Commentary: Pay rate for children's lawyers out of date

We New Yorkers have a long and distinguished tradition of leadership in legal services to our most vulnerable citizens, our children. Unfortunately, this proud tradition is in danger because of the staggeringly low pay for law guardians, attorneys who represent children in court.

Currently New York ranks 49th out of the 50 states in compensation rates for attorneys serving as law guardians and assigned counsel. Our law guardians, like our assigned counsel, are paid $25 an hour for out-of-court representation and $40 an hour for services in court. These rates, set by state law, have not changed in more than 15 years. With this money, law guardians must pay office overhead costs, staff salaries and benefits, rent, equipment and what's left over becomes their fee. The result is that attorneys with even modest overhead expenses earn next to nothing while serving as law guardians, and almost always lose money on out- of-court services.

A couple of months ago a law guardian from a small upstate county sent me a letter describing the services he performed over more than a year of representing the children in a difficult and prolonged custody case. He provided a careful breakdown of his hours and office expenses. He calculated that, after these expenses, he would earn about $2.39 an hour. He said, in deciding whether or not to accept a law guardian appointment, he often feels as though he is choosing between the well-being of his prospective child-client and the needs of his own children.

The work law guardians perform outside of court can be some of the most important work they do; it often has the greatest impact on the outcome of the case and the welfare of the child. In a complicated custody case, a law guardian must often devote a great deal of time to determining and assessing the family's dynamic, then investigate the charges of wrongdoing frequently exchanged between the adults involved, mediate visitation disputes, and find support and often counseling services for the child and for the parents. The great irony is that the more of this vital work a law guardian does on behalf of the child client, the more money the law guardian loses.

As far back as 1967, our state's leadership role in providing legal representation for children was recognized by the U.S. Supreme Court in its monumental Gault decision. This landmark case gave children who appear in court a number of constitutional protections, including the right to an attorney.

Today, however, in communities across New York State, courts are having increased difficulty finding attorneys to serve as law guardians. The number of experienced law guardians able to accept cases is declining, in many counties fewer and fewer law guardians are being burdened with more and more cases. This is all part of the larger crisis our state currently faces in providing assigned counsel for disadvantaged people, including victims of domestic violence.

Twice each year I meet with a group of law guardians in New York's Third Judicial Department (28 upstate counties) who are chosen by Family Court judges to represent the other law guardians in their counties. They are the sort of experienced, dedicated law guardians we need to have at the heart of our system for representing children. These attorneys tell me regretfully that they have no choice but to cut back on their own law guardian caseload, because they lose money on every case they take, particularly on work performed out of court.

To make sure that law guardians can continue to provide the high-quality legal representation we all want our children to receive, and to ensure that the leadership we have provided for decades continues, we must support an immediate pay rate increase for law guardians and assigned counsel.

Recently, Gov. George Pataki, Senate Majority Leader Joseph Bruno, and Assembly Speaker Sheldon Silver created a working commission to review hourly pay rates for law guardians and assigned counsel, and to come up with an equitable solution. Members of the group are Commissioner of the Division of Criminal Justice Services, Katherine Lapp, Senate Judiciary Committee Chair James Lack and Assembly Judiciary Committee Chair Helene Weinstein.

This is an encouraging first step, which reflects well on the vision of our leaders. Hopefully it will result in prompt, decisive action. The threat to our tradition of leadership in legal services for our children has been building for some time, and it grows daily. To preserve that tradition, our leaders need to increase law guardian pay rates, right now.

John E. Carter is Chair of the New York State Bar Association Committee on Children and the Law.

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