Opinion
December 28, 1976
Order, Supreme Court, Bronx County, entered July 6, 1976, unanimously modified, in the interest of justice and exercise of discretion, to vacate that portion thereof which denied defendant-appellant's application for assignment of counsel to defend plaintiff-respondent's suit for divorce and to remand with a direction that Special Term so appoint counsel without fee, and otherwise affirmed, without costs and without disbursements. The application was to open defendant husband's default, to allow him to proceed as a poor person, and to assign counsel whose fee would come from public funds. There is no constitutional right to the latter aspect (see Smiley v Smiley, 45 A.D.2d 785) relied on by Special Term. However, defendant has established indigency beyond doubt, and, "in the circumstances, counsel should have been assigned in accordance with the Bar's traditional responsibility `to willingly accept assignments * * * to help those who cannot afford financially to help themselves.' Jacox v Jacox, 43 A.D.2d 716." (Yearwood v Yearwood, 54 A.D.2d 626). The Legal Aid Society, which represents defendant-appellant on this appeal, is not able in the current financial stringency, to accept assignment of an unlimited number of cases of this kind without compensation, and it becomes necessary for the Bar, as of old, to fulfill its longtime duty. (See, in this regard, 100th Ann Report, Legal Aid Society, 1975-1976, and discussion in XXII N Y Law School L Rev, Justice for the Poor, pp 96-98, The Problem in Divorce Litigation.)
Concur — Stevens, P.J., Markewich, Kupferman, Birns and Capozzoli, JJ.