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Empire Justice Letter of Support - Require the Supreme Court to Assign Counsel

August 6, 2006

Governor George Pataki
Executive Chamber
State Capitol Building
Albany, New York 12224-0341

Dear Governor Pataki,

We are writing to ask that you sign A.10447/S.8096 into law to address a clear inequity that is playing out in our state’s courts.  This important legislation would require the Supreme Court to assign counsel to indigent litigants when the proceeding is one over which the Family Court also has jurisdiction and there was a right to counsel, such as custody and family offense matters. 

Under current law, certain litigants in Family Court have been given a right to assigned counsel under Family Court Act §262.  However, where a litigant proceeds with an identical case in the Supreme Court or where the litigant’s case is transferred from the Family Court to the Supreme Court, the right to appointed counsel does not similarly transfer.  As a result of this inconsistency, many of New York’s most vulnerable residents, often domestic violence survivors, are regularly denied access to justice and relief in the courts.

Individuals with limited or no financial resources often have nowhere to turn to find representation that is free or affordable, as well as competent.  Retainer fees are expensive and, for many poor and working poor, saving for this is an unreachable goal.  Furthermore, access to free legal assistance is extremely limited due to lack of available resources.  Therefore, where a case is heard in courts where no access to counsel is guaranteed, individuals may be forced to dismiss the case or proceed without the benefit of attorneys who can zealously protect their rights and advise them of their options.  As a result, litigants who withdraw their cases are denied the relief courts can provide and litigants proceeding without counsel face obvious disadvantage, especially where opposing parties are represented.  

This injustice plays out most egregiously in domestic violence cases where abusers often control the family finances and can afford to retain private counsel.  Abusers will use this advantage strategically  to manipulate the situation by seeking to have the case the survivor commenced in Family Court  transferred and consolidated with a divorce action solely to deprive her of access to appointed counsel.  Once the survivor is in the Supreme Court without an attorney to look out for her best interests, she is often subject to manipulation and intimidation and may be pressured or frightened into settling a case on terms that are detrimental to herself and her children.  Sadly, batterers are regularly able to exploit the courts that domestic violence survivors turned to for protection and justice as tools of abuse and weapons of retaliation.      

Currently, some Supreme Courts around the state recognized this injustice and determined that a similar right to assigned counsel in these concurrent proceedings should be afforded to litigants in Supreme Court.  However, absent clear legislative directive, other courts in the state have found that no right to assigned counsel exists.  Because of the lack of uniformity of opinion on this issue, some indigent litigants around the state enjoy the benefit of assigned counsel whereas others have their requests denied at another court’s discretion. 

It is unconscionable that New York’s courts can be used to perpetrate such glaring injustices.  To address this matter, Empire Justice strongly urges you to sign this important bill into law.

Most Sincerely,

Amy E. Schwartz, Esq.

For more information, please contact:

Amy Schwartz-Wallace

Empire Justice Center
Telesca Center for Justice
One West Main Street, Suite 200
Rochester, NY  14614 

P:(585) 454-4060
F:(585) 454-2518

August 16, 2006