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.