Opinion 97-16

This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

COUNTIES -- Assigned counsel (determination of amount of compensation) -- Powers and Duties (audit of claim for compensation submitted by assigned counsel)

CLAIMS -- Audit (by county of claim for compensation by assigned counsel in amount fixed by court) -- Payment (without audit of claim for compensation fixed by court)

COUNTY LAW, §§722, 722-b, 722-e; COUNTY LAW, §369: The amount of compensation due an attorney assigned to represent a criminal defendant pursuant to County Law, §722(3) is fixed by the court and may not be reduced by the county. A claim submitted by assigned counsel for compensation fixed by the court is a proper county charge and is not subject to audit by the county pursuant to County Law, §369. Prior inconsistent opinions are superseded.

You ask whether an attorney, assigned to represent a criminal defendant pursuant to a plan authorized by County Law, §722(3), is entitled to reimbursement from the county pursuant to County Law, §722-b for charges incurred in connection with computer-based research undertaken in connection with the case.

Section 722 of the County Law requires the governing body of each county to place in operation throughout the county a plan for providing counsel to persons charged with a crime, or otherwise entitled by law to counsel, and who are financially unable to obtain counsel. Each plan must also provide for investigative, expert and other services necessary for an adequate defense, and conform to one of four alternatives enumerated in section 722. Subdivision 3 of section 722 authorizes a county to provide for representation by counsel furnished pursuant to a plan of a bar association in the county as coordinated by an administrator.

County Law, §722-b contains provisions relating to the compensation and reimbursement for representation. That section establishes various rates of compensation for time expended in court or before a magistrate, judge or justice, and for time reasonably expended out of court. In addition, section 722-b states, in part, as follows:

All counsel assigned in accordance with a plan of a bar association conforming to the requirements of section seven hundred twenty-two whereby the services of private counsel are rotated and coordinated by an administrator shall at the conclusion of the representation receive compensation ... and shall receive reimbursement for expenses reasonably incurred ...

... [C]ompensation and reimbursement shall be fixed by the court where judgment of conviction or acquittal or order of dismissal was entered. ...

Each claim for compensation and reimbursement shall be supported by a sworn statement specifying the time expended, services rendered, expenses incurred and reimbursement or compensation applied for or received in the same case from any other source.

No counsel assigned hereunder shall seek or accept any fee for representing the party for whom he is assigned without approval of the court as herein provided. (emphasis added).

Pursuant to County Law, §722-e, compensation and reimbursement of assigned counsel is a county charge.

Accordingly, section 722-b confers upon the trial court the authority to decide the matter of compensation and reimbursement in the first instance, upon submission of assigned counsel's sworn detailed statement (People v Ward, 199 AD2d 683, 605 NYS2d 152; Matter of Kindlon v County of Rensselaer, 158 AD2d 178, 558 NYS2d 286; 1979 Opns St Comp No. 79-730, unreported). It has been held that this determination is not subject to justiciable review by the Appellate Division (Matter of Director of Assigned Counsel, 87 NY2d 191, 638 NYS2d 415; Werfel v Agresta, 36 NY2d 624, 370 NYS2d 881; Montgomery v Muller, 176 AD2d 29, 580 NYS2d 110). The Court of Appeals has observed that "[t]o the extent that the trial courts' unreviewable discretion produces truly anomalous consequences or patterns of abuse in particular situations, the problem can and should be addressed through the available administrative tools" within the judicial branch (Matter of Director of Assigned Counsel, supra, plurality decision, 87 NY2d 191, 194, 638 NYS2d 415, 416; see also Werfel, supra).

Further, it has been held that once a charge has been approved by the court pursuant to section 722-b, it is by definition a lawful county charge, not subject to audit by the county, and subject only to revocation of that approval in the course of appropriate administrative review (People v Ward, supra, 199 AD2d 683, 685, 605 NYS2d 152, 154). In this regard, we note that, County Law, §369(1) provides that no claim, account or demand against a county may be audited or paid unless it is a lawful county charge. Subdivision 2 of section 369 states that, "[e]xcept as otherwise provided by law", every claim for the payment of money must be audited by the county board of supervisors. Generally, a county board, pursuant to County Law, §369(2), has the power, where appropriate, to deny payment of claims presented for payment of money (see, e.g., In re White, 51 App Div 175, 64 NYS 726). However, the court in Ward, supra, held that the audit function set forth in subdivision 2 of section 369 is expressly overridden by the language of County Law, §722-b which confers upon the trial court the authority to decide the matter in the first instance1.

It is our opinion, then, that the county may not reduce the assigned counsel fees fixed by the court pursuant to section 722-b, including the reimbursement for "expenses reasonably incurred". Whether the cost of undertaking computer based research is "reasonably incurred" is to be determined by the court, subject only to appropriate administrative review within the judicial branch.

August 22, 1997
Dennis V. Tobolski, Esq., County Attorney
County of Cattaraugus

1 In attempting to reconcile the provisions of County Law, §369(2) and County Law, §722-b, this Office had previously expressed the opinion that a county was obligated to audit claims submitted by assigned counsel, but that the audit could consist simply of reviewing the sworn, itemized statement submitted to the court, making certain the judge approved the claim and obtaining original receipts for individual expenses (Opn No. 79-730, supra). In view of the holding in Ward, supra, it is now our view that, once a charge has been approved by the court, it is not subject to further audit by the county. Thus, Opn No. 79-730 is hereby superseded to the extent inconsistent with this opinion.