Black Monday For 18-B and the Criminal Defense Bar

The day of reckoning is upon the New York City criminal defense bar. From the New York Law Journal:

On Monday, The Legal Aid Society and criminal defense groups in Manhattan,  Brooklyn, Queens and the Bronx will begin representing indigent defendants in  cases where the primary defense organization is barred by a conflict, taking the  place of 18-b attorneys in most cases.

The change puts in place a controversial plan proposed by Mayor Michael  Bloomberg in 2008 over the fierce opposition of the county bar groups. The city  maintains that the plan will save money and, on average, provide better outcomes  for indigent defendants.

While there will still be a small role for private lawyers taking assignments under 18-b, the shift will be seismic.  In some ways, it’s a change that was brought upon 18-b lawyers by their own hand, as assigned cases were confused with welfare for lawyers.

It became a guarantee for some of a steady income for lousy work. It was abused by others, charging for more hours than there were in a day. It taught lawyers they didn’t have to give a damn about clients to earn a living, as the 18-b checks came regardless of whether they served their clients or not. Indeed, the faster they pled ‘em out, the quicker the checks arrived. Assigned cases were never meant to become a career, but only a gap-filler for the sake of providing indigent defendants with a zealous defense. Like most well-intended systems, things didn’t always work out that way.

But despite the many problems with the system, and there were many problems, the wholesale elimination of assigned work wasn’t necessarily the solution.  While the impact in the trenches will be seen regardless of the speculation here or elsewhere, if things turn out as badly as I expect, it may prove nearly impossible to fix later.

There will be a lot of criminal defense lawyers taking real estate closings soon, because their children like to eat as much as other lawyers’ children.  Work has been tight for years now in criminal defense, just as it has been in other practice areas.  Clients may want lawyers, but they can’t afford to pay for them. Nothing new here. But the vitality of a private criminal defense bar requires a steady stream of paying clients. Without them, lawyers get lonely and rent goes unpaid.  Fees go down as lawyers can’t afford to let clients walk away.

New lawyers and lawyers trying to transition into private criminal defense, whether from their gig as a prosecutor or public defender, will find this particularly troubling. They don’t have the client base or reputation to bring in clients, and survive on assigned work. Without it, they will starve. Without it, they will have little opportunity to develop experience and reputation to become the great lawyer they might be.

There will still be a private defense bar made up of the elite lawyers who can survive without 18-b, but as they age out there will be few newer lawyers to fill their ranks. In essence, assigned work paid for the farm team, the developmental squad of future Clarence Darrows. It filled the empty hours and paid the rent.

The institutional defenders who won the City contracts tend to argue their side, how they can do the job better and cheaper than 18-b counsel, and there is merit to their arguments.  But I wonder whether the people running the institutional defenders will feel as pious about themselves when they go to the gala criminal bar awards dinner and realize there is nobody in the room but them.  And if there is, there won’t be anybody in the room under 50 in the criminal defense bar.

And I wonder whether ten years from now, when there is no longer a vital private criminal defense bar to bring new lawyers into the fold and give them a way to survive and thrive, the institutional defenders will still think so well of their victory here? When the government decides to cut their contracts to  $5 per defendant max with a caseload of 500 per public defender, to whom will they turn?

After all, when the criminal defense bar survives solely on the government’s largesse, it won’t take much for the government to crush it at will.  And this starts on Monday.

2 comments on “Black Monday For 18-B and the Criminal Defense Bar

  1. R.P.

    It’s similar to the field of immigration law. There’s no right to counsel in deportation cases, and so family members somehow come up with the money to pay private attorneys. The free market goes to work and some matters are handled at absurdly low rates by younger attorneys (I know because I used to be one of them!) It’s an imperfect system, certainly, but I always hate those sanctimonious op-ed pieces you see from time to time, in papers like the New York Times, agitating for a right to free assigned counsel for illegal immigrants. Great idea: let’s take away even more work from struggling private-sector attorneys and give it to govt. workers. Plus, the government jobs providing pro bono (either pd’s or legal aid) are actually difficult to get (if you’re not connected – and I never was) and, in New Jersey at least, pretty well paying.

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