (§ 722 [3] [a] [i]). Compensation of attorneys
assigned pursuant to such a plan, other than for representation on
appeal, “shall be fixed by the trial court judge” (§ 722-b [3]) in
accordance with certain statutory rates (see § 722-b [2]). In the
event that an attorney has not been assigned pursuant to an 18-B plan,
the court lacks the power to order that the attorney be compensated
because the Legislature, which controls the public purse, has provided
that only those attorneys appointed pursuant to an 18-B plan may be
compensated from public funds (see Mitchell, 377 F3d at 168-169;
Matter of Goodman v Ball, 45 AD2d 16, lv denied 34 NY2d 519; cf.
People v Ward, 199 AD2d 683, 684). Regardless of any limits on the
compensation of assigned attorneys, nothing in County Law article 18-B
or the ACP Plan limits the inherent power of the court to assign
counsel to an indigent criminal defendant.

     With that background, we address the issues relevant to this
appeal, some of which are similar to issues we addressed in Matter of
Parry v County of Onondaga (51 AD3d 1385). In that case, the
petitioner, who is plaintiff’s attorney in this action, commenced an
original proceeding pursuant to CPLR article 78 seeking relief in the
nature of prohibition and mandamus. We concluded that the petitioner
failed to establish “ ‘a clear legal right to the relief sought’ ” and
dismissed the petition (id. at 1387). We noted, however, that the
petition also must be dismissed to the extent that it sought a
declaration and that such relief must be sought in a declaratory
judgment action (see id.). Aside from the plaintiff in this case, the
petitioner in Parry is representing another attorney in a declaratory
judgment action (see Cagnina v Onondaga County, ___ AD3d ___ [Dec. 30,
2011]). The two actions seek similar declarations, inasmuch as each
plaintiff challenges the validity of various sections of the ACP Plan.
Contrary to defendants’ contention, our decision in Parry, addressing
the issue whether the ACP Plan violated County Law § 722 or infringed
upon the court’s inherent power to assign counsel, does not preclude
our review of issues raised in this action because they are separate
and distinct from those addressed in Parry. We also reject
defendants’ contention that the declaratory judgment cause of action
is not the proper procedural vehicle to challenge the ACP Plan.
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                                                         CA 11-00086

Plaintiff’s challenges involve constitutional questions, as well as
the meaning of various sections of County Law article 18-B (see Matter
of Morgenthau v Erlbaum, 59 NY2d 143, 150, cert denied 464 US 993; Dun
& Bradstreet, Inc. v City of New York, 276 NY 198, 206).

     Plaintiff contends that the ACP Plan is invalid because it
conflicts with both the federal and state constitutions by depriving
criminal defendants of their right to counsel and it violates County
Law article 18-B in several different respects. To the extent that
plaintiff asserts the claims of criminal defendants concerning
deprivation of the right to counsel under Gideon (372 US 335),
plaintiff has no standing to assert those claims (see generally
Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 773; cf.
New York County Lawyers’ Assn. v State of New York, 294 AD2d 69, 74-
76). In any event, there is a class action pending on behalf of all
indigent criminal defendants in the County addressing the same issues
raised by plaintiff herein, and thus we see no need to entertain
plaintiff’s indirect claims on behalf of those same criminal
defendants (Hurrell-Harring v State of New York, 15 NY3d 8).

     With respect to plaintiff’s contentions concerning the ACP Plan
as a whole, we have previously concluded that the ACP Plan is a
statutorily authorized plan of a bar association pursuant to County
Law § 722 (3) (Parry, 51 AD3d at 1386), and plaintiff has failed to
establish that the ACP Plan has not been properly approved as it
exists. He submitted no evidence that the ACP Plan has been amended
since April 2006, when it was approved by the chief administrative
judge of the State of New York, and defendants submitted sworn
statements establishing that, although administrative approval has
been sought for amendments, no such amendments have been made.

     Plaintiff’s reliance on Goehler v Cortland County (70 AD3d 57) to
challenge the ACP Plan as a whole is misplaced. There, Cortland
County had enacted a local law that created the office of conflict
attorney and set forth a procedure for assigning counsel to indigent
criminal defendants when the public defender had a conflict of
interest (id. at 58-59). The Third Department concluded that the
local law was invalid because it did “not conform to any of the four
exclusive methods authorized by [County Law §] 722 for the provision
of counsel to indigent litigants” (id. at 60). In addition, the local
law violated Municipal Home Rule Law § 11 (1) (e) because it
superseded a state statute and “[a]pplie[d] to or affect[ed] the
courts” (see Goehler, 70 AD3d at 60). The decision in Goehler is
relevant only because it established that courts “have the authority
to review challenges related to the court’s power to assign and
compensate counsel pursuant to a plan or statute” (id. at 61).

     With respect to the merits of plaintiff’s challenges to specific
provisions of the ACP Plan, we agree with plaintiff that section D (2)
under the “Assignment by Court and Client Eligibility” heading should
be declared invalid. That section prohibits attorneys from
representing nonincarcerated criminal defendants until there has been
a determination of their eligibility, and thus it requires attorneys
to violate the indelible right to counsel that attaches at arraignment
                                 -5-                          1275
                                                         CA 11-00086

(see Hurrell-Harring, 15 NY3d at 20-22; People v Grimaldi, 52 NY2d
611, 616). Further, that section violates one of the purposes of
County Law article 18-B, which is to provide indigent criminal
defendants with legal representation “from the time that [they] first
appear[] in court to be arraigned on the charge[s]” (Atty Gen Mem in
Support, Bill Jacket, L 1965, ch 878, at 6). Finally, that section
requires attorneys to violate rule 1.3 of the Rules of Professional
Conduct (22 NYCRR 1200.0), which mandates that an attorney act with
diligence at all points in time during the representation.

     Plaintiff further contends that the ACP Plan effectively denies
representation to indigent criminal defendants under age 21 by
conditioning their eligibility for assigned counsel on an assessment
of their parents’ finances. We reject that contention. Parents of
unemancipated children under age 21 are responsible and chargeable for
the support of those children (see Family Ct Act §§ 413, 416),
including the payment of their legal fees (see Matter of Plovnick v
Klinger, 10 AD3d 84, 90). We therefore conclude that the ACP may
consider the resources of the parents of an unemancipated criminal
defendant under age 21 when considering that defendant’s eligibility
for assigned counsel. We further conclude that the ACP can recover
from the parents of such a defendant any sums expended for his or her
legal services in accordance with County Law § 722-d (see People v
Kearns, 189 Misc 2d 283, 286-290; 1989 Atty Gen [Inf Ops] 89-44).

     Plaintiff contends that the ACP Plan usurps the trial court’s
authority to determine the compensation for assigned counsel by
granting the ACP the power to review vouchers, to refuse to pay
“disallowed” charges and to reduce the amount of compensation sought
in the voucher. According to plaintiff, the ACP’s refusal to pay
charges for disallowed services or expenses, when combined with delays
in processing vouchers being reviewed for allegedly inappropriate
charges, encourages attorneys assigned pursuant to the ACP Plan to
undercharge for services in order to avoid delays in payment. County
Law § 722-b establishes the rates of compensation for attorneys
assigned pursuant to article 18-B, and section 722-b (3) explicitly
directs that “compensation and reimbursement shall be fixed by the
trial court judge.” We therefore agree with plaintiff that County Law
§ 722-b grants courts the authority to determine the amount of
compensation. The ACP Plan, however, contains extensive rules for
voucher billing by assigned counsel, and plaintiff contends that those
rules impermissibly interfere with the power of the court to determine
compensation. That contention lacks merit. The power to determine
compensation is vested in the trial court judges in order to “shield[
that] important function from extrajudicial influences and
considerations” (People v Brisman, 173 Misc 2d 573, 586; see also
Matter of Director of Assigned Counsel Plan of City of N.Y. [Bodek],
87 NY2d 191, 194). Thus, although the ACP cannot refuse to process
vouchers even in the event that those vouchers contain charges that
are disallowed by the ACP Plan, we conclude that there is nothing in
section 722-b that prohibits the ACP from making recommendations
concerning the propriety of specific items in the vouchers. Any
challenge to the trial court’s final determination with respect to the
amount of compensation must be raised “by application . . . to the
                                 -6-                          1275
                                                         CA 11-00086

appropriate [a]dministrative [j]udges and even to the [a]dministrative
[b]oard of the court system” (Matter of Werfel v Agresta, 36 NY2d 624,
627).

     Plaintiff further contends that the ACP Plan violates County Law
article 18-B and the Rules of Professional Conduct by requiring
assigned counsel to divulge the client’s confidential financial
information and by permitting the ACP access to a client’s case file
for information relevant to the payment of a voucher. That contention
lacks merit. First, nothing in article 18-B prohibits such
disclosure. Second, although rule 1.6 (a) of the Rules of
Professional Conduct prohibits attorneys from knowingly revealing
confidential information, section (a) (1) of that rule permits
disclosure where, as here, the client gives informed consent to such
disclosure (see 22 NYCRR 1200.0). Pursuant to the ACP Plan, those
individuals seeking assigned counsel complete an application in which
they specifically authorize the disclosure of such information to the
ACP.

     We also reject plaintiff’s contention that the ACP illegally
dictates when a case may be billed, thereby improperly delaying
payment to assigned counsel. County Law § 722-b (1) specifically
states that assigned counsel is to be paid “at the conclusion of the
representation . . . .” The statute, however, permits an attorney to
seek interim compensation where “extraordinary circumstances” exist (§
711-b [3]). Thus, so long as the ACP does not refuse to process
requests for interim compensation, there is no violation of article
18-B. We conclude that the ACP’s directive that assigned counsel
submit vouchers within 90 days of completion of the subject case falls
within coordination of the services of assigned counsel (see § 722 [3]
[a]), and it does not directly contravene any provision of article 18-
B. We note, however, that the ultimate determination concerning
payment must lie with the trial court judge.

     Plaintiff further contends that the ACP’s rules concerning
eligibility of attorneys for participation on the ACP panels usurps
the trial court judge’s authority to assign counsel. We reject that
contention. County Law article 18-B merely provides a means to
compensate those assigned attorneys. As noted above, nothing in the
ACP Plan impedes the inherent authority and constitutional obligation
of the court to assign counsel to indigent criminal defendants (see
generally Gideon, 372 US 335; Witenski, 15 NY2d 392). Further, the
power to authorize the expenditure of public funds comes from the
Legislature (see Smiley, 36 NY2d at 439; Mitchell, 377 F3d at 168-
169), and the Legislature has limited compensation to counsel who are
assigned pursuant to an 18-B plan (see § 722-b). County Law § 722 (3)
(a) (i) provides that the services of counsel will be “rotated and
coordinated by an administrator,” and we conclude that establishing
criteria for participation in the ACP Plan is an integral part of the
coordination thereof. Certainly, a court is free to appoint an
attorney who is not on an 18-B panel to represent an indigent
defendant, but that attorney will not be entitled to publicly funded
compensation.
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                                                         CA 11-00086

     Plaintiff further contends, based on the decision in Ward (199
AD2d 683), that the ACP Plan unlawfully prohibits the compensation of
attorneys who have represented to the court that they were retained or
who have previously accepted a fee in relation to the matter pending
before the court. In Ward, the defendant retained an attorney but, by
the time of jury selection, the defendant had become indigent. The
court then assigned the previously retained attorney to continue to
represent the indigent defendant, subject to a post-trial inquiry into
the defendant’s indigency (id. at 684). Following the defendant’s
acquittal, the attorney submitted a request for fees pursuant to
County Law § 722-b (id.). The court approved the request, but the
county refused to approve the expenditure (id.). The court then
issued an order directing payment and denied the county’s subsequent
motion to vacate that order. The Third Department dismissed the
appeal on the ground that it “lack[ed] jurisdiction to entertain
appeals involving the ‘assignment and compensation of counsel in
criminal matters’ ” (id., quoting Werfel, 36 NY2d at 626). Despite
its holding, however, the Third Department “[p]arenthetically”
addressed the merits (id.), and it concluded that the court had the
power to assign counsel and that the county did not have the power to
review or deny payment (see id. at 684-685). The record on appeal in
Ward establishes that the attorney in question was not a part of that
county’s bar association plan for assigned counsel, and we thus
conclude that the dicta in Ward should not be followed. As noted
above, courts lack the authority to order compensation for attorneys
who have not been assigned pursuant to one of the plans set forth in
section 722.

     In Goodman (45 AD2d 16), we recognized the inherent power of the
court to appoint an attorney regardless of whether that attorney was
assigned pursuant to the county’s 18-B plan, but we stated that
“[a]rticle 18-B of the County Law does not authorize the court to pay
for the legal services and disbursements of retained counsel” (id. at
17). It should be noted that the attorney in Goodman was not part of
the county’s 18-B plan, and thus the court could not have ordered any
payment to him pursuant to County Law § 722-b. The fact that he had
been previously retained was not necessarily decisive.

     We therefore conclude that neither Ward nor Goodman is
controlling with respect to the issue whether an attorney who is a
member of the ACP Plan may submit a voucher for payment pursuant to
County Law § 722-b when that attorney has previously accepted a fee
for the matter or has, at any time, represented to the court that he
or she has been retained on the matter. We conclude that section C
(4) under the “Assignment by Court and Client Eligibility” heading of
the ACP Plan, which prohibits such compensation, is not invalid.
Article 18-B “was not intended to provide a basis for public
compensation of privately retained counsel” (People v Smith, 114 Misc
2d 258, 261), and it “is not a form of fee insurance guaranteeing
payment to counsel for failure or inability of a retained client to
completely honor a fee arrangement” (People v Berkowitz, 97 Misc 2d
277, 281; see Smith, 114 Misc 2d at 262). To conclude otherwise would
allow 18-B plan attorneys to “unfairly compete with private
practitioners” inasmuch as they could accept lower-paying clients and
                                 -8-                          1275
                                                         CA 11-00086

later seek compensation from the county (Rep of NY State Bar Assn Comm
on State Legislation, Bill Jacket, L 1965, ch 878, at 16). As a
matter of public policy, previously retained attorneys should not be
able to seek compensation in the event that their clients run out of
money.

     The County has chosen to utilize a bar association plan as its
method for providing indigent criminal defendants with representation.
The ACP, in coordinating the ACP Plan, is authorized to establish
certain criteria for attorneys who desire to be assigned pursuant
thereto. We can find no statutory prohibition, no contractual
limitation and no constitutional impediment that would preclude a
provision in a bar association plan prohibiting payment to attorneys
who have previously been retained or previously accepted a fee.

     We have considered plaintiff’s remaining contentions and conclude
that they are without merit.

     All concur except GREEN and MARTOCHE, JJ., who dissent in part and
vote to modify in accordance with the following Memorandum: We
respectfully dissent in part. We agree with the majority except
insofar as the majority concludes that section C (4) under the
“Assignment by Court and Client Eligibility” heading of the assigned
counsel plan established by defendant Onondaga County Bar Association
Assigned Counsel Program, Inc., incorrectly sued as The Assigned
Counsel Program, Inc. (hereafter, ACP Plan) is valid. Pursuant to
that section, an attorney may not present a voucher for payment if
that attorney has been previously retained as counsel or has accepted
any remuneration for representation on the particular matter for which
the voucher is submitted. We do not dispute the majority’s conclusion
that nothing in County Law article 18-B or the ACP Plan limits the
inherent power of the court to assign an attorney to indigent criminal
defendants. We conclude, however, that restricting the authority of
the court to assign an attorney who is otherwise eligible for
assignment simply because that attorney was previously retained by the
defendant, who has since become indigent and thus eligible for
assigned counsel, circumvents article 18-B and unduly restricts the
inherent power of the court to assign an attorney to indigent
defendants (see generally People v Ward, 199 AD2d 683). The concerns
of the majority with respect to article 18-B attorneys competing with
private practitioners can and should be addressed by the trial court,
which has the authority to assign and compensate counsel.

     We therefore would further modify the order by declaring that
section C (4) under the “Assignment by Court and Client Eligibility”
heading of the ACP Plan is invalid.




Entered:   December 30, 2011                    Frances E. Cafarell
                                                Clerk of the Court
