MATTER OF DUTCHESS CTY. DSS (ANTHONY S.)

Samuel P. Brooke, Poughkeepsie, for respondents. Raylene Shayo, Poughkeepsie, Law Guardian, for Anthony S. and another. Leah Cohen, Poughkeepsie, Law Guardian, for Laniqua C. Ian G. MacDonald, County Attorney, Poughkeepsie (Thomas Delpizzo of counsel), for Dutchess County Department of Social Services, petitioner.

OPINION OF THE COURT

DAMIAN J. AMODEO, J. These child protective proceedings bring up for review the adequacy of fees authorized for services performed by attorneys acting as assigned counsel and Law Guardians in Family Court. In each of these cases assigned counsel has requested compensation at the rate of $75 per hour for all work performed. This is considerably above the $40 per hour rate set for in-court work and $25 per hour rate set for out-of-court work provided in County Law § 722-b.^[1] Prior to accepting the assignment in each case, counsel indicated an unwillingness to do so unless the court would at least consider his request for compensation at an enhanced hourly rate. In making its determination of counsel's request in these cases the court will not address the specific facts of either case, but will review the issue of counsel fees in a somewhat broader manner. The court does note that it was only as a result of the experience and expertise of the attorney involved that each of these difficult matters was resolved with relative dispatch. The court has selected these cases because each involves an attorney whose situation is typical of others in this County who have a long and dedicated history of serving this court as Law Guardians and assigned counsel. Samuel P. Brooke, Esq., is the senior member of a very active and well-respected three-person law firm. He and another member of that firm are certified to act as Law Guardians (Family Ct Act § 243 [b]; § 244 [b]; Judiciary Law § 35 [7]) and each regularly accepted cases in that capacity and all members of the firm had regularly accepted work on an assigned counsel basis. Within the last year, each attorney requested that his name be removed from both the assigned counsel and Law Guardian lists. Each cited financial reasons, relating to the low fees paid for these assignments, as the primary reason for his decision. It was only at this court's personal urging and even pleading that Mr. Brooke agreed to remain an active Law Guardian. per hour for work performed, both in and out of court. This court is certain that the rate suggested by the Chief Judge was the subject of much reflection before it was advanced. While still far below the "going rate" charged by attorneys in this and other areas, it represents a reasonable compromise between the need to be fair with the attorneys who take on these assignments and the need to preserve the public purse. Accordingly, the court finds that extraordinary circumstances exist and directs that the vouchers submitted in the above-captioned proceedings shall be paid at the rate of $75 per hour for all work performed. Furthermore, this holding shall be applicable to all future vouchers submitted to this court for payment and will constitute a continuing finding of "extraordinary circumstances" justifying compensation at the rate of $75 per hour for all legal services rendered by Law Guardians and assigned counsel. [1] The fee structure for Law Guardians is outlined in section 35 of the Judiciary Law and parallels the wording of section 722-b of the County Law. [2] Relating to compensation for assigned counsel in adult cases. [3] Relating to compensation for attorneys assigned to act as Law Guardians for children. [4] People v Brisman (supra, at 577-582) contains an excellent analysis of County Law § 722-b and its legislative history. [5] In Herring (supra), the Court restated the holdings in Matter of Werfel v Agresta (36 NY2d 624, supra), Matter of Director of Assigned Counsel Plan of City of N. Y. (Bodek) (87 NY2d 191) and People v Ward (199 AD2d 683) which barred appellate review of discretionary awards of counsel fees (see Rotta v Rotta, 233 AD2d 152; People v Ward, 199 AD2d 683). Any challenge to counsel fees paid pursuant to County Law § 722-b and Judiciary Law § 35 must be made through administrative channels (People v Young, 185 Misc 2d 365).