HONORABLE HENRY J. SCUDDER PRESIDING JUSTICE LAW GUARDIAN PROGRAM ADMINISTRATIVE HANDBOOK FOR ATTORNEYS FOR CHILDREN Tracy M. Hamilton, Director Law Guardian Program New York State Supreme Court Appellate Division, Fourth Department Revised: March 2008 TABLE OF CONTENTS Introduction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 General Policy Considerations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Administrative Offices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. Family Court Act sections 241, 242, 243, 245, 249 and 249-a.. . . 8 B. Judiciary Law section 35(3), (7). . . . . . . . . . . . . . . . . . . . . . . . . . 11 C. County Law section 722-c. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Regulations (22 NYCRR Part 1032). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Law Guardian Advisory Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Liaison Representatives.................................................................................................21 Compensation and Reimbursement Guidelines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 1. Payment Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 2. Preparation of Vouchers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 a. Creating a New Voucher. . . . . . . . . . . . . . . . . . . . . . . . 27 b. Saving, Printing, and Submitting . . . . . . . . . . . . . . . . . . 32 c. Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 3. Expert Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4. Obtaining Transcripts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Education and Training.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Mandatory Continuing Legal Education Program For Attorneys in the State of New York (22 NYCRR part 1500)- website address ......................................................................38 Attachments Model Extraordinary Circumstances Affidavit............................................ 40 Model Order to Hire Expert........................................................................ 42 Voucher for Assigned Counsel, Psychiatrist or Physician (JC2020).......... 45 Minute Order Form .................................................................................... 46 Standard Voucher Form............................................................................. 47 1 TO: Attorneys for Children Fourth Judicial Department FROM: Tracy M. Hamilton Law Guardian Program Director RE: Administrative Handbook On behalf of Hon. Henry J. Scudder, Presiding Justice of the Appellate Division, Fourth Department, and the members of the Court, I thank you for your participation in the Law Guardian Program. The purposes of the Law Guardian Program are to ensure the highest quality of representation of children and to administer the Program in a manner sensitive to local needs. To accomplish these purposes we conduct training seminars designed to build and sharpen your skills as an attorney for children and provide support through our website at www.courts.state.ny.us/ad4 (click on law guardian link), resource directories, brochures, newsletters, case digests, etc. Further, we ensure that you are reimbursed for your services and the reasonable expenses associated with the representation of your clients. Additionally, the Law Guardian Programs of the four Appellate Divisions collaborate in publishing the Law Guardian Reporter, a quarterly newsletter with timely articles and digests of recent case law and legislative developments. Finally, we always are available to answer questions and assist you in your work as an attorney for children. The Law Guardian Program continues to seek new ways to help you serve your clients. Your suggestions are welcomed. If I can assist you in any aspect of your service as an attorney for children, please do not hesitate to contact me. We wish you the greatest success in your work as an attorney for children and in every other aspect of your legal career. 2 GENERAL POLICY CONSIDERATIONS Role of the Attorney for the Child Historically, the definition of the role of the attorney for the child has engendered a great deal of confusion. Many attorneys, and indeed many Judges, have viewed the role of the attorney for the child to be in the nature of a guardian ad litem. It is clear, however, that the role of the attorney for the child is very different from that of a guardian ad litem. A guardian ad litem, who need not be an attorney, is appointed as an arm of the Court to protect the best interests of a person under a legal disability. In contrast, the role of the attorney for the child is to serve as a child's lawyer. The attorney for the child has the responsibility to represent and advocate the child's wishes and interests in the proceeding or action. With regard to the role of the attorney for the child please carefully review the Rule of the Chief Judge 7.2 and the Summary of Responsibilities of the Attorney for the Child that follows on page 4 and 5. Protocols In view of the age of your clients and the sensitive nature of the cases in which you are appointed, you are presented with unique challenges. As an attorney for children, however, you always should act in a manner consistent with proper legal practice and should not assume the role of social worker, psychologist or advocate for one of the parties. Although it may be tempting to step outside the role of counsel for the child, particularly when the circumstances of the case are especially tragic, the rules of good lawyering are as applicable to you as to any attorney in a civil proceeding or action. Examples of improper practices include: ! engaging in ex parte communications with the Judge without the express approval of all parties ! communicating with the parties in the absence of their counsel ! requesting confidential documents without the proper authorization of a party ! disclosing client confidences without the approval of the client. The attorney for the child should avoid attributing to the child any statements or recommendations regarding the ultimate disposition of the case, unless the child has specifically authorized the law guardian to do so and understands the possible implications 3 ! the attorney for the child should not be a witness at any time during the proceeding or action in any subsequent proceeding by the same parties Because trial courts vary with regard to their expectations of the attorney for the child, you should define your role and ensure that your role is understood by your client(s), the parties and their attorneys, as well as the Judge. We recognize that some trial courts are not fully aware of the proper role of the attorney for the child and, in some instances, may expect the attorney for the child to assume an improper role. Presiding Justice Scudder, the Fourth Department Law Guardian Advisory Committee, and the Law Guardian Program Office work to educate the bench about the proper role of the attorney for the child. 4 Section 7.2 of the Rules of the Chief Judge Section 7.2 Function of the attorney for the child. (a) As used in this part, "attorney for the child" means a law guardian appointed by family court pursuant to section 249 of the Family Court Act, or by the supreme court or a surrogate's court 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. (b) The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex-parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation. (c) In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child. (d) In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the childs position. (1) In ascertaining the child's position, the attorney for the child must consult with and advise the child to the extent and in a manner consistent with the childs capacities, and have a thorough knowledge of the child's circumstances. (2) If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the childs best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney's view would best promote the child's interests. (3) When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the childs wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the childs wishes. In these circumstances, the attorney for the child must inform the court of the childs articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position. (effective October 17, 2007) 5 Summary of Responsibilities of the Attorney for the Child While the activities of the attorney for the child will vary with the circumstances of each client and proceeding, in general those activities will include, but not be limited to, the following: (1) Commence representation of the child promptly upon being notified of the appointment; (2) Contact, interview and provide initial services to the child at the earliest practical opportunity, and prior to the first court appearance when feasible; (3) Consult with and advise the child regularly concerning the course of the proceeding, maintain contact with the child so as to be aware of and respond to the child's concerns and significant changes in the childs circumstances, and remain accessible to the child; (4) Conduct a full factual investigation and become familiar with all information and documents relevant to representation of the child. To that end, the lawyer for the child shall retain and consult with all experts necessary to assist in the representation of the child. (5) Evaluate the legal remedies and services available to the child and pursue appropriate strategies for achieving case objectives; (6) Appear at and participate actively in proceedings pertaining to the child; (7) Remain accessible to the child and other appropriate individuals and agencies to monitor implementation of the dispositional and permanency orders, and seek intervention of the court to assure compliance with those orders or otherwise protect the interests of the child, while those orders are in effect; and (8) Evaluate and pursue appellate remedies available to the child, including the expedited relief provided by statute, and participate actively in any appellate litigation pertaining to the child that is initiated by another party, unless the Appellate Division grants the application of the attorney for the child for appointment of a different attorney to represent the child on appeal. [Approved by the Statewide Law Guardian Advisory Committee 4-20-2007]
6 LAW GUARDIAN PROGRAM APPELLATE DIVISION, FOURTH DEPARTMENT ADMINISTRATIVE OFFICES Mailing Address Law Guardian Program New York State Supreme Court Appellate Division, Fourth Department 50 East Avenue, Suite 304 Rochester, New York 14604 Deliveries (UPS, Federal Express, etc.) New York State Supreme Court Appellate Division, Fourth Department 50 East Avenue Rochester, New York 14604 Telephones Main Office 585-530-3170 Tracy M. Hamilton 585-530-3176 Director E-Mail Address thamilto@courts.state.ny.us Christine A. Constantine 585-530-3178 Assistant Director E-Mail Address cconstan@courts.state.ny.us Carol J. Howell 585-530-3172 Court Analyst Jennifer Nealon 585-530-3177 Court Analyst Lisa Merritt 585-530-3171 Assistant Court Analyst Joan Bell 585-530-3179 Junior Court Analyst Sara Andrews 585-530-3173 Junior Court Analyst E-Mail Address sbandrew@courts.state.ny.us Fax 585-530-3175 Appellate Division 585-530-3100 Clerk's Office 7 STATUTORY PROVISIONS RELATING TO LAW GUARDIAN REPRESENTATION Family Court Act sections 241, 242, 245, 249, and 249-a, inter alia, set forth the findings and purpose underlying the legislation authorizing law guardian (attorney for the child) appointments, the definition of law guardian, and cases where the appointment of a law guardian (an attorney for the child) is mandatory or discretionary. Judiciary Law 35(3),(7), inter alia, sets forth the compensation rate and limits where a law guardian (attorney for the child) is appointed in Family Court, Supreme Court or Surrogates Court. Under County Law 722-c the court may authorize an attorney to obtain expert services. 8 FAMILY COURT ACT Article 2, Part 4 LAW GUARDIANS 241. Findings and purpose. This act declares that minors who are the subject of family court proceedings or appeals in proceedings originating in the family court should be represented by counsel of their own choosing or by law guardians. This declaration is based on a finding that counsel is often indispensable [sic] to a practical realization of due process of law and may be helpful in making reasoned determinations of fact and proper orders of disposition. This part establishes a system of law guardians for minors who often require the assistance of counsel to help protect their interests and to help them express their wishes to the court. Nothing in this act is intended to preclude any other interested person from appearing by counsel. 242. Law guardian. As used in this act, "law guardian" refers to an attorney admitted to practice law in the state of New York and designated under this part to represent minors pursuant to section two hundred and forty-nine of this act. 243. Designation. (a) The office of court administration may enter into an agreement with a legalaid (sic) society for the society to provide law guardians for the family court or appeals in proceedings originating in the family court in a county having a legal aid society. (b) The appellate division of the supreme court of the judicial department in which a county is located may, upon determining that a county panel designated pursuant to subdivision (c) of this section is not sufficient to afford appropriate law guardian services, enter into an agreement, subject to regulations as may be promulgated by the administrative board of the courts, with any qualified attorney or attorneys to serve as law guardian or as law guardians for the family court or appeals in proceedings originating in the family court in that county. (c) The appellate division of the supreme court for the judicial department in which a county is located may designate a panel of law guardians for the family court and appeals in proceedings originating in the family court in that county, subject to the approval of the administrative board of the courts. For this purpose, it may invite a bar association to recommend qualified persons for consideration by the said appellate division making its designation, subject to standards as may be promulgated by such administrative board. 245. Compensation. 9 (a) If the office of court administration proceeds pursuant to subdivision (a) of section two hundred forty-three of this chapter, the agreement shall provide that the society shall be reimbursed on a cost basis for services rendered under the agreement. The agreement shall contain a general plan for the organization and operation of the providing of law guardians by the respective legal aid society, approved by the said administrative board, and the office of court administration may require such reports as it deems necessary from the society. (b) If an appellate division proceeds pursuant to subdivision (b) of such section two hundred forty-three, the agreement may provide that the attorney or attorneys shall be reimbursed on a cost basis for services rendered under the agreement. The agreement shall contain a general plan for the organization and operation of the providing of law guardians by the respective attorney or attorneys, and the appellate division may require such reports as it deems necessary from the attorney or attorneys. (c) If an appellate division proceeds pursuant to subdivision (c) of such section two hundred forty-three, law guardians shall be compensated and allowed expenses and disbursements in the same amounts established by subdivision three of section thirty- five of the judiciary law. 249. Appointment of law guardian (a) In a proceeding under article seven, three or ten or where a revocation of an adoption consent is opposed under section one hundred fifteen-b of the domestic relations law or in any proceeding under section three hundred eighty-four-b of the social services law, or under section three hundred ninety-two of such law in the case of a child freed for adoption for a period of six months and not placed in a prospective adoptive home or in the case of a child freed for adoption and placed in a prospective adoptive home and no petition for adoption has been filed twelve months after placement, or when a minor is sought to be placed in protective custody under section one hundred fifty-eight, the family court shall appoint a law guardian to represent a minor who is the subject of the proceeding or who is sought to be placed in protective custody, if independent legal representation is not available to such minor. In any proceeding to extend or continue the placement of a juvenile delinquent or person in need of supervision pursuant to section seven hundred fifty-six or 353.3 or any proceeding to extend or continue a commitment to the custody of the commissioner of mental health or the commissioner of mental retardation pursuant to section 322.2, the court shall not permit the respondent to waive his right to be represented by counsel chosen by him or his parent or other person legally responsible for his care, or by a law guardian. In any other proceeding in which the court has jurisdiction, the court may appoint a law guardian to represent the child, when, in the opinion of the family court judge, such representation will serve the purposes of this act, if independent legal counsel is not available to the child. The family court on its own motion may make such appointment. 10 (b) Notwithstanding any other provision of law, a proceeding under article three following an order of removal made pursuant to article seven hundred twenty-five of the criminal procedure law, the court shall, wherever practicable, appoint the counsel representing the juvenile offender in the criminal proceedings as law guardian. 249-a. Waiver of counsel. A minor who is a subject of a juvenile delinquency or person in need of supervision proceeding shall be presumed to lack the requisite knowledge and maturity to waive the appointment of a law guardian. This presumption may be rebutted only after a law guardian has been appointed and the court determines after a hearing at which the law guardian appears and participates and upon clear and convincing evidence that (a) the minor understands the nature of the charges, the possible dispositional alternatives and the possible defenses to the charges, (b) the minor possesses the maturity, knowledge and intelligence necessary to conduct his own defense, and (c) waiver is in the best interest of the minor. 11 JUDICIARY LAW 35. Assignment of counsel to indigent persons and appointment of physicians in certain proceedings * * * 3. No counsel assigned pursuant to this section shall seek or accept any fee for representing the person for whom he 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 seventy-five dollars per hour for time expended in-court, and seventy-five dollars per hour for time reasonably expended our-of-court, and shall receive reimbursement for expenses reasonably incurred. 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 four thousand four hundred dollars. For representation in an appellate court, compensation and reimbursement shall be fixed by such court and such compensation shall not exceed four thousand four hundred dollars. In extraordinary circumstances the court may provide for compensation in excess of the foregoing limits. * * * 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 a law guardian, such counsel shall be compensated in accordance with the provisions of this section. 12 COUNTY LAW 722-c. Services Other Than Counsel Upon a finding in an ex parte proceeding that investigative, expert or other services are necessary and that the defendant or other person described in 249 or 262 of the Family Court Act or 407 of the Surrogate's Court Procedure Act, is financially unable to obtain them, the court shall authorize counsel, whether or not assigned in accordance with a plan, to obtain the services on behalf of the defendant or such other person. The court upon a finding that timely procurement of necessary services could not await prior authorization may authorize the service nunc pro tunc. The court shall determine reasonable compensation for the services and direct payment to the person who rendered them or to the person entitled to reimbursement. Only in extraordinary circumstances may the court provide for compensation in excess of one thousand dollars per investigative, expert or other service provided. Each claim for compensation 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. -13- RULES OF THE APPELLATE DIVISION, FOURTH DEPARTMENT PART 1032 OPERATION OF LAW GUARDIAN PROGRAM 1032.1 Law guardian office; law guardian director (a) A law guardian office for the Fourth Judicial Department is established to ensure the provision of the highest quality of representation for children and to administer the law guardian program in a manner sensitive to local needs. (b) The function of the law guardian office shall be to provide continuing administrative direction to the law guardian program in the Fourth Judicial Department and to secure the cooperation of local bar associations, law schools and governmental agencies in order to achieve the goal specified in subdivision (a) of this section. (c) The law guardian office shall be administered by a law guardian director who shall be appointed by the Appellate Division and supervised by the presiding justice. The duties of the law guardian director shall include but not be limited to the following: (1) to administer the law guardian program office in accordance with the law and these rules; (2) with the approval of the presiding justice and in consultation with the departmental advisory committee, to implement standards, guidelines and procedures for the improvement of the law guardian program in the Fourth Judicial Department; (3) in conjunction with local family courts, local bar associations, law schools or any other competent organization and in consultation with the departmental advisory committee, to provide a continuing program of law guardian training and education that will allow applicant attorneys to satisfy requirements for designation to the panel, and to improve and maintain the professional competence of attorneys serving as law guardians; (4) to consult with the law guardian directors in the First, Second and Third Judicial Departments and with the Office of Court Administration to coordinate the operation of the programs in each department; and (5) to prepare the annual report on the operation of the law guardian program in the Fourth Department. 1032.2 Departmental advisory committee (a) The presiding justice shall appoint a chairperson and the members of the departmental advisory committee, which shall consist of at least one Supreme Court judge, one Family Court judge, one law guardian engaged in private practice, one representative of a family and child care agency, one law school professor, one county attorney, one person who -14- is not an attorney and who is not an employee of any branch of government, a member of the staff of the Appellate Division who shall be a nonvoting member and such other members as the presiding justice deems necessary to enable the committee to perform the functions specified in this section. The term of appointment shall be staggered and for a period of two years subject to reappointment by the presiding justice. (b) The departmental advisory committee may make recommendations to the presiding justice and the law guardian director with respect to: (1) training of law guardians; (2) the promulgation of rules, standards and administrative procedures for effective law guardian representation in the department; (3) procedures necessary to insure that panel members are designated and assigned in a fair and impartial manner, having regard to the nature and difficulty of each case and the special qualifications of panel members; and (4) procedures necessary to improve the operation thereof throughout the department. 1032.3 Members of departmental advisory committee are volunteers. Each member of the departmental advisory committee is a volunteer expressly authorized to participate in a State-sponsored volunteer program as provided in section 17(1) of the Public Officers Law. 1032.4 Law guardian panel (a) Initial designation to law guardian panel. (1) Eligibility. An attorney is eligible for designation as a member of the law guardian panel of a county of this department when the attorney: (i) is a member in good standing of the Bar of the State of New York and in any other jurisdiction in which the attorney is admitted to the practice of law; (ii) has attended 12 hours of law guardian introductory training conducted by the law guardian program; and (iii) has obtained experience in law guardian representation by appearing either as attorney of record, associate counsel or co-counsel for a party in a minimum of three proceedings under article 3, article 6, article 7, or article 10 of the Family Court Act; or has been found by a Family Court judge to be well qualified by reason of education, training or substantial trial experience (2) Application. An attorney may, at any time, apply for membership on a county law guardian panel in this department. Such application shall be in the form prescribed by the Appellate Division and shall be submitted for consideration to the supervising judge of Family -15- Court in those counties where the supervising judge sits and in other counties to the senior Family Court judge. (3) Action by the Family Court judge. The supervising or senior Family Court judge shall review the application and take one of the following actions: (i) When the judge determines that the attorney has met the eligibility requirements of paragraph (1) of this subdivision and is otherwise qualified to provide appropriate representation for children, the judge shall approve the application and forward it for consideration by the Appellate Division. If the judge finds the attorney to be well qualified under subparagraph (1) (iii) of this subdivision, the judge shall submit the basis of the finding in writing to the Appellate Division. (ii) When the judge determines for good cause that an attorney should not be designated as a law guardian panel member, the judge shall deny the application and state the reason for the denial in writing. The attorney may request reconsideration of such denial by the Appellate Division. (4) Waiver of eligibility requirements. The Appellate Division may waive the eligibility requirements set forth in subparagraphs (1) (ii) and (iii) of this subdivision when an attorney requests such waiver in writing, endorsed by the supervising or senior Family Court judge; and (i) the attorney has sufficient relevant experience in the practice of law to demonstrate clearly the ability to represent children effectively; provided, however, that an attorney added to a law guardian panel based upon a waiver granted pursuant to this paragraph must attend 12 hours of introductory training conducted by the law guardian program within one year of designation. (5) Action by the Appellate Division. Upon receipt of the application and the recommendation of the supervising or senior Family Court judge that an attorney be placed on the law guardian panel, the Appellate Division shall: (i) designate the attorney to a county panel; or (ii) request further information from the applicant, which may include an interview; or (iii) decline to designate the attorney to a county panel. If not designated to a county panel, the attorney shall be informed of the basis of the decision and may request reconsideration. (b) Re-designation of panels. (1) The Appellate Division shall, on or before April 1 of each year, designate an annual law guardian panel for each county in the department from lists of attorneys who have been found competent by the supervising judge of Family Court in those counties where the supervising Family Court judge sits and in other counties by the senior Family Court judge -16- upon consideration of the following factors: (i) legal knowledge; (ii) rapport with clients; (iii) vigorous advocacy; (iv) case preparation; and (v) courtroom demeanor. (2) To be eligible for re-designation to a panel a law guardian shall: (i) have completed within the preceding two years at least one training program conducted by the law guardian program. If prior approval is obtained from the Appellate Division, attendance at an appropriate educational and training program sponsored or cosponsored by another New York State Judicial Department, bar association, law school or legal aid society, may be substituted for training conducted by the law guardian program; and (ii) have been found competent by the supervising or senior Family Court judge of the county upon consideration of the factors of law guardian competency set forth in subparagraph (1) (i) - (v) of this subdivision. 1032.5 Assignment of law guardians (a) Any attorney designated to a law guardian panel in the Fourth Department may be assigned as a law guardian in any adjoining county in the Fourth Department and in any other county not adjoining may be assigned upon prior approval of the Appellate Division. (b) No law guardian shall be assigned to represent a minor when such assignment involves an ethical conflict of interest. Attorneys serving in the following positions or employed by the following offices, if otherwise eligible for designation, shall disclose such employment to the court: judge or justice of a city, town or village court; law clerk to a judge or justice; district attorney; county attorney; and municipal corporation counsel. Attorneys serving in any of the above positions or employed by any of the above offices, shall not be appointed as a law guardian in proceedings in which, by virtue of such position or employment, they have similar or equal subject matter jurisdiction or, in the county in which they are employed, the office in which they are employed participates as a party. (c) Removal from law guardian panel. An attorney may request that his or her name be removed from a law guardian panel. Upon receipt of such request, the Appellate Division shall remove the attorneys name from the panel. A Family Court judge, Supreme Court justice or surrogate may, at any time, recommend to the Appellate Division the removal of an attorneys name from a law guardian panel for good cause, including, but not limited to, misconduct, lack of diligence in performing law guardian assignments, or unwillingness to serve. An attorney whose name appears on a law guardian panel for two consecutive years and who has not served as a law guardian shall be removed from the list by the Appellate Division. The -17- Appellate Division may, on its own motion at any time, remove an attorneys name from an annual law guardian panel. Regardless of the basis for removal from the law guardian panel, an attorney may request reconsideration of such removal. (d) Assignment of counsel by the Supreme or a Surrogates Court to represent children in proceedings wherein compensation is authorized pursuant to Judiciary Law 35 (7) shall be made from the panel designated pursuant to subdivision 1032.4. 1032.6 Compensation (a) A law guardian seeking compensation for services rendered pursuant to Family Court Act 245 shall submit a claim for approval to the Family Court on forms authorized by the Chief Administrator of the Courts. The Family Court shall certify the claim, subject to appropriate modifications, and shall forward the claim to the Appellate Division for approval and certification to the Comptroller for payment. When a claim is received by the Appellate Division more than 90 days after the law guardian has completed the assignment, the law guardian shall provide an affidavit stating that the law guardian has not been paid for the services rendered, that a claim has not been submitted previously, and the reasons why the claim was not received within the 90-day period. The Appellate Division may, in the exercise of its discretion, disapprove any claim not received with the 90-day period. (b) Compensation in excess of the limits established by Family Court Act 245 and Judiciary Law 35 shall not be approved absent a showing of extraordinary circumstances. A law guardian submitting a claim for compensation in excess of the statutory limits shall submit, with the claim, an affidavit detailing the nature of the proceeding in which the services were rendered, the services rendered, the time expended, the expenses incurred and the facts that would support a finding of extraordinary circumstances. Absent such an affidavit , a fee in excess of the statutory limits shall not be approved. (c) In determining whether there are extraordinary circumstances warranting compensation in excess of the statutory limits, the Family Court and the Appellate Division shall consider: (1) Whether the matter involved unusually complex factual or legal issues; (2) Whether a novel issue of law, which required extensive legal research was involved; (3) Whether a lengthy trial or other in-court proceedings were necessary; and (4) Any other unique or unusual circumstances. The expenditure of time alone, however, shall not constitute an extraordinary circumstance. -18- (d) When a law guardian anticipates that expenses, as authorized pursuant to Family Court Act 245 and Judiciary Law 35, will exceed $300, the law guardian shall, before incurring such expenses, obtain approval of the Family Court and the Appellate Division. -19- LAW GUARDIAN ADVISORY COMMITTEE The Presiding Justice appoints members of a departmental Law Guardian Advisory Committee to make recommendations to the Presiding Justice and Director regarding training of attorneys for children and the promulgation of rules, standards and administrative procedures for the improvement of the representation of the children in the Fourth Department. The Advisory Committee also drafts practice guidelines and selects outstanding attorneys for the children for awards. The Committee consists of representatives of the Fifth, Seventh and Eighth Judicial Districts of the Fourth Department. The Committee is chaired by Honorable Michael F. Griffith, Wyoming Family Court Judge. The volunteer members of the Advisory Committee meet on a regular basis. NAME ADDRESS TELEPHONE NUMBER FAX NUMBER E-MAIL ADDRESS Hon. Michael F. Griffith, Chairman Wyoming County Family Ct 147 North Main Street Warsaw, NY 14569 585/786-3148 585/786-2818 mfgriffi@courts.state.ny.us Michele A. Brown, Esq. Childrens Legal Center 438 Main Street, Suite 200 Buffalo, NY 14202 716/332-0990 716/332-0997 mibrown@childrenslegalc enter.org Margaret Burt, Esq. 63 Callingham Rd. Pittsford, NY 14534 585/385-4252 585/385-7717 mburt5@aol.com Hon. Kevin M. Carter Erie County Family Court 1 Niagara Plaza Buffalo, NY 14202 716/845-7484 716/858-7115 kmcarter@courts.state.ny. us Bert R. Dohl, Esq. 107 Main Street Salamanca, NY 14779 716/945-3060 James S. Hinman, Esq. 16 East Main Street Suite 260 Rochester, NY 14614 585/325-6722 585/325-4496 jshatty@frontiernet.net Hon. Dennis M. Kehoe Wayne County Family Court 54 Broad Street, Suite 106 Hall of Justice Lyons, NY 14489 315/946-5436 315/946-5434 dkehoe@courts.state.ny. us -20- Jack Klump, Director NYS Office of Children & Family Services The Atrium, Suite 350 2 Clinton Street Syracuse, NY 13202 315/423-1200 9250zz@dfa.state.ny.us Prof. Susan Vivian Mangold University of Buffalo School of Law 614 O'Brian Hall Buffalo, NY 14260 716/645-2428 716/645-2900 svm@buffalo.edu Patricia L. Morgan, Deputy Clerk, ex officio Appellate Division, 4 Dept. Th M. Dolores Denman Courthouse 50 East Avenue Rochester, NY 14604 585/530-3102 585/530-3247 plmor@courts.state.ny.us Pamela Neubeck, Esq. Legal Aid Bureau of Buffalo, Inc. 237 Main Street, Suite 1602 Buffalo, NY 14203 716/853-9555 716/853-3219 pneubeck@legalaidbuffalo .org Hon. John F. O'Donnell Erie County Supreme 92 Franklin Street Buffalo, NY 14202 716/851-3373 716/845-9486 jodonnel@courts.state.ny. us Edward Orlando, Esq. Chief Law Guardian Legal Aid Society 1 W. Main Street, Suite 800 Rochester, NY 14614 585/232-4090 585/232-2352 eorlando@lasroc.org Hon. Elizabeth Pine M. Dolores Denman Courthouse 50 East Avenue Rochester, NY 14604 585/530-3210 585/530-3245 epine@courts.state.ny.us Hon. Janice M. Rosa Erie County Supreme Court 1 Niagara Plaza Buffalo, NY 14202 716/845-9489 716/858-8102 jrosa@courts.state.ny.us Eleanor W. Wertimer, Esq. 7140 College Hill Clinton, NY 13323 315/853-2706 315/853-3652 swertime@hamilton.edu Scott W. Westervelt, Esq. 320 Hall of Justice Rochester, NY 14614 585/428-5890 585/428-2704 Lucia Whisenand, Esq. 440 East Washington St. Syracuse, NY 13202 315/472-0496 315/472-0574 lwhisena@twcny.rr.com -21- LAW GUARDIAN LIAISONS The liaison program was created by the Law Guardian Advisory Committee to solicit suggestions and feedback from panel members on an annual basis. Additionally, the Director and Assistant Director depend on the liaisons to bring issues regarding attorneys for children to the attention of the Program and to disseminate information of interest to attorneys for children in their counties. ALLEGANY COUNTY Annette M. Harding, Esq. P.O. Box 411 Wellsville, NY 14895 CATTARAUGUS COUNTY Bert R. Dohl, Esq. 107 Main Street Salamanca, NY 14779 CAYUGA COUNTY Roberta G. Williams, Esq. 11 Court Street Auburn, NY 13021 CHAUTAUQUA COUNTY Michael J. Sullivan, Esq. P.O. Box 182 Fredonia, NY 14063 ERIE COUNTY M. Kim Babat, Esq. 460 Franklin Street Buffalo, NY 14202 GENESEE COUNTY Catherine Monachino, Esq. 45 Church Street Elba, NY 14058 HERKIMER COUNTY Karl E. Manne, Esq. 107 Court Street Herkimer, NY 13350 JEFFERSON COUNTY Sue Sovie, Esq. 200 Washington Street, Suite 301 Watertown, NY 13601 LEWIS COUNTY Susan Kraeger, Esq. 6725 McAlpine Street Lyons Falls, NY 13368 LIVINGSTON COUNTY Jessica Reynolds-Amuso, Esq. 5579 Avon Lima Road, PO Box 190 Avon, NY 14414 -22- MONROE COUNTY Kimberly W. Weisbeck, Esq. 3349 Monroe Avenue, Suite 288 Rochester, NY 14618 NIAGARA COUNTY Thomas J. Caserta, Esq. 800 Main Street, Ste 4C P.O. Box 725 Niagara Falls, NY 14302 ONEIDA COUNTY Theresa Girouard, Esq. 225 N.Washington Street, P.O. Box 4632 Rome, NY 13442 ONONDAGA COUNTY Marsha A. Hunt, Esq. The Monroe Building, 5th Floor 333 East Onondaga Street Syracuse, NY 13202 ONTARIO COUNTY Susan Jones 21 Sly Street Canandaigua, NY 14424 ORLEANS COUNTY Charles Plovanich, Esq. 17 State Street, Suite 400 Rochester, NY 14614 OSWEGO COUNTY Joseph G. Rodak, Esq. 55 W. Second Street Oswego, NY 13126 SENECA COUNTY Nancy M. Lord, Esq. 40 Canal Street, P.O. Box 86 Lyons, NY 14489 STEUBEN COUNTY Sally A. Madigan, Esq. 34 Warden Street, PO Box 214 Bath, NY 14810 WAYNE COUNTY Robert DiNieri, Esq. 47 Glasgow Street Clyde, NY 14433 WYOMING COUNTY Teresa Kowalczyk, Esq. 30 Park Street Warsaw, NY 14569 YATES COUNTY Dianne S. Lovejoy, Esq. 126 Main St., P.O. Box 412 Penn Yan, NY 14527 -23- LAW GUARDIAN PROGRAM COMPENSATION AND REIMBURSEMENT GUIDELINES Internet Voucher System: The Department of Technology of the Office of Court Administration, the four Law Guardian Programs and their respective tech units have completed the majority of work on the Internet Voucher System. In the following pages, you will find compensation and reimbursement guidelines, and also step-by-step instructions on how to use the system, and how to submit the voucher through the internet system. The new system will further expedite payments and attorneys for children will be able to track voucher payments. -24- COMPENSATION AND REIMBURSEMENT GUIDELINES (B) Law Guardian Payment Policies A. Compensation for legal services 1. Panel membership required a) An attorney must be a member of a county law guardian panel to be compensated by the Appellate Division Law Guardian Program for representing a child in Family, Supreme or Surrogate's Court. b) Panel members must comply with the attorney registration requirements of Judiciary Law 468-a, and are expected to notify the OCA Attorney Registration Unit and update their Law Guardian Internet Voucher System (LGIV) profile of any change of contact information. 2. Time records a) Attorneys for children must maintain sufficient time records to ensure that vouchers submitted reasonably and accurately reflect services provided to law guardian clients. b) All law guardian vouchers are subject to audit both before and after payment. 3. Compensation rate: The compensation rate for in and out-of-court time is $75 per hour. 4. In-court and out-of-court time a) In-court time is time spent at court facilities in conjunction with an appearance before a judge. b) In-court time includes: i. Time spent in the presence of the judge, either in the courtroom or in chambers; ii. Time spent in a court-ordered conference at court facilities in conjunction with an appearance, whether or not the judge is present. c) All other time expended in representing a law guardian client, including time spent at court facilities for purposes other than an appearance before a judge, e.g. reviewing files, meeting with client, is out-of-court time. d) The maximum claim for in-court and out-of-court services for one day is eight hours, unless the voucher is accompanied by a brief statement setting forth a reason the greater time was required. -25- 5. Representation in collateral matters a) An attorney for the child may be compensated for representation of a client in a legal or administrative matter collateral to the court proceeding for which the attorney for the child was assigned when: i. The collateral matter arises from the same circumstances as the assigned court proceeding; and ii. Representation by the attorney for the child in the collateral matter is required to assure the most favorable outcome for the client in the assigned court proceeding. 6. Voucher preparation a) Attorneys for children may not charge for time spent preparing law guardian vouchers or affirmations for the voucher. 7. Double-billing a) Double-billing is the practice of rendering legal services on multiple cases in a given period, and then requesting payment for the entire period on the voucher for each case. For example, waiting at court one hour for two cases to be called, and then requesting payment for one hour for each case, would be double-billing. Another example is charging travel time to court for each case when the attorney for the child appears in court on more than one case. (B) Expenses of Representation 1. In general a) The Law Guardian Program will pay reasonable expenses of representation, i.e., out-of-pocket expenses incurred by a law guardian on behalf of a client, but not office overhead costs. b) Expenses for in-office computer-assisted legal research (e.g. Westlaw and Lexis) and facsimile transmission (fax) charges are considered office overhead costs, and will not be reimbursed, although associated long distance charges are reimbursable. c) Expenses must be broken down, i.e., number of stamps, number of miles. 2. Travel a) Mileage is reimbursable at the statutory rate. You must enter the number of miles per trip. b) Tolls are reimbursable with receipts. c) Parking fees are reimbursable to $5.00 without receipts. d) Other travel expenses, including food and lodging, generally are not reimbursable. -26- 3. Transcripts Transcript charges > $300 must be approved by the Law Guardian Program. 4. Miscellaneous expenses a) Photocopying expenses will be reimbursed at the rate of 15 cents per page. b) Other itemized out-of-pocket expenses, such as long distance phone charges and postage, are reimbursable without additional documentation to a maximum of $15.00. c) Reimbursement claims for more than $15.00 must be documented by receipt or some other proof of payment. d) No reimbursement for printing of records and briefs (they should be copied). 5. Expert services--see section IV below. II. Preparation of Law Guardian Vouchers A. Introduction 1. Submission of voucher required a) To receive compensation for legal services to a client, unless an attorney for children has received an exemption s/he must have access to the Law Guardian Internet Voucher System (LGIV). In order to attain access you must obtain a user name and register your on-line account. If you do not have a user name, please call the Law Guardian Program. 2. When to submit vouchers a) In general, all claims for compensation and reimbursement for a proceeding should be submitted at the conclusion of the proceeding. b) Submission within 90 days i. Law Guardian Vouchers should be submitted to the court as soon as possible after the proceeding has concluded. ii. If the voucher is submitted on the LGIV more then 90 days from the last activity date, a warning will appear with the exact number of days that the voucher is overdue. In such cases you must complete an affirmation that will be available online. iii. The Law Guardian Program reserves the right to reject or to request additional documentation to support any claim for compensation received more than 90 days after the completion of services. -27- c) Interim vouchers i. With prior approval of the Law Guardian Program, an interim voucher may be submitted during the pendency of a proceeding of extraordinary duration where the attorney for the child has expended a substantial amount of time; or at the disposition phase of a case where permanency hearings are mandatory; or where another attorney is substituted in the case. ii. Please make your interim voucher request to the Director of the Law Guardian Program. Have your LGIV document ID number available in the event your request is granted. The document ID number can be found on the Open Dockets screen. d) Supplemental vouchers i. With the prior approval of the judge presiding, a supplemental voucher may be filed when additional legal services are required after the conclusion of a proceeding, such as monitoring implementation of the dispositional order. e) Supplemental affirmation i. If you do not meet with your client, you must submit an affirmation setting forth the reason. The affirmation form will be available online. 3. A trial court action and a subsequent appeal are regarded as separate proceedings, requiring preparation and submission of separate vouchers. 4. Cases that start in Family Court and are transferred to IDV court are regarded as separate proceedings, requiring preparation and submission of separate vouchers. B. Voucher preparation instructions Please Note: Before using the system for the first time, refer to the videos available on the Law Guardian home page to see how to use the system *The system requirements for using the LGIV system are as follows: A) Windows XP or higher, B) Adobe 8.0 or higher, C) Pop up blocker must be disabled, and D) Screen resolution must be set at 1024x768. -28- 1. Location of the Law Guardian Internet Voucher System: a) Enter through the Appellate Division, 4 Department home page at th www.courts.state.ny.us/ad4 b) Click on the Law Guardian link at the top. c) Click on the LGIV link on the side bar of the Law Guardian home page. d) A new screen will appear with the link, Law Guardian Internet Voucher System. Click on it to see the log-in page. e) Enter your user id and password and click on the submit button. If you have forgotten your password, please click on the forgot password link at the bottom of the screen. Follow the prompts to reset your password. 2. Logging into the System a) You will receive an email with a link to register your account. Click on the link that will take you to a page where you will be informed of your user name/user id and you will be able to create a password and challenge question. b) The password that you choose must be 6-10 characters in length. It must also contain at least one upper case letter, one lower case letter, and a number or character (Example: Sara123). It cannot be a password that you used previously. c) The first time you log in, you must check your law guardian profile by clicking on the LG Profile button to ensure that all your information is correct. In the event your profile changes, make changes as soon as possible. Your check will be sent to your profile address and your federal i.d. number or social security number will be used for tax reporting purposes. 3. Creating a New Voucher a) Click on the New Voucher button on the left hand side bar. b) From the drop down list, select the court that you appeared in. i. For Family Court, enter the family file number in the box labeled File #. Click on Add File #. If you do not know the file number, click on Find File # to search for the file number using the docket number. ii. For Supreme Court, enter the Index # in the box labeled Case # and click on Add Case #. iii. For Appellate Court, enter the CAF # in the box labeled Case # and click on Add Case #. c) Enter the clients name, and the proceeding code. -29- Proceeding codes are as follows: (A) Adoption (AP) Appeal (AS) Adoption Surrender (B) Commitment of Guardian and Custody (C) Conciliation (CO) Court Reporter (CR) Criminal Action (D) Juvenile Delinquency (E) Designated Felony Delinquency (F) Support (G) Guardianship (H) Handicapped (HC) Habeas Corpus Writ (I) Informal (J) Public Health (K) Foster Care Review (L) Approval of Foster Care (M) Consent to Marry (N) Child Protective Proceeding (NA) Neglect/Abuse (NN) Neglect (O) Family Offense (OC) Other Civil Proceeding (P) Paternity (Q) Visitation (R) Referred from Supreme Court (S) PINS (U) Uniform Support of Dependantss Law (V) Custody of Minors (VS) Supreme Court Case (W) Extension of Placement (X) Other (Z) Misc d) Enter the disposition, if you have it. If not, you may leave this field blank and come back to it later. (Example: Joint legal custody, physical custody to petitioner, visitation to respondent.) e) Select the dockets that you want to voucher from the Available Dockets list by clicking on the docket(s) and clicking on the select button. f) Once the docket(s) have been selected, click on the Continue with Activities button. 4. Adding out-of-court time a) Click on the Add New button on the right hand side of the screen. b) Select the appropriate out-of-court activity code. Activity Codes are as follows: Out-of-court codes: A - Review Documents B - Client Interview C - Travel D - Correspondence E - Legal Drafting F - Legal Research G - Investigation H - All Other In-court codes: J - Initial Appearance K - Pre-trial Hearings L - Fact Finding M - Disposition N - All Other Expense Codes: P - Expenses Q - Mileage -30- c) Enter the date of activity (mm/dd/yyyy). d) Enter the amount of time spent in hours or tenths (.10) of hours, to the nearest tenth of an hour. e) Enter the activity summary (a brief description of the services provided) i. The following information must be included for the following activity codes: A. Review Documents: Describe documents reviewed, e.g., Review petition and file. B. Client Interview: Include the location of where you met with your client, e.g., Met with client at office. C. Travel: Indicate place of departure and destination. D. Phone/Correspondence: Indicate other party and subject. E: Legal Drafting: Indicate document type and subject. F: Legal Research: Indicate subject. P: Expenses: Detail the expense including type, quantity and price per item, e.g., Copies 5 @ .15 each. Q: Mileage: Indicate place of departure and destination. f) Click on the Submit button on the bottom left side of the screen. g) To add a new activity, click on the Add New button every time you want to add another activity. 5. Using the Multiple Out-of-court Activities Button a) Click on the Enter Multiple out-of-court Activities button on the top right hand side of the activity box. b) Enter the date of activity (mm/dd/yyyy). c) Enter the time spent (.10s). d) Enter the activity summary. e) Click on the Add Activity button. f) When finished, click on the Submit Activities button to submit the activities to the voucher. Please be aware that if you exit out of this screen without pressing the Submit Activities button, your activities will not be saved to the voucher. 6. Adding In-Court Time a) Click on the Add New button. b) Select an in-court activity code. c) For Family Court, a drop down list of appearances will appear. Select the correct date by clicking on it. For any other court, enter the date that you appeared in court (mm/dd/yyyy). d) If you appeared in court on the same day for multiple dockets, you will have the option to group them together as one charge, or you may charge them separately. e) In the activity summary field, enter what you appeared in court for, e.g., Pre- trial conference. -31- f) Click on Apply to submit the activity to the voucher. e) You must click on Add New to add another in-court activity. 7. Entering Expenses Other than Mileage a) Click on the Add New button. b) From the drop down menu, select P-Expenses for expenses other than mileage. c) Enter the date of the expense (mm/dd/yyyy). d) Enter the amount that was spent on that date, e.g., 1.20. Do not enter any characters other then numbers, e.g., 1.20, not $1.20. e) In the activity summary field, enter the quantity, and indicate what the expenditure was, e.g., 8 copies @ .15 each. f) Click on Apply. g) Click on Add New to add another activity to the voucher. h) If an expense charge requires a receipt, send the receipt to the Law Guardian Program with the attached cover sheet that is available on the system. Please note that expenses must be separated by category, e.g., copies must be listed as one expense, postage as another. Expenses that require receipts: Tolls Parking if over $5.00 Long Distance Phone Calls if over $15.00 Postage over $15.00 Process Service (copy of invoice needed) 8. Entering Mileage a) Click on the Add New button. b) Select Q-Mileage from the drop down list of activities. c) Enter the date that you traveled (mm/dd/yyyy). d) Enter the number of miles that you traveled. Round to the nearest whole number, e.g., 23, not 23.3. e) In the activity summary field, indicate the starting point and the destination of the trip. f) Click on Apply to submit the mileage expense to the voucher. g) Click on Add New to add another activity. 9. Attaching an Affirmation a) To attach an affirmation, click on the button on the bottom of the screen. b) You will be on a new screen that will show the court you appeared in, the docket numbers used for the voucher, and a list of warnings that require affirmations. -32- c) In the box labeled affirmations, enter the reasons as appropriate. d) Click on Save and Continue to prepare the required affirmations and to submit the voucher for payment. Click on Save and Return to Activity Tab to go back to entering activities. Click on Pre-view Affirmation to see a .pdf of the affirmation. e) When you submit the voucher and affirmations for payment, you will see a screen with the list of warnings and the reasons entered. You must verify that all warnings are explained by clicking on the checkmark box next to the warning. You will not be able to submit until all warnings are explained and checked off. f) Once all affirmations are checked, click on the I Affirm button to submit the voucher for payment. 10. Saving, Printing, and Submitting a) If you are working on a voucher, and would like to return to it at another time, click on the OK button to save your work. You can come back to it at another date. b) To continue work on a saved voucher, go to the Open Vouchers button on the task bar. Click on the clients name, and click on Select to Update. c) To print out the activity page without submitting it, click on the Print Activity Page button. Another screen will appear where you can print your voucher. d) To submit the voucher for payment and print out a hard copy for your records, click on the Submit and Print button. Make sure that the voucher is complete as you will not be able to return to make any changes. 11. Reports and Extracts You may access a number of different reports. Click on the Reports and Extracts button, and select the report you want from the drop down menu. a) Attorney Assignment Report i. You may find assignments by a search through a date range, or by a docket number. ii. Enter a date range of up to 30 days and click on Search to view assignments between the two dates. iii. Enter the specific docket number and click on Search to view the assignment details of the specified docket. b) Generate Activity Extract i. You may extract data from a voucher to import into a spread sheet program, e.g., Microsoft Excel. ii. Enter the LGIV document ID number. iii. Enter the date range of activities you would like to export and click on Search. iv. To export the activities, click on the Download Extract button and save the data. You will then have to export the information using your own spread sheet program. -33- c) Submitted Voucher Report I. You may use the submitted voucher report to view where a voucher is in the payment process. You also may print out a hard copy of the voucher. ii. To search for a voucher, enter a date range of up to 30 days between where you would have submitted the voucher. iii. Click on Search. iv. A list of vouchers that you submitted within the time specified will appear. You will be able to see at what point the voucher is in the payment process by looking across the row. Submitted, means the voucher is still with the court or the Appellate Division. If OCS has received it, the check date will appear. v. To print out a hard copy of the voucher, click on the clients name so that it is highlighted. Click on print preview voucher and a new screen will appear from which you may print. d) Un-vouchered Dockets i. You may use the un-vouchered dockets report to see a list of dockets that have not yet been vouchered. ii. To generate the list, enter a date range of up to 30 days during which you were assigned and click on Search. iii. Click on Print Preview Report if you would like to print a copy for your records. 12. Searching for Court Appearances a) Click on the Search button on the task bar. b) Enter the docket number and the court you appeared in, and click on Search. c) All court appearances for that docket number will appear. If there is a document ID listed, that is the voucher to which the court appearance has been charged. 13. Excess Compensation a) Vouchers requesting compensation in excess of the statutory limit ($4400) must be accompanied by an affidavit or affirmation detailing the "extraordinary circumstances" that underlie the claim, i.e., the characteristics of the case that necessitated an expenditure of time resulting in a claim in excess of the statutory limit. Such factors may include: i. Complex factual issues; e.g., mutual allegations of serious wrongdoing by bitterly hostile parties in a custody proceeding, requiring extensive investigation and intervention by the law guardian; ii. Complex legal issues; e.g., evidentiary considerations surrounding the forensic use of a novel scientific concept; iii. Extensive in-court time; and -34- iv. Extended duration; e.g., a case in active litigation for more than one year. b) This listing is not intended to be exhaustive. However, the affidavit should not merely reiterate that the time claimed in the voucher was expended, but rather should describe briefly the factual and/or legal circumstances involved in that required the expenditure of that time. c) The limit applies only to claimed compensation, not to expenses of representation. If the voucher total minus expenses of representation is less than the limit, the claim for compensation does not exceed the statutory limit, then no affidavit is required. 14. Appeals Voucher a) Appeal vouchers should be entered into the LGIV system, printed and submitted to the Law Guardian Program. Include a copy of the voucher, the brief and the Appellate Division decision/order. III. Expert Services A. The Law Guardian Program has authority to pay reasonable expenses of representations, i.e., compensate non-lawyer experts, such as investigators, physicians, mental health professionals and social workers for services to law guardian clients that are necessary to assure effective representation. The Law Guardian Program prefers that you use the model order for expert services. B. Authorization and Allocation - If the expert fee will be greater than $1000, you must obtain authorization by e-mail or telephone to the Director or Assistant Director of the Law Guardian Program. 1. Services to the Child Only i. The Law Guardian Program is responsible for the full cost of expert services provided solely to a client. 2. Services to the Child and Participants Jointly i. The Law Guardian Program is responsible for a proportionate share of the cost of expert services when those services are provided jointly to a client and other participants in a proceeding. ii. When services are provided jointly to all participants in a proceeding, the trial court will allocate the cost of the services among the participants. -35- 3. Services Not Reimbursable The Law Guardian Program is not authorized to pay for expert services to participants in a proceeding other than the client, or for services unrelated to the clients representation, such as treatment or counseling. 4. Compensation Guidelines The Chief Administrator of the Courts has adopted the following hourly rates as guidelines for payment of non-lawyer professionals under Judiciary Law 35 and County Law 722-c: i. Psychiatrist $125.00 ii. Certified Psychologist $ 90.00 iii. Physician $200.00 iv. Certified Social Worker $ 45.00 v. Licensed Investigator $ 32.00 C. Payment to the Expert Service Provider: a) The expert is compensated directly by the Law Guardian Program after services have been rendered upon submission of an appropriate voucher. b) To obtain direct payment in this manner, the expert: I. completes a Form JC 2020, inserting the phrase see attached in the space provided on the voucher for description of services; ii. Attaches supporting documentation - the service providers customary invoice or statement containing an entry for each day on which services were rendered, including the date, the time expended, and a brief summary of the services provided, including the name of the individual to whom the services were rendered; and iii. submits the original and one copy of the voucher and supporting documentation to the trail court for endorsement by judge and transmittal of the original voucher to the Law Guardian Program. V. Obtaining Trial Transcripts An attorney for the child may obtain transcripts for use in representing a client either at trial or an appeal by using the New York State Law Guardian Minute Order Form. The stenographer/transcriber provides the transcript directly to the law guardian, who incurs no out-of- pocket expense because transcript costs are pain by the Law Guardian Program. A motion for poor person relief is not required. An attorney for the child should obtain a Minute Order Form from the Family Court Clerks Office ro the Law Guardian Program Office, and then take the following steps: A. The attorney for the child completes the top portion of the Minute Order Form and present the form to Family Court for the judges endorsement; -36- B. Following the judges action, Family Court retains a copy of the form and returns the remaining copies to the attorney for the child for transmittal to the stenographer/transcriber; C. Upon receiving the form with the judges endorsement, the stenographer/transcriber prepares two certified copies of the transcript. One copy is to be filed with the Family Court Clerk, and the second copy is delivered to the attorney for the child; D. When the transcript is delivered, the attorney for the child endorses the appropriate portion of the form; E. The stenographer/transcriber retains a copy of the form and forwards the remaining copies, together with a completed Standard Voucher to the Law Guardian Program for review and payment. Vouchers are available from the Family Court Clerk and from the Law Guardian Program. -37- TRAINING AND EDUCATION OF ATTORNEYS FOR CHILDREN I. Introduction To help assure the highest quality representation of children, the rules of the Appellate Division, Fourth Department, require that attorneys for children receive introductory training and continuing legal education to remain eligible for law guardian assignments. The Law Guardian Program conducts a series of seminars each year to assist attorneys for children in meeting these requirements. Announcements of seminars are sent directly to attorneys for children in the semi- annual mailings, are published in the Law Guardian Reporter, and appear on the Law Guardian website. At the time of this publication, all seminars, including reference materials and meals, are provided at no cost to attorneys for children. The Appellate Division, Fourth Department has been approved by the New York State Mandatory Continuing Legal Education Board as an accredited provider of continuing legal education. Seminars conducted by the Law Guardian Program may be credited toward compliance with the states continuing legal education requirements, as well as with the Appellate Divisions rules on law guardian training and education. II. Law Guardian Training and Education Requirements A. Introductory Training 1. Attorneys for children must receive introductory training prior to initial panel designation. 2. To enable attorneys for children to meet this requirement, the Law Guardian Program presents a two-day Effective Law Guardian Representation seminar twice each year, usually in March and November. The seminar presents an overview of all types of proceedings in which attorneys for children represent children. So that prospective attorneys for children from throughout the Department can participate, as of the time of this publication, the Law Guardian Program will provide meals and lodging for those required to attend from beyond commuting distance (80 miles each way) of the seminar location. B. Continuing Legal Education of Experienced Attorneys for Children 1. To be eligible for continuing designation as a panel member when county panels are re-certified on April 1 of each year, an attorney for the child must have attended at least one continuing legal education program sponsored by the Law Guardian Program within the previous two years. 2. To enable attorneys for children to meet this requirement, the Law Guardian Program presents each year a one-day seminar on a matter of particular interest to attorneys for children and several update seminars. -38- FOR CURRENT CLE REGULATIONS GO TO WWW.NYCOURTS.GOV/ATTORNEYS/CLE -39- ADMINISTRATIVE HANDBOOK ATTACHMENTS -40- MODEL AFFIDAVIT OF EXTRAORDINARY CIRCUMSTANCES STATE OF NEW YORK FAMILY COURT, ____________ COUNTY
SUE SMITH, Petitioner, AFFIDAVIT -V- DOCKET NO: JOHN JONES, Respondent.
(ATTORNEY FOR THE CHILD), ESQ., being duly sworn deposes and says: 1. I am an attorney licensed to practice law in the State of New York with an office at 100 State Street, Rochester, New York 14614. I was appointed attorney for the child by Honorable Sharon Swartz in the above captioned matter on May 1, 2006. 2. The fee of deponent in the above captioned matter are in excess of the statutory limit because of unusual and extraordinary circumstances. 3. Deponent represented one child on a petition to modify a prior order of custody. 4. Deponent expended significant in-court time on this matter. A full trial was held over the course of three days. 5. Deponent expended significant out-of-court time on this matter because: A) Respondent made serious allegations that the paramour of petitioner sexually abused his own children and the children of petitioner and respondent. Because of the seriousness of the allegations and the potential for risk to the child, deponent interviewed persons alleged to have knowledge of the alleged abuse, i.e., Monroe County Department of Social Services, the childs prior attorney from Erie County, the respondents former attorney in Erie County, and the respondents former wife. B) This case has had an extensive procedural history in Monroe and Erie counties. Therefore, it was necessary for deponent to review the records and orders for both Courts in both counties. The child had a prior attorney from Erie County, who was consulted at length about this matter. Deponent also investigated the fathers extensive history of failure to appear for scheduled court dates and the resulting default orders entered against him. -41- C) Both petitioner and respondent have suffered from serious mental illness, which necessitated significant time to investigate the issue. 6. Deponent believes that the time expended was necessary and proper to the representation of the child and was not excessive in light of the extraordinary circumstances of the case. WHEREFORE, deponent prays that fees and disbursements incurred as reflected by the attached voucher dated January 30, 2007, be approved and certified by Family Court, Monroe County.
Attorney for the Child Subscribed and sworn to before me this day of , 20___ .
Notary Public -42- __________________________________ STATE OF NEW YORK COUNTY OF ; COURT IN THE MATTER OF , PETITIONER, V. , RESPONDENT. ORDER AUTHORIZING EXPERT SERVICES Docket No. Upon appropriate inquiry, it has been found by this Court that the services of (expert's name) are necessary and proper and it is therefore ORDERED that (expert's name) is appointed to conduct forensic evaluations of the following child[ren] and parties: NAME RELATIONSHIP
and shall submit a report to the Court by , 20 ; and it is further ORDERED that compensation for the forensic evaluations and any court appearances shall be paid proportionately to the ratio of adult parties evaluated and child[ren] evaluated. If the adult party has assigned counsel, the expert shall be -43- compensated for the adults proportional share of the evaluation pursuant to Article 18-B, Section 722-C of the County Law. If the adult party does not have assigned counsel, the adult party shall compensate the expert for his or her proportional share of the evaluation on or before , 20 . The child[ren]s portion of the evaluation shall be paid by the Law Guardian Program of the Fourth Department pursuant to Section 35 of the Judiciary Law. The total evaluation shall not exceed $ (cap) at a rate not to exceed $ per hour. This authorization includes expert testimony should that become necessary; and it is further ORDERED that the parties submit Dr. 's statement for services to their respective health insurance carriers, such that those carriers will be a primary source of payment for the expert services; and it is further ORDERED that (DSS, or other agency, hospital, school, expert, etc., as appropriate) cooperate in making themselves and their records available to (experts name); and it is further ORDERED that each party execute any and all consents that may be requested by (experts name) in connection with the evaluation; and it is further ORDERED that if it is anticipated that the evaluation may exceed the maximum limit, then a supplemental request will be made to the Court for additional compensation. Dated: