18-B Lawyers Ready For Battle

The New York Law Journal reports that the City’s 18-B lawyers aren’t going down without a fight.



[A] joint resolution issued by five county bar associations last week raised legal issues that could provide ammunition to 18-B lawyers should they sue to block the plan and raised the possibility that the bar groups themselves might sue.

The resolution expressed sympathy for the plight of the city’s 1,100 18-B lawyers, saying the proposed change would make “an immediate and far reaching overhaul” in the system for representing indigent criminal defendants by “virtually eliminating” the work of 18-B lawyers.

The resolution was approved by the New York County Lawyers’ Association and the Bronx County, Brooklyn, Queens County and Richmond County bar associations.

The subject of 18-B, the representation of indigent defendants by private lawyers assigned by the court, has long been controversial for many reasons, last seen during the fight for reasonable compensation (now $75 per hour for felonies, $60 for misdemeanors).  Some are just awful lawyers incapable of maintaining a real private practice due to the inability to provide the level of representation and service that would enable them to get real clients.  Some are lawyers starting out who have yet to establish a reputation.  Some are lawyers who use 18-B to fill the gaps and down-time. 

It’s long been my position that 18-B should not be used as “welfare for lawyers,” where those who can’t maintain a viable practice believe they are entitled to earn a living off the backs of the indigent.  I would have a limitation on 18-B so that no lawyer can depend largely, or worse still entirely, on 18-B to survive.  But this is different.  This is the evisceration of 18-B, and with it, the end of the road for many lawyers who needed the added boost of 18-B revenue to make their nut and feed their kids.  These are people with real practices, real clients, real skills. These are real lawyers, and they will go down with the ship.

[Addendum: It has already been pointed out to me that the paragraph above might give the impression that 18-B lawyers are second-stringers. Some of the best criminal defense lawyers in New York are on the 18-B panel and take on 18-B assignments. I took this for granted, but thought it best to point this out lest anyone either misperceive my meaning or take offense.  The same, by the way, is true of lawyers who work for institutional defenders.  There are some great lawyers involved in each of these areas, and by no means do I suggest otherwise.]

Not having done 18-B work in more than 25 years, I’ve got no personal horse in this race.  Being a criminal defense lawyer, I do.  It might behoove me to watch from the sidelines as my brethren are crushed by the City’s desire to save money, itself a fair goal for the welfare of the taxpayers, which would mean less competition for the increasingly scarce animal of retained criminal cases.  But that’s not where I see my interests or the interests of the criminal defense bar.  I fear that this will give government far too much control over the criminal defense function, and I fear that those private criminal defense lawyers who remain will have insufficient clout to push back against the tide of law and order, the courts’ inherent presumption of regularity in the arrest and prosecution of individuals.

No doubt, the institutional defenders who will pick up the cases that were once served by 18-B lawyers will hate me for saying this, but the very real fear is that they won’t pick up the slack.  The 18-B lawyers were 17 times more likely to take a case to trial than the institutional defenders.  Seventeen times.  That’s a mind-blowing number.  And they can praise their lawyers to high heaven, puff out their chest as far as possible, dare the rest of the bar to call them names to their faces (no one wants to call them out, as they too are an important part of the defense side of the equation), but it won’t mean a thing to all those defendants who will never go to trial.  Seventeen times.  There’s no getting around that number.

They’ve put together a war chest of $100,000.  Whether there is a viable basis to challenge the City’s RFP to give almost all indigent defense work to institutional defenders remains unclear.  The money will go toward lobbying as well.  Whether it will work has yet to be seen, but they aren’t going down without a fight.  The continued existence of a viable private criminal defense bar depends on winning this fight.  

Real criminal defense lawyers know right from wrong, and don’t fear doing what’s right.  Real criminal defense lawyers have the guts to fight.  The five criminal defense bar associations for New York City have done themselves proud by standing up for the criminal defense bar.

7 comments on “18-B Lawyers Ready For Battle

  1. Blind Guy

    The NYC Bar Associations are to be applauded. They have taken a position and are prepared to aggressively move on it. The NYSACDL, which supposedly represents private criminal defense lawyers statewide (at least that was why it was formed) is not to be found in the NYLJ article. The NYSACDL passed a very tepid “resolution”on this matter which was grounded in the notion of unanimity. If the NYSACDL wishes to be all things to all people it runs the risk of ceasing to exist. The NYSACDL needs to be reminded of why it was formed. Maybe then it will rise to the prominent levels previously enjoyed.

  2. Dan

    “No doubt, the institutional defenders who will pick up the cases that were once served by 18-B lawyers will hate me for saying this, but the very real fear is that they won’t pick up the slack. The 18-B lawyers were 17 times more likely to take a case to trial than the institutional defenders. Seventeen times. That’s a mind-blowing number. And they can praise their lawyers to high heaven, puff out their chest as far as possible, dare the rest of the bar to call them names to their faces (no one wants to call them out, as they too are an important part of the defense side of the equation), but it won’t mean a thing to all those defendants who will never go to trial. Seventeen times. There’s no getting around that number.”

    This is a very interesting statistic. I agree with your assesment/prediction that the institutional defenders won’t be able to pick up the slack. One of the positives of 18B was that it would give an indigent defendant an attorney who had a private attorney’s caseload, i.e., an attorney who had time to devote the necessary attention to trying the case.

    That said, I’m curious to what extent, if any, 18B lawyers were so much more likely to try a case than an institutional defender, resulted from the fact that they’d get paid to try the case. Plead the case out, no more vouchers. I suppose we’ll never know, and such a decision may be driven by the client just as much as the lawyer- why take a plea if the city is picking up the tab for the lawyer to try the case. (I think the idea of not taking a client not having to take a plea but exercising his right to a trial because his decision is unburdened by financial issues is generally a good thing). What would be interesting to see is if there is any disparity between the rates at which 18B counsel take their 18B clients to trial vs. their retained clients. That may well be meaningless too, as it may be simply a product of the paying clients being able to afford an initial retainer, but not trial fees.

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  4. Bk PD

    I’m a bit late to the party on this one, but I think the 17x number obscures the fact that we (institutionals) handle the vast (95%+) number of arraignments, and many dispositions occur at arraignments. This is not just the pleas- it’s the ACDs as well. I think the more telling statistic, if it’s somehow available, would be how often 18Bs vs institutionals go to trial on cases that have already survived arraignments.

  5. SHG

    It’s a fair point.  It would be in the institutionals best interest to have the statistics, if they bore out the premise.  At the moment, I’m not aware that the stats exist, or whether the 17x stat doesn’t already take that into account.

  6. Eric

    26 years a go I had an 18b attorney and he was no more effective than a legal aide attorney. He had me cop a plea to something that I didn’t even do and stuck me with a felony for life. Screw them and cut them loose.

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