In re Farrell

New York Supreme Court

In re Farrell

127 Misc. 2d 350, 486 N.Y.S.2d 130, 1985 N.Y. Misc. LEXIS 2601

CourtNew York Supreme Court

DecidedJanuary 29, 1985

StatusPublished

Cited by1 cases

This text of 127 Misc. 2d 350 (In re Farrell) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Farrell, 127 Misc. 2d 350, 486 N.Y.S.2d 130, 1985 N.Y. Misc. LEXIS 2601 (N.Y. Super. Ct. 1985).

Pincite

Opinion

OPINION OF THE COURT

Theodore Dachenhausen, J.

In this matrimonial action, defendant previously made application for permission to proceed as a poor person and for the assignment of counsel. By order entered July 16,1984, this court granted the application and assigned Ira Fischer, Esq., as counsel for defendant “without any compensation whatever, except that if a recovery is had the Court may allow the said attorney * * * a reasonable sum for his services and taxable disbursements”. Assigned counsel now moves to vacate the prior order of this court upon the ground that it was allegedly “issued without legal authority and is in violation of the 14th and 16th Amendments to the Constitution of the United States”.

* The motion is denied.

This court has the inherent power to assign counsel in a proper case (Matter of Smiley, 36 NY2d 433; CPLR 1102 [a]). Concomitantly, counsel has the duty to provide uncompensated services for the indigent (Code of Professional Responsibility, Canon 2, EC 2-25, 2-29). Absent a showing, not made here, that counsel has a compelling reason to seek to be excused or that the assignment of counsel, as a general practice, has become intolerable (Matter of Smiley, supra, at p 441), the assignment of counsel without compensation does not violate an attorney’s constitutional rights (Family Div. Trial Lawyers v Moultrie, 725 F2d 695). Accordingly, this court’s order assigning Ira Fischer, Esq., as counsel for defendant was proper and will not be vacated.

[351]*351The stay contained in the order to show cause signed by Mr. Justice Gagliardi on October 26,1984, is hereby vacated. Defendant shall have 20 days from the date of the entry of this order within which to serve an answer.

A prior application by counsel to be relieved was denied by order of this court, entered on August 31, 1984. Counsel was given leave to renew upon papers in compliance with CPLR 321 (b) (2).

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION OF THE COURT

Theodore Dachenhausen, J.

In this matrimonial action, defendant previously made application for permission to proceed as a poor person and for the assignment of counsel. By order entered July 16,1984, this court granted the application and assigned Ira Fischer, Esq., as counsel for defendant “without any compensation whatever, except that if a recovery is had the Court may allow the said attorney * * * a reasonable sum for his services and taxable disbursements”. Assigned counsel now moves to vacate the prior order of this court upon the ground that it was allegedly “issued without legal authority and is in violation of the 14th and 16th Amendments to the Constitution of the United States”.

* The motion is denied.

This court has the inherent power to assign counsel in a proper case (Matter of Smiley, 36 NY2d 433; CPLR 1102 [a]). Concomitantly, counsel has the duty to provide uncompensated services for the indigent (Code of Professional Responsibility, Canon 2, EC 2-25, 2-29). Absent a showing, not made here, that counsel has a compelling reason to seek to be excused or that the assignment of counsel, as a general practice, has become intolerable (Matter of Smiley, supra, at p 441), the assignment of counsel without compensation does not violate an attorney’s constitutional rights (Family Div. Trial Lawyers v Moultrie, 725 F2d 695). Accordingly, this court’s order assigning Ira Fischer, Esq., as counsel for defendant was proper and will not be vacated.

[351]*351The stay contained in the order to show cause signed by Mr. Justice Gagliardi on October 26,1984, is hereby vacated. Defendant shall have 20 days from the date of the entry of this order within which to serve an answer.

A prior application by counsel to be relieved was denied by order of this court, entered on August 31, 1984. Counsel was given leave to renew upon papers in compliance with CPLR 321 (b) (2).

Cite This Page — Counsel Stack

Bluebook (online)

127 Misc. 2d 350, 486 N.Y.S.2d 130, 1985 N.Y. Misc. LEXIS 2601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-farrell-nysupct-1985.

Opinion

Related

Cite This Page — Counsel Stack