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 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.
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.