Public Defense Informer

Judging Eligibility for Court-Appointed Counsel

Written by Frank DiFiore

Under the legal framework of Gideon v. Wainwright, all defendants who cannot afford to retain their own defense counsel are entitled to court-appointed counsel paid for by the state. But how do we determine who is deemed "indigent" and what protections there are for them?

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When do I have a right to an attorney?

Defendants in New York State have the right to counsel in any case where a sentence involving incarceration is considered by the court.

How do I know if I am eligible for a court-assigned attorney?

Courts, usually through the judges, ultimately have the authority to determine whether or not a defendant is eligible to have a public defender or assigned counsel.

Philip Katz, an Assigned Counsel attorney in New York County Family Court, told Public Defense Informer that there is no standard set by the law regarding income level for indigent defendants. As such, judges have considerable discretion in determining eligibility for court-appointed legal counsel.

“There has never been a formally communicated dollar amount that has been published by the courts,” said Katz in an email to PDI.

The state’s Office of Indigent Legal Services (ILS) has put together eligibility standards as guidelines for most counties in New York State regarding income, dependants, and other socio-economic factors. These standards only explicitly apply to the 57 counties in New York State outside of New York City, however.

I don’t know off the top of my head how much I make in a year. Could I still qualify for court-appointed counsel?

There are circumstances where a defendant may be deemed presumptively eligible for a court-assigned defense attorney. In particular, defendants who are incarcerated, detained, or confined to a mental health institution are presumed to be eligible unless there is a “compelling reason” to believe that the custody will end soon.

Defendants who receive needs-based public assistance, such as Medicaid or Supplemental Nutritional Assistance (SNAP), are also presumed to be eligible under the ILS guidelines.

I have a court case relating to a traffic ticket. Am I entitled to a public defender or assigned counsel?

If “the court has not precluded the possibility of imposing a sentence of incarceration” for a traffic infraction case, the ILS guidelines recommend that courts should assign counsel.

How much does someone make who usually gets assigned a court-appointed defense attorney?

ILS outlines that anyone whose income is 250 percent of the federal poverty line is deemed to be presumptively eligible for a court-appointed attorney. Under the 2010 U.S. census, the federal poverty line was determined to be $12,760 per year for a single person with no dependents; therefore, the same person presumptively qualifies for indigent defense if their income is below $31,900.

However, this standard only explicitly applies to the 57 counties of New York State outside of New York City.

A full list of the ILS presumptive eligibility income guidelines can be found here.

What is the standard for someone living in New York City?

Katz told Public Defense Informer in an email that “there has never been a formally communicated dollar amount that has been published by the courts.”

Katz estimated that clients assigned to him generally fall below 150 percent of the federal poverty line. This would set the maximum income for a single person with no dependents at $19,140 per year to be eligible for a court-appointed defense attorney.

If a defendant requires translation services to speak with their attorney or testify, can the court provide a translator?

Yes, both institutional defenders and assigned counsel have budgets to hire experts -- including translators and investigators -- to provide their services to their clients.

However, the institutional providers -- like Bronx Defenders or the Legal Aid Society -- have an independent budget to hire experts. Assigned Counsel attorneys generally require the court to sign off on expenses, which means that the judge determines whether or not it can be approved.

Katz noted, additionally, that court-assigned attorneys can only use those funds to hire court-approved experts. In the case of translators, the most commonly spoken languages in New York City will have people on standby who speak those languages. Less common languages may not have an approved expert on the court list; in that case, the attorney or the client may have to pay for that expert themselves.

I think I make more than the guidelines state. Would I need to get my own attorney if I’m arrested?

While the ILS guidelines state that someone’s income may be too high for presumptive eligibility, you can still still apply for court-appointed counsel by submitting a filled in Assigned Counsel Eligibility Application found on the office’s website. ILS has English and Spanish languages versions of the application.

Katz noted that while income is the first point of consideration, owning real property or vehicles is evaluated on a case-by-case basis by most judges he has appeared before.

“You got to look deeper,” said Katz. “Does this property have a positive equity? Is it generating income?”

Will I have to provide any sensitive information about my financial situation to receive court-appointed counsel? Do I give up my right to privacy when I accept counsel?

Inquiries into eligibility will require information about a defendant’s income, dependants, debts, employment status. The ILS does provide some guidelines aimed at protecting defendants’ rights:

-Applicants should not be required to attest under penalty of perjury to the truth of the information provided as part of the eligibility determination process.

-Applicants should not be denied assignment of counsel for minor or inadvertent errors in the information disclosed during the eligibility determination process.

-Applicants should not be required to produce unduly burdensome documentation to verify the financial information provided; nor shall they be denied assignment of counsel solely for the failure to produce documentation where they have demonstrated a good faith effort to produce requested documentation.

-Applicants should not be required to demonstrate that they were unable to retain private counsel to be deemed eligible for assignment of counsel.

In addition, all records and discussions of the defendants’ financial situation are to made outside of open court and not shared with third parties.

I was able to post bond for my case. Does being able to post bond mean I make too much for a public defender?

According to the ILS guidelines, being able to post bond does not automatically mean you are not eligible for a public defender or assigned counsel.

I’m currently unemployed, but I live with family or friends who are working. Does my household income count towards my eligibility?

No. Third-party assets are not counted as available to the defendant unless that third party affirmatively declares that they will pay the costs of the defendants’ legal defense, the defendant agrees, and the court finds that such an arrangement would not interfere with the defendant’s interests. This extends to spouses and parents of a defendant, even if the defendant is a minor.

My partner and I are in the midst of Family Court proceedings. If one of us meets the eligibility requirements and the other does not, who has to pay for legal services for our children?

Katz said that it is expected that parents and guardians who can afford counsel should pay for separate legal counsel for their children in Family Court proceedings. If one party is eligible for an assigned attorney and another is not, however, it is not unheard of for a hybrid payment plan to be agreed to -- where part of the cost falls on the ineligible party and part is paid by the court on behalf of the eligible party.

Can I choose my court-appointed counsel?

Defendants who are eligible for court-appointed counsel cannot choose their attorney. If you don’t feel comfortable with your appointed counsel, however, you can petition the judge to remove them from the case and assign new counsel.

I thought I did qualify for a court-appointed attorney, but it turns out that I do not. Can I hire the lawyer already assigned to me if I trust them?

Yes. New York State’s County Law Article 722-d states that if a defendant is found to be financially able to pay for their own legal defense, the court is authorized to allow payment to the current attorney -- whether they are an institutional public defender or a contracted private attorney.

Katz said that it is not unheard of for defendants who are found not to be eligible to retain counsel in this way, to avoid interrupting or prolonging a case.

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