
    In the Matter of Ernest Brown, Appellant, v Abe Lavine, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued June 11, 1975;
    decided July 8, 1975
    
      
      Robert L. Becker and Mark H. Spires for appellant.
    I. The nature and scope of "fair hearings” are governed by the due process clause of the Fourteenth Amendment of the United States Constitution. (Almenares v Wyman, 334 F Supp 512; Grannis v Ordean, 234 US 385; Armstrong v Manzo, 380 US 545; Greene v McElroy, 360 US 474; Interstate Commerce Comm. v Louisville & Nashville R. R., 227 US 88; Willner v Committee on Character, 373 US 96; Goldberg v Kelly, 397 US 254; Matter of Murphy v Lavine, 77 Misc 2d 772, 43 AD2d 971; Matter of Mas v Lavine, 76 Misc 2d 344, 43 AD2d 831; Matter of Collins v Wyman, 38 AD2d 600.) II. The outcome of a State "fair hearing” can gravely affect the recipient. (Matter of Ella B., 30 NY2d 352; People v Hunter, 34 NY2d 432.) III. Petitioner is entitled to the assignment of private counsel where legal services are unavailable. (Vanderpool v Vanderpool, 40 AD2d 1030; Cerami v Cerami, 44 AD2d 890.) IV. Due process requires that counsel be assigned to petitioner to represent him at his "fair hearing”. (Powell v Alabama, 287 US 45; Gideon v Wainwright, 372 US 335; Argersinger v Hamlin, 407 US 25; Duncan v Louisiana, 391 US 145; Coleman v Alabama, 399 US 1; Douglas v California, 372 US 353; Henry v Warner, 357 F Supp 495; Matter of Ella B., 30 NY2d 352; Matter of Jennings v Jennings, 42 AD2d 568; Rudd v Rudd, 45 AD2d 22.)
    
      Louis J. Lefkowitz, Attorney-General (Thomas R. McLoughlin and Samuel A. Hirshowitz of counsel), for Abe Lavine, respondent.
    I. Petitioner-appellant is permitted to be represented by counsel at his fair hearing. However, he is not entitled to have such counsel assigned without cost and failure to do so did not deprive petitioner-appellant due process of law. (In re Groban, 352 US 330; Anonymous v Baker, 360 US 287; Federal Communications Comm. v Schreiber, 381 US 279; Madera v Board of Educ. of City of N. Y., 386 F2d 778, 390 US 1028; United States v Sturgis, 342 F2d 328; Niznick v United States, 173 F2d 328, cert den sub nom. Comodor v United States, 337 US 925; United States v Pitt, 144 F2d 169; Seuss v Pugh, 245 F Supp 661; Smith v General Truck Drivers, Union Local 467, 181 F Supp 14; Nason v Immigration & Naturalization Serv., 370 F2d 865.) II. Free legal representation for public assistance recipients at fair hearings is explicitly conditioned upon Federal regulations. There is no regulation which requires such representation. (Jacox v Jacox, 43 AD2d 716; Matter of Van Berkel v Power, 16 NY2d 37; Matter of New 
      
      York El. R. R. Co., 70 NY 327.) III. To declare that due process requires the assignment of counsel without cost at a State fair hearing would necessitate ignoring weighty considerations and require going far beyond anything indicated by past "right to counsel” decisions. (In re Groban, 352 US 330.)
    
      Kalman Finkel and John E. Kirklin for The Legal Aid Society of New York City, amicus curiae.
    
    An indigent welfare recipient unable to obtain counsel has a constitutional right under the due process and equal protection clauses of the Federal and State Constitutions to the assignment of counsel without cost in a welfare fair hearing in which the State seeks to terminate his subsistence benefits on grounds involving fraud allegations which could provide the basis for a criminal prosecution. (Argersinger v Hamlin, 407 US 25; Gideon v Wainwright, 372 US 335; In re Gault, 387 US 1; Gagnon v Scarpelli, 411 US 778; People v Witenski, 15 NY2d 392; People ex rel. Rogers v Stanley, 17 NY2d 256; People ex rel. Menechino v Warden, Green Haven State Prison, 27 NY2d 376; People ex rel. Silbert v Cohen, 29 NY2d 12; Matter of Ella B., 30 NY2d 352; People ex rel. Calloway v Skinner, 33 NY2d 23.)
   Jasen, J.

The issue is whether a recipient of public assistance is entitled to the assignment of counsel at a statutory fair hearing to discontinue such aid.

Petitioner received aid to the disabled assistance. In January, 1973, the respondent Commissioner of the Department of Social Services of the City of New York served him with a notice of intent to discontinue. The stated reason was "Eligibility Apparently Established, Subsequently Disproved.”

A fair hearing (18 NYCRR 358.1 et seq.) was requested. On the hearing date, petitioner appeared, was furnished an abstract form of charges and was granted an adjournment to obtain representation. Thereafter, the Queens Legal Services Corporation was contacted, but declined to represent petitioner because of staff limitations. On the adjourned hearing date, petitioner again appeared and requested the hearing officer to assign counsel to represent him. The request was refused and the hearing was again adjourned.

This proceeding pursuant to CPLR article 78 was then brought for an order directing respondent Commissioner of the State Department of Social Services to assign counsel. Special Term denied the application and dismissed the petition on the grounds that assignment of counsel was not authorized by statute nor required as a matter of constitutional due process. The Appellate Division (45 AD2d 858), one Justice dissénting, affirmed and petitioner has appealed to this court as of right.

There should be an affirmance. It is settled that the rudiments of due process — notice and an opportunity to be heard —must be observed at the fair hearing. (Goldberg v Kelly, 397 US 254.) But beyond this, no Legislature or court has gone. Indeed, we know of no Federal or State social welfare system that provides representation for indigent claimants as a matter of right. (Cf. Social Services Law, § 131-c; but cf. US Code, tit 33, § 939, subd [c], par [1] [authorizing limited use of government-provided counsel under the Longshoremen’s and Harbor Workers’ Compensation Act].) And the Supreme Court, while recognizing that counsel may be helpful at hearings of this type (Goldberg v Kelly, 397 US 254, 270-271, supra), has declined thus far to declare the assistance of counsel essential so as to be embraced within the due process guarantee.

It cannot be gainsaid that we treat with an important property interest and that the essentials of due process must be observed before that interest may be affected. What process is due, in the fair hearing context, is the general question and more specifically whether the right to assigned counsel is included.

We think the present regulations (18 NYCRR 358.1 et seq.) promulgated under the Social Services Law (§§ 20, 34), in the wake of Goldberg v Kelly (supra), amply safeguard that interest and comport with the essentials of due process. The recipient is entitled to notice of any action affecting his public assistance; of his right to a fair hearing; of the method of obtaining a fair hearing; that he may be represented by counsel, a relative, friend or other spokesman or himself; and of the availability of community legal services. (18 NYCRR 358.3.) A fair hearing is easily obtained either by oral or written communication (358.5 [a]) and continuation of assistance payments is assured once a fair hearing is requested (358.8 [c]). The actual hearing itself must be presided over by an impartial hearing officer who must base his decision on the record made (358.13; 358.18 [a]). The department may be, but is not invariably, represented by counsel. Technical rules of evidence do not apply (358.16 [b]). The right to testify, to produce witnesses and evidence and to cross-examine is assured (358.16 [c] [d]). And finally, judicial review is always available (358.18 [c]).

It should be clear also that the purpose of the hearing in the context presented by this appeal is not to lay a predicate for criminal prosecution, but to ascertain the facts regarding eligibility. The process, while it may be adversarial in form, is largely, as it should be, inquisitorial and legally trained advocates, however desirable, would not appear essential to assure fairness to either side.

In sum, it is not apparent on this record that in the fair hearing context the indigent’s right to be heard can only be effectuated with the aid of assigned counsel. The procedure as a whole would appear designed to minimize inaccuracies and to assure quality and fairness in adjudication. We cannot say that fairness can only be achieved for the indigent with the aid of assigned counsel, however desirable that assistance might be. If such assistance is to be provided, it is for the Legislature to say so, for constitutional due process does not command it. (Cf. Aiello v Commissioner of Public Welfare, 358 Mass 91; Rex Investigative & Patrol Agency v Collura, 329 F Supp 696; Administrative Hearings—Aid of Counsel, Ann., 33 ALR3d 229, 289.)

It is urged nevertheless that the potential for criminal prosecution for welfare fraud looming in the background of every fair hearing compels the assistance of assigned counsel. (See Social Services Law, § 145; 18 NYCRR 348.2.) But the record of the hearing is confidential (358.17). And it is the hearing officer’s duty to insure the impartiality of the proceedings and, we would say, to protect the rights of the parties; and this might include appropriate and timely advice about self incrimination. (Cf. 18 NYCRR 358.13, 358.14.) Moreover, should any welfare fraud prosecution ensue, the right to counsel is constitutionally assured. And again, we would emphasize, it is not the purpose of a fair hearing to lay the predicate for a criminal trial, but merely to lay bare the facts regarding continuing eligibility for assistance.

Our decision in Matter of Ella B. (30 NY2d 352) has been urged as further ground for reversal. There we recognized that an indigent parent in a child neglect proceeding has a due process right to assigned counsel and must be advised of this entitlement. True, there, as here, there was the possibility that criminal charges ultimately might be brought (p 356). But the focus of our concern was on the parent-child relationship and the parent’s interest in the liberty of the child, his care and control. This, we said, involved too fundamental an interest and right and could not be relinquished to the State without a meaningful opportunity to be heard which in those particular circumstances included the assistance of assigned counsel for the indigent (pp 356-357).

Petitioner’s argument that denial of counsel because of indigency violates equal protection falls, we think, with the due process claim. The fair hearing procedures comport with due process. They are available to all. The right to a fair hearing does not turn on the financial ability to retain counsel and the equal protection clauses do not impose on the State an absolute duty to give to some whatever others can afford.

Accordingly, the order of the Appellate Division should be affirmed.

Fuchsberg, J.

(dissenting). At the heart of our adversary system is equal access to the law by both parties through trained counsel. Absent such representation, especially in matters where important legal rights are contested, litigants may be expected to find themselves handicapped by ignorance or even fear of the law, on the one hand, and by lack of the expertise required for effective advocacy, on the other. "Laymen cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries,” (Railroad Trainmen v Virginia Bar, 377 US 1, 7). "Even the intelligent and educated layman has small and sometimes no skill in the science of law.” (Powell v Alabama, 287 US 45, 69.)

Time was when this right to counsel, expressly provided for in criminal cases by our State and Federal Constitutions themselves (US Const, 6th Amdt; NY Const, art I, § 6), was read to mean the right to appear through counsel if a party had one. Since, for those who did not possess means, there were very few places to which they could turn for counsel, that meant that for most people the promise of legal representation was nothing but a mirage. In civil cases too, where the right to counsel has even a more ancient lineage long antedating the Constitutions (Hisey, Right to Counsel in Civil Matters, 31 NLADA [National Legal Aid and Defender Assn] Briefcase 302; Comment, Right to Counsel in Civil Litigation, 66 Col L Rev 1322, 1326), the practical result was to assure counsel for the rich but not for the poor. It followed that justice itself was rationed in like malproportion.

In very recent times, however, as part of a quest for values that place substance above form, the ramparts of unresponsiveness to equal need for counsel have begun to fall. The attack has come from several directions. The private sector’s contribution has been mainly in support of legal aid societies, the Bar’s through a renewed sense of professional responsibility, the Legislature by financing legal service and public defender programs, but, above all, the judiciary by mandating the availability of counsel as an ingredient of due process, for paupers as for princes, have infused into operative justice the living reality that only learned, wise and conscientious counsel can bring. (See Argersinger v Hamlin, 407 US 25 [misdemeanor criminal case]; Gideon v Wainwright, 372 US 335 [felony criminal case]; Matter of Ella B., 30 NY2d 352 [Family Court]; People ex rel. Menechino v Warden, 27 NY2d 376 [parole hearing]; People ex rel. Rogers v Stanley, 17 NY2d 256 [mental patients]; Jacox v Jacox, 43 AD2d 716 [matrimonial litigation]; Hotel Martha Washington Mgt. Co. v Swinick, 66 Misc 2d 833 [summary eviction]; Cleaver v Wilcox, 499 F2d 940; and other cases cited in text and footnotes of my dissenting opn in Matter of Smiley, 36 NY2d 433.)

Now the circumstances of this case confront us with the opportunity and, I believe, the responsibility to take another step forward in the implementation of the evolving availability of counsel principle. For there is a confluence of factors which, individually and all the more so in concert, cry out for judgment directing assignment of counsel, as petitioned for by appellant.

Firstly, since the hearing for which such assignment of counsel is sought has as its purpose an intent to revoke the petitioner’s public assistance, it is not disputed it involves a factual pattern parallel to that in Goldberg v Kelly (397 US 254). There the court, after reminding us that "[for] qualified recipients, welfare provides the means to obtain essential food, clothing, housing and medical care” (p 264), held that, therefore, "constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation * * * or to denial of a tax exemption * * * or to discharge from public employment” (p 262, cited cases omitted). It went on to make clear that one so threatened is entitled to a due process hearing and the right to be represented by counsel (p 270). That is the law of the land. Yet, it goes without saying that a legitimate welfare recipient, as petitioner must be presumed to be until properly proved otherwise, and whose very survival is thus threatened, is, by definition, unable to afford to pay counsel, so that, unless it or the means to procure it is provided for him, the Supreme Court’s grant of the right to counsel becomes an empty gesture.

Secondly, respondent’s hearing examiner advised petitioner that the termination charges contained what have been succinctly but accurately summarized as serious allegations which, if proved, might constitute fraud. Such fraud is punishable by the imposition of criminal penalties and, to that end, must be reported to the District Attorney by the welfare officials. (Social Services Law, § 145; 18 NYCRR 348.2.) Concededly conscious of that jeopardy, the examiner adjourned the hearing at least twice to enable petitioner to obtain counsel, but his moneyless efforts to do so were fruitless. As Mr. Justice Hopkins so well put it in the Appellate Division (45 AD2d 858, 859), the petitioner was then reduced to a legal plight in which "he is called on to refute the claims for termination of benefits [and] make statements which may be later used against him in a criminal prosecution. Indeed, his dilemma, measured in terms of a choice between a defense in the hearing and a criminal sentence, is nearly insoluble.”

Thirdly, the agency itself may choose to be, and most often is, represented by counsel at such hearings. Petitioner, particularly with what is at stake at his hearing, and in the context of an adversary proceeding, should not have to rely on administrative paternalism or the haphazardness of self-representation.

There remains the matter of money. No advances in the right to be actually represented by counsel have ever come about without meeting the cry of cost. We live in an affluent society, but one in which, who would gainsay, there are also large pockets of poverty, while at one and the same time there are many wasteful and foolish expenditures. Our budgetary priorities are certainly not all the right ones. Reordering some of them so as to provide a vital societal need is nothing at which we should cavil.

Very few values, if any, are more important than a viable system of justice. It cannot be denied that involved here is an essential of the administration of justice, a matter peculiarly within the province of our branch of government. I respectfully suggest that in such matters courts are called upon to take the lead rather than exercise restraint. That to me also appears the surest way, where necessary, to obtain the implementing support of the other branches of government.

Only very recently, in a case involving, inter alia, a request for expedited welfare hearings to assure prompt relief, faced with a like economic argument we said that "administrative difficulties that are imposed thereby upon the commissioners, both in the incurment of increased expenses and in the assignment of staff * * * are outweighed, however, by the urgent need for a meaningful hearing at a meaningful time [citing cases].” (Matter of Jones v Berman, 37 NY2d 42, 56.) I do not believe we should shrink from taking a like stand here.

I, therefore, dissent and would vote to reverse the order of the Appellate Division and in favor of the granting of petitioner’s application.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Cooke concur with Judge Jasen; Judge Fuchsberg dissents and votes to reverse in a separate opinion.

Order affirmed, without costs. 
      
      . Prior to Goldberg v Kelly (397 US 254), the Department of Health, Education and Welfare issued regulations requiring the provision of representation in public assistance fair hearings, effective July 1, 1969 (33 Fed Reg 17,853; 34 Fed Reg 1354, 1356). The effective date was later changed to July 1, 1970. After Goldberg and prior to the effective date of the regulation, the mandatory provision for representation was deleted. (35 Fed Reg 10,591; see 45 CFR 205.10 [a] [3] [iii].)
     
      
      . Several United States District Courts, while noting that lack of counsel may have contributed to poor development of a claimant’s case in a disability hearing, have remanded to the hearing examiner for further development rather than direct appointment of counsel. (Crowder v Gardner, 249 F Supp 678; Ihnen v Celebrezze, 223 F Supp 157; Hall v Celebrezze, 217 F Supp 905.)
     
      
       Queens Legal Services Corporation, whose limited staff was already too overburdened with cases of indigent citizens to undertake to represent him, apparently regarded his case as meritorious enough to undertake this proceeding to seek an order that respondent provide petitioner with counsel.
     