Opinion
January 29, 1985
Ira Fischer, movant pro se. Farley, Jutkowitz, Balint Weiderkehr for plaintiff.
Jerrold M. Levy, amicus curiae.
In this matrimonial action, defendant previously made application for permission to proceed as a poor person and for the assignment of counsel. By order entered July 16, 1984, this court granted the application and assigned Ira Fischer, Esq., as counsel for defendant "without any compensation whatever, except that if a recovery is had the Court may allow the said attorney * * * a reasonable sum for his services and taxable disbursements". Assigned counsel now moves to vacate the prior order of this court upon the ground that it was allegedly "issued without legal authority and is in violation of the 14th and 16th Amendments to the Constitution of the United States". The motion is denied.
A prior application by counsel to be relieved was denied by order of this court, entered on August 31, 1984. Counsel was given leave to renew upon papers in compliance with CPLR 321 (b) (2).
This court has the inherent power to assign counsel in a proper case ( Matter of Smiley, 36 N.Y.2d 433; CPLR 1102 [a]). Concomitantly, counsel has the duty to provide uncompensated services for the indigent (Code of Professional Responsibility, Canon 2, EC 2-25, 2-29). Absent a showing, not made here, that counsel has a compelling reason to seek to be excused or that the assignment of counsel, as a general practice, has become intolerable ( Matter of Smiley, supra, at p 441), the assignment of counsel without compensation does not violate an attorney's constitutional rights ( Family Div. Trial Lawyers v Moultrie, 725 F.2d 695). Accordingly, this court's order assigning Ira Fischer, Esq., as counsel for defendant was proper and will not be vacated.
The stay contained in the order to show cause signed by Mr. Justice Gagliardi on October 26, 1984, is hereby vacated. Defendant shall have 20 days from the date of the entry of this order within which to serve an answer.