Can a New York county use its public defender's office to represent indigent people in Mental Hygiene Law Article 81 guardianship proceedings?

Plain-English summary

Article 81 of New York's Mental Hygiene Law lets a court appoint a guardian for someone who can no longer manage personal needs or property. The person who is the subject of the proceeding, the "allegedly incapacitated person," has a statutory and constitutional right to counsel, and the court must appoint counsel in certain circumstances. The statute is silent, though, on who pays for that lawyer when the allegedly incapacitated person is indigent.

The Court of Appeals filled that gap in Matter of St. Luke's-Roosevelt Hosp. Ctr., 89 N.Y.2d 889 (1996), holding that the assignment is "appropriately funded by the City of New York in accordance with the procedures set forth in County Law article 18-B." Article 18-B is the statewide indigent defense framework. It requires every county and New York City to adopt a plan to represent indigent criminal defendants and certain indigent civil litigants (Family Court Act §§ 262 and 1120 cases, SCPA § 407 cases, Correction Law article 6-C). The county can pick one of three structures, or a combination: a public defender, a legal aid society, or an assigned-counsel ("18-B panel") system.

Greene County's plan was a combination: the public defender handled cases, and if the public defender had a conflict, an assigned private attorney from a panel took the case. The County Attorney asked the AG whether the County could also use its public defender for court-appointed representation of indigent Article 81 respondents.

The AG concluded yes. The public defender's statutory duty list in County Law § 717 does not specifically include Article 81 representation, but the Court of Appeals in St. Luke's-Roosevelt tied Article 81 funding generally to article 18-B's "procedures." Article 18-B's procedures include the public-defender option, so the St. Luke's-Roosevelt holding authorized the county to use whatever 18-B mechanism it had adopted, including a public defender, for these guardianship cases. The AG noted that the County's plan handled conflicts by sending the case to assigned private counsel. The opinion also pointed back to the legislative intent of article 18-B: counties were given a choice of plans precisely so they could "design a program tailored to the needs of each county."

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does the public defender have to take these cases under § 717?
County Law § 717 lists the public defender's enumerated duties and Article 81 representation is not among them. The opinion's point was different: an article 18-B plan that includes a public defender can route Article 81 court-appointed work to that office, even though § 717 alone does not require it.

What if the public defender has a conflict?
The AG's analysis assumed the county already had a conflict mechanism in its plan. Greene County's combination plan sent conflict cases to an assigned private attorney. A county with a different structure would need a comparable backstop, because a represented party with a conflict cannot be represented by the conflicted office.

Is this only about Greene County?
The reasoning is general. The opinion turns on the structure of article 18-B and the holding in St. Luke's-Roosevelt, both of which apply statewide. A county that has a public defender as part of its 18-B plan can rely on the same analysis.

Did the AG decide who pays?
The funding question is the heart of St. Luke's-Roosevelt: counsel for indigent Article 81 respondents is funded as part of the county's article 18-B program. The AG's contribution was to confirm that funding mechanism includes a public-defender office, not just an assigned-counsel panel.

What about Mental Hygiene Legal Service?
The opinion did not address MHLS, which has its own statutory role. The question was specifically whether the County could route Article 81 court-appointed counsel work to its public defender, not whether other state mechanisms could be used.

Background and statutory framework

County Law article 18-B was enacted in 1965 as New York's response to the federal constitutional right to counsel announced in Gideon v. Wainwright. The Attorney General's 1965 legislative program for the bill explained that the multiple-plan design was intentional: "This latitude would enable the county supervisors . . . to design a program tailored to the needs of each county." Section 722 lays out the three options (public defender appointed under article 18-A, legal aid society, or assigned-counsel panel) and allows combinations.

Article 81 of the Mental Hygiene Law, enacted in 1992, replaced earlier committee and conservatorship statutes with a flexible guardianship regime. Section 81.10 governs counsel: the allegedly incapacitated person may pick counsel, and the court must appoint counsel in defined circumstances. Reasonable compensation is set by the court and the person is liable for it unless found indigent. The Article 81 statute does not say who pays when the person is indigent.

St. Luke's-Roosevelt closed that gap. The Court of Appeals held that funding flows through County Law article 18-B. The 2006 opinion read St. Luke's-Roosevelt to mean that whichever 18-B mechanism a county had chosen (public defender, legal aid society, or assigned-counsel panel) could carry the Article 81 work. That includes a public defender office.

Citations

• Mental Hygiene Law Article 81; § 81.10(a) (right to counsel of choice), (c) (court-appointed counsel), (f) (court sets compensation; indigent persons not liable).
• County Law Articles 18-A and 18-B; § 717 (public defender duties); § 722 (three-plan structure).
• Family Court Act §§ 262 and 1120; Surrogate's Court Procedure Act § 407; Correction Law Article 6-C; Judiciary Law § 35 (cross-referenced indigent-counsel mechanisms).
• Matter of St. Luke's-Roosevelt Hosp. Ctr., 89 N.Y.2d 889, 892 (1996).
• Attorney General's Legislative Program for 1965, No. 39 (legislative history of 18-B's flexibility).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2006-9_pw.pdf

Original opinion text

Mental Hygiene Law Articles 81, 81.10; County Law Articles 18-A, 18-B, §§ 171, 722; Family Court Act §§ 262, 1120; Surrogate's Court Procedure Act § 407; Correction Law Article 6-C; Judiciary Law § 35

A county that fulfills its responsibility under County Law article 18-B with a public defender may rely upon the public defender to represent indigent allegedly incapacitated persons.

September 29, 2006

Carol D. Stevens
County Attorney
Greene County
411 Main Street
Catskill, New York 12414

Informal Opinion No. 2006-9

Dear Ms. Stevens:

You have requested an opinion regarding whether the County may rely upon its Public Defender to act as counsel in certain proceedings. Pursuant to article 81 of the Mental Hygiene Law, a person who is allegedly incapacitated and is thus the subject of a proceeding to appoint a guardian for him or her is entitled to be represented by counsel of his or her choice. Mental Hygiene Law § 81.10(a). A court must appoint counsel for the allegedly incapacitated person under certain circumstances. Id. § 81.10(c). The court determines the reasonable compensation for any attorney appointed pursuant to this authority, and the person alleged to be incapacitated is liable for payment of such compensation unless the court finds that the person is indigent. Id. § 81.10(f).

Article 81 is silent with respect to who bears responsibility for paying counsel appointed to represent an allegedly incapacitated person who is determined to be indigent. The Court of Appeals was faced with this issue in Matter of St. Luke's-Roosevelt Hosp. Ctr., 89 N.Y.2d 889, 892 (1996). Before the Court was the question of whether New York City or the State was liable for payment of counsel. After recognizing that an allegedly incapacitated person who was the subject of the article 81 proceeding had a constitutional as well as a statutory right to appointed counsel, the Court of Appeals held that "assignment of counsel here is appropriately funded by the City of New York in accordance with the procedures set forth in County Law article 18-B." 89 N.Y.2d at 892.

County Law article 18-B requires the governing body of each county and New York City to adopt a plan for the representation of indigent persons charged with a crime and indigent persons who are entitled to counsel pursuant to sections 262 or 1120 of the Family Court Act, section 407 of the Surrogate's Court Procedure Act, or article 6-C of the Correction Law. County Law § 722. A county's plan must be one of the following: (1) representation by a public defender appointed pursuant to County Law article 18-A; (2) representation by a private legal aid society; or (3) representation by counsel furnished pursuant to a plan of a bar association for assigning private counsel on a rotating basis (referred to as "18-B panels"). Id. A county may also adopt a combination of these plans. Id.

You have advised that Greene County has adopted a combination plan to fulfill its responsibilities under article 18-B, with a public defender and, in the event the public defender has a conflict of interest in representing a person in a particular instance, representation by assigned private counsel. You have asked whether, in instances where a court has ordered appointment of counsel for an allegedly incapacitated person, the County may rely upon its public defender for this representation.

We recognize that the public defender's statutory duties, contained in County Law § 717, do not include representation of such individuals. However, we are of the opinion that because the public defender is the entity charged with providing representation in Greene County pursuant to article 18-B, it may be tasked with representation of allegedly incapacitated individuals as well.

We base this conclusion on the Court of Appeals' decision in St. Luke's-Roosevelt. As explained above, the Court concluded that "assignment of counsel here [for allegedly incapacitated persons] is appropriately funded . . . in accordance with the procedures set forth in County Law article 18-B." Although the Court of Appeals relied in part on evidence that article 18-B panels are better able to provide the needed assistance than are counsel assigned pursuant to Judiciary Law § 35, 89 N.Y.2d at 892, the Court did not limit its holding regarding assignment and payment of counsel to 18-B panels. Because the "procedures set forth" in article 18-B for funding the representation of indigent persons include representation by a public defender, we interpret the Court's statement in St. Luke's-Roosevelt as authorizing the County to rely upon its public defender to represent allegedly incapacitated indigent persons who are the subject of an article 81 proceeding, where the court determines that counsel should be appointed. This interpretation of St. Luke's-Roosevelt allows a county to structure its program for the representation of indigent allegedly incapacitated persons in the way that will best meet the county's needs, which was one of the reasons for allowing counties the choice of three plans or a combination thereof. See Attorney General's Legislative Program for 1965, No. 39, at 45 ("This latitude would enable the county supervisors . . . to design a program tailored to the needs of each county.").

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions