The Conflicted World of Assigned Counsel

Unlike many states that provide indigent defense via a statewide public defender system, New York is a hodgepodge of county run programs filling the unfunded mandate of Gideon.  And filling it poorly.

While the situation varies by location, there is essentially a two-tier system in New York for indigent defense, the first line being the local indigent defenders, whether Legal Aid, Bronx Defenders, etc.  The second line is assigned counsel, attorney who join the appellate division 18b panels who are used to “fill in” for the indigent defenders.  These are the “assigned counsel,” also known as “18b lawyers” or Pelicans.  It’s not a term of endearment.

Issues relating to assigned counsel tend to result in heated discussions, which is a nice way to say that they devolve into fury.  The reason for this is clear:  Gideon may be the mantra, but welfare for lawyers is the problem.  Before I explain, I add the important caveat that this is a generalization, not a specific attack on any lawyer who does 18b work.  Some are great lawyers.  Some are motivated purely by altruism.  Some work their butt off for the benefit of their clients.  Some don’t.  This is a very emotional and controversial subject.

The problem arises from a problematic scheme in its inception.  When a lawyer gets on the panel, he gets cases.  It doesn’t pay very well ($60 out of court, $75 in court), but poor pay is better than no pay.  And therein lies the problem. 

Lawyers on the 18b panels characterize themselves as “private lawyers.”  Many are, maintaining vibrant private practices and filling in their spare time with a few assigned cases.  But a substantial number have no private practice to speak of, living almost entirely off of 18b cases.  This was never supposed to be the way it happened.  No one was supposed to feed only at the 18b trough.

The problem is two-fold: First, the 18b bar lacks the oversight that exists for the institutional indigent defenders.  There are no supervisors making sure that indigent defendants receive competent legal representation.  There is no training for the panel members per se.  And there is no stop-gap for the defendants who are treated poorly, ignored or just plain dissatisfied with their representation. 

Now must assigned counsel will insist that they do a brilliant job representing 18b defendants.  Would you expect otherwise?  And some do, and some don’t.  Consider the Dunning Kruger Effect when one looks to lawyer self-assessment.   Could there be a reason why these lawyers are living off 18b and have no private clients?

The second problem is that assigned counsel, by dint of their reliance on these cases to maintain their “private” practice, have a strong motivation to maintain that steady stream of cases coming from the panels.  While the pay may not be much, they are still substantially more expensive than institutional indigent defenders and still work without any controls.  But most importantly, they see assigned counsel work as an entitlement, that they are due a steady flow of assigned cases so that they can maintain their practice.  This is where it all falls to pieces.

Within the criminal defense bar, there are a variety of reforms being pursued to provide a less expensive, more effective means of providing excellent criminal defense to indigent defendants.  This, after all, is what Gideon is really all about, right?  well, who stands in the way of this effort?  That’s right, the assigned counsel.  “What about us?”  “How are we going to earn a living?”  The implication is clear.  They see any effort to reform indigent defense as an attack on their right to be assigned cases.

The problem really began with a false promise, that attorneys who (for whatever reason) were unable to attract private clients could take comfort in a never ending stream of indigent clients.  This guarantee of a low-paying but omnipresent clientèle proved to be a slippery slope, where lawyers lost the incentive to improve their skills, work harder to attract retained clients and provide the level of service that private clients demand. 

Instead, they could carry 10 assigned cases a day, have no hassles (because it wasn’t like the indigent defendants had a choice in the matter) and be assured that eventually they would receive a check from the county.  For a while, abuse in the system was rampant, with lawyers billing 18b for 27 hours a day of services.  We don’t hear this happening anymore, and assume that it’s calmed down as far as outright fraud is concerned.

Still, there should never have been an 18b bar to begin with.  It was my thought that no lawyer should be permitted to do more than 10 assigned cases a year.  That way, no one would ever be able to build an entire practice on assigned counsel work alone.  They would be required to find retained clients or else a new line of work.  No one should live solely off of assigned work, and if they wanted to represent indigents that badly, they should get a job with Legal Aid.

The upshot today is that as New York considers the future of indigent representation, and as the criminal defense bar associations weigh in on what would be the best direction to take for the future, there is anger, no fury, at the consequences.  Us “high and mighty” theorists, who have no financial horse in the race, are stealing the bread off the plates of the children of the 18b bar. 

As the conflict-averse amongst us try to appease these very angry lawyers by suggesting that there may still be some left-over conflict cases around for assignment, the obvious reality is that the future has no room for the assigned counsel bar if we are to improve the delivery of indigent defense and reduce the cost to the public.  While there will be plenty of pain amongst the group, it is the only way to return sanity and quality to indigent defense.  And frankly, this is a problem that should never have existed in the first place.  No one ever guaranteed “private” lawyers a living off the assigned counsel panels.  If you cant survive without it, then perhaps you need to think long and hard about why and where you should focus your energies in the future.

14 comments on “The Conflicted World of Assigned Counsel

  1. Kathleen

    This and your comments on the listserv are very much needed. 18B cases are not an entitlement and we should avoid making a career of them.

    And the careless way some judges and counties administer the assignments distorts the market for private pay. For example, defendants’ incomes and assets warrant investigation in every case before they are deemed to qualify for AC or PD services. When and if they do not qualify, they need to pay an attorney to get represented.

    In one felony case I was assigned to, for one example, before the rates increased, the defendant’s wife expressed shock at what I was earning and said “that’s less than I make!” (Working in collections for a bank.)

    The AC system can distort attorneys’ perception of the private-pay value of their services, so that a number of them are not businesslike. A number of them should charge more. Their clients suffer when they do not. It is hard for the rest of us to maintain a fee base when they do not. But we gotta do it.

    I have commented on the listserv about this before. So I could go on. … But I won’t. Others are touching on the issue but yours are very well thought out. Thanks again.

  2. SHG

    Hi Kathleen,

    As you know, this topic can get very ugly, as it messes with people’s livelihoods.  And that’s exactly what’s wrong with the system, as this was never intended to be a welfare for lawyers program.  It’s sad that so many lawyers have grown dependent on public money, but this addiction has got to stop.  Because it is such a painful and provocative subject, it’s almost impossible to discuss it thoughtfully.  Some lawyers just cannot accept the premise that Gideon didn’t happen to guarantee them a paycheck while pretending to maintain their “private” practice.

    The listerv discussion also ignored on significant point: Funding for indigent defense comes from taxes, and people who work hard every day pay those taxes.  When lawyers fudge the system by concealing that clients who can afford a lawyer are gaming the system to get a free one, they are taking the funds that are denied the indigent, and paid by the same working poor with whom they are so concerned.  It’s not up to lawyers, who just happen to enjoy the largess of the assigned counsel plan, to defraud the truly indigent and the taxpayer by being paid by the government to represent people who have the ability to retain counsel.

    It’s just wrong for everybody, except the lawyers who live off the assigned counsel plan. 

  3. Kathleen

    I agree.

    The AC entitlement should be as stringent as Medicaid to qualify for, to protect the taxpayers and the truly needy. Maybe not such a good analogy.

    In the private pay market, “if they can’t afford to get represented, then they don’t get represented.” That was fee-setting advice I got shortly after starting out, during spring 1992 sometime, from an elderly estate attorney. Just because I vocalized the worry, “people can’t afford it.” I stopped worrying.

    It gets ugly because those who should be listening are not listening, I guess.

  4. Lisa Solomon

    The timing of this post is scary. Let me explain.

    Just today, I learned that, in a matrimonial case that I am involved with at the appellate level, the judge on the trial court level, on a somewhat sua sponte basis, assigned 18b counsel to the opposing party. (I say sua sponte because, while the opposing party complained over and over about poverty in her papers on a pending custody motion, she never actually sought appointment of 18-b counsel.) 18-b is only for criminal cases, right?

  5. Leah Nelson

    I looked into a really egregious situation involving a Bronx 18B lawyer who (among other things) kicked his client in the pants while the client was trying to ask the judge to assign him new counsel.

    Here’s a link to the story: http://www.judicialreports.com/2007/12/gross_oversight.php
    (from December 5, 2007).

    What really blew me away as I was writing this (and perhaps I’d not be so shocked if I were a lawyer myself) was everyone’s comfort with the “wall of silence” that at least three people I interviewed said exists among members of the bar (both lawyers AND judges, they said). Ragarding this case at least, seems like the “stop snitching” ethos has made its way well past the courthouse doors.

  6. SHG

    I remember that situation.  The lawyer in that matter was well known to be a rather “peculiar” fellow, which is itself not unusual in the Bronx.  There were some who were willing to talk, some who wouldn’t and some who looked for any excuse not to get involved.

  7. Soon 2B Ex 18B Investigator

    After providing Expert Services as an investigator for the NYC ACP for more years than I care to count, the only thing I feel entitled to is to be paid in something that even resembles a timely manner. I did not create or mandate this program but for many years there were no shortage of 18B cases coming my way. The need was there and I was told by most attorneys contacting me that they were just unable to find a reliable PI that would accept assigned cases. I was told that some of the PI’s that accepted assigned cases would later simply fall off the face of the earth without even submitting a report to the attorney, never to be heard from again. For all the years I have accepted assigned case, I have always found the ACP to be poorly administered, in a mean spirited manner with no written policies or guidelines in place for experts to follow. Polices were basically instituted by ACP ad hock usually after some scandal or abuse took place within the program. Recently, in the wake of several scandals, in particular the Richard Richard Gottfried Mitigation Expert debacle, an already apathetic and unfriendly process has become more apathetic and unfriendly. In addition, the hourly rate for PI’s has not increased since the early 1980′s. and the most part, with few exceptions, payments from ACP have always been spotty and untimely. ACP will rarely full amounts due at once time and will usually pay off on the smaller vouchers first, while the larger ones mysteriously seem to vanish for months at a time. Now I have heard many times that 18B was never meant to be a living for anyone, but reality dictates what the truth is. And the truth is, the program is in place, there seems to be an abundance of cases and shortage of takers. So there is really no excuse for delaying payments and other tactics that ACP utilizes in order to discourage what they deem to be full time employment. In any event, I am about ready to call it quits with the NYC ACP. Unfortunately the only people who will suffer from that will be the defendants. Over the years, many defendants have told me that I was their only hope. But after over 15 years of accepting 18B assignments, I am about running on empty. True, some of the attorneys on the panel may be incompetent, but I have had the pleasure of working with some panel attorneys who truly give their very best to the defendants. And to be honest, many of us lowly ACP experts and attorneys are working under horrendous conditions and doing the best with what we have available. Anyone who believes that attorneys and experts with a full plate of private work will take on 18B assignments is dreaming. There may be a few exceptions, certainly not enough to fill the need. The ACP can be fixed, but not if it continues heading in the direction that it is now.

  8. Soon 2B Ex 18B Investigator

    After providing Expert Services as an investigator for the NYC ACP for more years than I care to count, the only thing I feel entitled to is to be paid in something that even resembles a timely manner. I did not create or mandate this program but for many years there were no shortage of 18B cases coming my way. The need was there and I was told by most attorneys contacting me that they were just unable to find a reliable PI that would accept assigned cases. I was told that some of the PI’s that accepted assigned cases would later simply fall off the face of the earth without even submitting a report to the attorney, never to be heard from again. For all the years I have accepted assigned case, I have always found the ACP to be poorly administered, in a mean spirited manner with no written policies or guidelines in place for experts to follow. Polices were basically instituted by ACP ad hock usually after some scandal or abuse took place within the program. Recently, in the wake of several scandals, in particular the Richard Richard Gottfried Mitigation Expert debacle, an already apathetic and unfriendly process has become more apathetic and unfriendly. In addition, the hourly rate for PI’s has not increased since the early 1980′s. and the most part, with few exceptions, payments from ACP have always been spotty and untimely. ACP will rarely full amounts due at once time and will usually pay off on the smaller vouchers first, while the larger ones mysteriously seem to vanish for months at a time. Now I have heard many times that 18B was never meant to be a living for anyone, but reality dictates what the truth is. And the truth is, the program is in place, there seems to be an abundance of cases and shortage of takers. So there is really no excuse for delaying payments and other tactics that ACP utilizes in order to discourage what they deem to be full time employment. In any event, I am about ready to call it quits with the NYC ACP. Unfortunately the only people who will suffer from that will be the defendants. Over the years, many defendants have told me that I was their only hope. But after over 15 years of accepting 18B assignments, I am about running on empty. True, some of the attorneys on the panel may be incompetent, but I have had the pleasure of working with some panel attorneys who truly give their very best to the defendants. And to be honest, many of us lowly ACP experts and attorneys are working under horrendous conditions and doing the best with what we have available. Anyone who believes that attorneys and experts with a full plate of private work will take on 18B assignments is dreaming. There may be a few exceptions, certainly not enough to fill the need. The ACP can be fixed, but not if it continues heading in the direction that it is now.

  9. SHG

    Hey Soon 2b.  First, the reason your comment didn’t show up is that you have to include a real email address or the comment is considered spam.  When I saw it in the spam folder, I manually allowed it, because what you have to say is important.

    You raise numerous important points, about the quality and availability of investigators in general, to indigent counsel under the Assigned Counsel Plan, and about the Plan’s management of critical ancillary services to the defense.  There are systemic failures, and far too many attorneys worry only about their vouchers being paid rather than their ability to provide adequate representation.  The lawyers deny it, hate it and argue vehemently about how wonderful they are and what a great job they do.  For some, it’s true.  For many, it’s pure self-serving nonsense, and it’s unclear whether they even realize the lies they’re telling or truly believe what they say.

    Thanks for bringing the investigator’s point of view to the table.  And next time, don’t be afraid to go public.  Anonymous comments don’t tend to get the recognition, and what you have to say deserves to be heard.

  10. Making The Walls Transparent

    “The deterioration of every government begins with the decay of the principles on which it was founded.”~Charles-Louis De Secondant (1689-1755) Baron de Montesquieu (Source) The Spirit of the Laws, 1748

    THE LAWYERS

    The Texas Lawyer’s Creed

    “I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that Professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this Creed for no other reason than it is right.”

    The most damaging injustices being committed in the legal system today are perpetrated by attorneys who do not do their job to the best of their ability.

    DISTRICT ATTORNEYS
    Most District Attorney’s have developed a ‘cop mentality’. They only see in black and white, mostly black. DAs use words like monster, evil, and unforgivable over and over to describe every defendant who comes before them. In their minds, every case has a defendant who premeditated whatever he’s accused of and his just punishment is damnation to the pits of hell with no further thought. No defendant is ever appropriately ‘contrite’. No defendant is ever telling the truth and no defendant is ever ever innocent, no matter how much proof to the contrary exists. We can thank district attorneys for their crucial role in the inncocent people going to prison.

    PRIVATE ATTORNEYS

    I have nothing but scorn for lawyers who are cashing in on bad laws and the resulting prison boom. I get letter after letter from trusting people who paid $10,000, $20,000, $40,000 to a lawyer who appeared to be sympathetic and accessible – UNTIL they got the money, at which time they suddenly are never available, never return phone calls, and arrive in court ill-prepared to present anything but a sloppy case. The majority of lawyers take on more cases than they can possible defend properly, then they urge a plea agreement so they can move on and snag the next unsuspecting client’s money. It’s sinful, shameful, and absolutely disgusting that a once honorable profession should be reduced to this.

    RODNEY HILL’S LAWYER

    PUBLIC DEFENDERS
    Court appointed attorneys are doom for poor defendants. They are so notorious for slacking that they are usually and rightfully called “Public Pretenders”. I’ve watched them come into the courtrooms staggering under piles of files they haven’t read until they can quickly peruse them while standing at the bar with a defendant they have barely spoken to and whom they are most likely urging to take a guilty plea just to get the case off the books.

    I make excuses for the public defenders; the system is overburdened, too many laws make too many criminals, there’s not enough public defenders; but whatever the reason, it is totally unAmerican for a defendant not to get the best represent

    http://youtube.com/watch?v=sXe40

  11. Pingback: Black Monday For 18-B and the Criminal Defense Bar | Simple Justice

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