The End Of The World (As We Know It)
It came by way of a Request for Proposals from the City of New York. It sought proposals for not only the provision of indigent defense and ancillary services, but conflict counsel as well. It excluded homicide defense, and left unanswered the question of cases with more than two defendants, but it said enough. There would be no 18B attorney assigned to do arraignments. They would no longer be needed. Was this the end of 18B?
For anyone who isn't a criminal defense lawyer within New York State, 18B refers to the County Law section that provides for private criminal defense lawyers to provide legal services to indigent defendants and be paid by their respective counties. At $75 an hour in-court, it's not quite winning the lottery, but it's enough to supplement the income of many so that they can stay in the game. Without 18B work, they wouldn't make it. For others, 18B work is all they've got. Without it, they starve.
It was a great idea when it started, to tap the resource of private criminal defense lawyers to provide conflict and homicide defense, with The Legal Aid Society carrying the motherlode of indigent defendants. More pro bono than pro forma, as lawyers unable to make the cut with retained clients finding assigned defendants a much easier path to survival.
Don't get me wrong. This is no slur on the "18B bar," in which many excellent lawyers provided much needed and valued representation to the indigent. It also provided transitional help for those trying to strike out on their own in the private criminal defense bar, with a way to keep things afloat until they found their sea legs, and could show their worth to private clients sufficient to build a practice.
But there were also those who couldn't manage. They had no retained clients. They were dead weight. If it wasn't for assignments, they would be sitting home in their underwear waiting for the lights to be turned off. For this group, 18B was welfare for lawyers. A never ending stream of choiceless defendants and county paychecks, with neither the need to satisfy nor the concern for competence.
While 18B was about serving the indigent, for these lawyers, it was about their right to earn a living. They were owed clients even if they couldn't get them on their own. It turned the concept of Gideon on its head, making it all about the lawyers rather than the indigent defendants. It wasn't what 18B was about at all.
And it certainly appears that New York City has had enough of it. The RFP will cover the representation of indigents in all but two areas, homicides, cases declined by the institutional defendants and multiple defendant cases with more than two defendants. Some decent trial experience is needed to get on the homicide panel, and there just aren't that many multi-defendant cases to go around. The free lunch is over.
One person I spoke with about this, a founder of one of the private indigent defender services who will be vying for the contract, told me it's not only about time that the gravy train ended, but it's about time that indigent defense was seized back from the worst of the profession and put into the hands of people who were both competent and cared. Again, this isn't to smear all lawyers doing 18B, but to recognize this group of lawyers for whom it had become an entitlement for their benefit. As far as he was concerned, any lawyer who needed 18B to survive didn't deserve to survive.
But I also see a serious gap that will be left behind by young lawyers, good lawyers, caring lawyers, who want to strike out to become private criminal defense lawyers and will lose this safety net as they hone their skills and develop a clientèle. They will now be on their own from day one, sink or swim without any expectation of 18B cases to fill in those lonely hours. These cases provided a huge benefit for young lawyers striking out on their own. To do so without 18B will be to court starvation, and that in turn will deplete the ranks of up-and-coming private criminal defense lawyers.
As for the older lawyers whose careers have been built on assigned counsel work, it's time to find another way to pay the mortgage. Some are good guys who meant well and did a fine job representing their clients, but somehow failed to do the hard work of maintaining a private practice of retained work as they were able to cruise along on their assignments. Others were just failed lawyers, who survived only because of 18B welfare.
There's good news here. There's bad news here. But whether this will cleanse indigent defense of dead weight, deny indigent defendants access to some excellent private lawyers or merely create upheaval amongst criminal defense lawyers remains to be seen. But there is a very significant portion of the criminal defense bar for whom 18B has become a necessary aspect of their financial survival. It's been this way since before I started practicing law and I've never known criminal practice in New York City without it. And soon it will be gone.
For anyone who isn't a criminal defense lawyer within New York State, 18B refers to the County Law section that provides for private criminal defense lawyers to provide legal services to indigent defendants and be paid by their respective counties. At $75 an hour in-court, it's not quite winning the lottery, but it's enough to supplement the income of many so that they can stay in the game. Without 18B work, they wouldn't make it. For others, 18B work is all they've got. Without it, they starve.
It was a great idea when it started, to tap the resource of private criminal defense lawyers to provide conflict and homicide defense, with The Legal Aid Society carrying the motherlode of indigent defendants. More pro bono than pro forma, as lawyers unable to make the cut with retained clients finding assigned defendants a much easier path to survival.
Don't get me wrong. This is no slur on the "18B bar," in which many excellent lawyers provided much needed and valued representation to the indigent. It also provided transitional help for those trying to strike out on their own in the private criminal defense bar, with a way to keep things afloat until they found their sea legs, and could show their worth to private clients sufficient to build a practice.
But there were also those who couldn't manage. They had no retained clients. They were dead weight. If it wasn't for assignments, they would be sitting home in their underwear waiting for the lights to be turned off. For this group, 18B was welfare for lawyers. A never ending stream of choiceless defendants and county paychecks, with neither the need to satisfy nor the concern for competence.
While 18B was about serving the indigent, for these lawyers, it was about their right to earn a living. They were owed clients even if they couldn't get them on their own. It turned the concept of Gideon on its head, making it all about the lawyers rather than the indigent defendants. It wasn't what 18B was about at all.
And it certainly appears that New York City has had enough of it. The RFP will cover the representation of indigents in all but two areas, homicides, cases declined by the institutional defendants and multiple defendant cases with more than two defendants. Some decent trial experience is needed to get on the homicide panel, and there just aren't that many multi-defendant cases to go around. The free lunch is over.
One person I spoke with about this, a founder of one of the private indigent defender services who will be vying for the contract, told me it's not only about time that the gravy train ended, but it's about time that indigent defense was seized back from the worst of the profession and put into the hands of people who were both competent and cared. Again, this isn't to smear all lawyers doing 18B, but to recognize this group of lawyers for whom it had become an entitlement for their benefit. As far as he was concerned, any lawyer who needed 18B to survive didn't deserve to survive.
But I also see a serious gap that will be left behind by young lawyers, good lawyers, caring lawyers, who want to strike out to become private criminal defense lawyers and will lose this safety net as they hone their skills and develop a clientèle. They will now be on their own from day one, sink or swim without any expectation of 18B cases to fill in those lonely hours. These cases provided a huge benefit for young lawyers striking out on their own. To do so without 18B will be to court starvation, and that in turn will deplete the ranks of up-and-coming private criminal defense lawyers.
As for the older lawyers whose careers have been built on assigned counsel work, it's time to find another way to pay the mortgage. Some are good guys who meant well and did a fine job representing their clients, but somehow failed to do the hard work of maintaining a private practice of retained work as they were able to cruise along on their assignments. Others were just failed lawyers, who survived only because of 18B welfare.
There's good news here. There's bad news here. But whether this will cleanse indigent defense of dead weight, deny indigent defendants access to some excellent private lawyers or merely create upheaval amongst criminal defense lawyers remains to be seen. But there is a very significant portion of the criminal defense bar for whom 18B has become a necessary aspect of their financial survival. It's been this way since before I started practicing law and I've never known criminal practice in New York City without it. And soon it will be gone.
Welcome to the rest of the world. No equivalent of 18B here in Cook County. It's either PD's office (which isn't hiring) or Darwinism. No safety net for newb solos, but plenty of $50 traffic tickets to argue.
Very balanced analysis, Mr. G, of a difficult situation. Thanks again!
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It's a very touchy discussion in New York, where everybody who does 18B feels tainted whenever anything negative is said about. Unfortunately for the good lawyers who were doing it for the right reasons, there were far too many abusing 18B and doing it for purely self-serving reasons. And doing an awfully bad job of it as well.
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Scott- in your opinion and/or experience do you think 18B provided any benefit to the public and defendants in terms of maintaining the existence of a private defense bar that was able to serve clients in need, but would be much smaller and perhaps consist of only "higher rent" attorneys without the subsidy from 18B?
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I'm on the 18b panel in NYC. I think you're a little harsh in your assessment of 18b lawyers and have missed what the real problem is in establishing a retained practice in NYC. It is not that the lawyers who rely on 18b are not industrious enough to establish a private practice. While some of what you say is true and there are lawyers who are content to do little work and collect a check from the city, the vast majority of the lawyers on the panel strive to establish a practice outside of 18b. I've been lucky that way and mainly do 18b work out of my commitment to indigent defense.
The real problem in establishing a retained practice in NYC is that it is far too easy to get a free assigned lawyer. There is virtually no screening by the courts to determine whether a defendant is indigent or can afford to pay for a lawyer. Defendants who can afford to hire a lawyer (and their number is large)are give free lawyers with no questions asked.
The vast majority of these non-indigent defendants, unsurprisingly, choose not to pay for what they're getting for free. In effect, it is socialized legal defense.
Robbed of a clients requiring their paid services, most criminal lawyers are forced to turn to the panel to practice their profession. In a socialized market, it's the only game in town.
This RFP will only make matters worse. It will leave the 18b lawyers out in the cold, while still depriving them of paying clients. This will decimate the criminal defense bar, leaving only a relatively few private lawyers who are lucky to have a retained practice. The rest will be institutional lawyers paid by the city.
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I'm surprised it took this long for someone to take umbrage at my description of some 18b lawyers. And that's the point. You lump them together as if they were all the same. They aren't. I've had this argument many times over the years, and every time you say something negative about the way some 18b lawyers conduct themselves, others will argue about how they aren't lazy and incompetent, how they don't abuse 18b, how it isn't welfare for lawyers.
The point is that some fit your description, and others don't. But there is no one size fits all 18b lawyer, nor one monolithic group. I'm not harsh at all. In fact, I've been more than kind as to the ones who deserve no kindness, and I've made clear that all 18b lawyers are not alike.
But as far as your excuse goes, that 18b sucks up the paying clients that free legal services, that's total nonsense. There are plenty of lawyers who have very successful careers as private lawyers with 18b supplementing, rather than being the entirety, of their practice. Stop kidding yourself.
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