NY Criminal Defense Lawyers, Now Taking In Laundry

The New York Court of Appeals  has upheld the Bloomberg plan to  reduce private indigent defense under 18B of the County Law. From the New York Law Journal :



The panel attorneys were to be called on when primary providers, such as the Legal Aid Society of New York City, were faced with a conflict most often posed by multiple defendants being charged in the same crime. In those instances, Legal Aid lawyers would represent one of the defendants and the others would be assigned to other providers or to assigned private counsel.

The Bloomberg administration’s 2008 plan called for more of the “conflict representation” cases to be handled by institutional providers under competitively bid contracts. The administration argued before state courts that its plan would still retain some participation by the bar associations, but that it could save significant amounts of money.

Essentially, this means that 18B lawyers, private attorneys who take on indigent defense cases when conflicts arise with the primary public defender, will now come at the end of the line, with each institutional public defender being required to take on secondary, tertiary, whatever, defendants. Only after the institutional defenders run out will the remaining defendants be farmed out to 18B lawyers.

The institutional defenders love this deal as it means they get more money, which isn’t a bad thing in itself. They need more money. They have long needed a lot more money. But it comes with a price.

I’ve never been a fan of the way 18B was handled, as it became welfare for lawyers. Far too many fed on 18B, unable to get honest work from paying clients and calling themselves “private” despite the majority, if not totality, of their revenue derived from government checks. If a lawyer handled enough 18B cases, and charged imaginatively, he could make a pretty good living off the work.  Mind you, he couldn’t actually do the work, but he could recite the plea mantra in his sleep.

That 18B was handled in an ill-conceived way, however, doesn’t mean that its effective death isn’t a travesty for the criminal defense bar.  The ramifications will be huge, and I suspect that even Mayor Bloomberg, who only saw cost savings when he changed the RFP, and the institutional defenders, who see revenue opportunity, will come to regret this decision.

The problem is that the end (or even substantial reduction) in 18B work will cause a great many criminal defense lawyers to be incapable of earning sufficient income to maintain a dedicated practice, forcing them to find other work, whether within or without the law. By shifting into other legal niches, the general skill and knowledge will be reduced, as they spend more time learning about house closings than the latest caselaw.

Similarly, new entrants into criminal defense will have no safety net to sustain them until they get on their feet and establish a clientele. The former ADAs and Legal Aid lawyers, who always assumed they could bid their old jobs adieu and hang out a criminal defense shingle will find only a silent phone and no 18B work to tide them over. 

This will leave an old guard of private criminal defense lawyers intact, who will likely benefit from others dropping out of the practice area to find work to feed their families, but they aren’t necessarily interested in the bread and butter work that some 18B lawyers would take, and these clients won’t qualify for indigent defense and will become the fodder of former criminal defense lawyers or the faux criminal defense lawyers who exist only in their website claims. 

The old guard will die off, as they must, and there will be too few upcoming lawyers who have honed their skills in the trenches doing lower level work, and sustained by 18B work, to take their place.  The practice area of dedicated criminal defense law cannot sustain itself unless its practitioners have the time to develop and the ability to sustain themselves in the process. 

Without 18B, the competition will be brutal and natural (or deceptive internet marketing) selection will devastate the corps.  And before anyone takes this as an endorsement of internet marketing, the race to the bottom will pick up speed, until the lawyer with the nicest legs in hotpants wins. It will get ugly.

My fear is that this change will devastate the New York City criminal defense bar for a generation, if not permanently.  And once the bar finds itself inadequate for the task of defending the accused, and 80% of all defendants are represented by institutional defenders, and the government decides that it doesn’t want to pay much to cover these miscreants’ miserable butts, what becomes of the remainder of the criminal defense bar, now in the employ of institutional defenders, when the plug gets pulled and the salaries fall to poverty level? 

Where you gonna go, lawyers?

Where you gonna go, defendants?

Game. Set. Match.


10 comments on “NY Criminal Defense Lawyers, Now Taking In Laundry

  1. BRIAN TANNEBAUM

    Yeah, all of that. We won’t debate the obvious issue that elected officials care not about competent counsel for criminal defendants or other consumers of legal services (unless it’s them).

    Let’s also not forget that in addition to everything you said happening here in Florida when they set up “regional conflict counsel” offices, when the economy goes south, the civil bar finds their way in to criminal court, handling your case “aggressively and passionately” for $500, %750 if it’s a trial.

  2. SHG

    When there is no longer a dedicated criminal defense bar, everybody becomes a criminal defense lawyer if there are a few bucks to be made. And the public can’t tell the difference, since we all wear the same pinstripe suits and have the same platitudinous crap on our websites. So why not? If the defendants are going to get screwed either way, might as well make money off them, even if it’s just a pittance.

  3. guest

    Sheesh, the 18b lawyers generally get the worst results anyway. I don’t see what the big deal is.

    And what is this about miscreant butts? Wow, that’s really disgusting. Innocent people are arrested every day. They aren’t miscreants and they are not merely their butts.

    Whatever long term fall out you perceive, seems to me the unmentionable probability is that institutional defense lawyers are going to provide better defense than 18b lawyers will, if they are anything like public defenders. No?

  4. SHG

    No, 18b lawyers do not “generally” get the worst results anyway. Some are excellent and some suck, just like PDs and fully private defense lawyers. As for “miscreant butts,” you need to get a sarcasm meter. And finally, institutional defenders are public defenders, and you need to think a whole lot harder about the long term consequences of eliminating a cadre of criminal defense lawyers who are not entirely dependant on the government for their living. Your comment is scary ignorant.

  5. Patrick Kane

    Scott:
    I was a member of the Assigned Counsel Program in Erie County, Western New York’s version of 18B. If Erie County were to adopt Bloomberg’s plan, or some version of it, it would be catastrophic to the lawyers there. Like the lawyers in NYC, lawyers in Erie County rely on the government checks to survive. I found that assigned counsel fees were like a drug. It was easy to get hooked. It was tough to stop.

    In the late 1990s, there was a study done by the 8th Judicial District to determine the percentage of felony cases handled by attorneys from the Assigned Counsel Program. The study showed that 98% of the cases was handled by assigned attorneys. That number astounded me.

    There are many excellent lawyers in Erie County who do assigned counsel work. Of course there are some bad ones as well. No matter how talented an attorney is, it is tough to build a criminal defense practice when everyone is fighting over 2%.

  6. SHG

    That assigned counsel fees become “a drug” is what I hated about the plan, easy money for those so inclined. I don’t know about Erie, but I assume there were lawyers who never handled a case that wasn’t assigned, and who grew lazy and jaded as a result.

    But as you note, the flip side is that the good ones die with the bad ones, trying to stay afloat on the handful of private ases that remain, and nobody survives. People really don’t have a firm grasp of what things would be like if there were no dedicated criminal defense lawyers who weren’t dependent on the public dole.

  7. guest

    I see you censored out the link to the study showing that appointed/contract lawyers get worse case dispositions than either private lawyers or public defenders and my suggestion that maybe Bloomberg’s people had looked at this report.

    I can’t believe you can’t handle a blog discussion that would include a reference to that report. Pretty lame dialogue.

    You call me ignorant, but it’s some of your readers who remain ignorant of that report, thanks to you. So, you’ve lost a reader because of it. Too dishonest. It makes the blog seem untrustworthy for this reader.

  8. SHG

    Had you bothered to read my rules before commenting, you would have seen that I don’t allow links in comments. Maybe you think that’s a silly rule. Some do. I don’t, and since it’s my blawg, I get to make the rules.

    As for your ire over my disinterest in going off on your tangent, you have a few stumbling blocks. First, your tendency to grossly overgeneralize, reflecting a level of discussion that may be interesting to you but not so much to me. If you want to discuss things that matter to you, start your own blog. Here, we discuss things that relate to the content of the post. The study you linked to had already been discussed at length. You didn’t know that? So what? This blawg isn’t about what you know, get it? You are a guest here, nothing more. You don’t get to demand that the discussion follow your interests.

    Second, if you want to be taken seriously, explain who you are, what your qualifications are to make an assertion and use your real name. You hide behind infantile pseudonyms, write insipid comments and expect to be taken seriously? You may be the center of your universe, but you are not the center of anyone else’s. Your normative opinions are irrelevant while you hide in obscurity. There are a million nutjobs and self-important pontificating commenters on the internet. You’re just one of them until you use your real name, take responsibility for your comments and establish a reason why anyone should give a shit about what you think.

    And finally, no one comes to SJ to find out what you think. Near as I can tell, the only person fascinated with you is you. Perhaps that provides a bit of perspective.

  9. Johnny Wallace

    I think you are talking about $750. Right? :). Money is the matter all the way through a court case. Well reputed lawyers confirms about their payment before accepting a case.

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

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