Legislation

§ 35. Assignment of counsel to indigent persons and appointment of
physicians in certain proceedings. 1. a. When a court orders a hearing
in a proceeding upon a writ of habeas corpus to inquire into the cause
of detention of a person in custody in a state institution, or when it
orders a hearing in a civil proceeding to commit or transfer a person to
or retain a person in a state institution when such person is alleged to
be mentally ill, mentally defective or a person with substance use
disorder, or when it orders a hearing for the commitment of the
guardianship and custody of a child to an authorized agency by reason of
the mental illness or developmental disability of a parent, or when it
orders a hearing to determine whether consent to the adoption of a child
shall be required of a parent who is alleged to be mentally ill or
developmentally disabled, or when it orders a hearing to determine the
best interests of a child when the parent of the child revokes a consent
to the adoption of such child and such revocation is opposed or in any
adoption or custody proceeding if it determines that assignment of
counsel in such cases is mandated by the constitution of this state or
of the United States, the court may assign counsel to represent such
person if it is satisfied that such person is financially unable to
obtain counsel. Upon an appeal taken from an order entered in any such
proceeding, the appellate court may assign counsel to represent such
person upon the appeal if it is satisfied that such person is
financially unable to obtain counsel.

b. Upon an appeal in a criminal action or in a proceeding in the
family court or surrogate's court wherein the defendant or person
entitled to counsel pursuant to the family court act or surrogate's
court procedure act, is financially unable to obtain counsel, the court
of appeals or the appellate division of the supreme court may assign
counsel other than in the manner as is prescribed in section seven
hundred twenty-two of the county law only when it is satisfied that
special circumstances require such assignment.

2. The chief administrator of the courts may enter into an agreement
with a legal aid society for the society to provide assigned counsel in
the proceedings specified in subdivision one of this section. The
agreement shall be in a form approved by the chief administrator and
shall provide a general plan for a program of assigned counsel services
to be provided by such society. It shall also provide that the society
shall be reimbursed on a cost basis for services rendered.

3. a. No counsel assigned pursuant to this section shall seek or
accept any fee for representing the person for whom he or she is
assigned without approval of the court as herein provided. Whenever it
appears that such person is financially able to obtain counsel or make
partial payment for the representation, counsel may report this fact to
the court and the court may terminate the assignment or authorize
payment, as the interests of justice may dictate, to such counsel.
Counsel assigned hereunder shall at the conclusion of the representation
receive compensation at a rate of one hundred fifty-eight dollars per
hour for time expended in court, and one hundred fifty-eight dollars per
hour for time reasonably expended out of court, and shall receive
reimbursement for expenses reasonably incurred.

b. For representation upon a hearing, compensation and reimbursement
shall be fixed by the court wherein the hearing was held and such
compensation shall not exceed ten thousand dollars. For representation
in an appellate court, compensation and reimbursement shall be fixed by
such court and such compensation shall not exceed ten thousand dollars.
In extraordinary circumstances the court may provide for compensation in
excess of the foregoing limits.

4. In any proceeding described in paragraph a of subdivision one of
this section, when a person is alleged to be mentally ill, mentally
defective or a person with substance use disorder, the court which
ordered the hearing may appoint no more than two psychiatrists,
certified psychologists or physicians to examine and testify at the
hearing upon the condition of such person. A psychiatrist, psychologist
or physician so appointed shall, upon completion of their services,
receive reimbursement for expenses reasonably incurred and reasonable
compensation for such services, to be fixed by the court. Such
compensation shall not exceed three thousand dollars, except that in
extraordinary circumstances the court may provide for compensation in
excess of the foregoing limits.

4-a. In any proceeding under article ten of the mental hygiene law,
the court which ordered the hearing may appoint no more than two
psychiatrists, certified psychologists or physicians to examine and
testify at the hearing upon the condition of such person. A
psychiatrist, psychologist or physician so appointed shall, upon
completion of his or her services, receive reimbursement for expenses
reasonably incurred and reasonable compensation for such services, to be
fixed by the court in accordance with subdivision (a) of section 10.15
of the mental hygiene law.

5. All expenses for compensation and reimbursement under this section
shall be a state charge to be paid out of funds appropriated to the
administrative office for the courts for that purpose. Any rules and
orders respecting the assignment and compensation of counsel, and the
appointment and compensation of psychiatrists, psychologists or
physicians pursuant to this section and the form and manner of
processing of a claim submitted pursuant to this section shall be
adopted by the chief administrator. Each claim for compensation and
reimbursement pursuant to subdivisions three and four of this section
shall be submitted for approval to the court which made the assignment
or appointment, and shall be on such form as the chief administrator may
direct. After such claim is approved by the court, it shall be certified
to the comptroller for payment by the state, out of the funds
appropriated for that purpose.

6. Assigned counsel and guardians ad litem appointed pursuant to the
provisions of title two of article nine-B of the social services law
shall be compensated in accordance with the provisions of this section.

7. Whenever the supreme court or a surrogate's court shall appoint
counsel in a proceeding over which the family court might have exercised
jurisdiction had such action or proceeding been commenced in family
court or referred thereto pursuant to law, and under circumstances
whereby, if such proceeding were pending in family court, such court
would be authorized by section two hundred forty-nine of the family
court act to appoint an attorney for the child, such counsel shall be
compensated in accordance with the provisions of this section.

8. Whenever supreme court shall exercise jurisdiction over a matter
which the family court might have exercised jurisdiction had such action
or proceeding been commenced in family court or referred thereto
pursuant to law, and under circumstances whereby, if such proceedings
were pending in family court, such court would be required by section
two hundred sixty-two of the family court act to appoint counsel,
supreme court shall also appoint counsel and such counsel shall be
compensated in accordance with the provisions of this section.