N.Y. Judiciary Law § 35: Assignment of counsel to indigent persons and appointment of physicians in certain proceedings

§ 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.