§ 35 — Assignment of counsel to indigent persons and appointment of physicians in certain proceedings

New York § 35

• Jurisdiction: New York
• Law JUD: Judiciary
• Art. 2: General Provisions Relating to Courts and Judges

Text

§ 35. Assignment of counsel to indigent persons and appointment of\nphysicians in certain proceedings. 1. a. When a court orders a hearing\nin a proceeding upon a writ of habeas corpus to inquire into the cause\nof detention of a person in custody in a state institution, or when it\norders a hearing in a civil proceeding to commit or transfer a person to\nor retain a person in a state institution when such person is alleged to\nbe mentally ill, mentally defective or a person with substance use\ndisorder, or when it orders a hearing for the commitment of the\nguardianship and custody of a child to an authorized agency by reason of\nthe mental illness or developmental disability of a parent, or when it\norders a hearing to determine whether consent to the adoption of a child\nshall be required of a parent who is alleged to be mentally ill or\ndevelopmentally disabled, or when it orders a hearing to determine the\nbest interests of a child when the parent of the child revokes a consent\nto the adoption of such child and such revocation is opposed or in any\nadoption or custody proceeding if it determines that assignment of\ncounsel in such cases is mandated by the constitution of this state or\nof the United States, the court may assign counsel to represent such\nperson if it is satisfied that such person is financially unable to\nobtain counsel. Upon an appeal taken from an order entered in any such\nproceeding, the appellate court may assign counsel to represent such\nperson upon the appeal if it is satisfied that such person is\nfinancially unable to obtain counsel.\n b. Upon an appeal in a criminal action or in a proceeding in the\nfamily court or surrogate's court wherein the defendant or person\nentitled to counsel pursuant to the family court act or surrogate's\ncourt procedure act, is financially unable to obtain counsel, the court\nof appeals or the appellate division of the supreme court may assign\ncounsel other than in the manner as is prescribed in section seven\nhundred twenty-two of the county law only when it is satisfied that\nspecial circumstances require such assignment.\n 2. The chief administrator of the courts may enter into an agreement\nwith a legal aid society for the society to provide assigned counsel in\nthe proceedings specified in subdivision one of this section. The\nagreement shall be in a form approved by the chief administrator and\nshall provide a general plan for a program of assigned counsel services\nto be provided by such society. It shall also provide that the society\nshall be reimbursed on a cost basis for services rendered.\n 3. a. No counsel assigned pursuant to this section shall seek or\naccept any fee for representing the person for whom he or she is\nassigned without approval of the court as herein provided. Whenever it\nappears that such person is financially able to obtain counsel or make\npartial payment for the representation, counsel may report this fact to\nthe court and the court may terminate the assignment or authorize\npayment, as the interests of justice may dictate, to such counsel.\nCounsel assigned hereunder shall at the conclusion of the representation\nreceive compensation at a rate of one hundred fifty-eight dollars per\nhour for time expended in court, and one hundred fifty-eight dollars per\nhour for time reasonably expended out of court, and shall receive\nreimbursement for expenses reasonably incurred.\n b. For representation upon a hearing, compensation and reimbursement\nshall be fixed by the court wherein the hearing was held and such\ncompensation shall not exceed ten thousand dollars. For representation\nin an appellate court, compensation and reimbursement shall be fixed by\nsuch court and such compensation shall not exceed ten thousand dollars.\nIn extraordinary circumstances the court may provide for compensation in\nexcess of the foregoing limits.\n 4. In any proceeding described in paragraph a of subdivision one of\nthis section, when a person is alleged to be mentally ill, mentally\ndefective or a person with substance use disorder, the court which\nordered the hearing may appoint no more than two psychiatrists,\ncertified psychologists or physicians to examine and testify at the\nhearing upon the condition of such person. A psychiatrist, psychologist\nor physician so appointed shall, upon completion of their services,\nreceive reimbursement for expenses reasonably incurred and reasonable\ncompensation for such services, to be fixed by the court. Such\ncompensation shall not exceed three thousand dollars, except that in\nextraordinary circumstances the court may provide for compensation in\nexcess of the foregoing limits.\n 4-a. In any proceeding under article ten of the mental hygiene law,\nthe court which ordered the hearing may appoint no more than two\npsychiatrists, certified psychologists or physicians to examine and\ntestify at the hearing upon the condition of such person. A\npsychiatrist, psychologist or physician so appointed shall, upon\ncompletion of his or her services, receive reimbursement for expenses\nreasonably incurred and reasonable compensation for such services, to be\nfixed by the court in accordance with subdivision (a) of section 10.15\nof the mental hygiene law.\n 5. All expenses for compensation and reimbursement under this section\nshall be a state charge to be paid out of funds appropriated to the\nadministrative office for the courts for that purpose. Any rules and\norders respecting the assignment and compensation of counsel, and the\nappointment and compensation of psychiatrists, psychologists or\nphysicians pursuant to this section and the form and manner of\nprocessing of a claim submitted pursuant to this section shall be\nadopted by the chief administrator. Each claim for compensation and\nreimbursement pursuant to subdivisions three and four of this section\nshall be submitted for approval to the court which made the assignment\nor appointment, and shall be on such form as the chief administrator may\ndirect. After such claim is approved by the court, it shall be certified\nto the comptroller for payment by the state, out of the funds\nappropriated for that purpose.\n 6. Assigned counsel and guardians ad litem appointed pursuant to the\nprovisions of title two of article nine-B of the social services law\nshall be compensated in accordance with the provisions of this section.\n 7. Whenever the supreme court or a surrogate's court shall appoint\ncounsel in a proceeding over which the family court might have exercised\njurisdiction had such action or proceeding been commenced in family\ncourt or referred thereto pursuant to law, and under circumstances\nwhereby, if such proceeding were pending in family court, such court\nwould be authorized by section two hundred forty-nine of the family\ncourt act to appoint an attorney for the child, such counsel shall be\ncompensated in accordance with the provisions of this section.\n 8. Whenever supreme court shall exercise jurisdiction over a matter\nwhich the family court might have exercised jurisdiction had such action\nor proceeding been commenced in family court or referred thereto\npursuant to law, and under circumstances whereby, if such proceedings\nwere pending in family court, such court would be required by section\ntwo hundred sixty-two of the family court act to appoint counsel,\nsupreme court shall also appoint counsel and such counsel shall be\ncompensated in accordance with the provisions of this section.\n