Upon Reflection, The NYSACDL Speaks

Closing the loop on the 18b issue, discussed earlier here, President George Golzer has issued this unanimous resolution from the NYSACDL:




NYSACDL unanimously resolves:


A strong and independent defense bar is an integral component of New York’s delivery of indigent defense services. From Hamilton’s defense of John Peter Zenger, to John Adams’ impassioned defense of the British soldiers after the Boston massacre to Clarence Darrow’s defense of Leopold and Loeb, the criminal defense bar has been indispensable to the effectiveness of our nation’s criminal justice system. As New York’s largest criminal defense bar association, NYSACDL strongly opposes any effort by New York City to reduce the participation of private lawyers in the defense of New York’s less fortunate. The implementation of New York City’s Request for Proposal potentially undermines the right to counsel announced by the Supreme Court of the United States in Gideon v.Wainwright in 1963.

NYSACDL vigorously urges the New York Legislature to adequately fund our state’s criminal defense system to comply with the mandate of Gideon.

As I was angrily informed by Board Member Michael Shapiro the other day, after noting that the NYCBA, the Queens County Criminal Bar Association and the NACDL had announced their positions while the NYSACDL had yet to do so:


By the way, what’s your rush for a NYSACDL position in advance of its Board meeting? Is the RFP about to take effect momentarily? Might not debate, thought and reflection be warranted? While you sometimes write first and think later, I would prefer that NYSACDL do it the other way around.

This is the product of their collective “debate, thought and reflection.”  A simple “ditto” to the NACDL statement would have worked, but that would have denied the Association to speak its own mind.  Now that they have, let’s parse the resolution.


A strong and independent defense bar is an integral component of New York’s delivery of indigent defense services.

Whether this is a truism or a slap in the face to public and institutional defenders, it begs the question “why?”  It sounds as if it should mean something, but exactly what that is remains unclear.  One would assume, as I must, that they are speaking of 18b lawyers, but it does not distinguish between private criminal defense lawyers and others. 


From Hamilton’s defense of John Peter Zenger, to John Adams’ impassioned defense of the British soldiers after the Boston massacre to Clarence Darrow’s defense of Leopold and Loeb, the criminal defense bar has been indispensable to the effectiveness of our nation’s criminal justice system.

Fairly inspirational, in a vague sort of way, how this either distinguishes the need for 18b lawyers from either the private bar (as neither Hamilton, Adams nor Darrow were assigned by the panel) or public defenders remains unclear.  Up to now, there is little to suggest that this isn’t a typical backslap for criminal defense lawyers.


NYSACDL strongly opposes any effort by New York City to reduce the participation of private lawyers in the defense of New York’s less fortunate.


We finally come to the meat of the resolution, where the Association, after “debate, thought and reflection,” arrives as the words it chooses to state the depth of its position:  Strongly opposes.  It’s impossible not to hear Demi Moore’s “strongly object” from A Few Good Men echoing in the background.  Is this a clear and unequivocal statement or a tepid compromise?  Obviously, stronger language was available for purchase at the gift shop, but these are the words chosen. What follows, therefore, becomes critical to flesh out the meaning of these two words.


The implementation of New York City’s Request for Proposal potentially undermines the right to counsel announced by the Supreme Court of the United States in Gideon v.Wainwright in 1963.

Lawyers are, by skillset, wordsmiths.  While it might be said that I’m looking far closer at this than was ever intended, and this is more than likely true, the words do matter.  By starting with the word “implementation”, the sentence suggests that the problem isn’t in the concept, but in its execution.  Do they mean to say that they are fine with the concept of eliminating 18b, but that there is some unspoken implementation issue that bugs them?

Next, the sentence states that the unspoken implementation issue undermines Gideon.  Not that it will undermine the strong and independent private criminal defense bar, but Gideon.  This suggests that neither public defenders nor institutional defendants are competent to provide counsel to indigents.  It might be worse but for the inclusion of the equivocal word “potentially”, suggesting that there may be no problem at all.


NYSACDL vigorously urges the New York Legislature to adequately fund our state’s criminal defense system to comply with the mandate of Gideon.

What this has to do with the statement isn’t at all clear, since the issue at hand isn’t state funding or funding adequacy.  This is likely a toss-in relating to issues from the past, a state defender system, the adequacy of 18b compensation and the fact that the putative purpose of the RFP is to save money.

Normally, I wouldn’t have so cruelly parsed the resolution, line by line and even a word here and there.  But it’s what comes when pedantic apologists fabricate excuses for a massive failure in focus and mission.  After all other criminal bar associations have made the time to take positions and express them, only one stood silent and confused.  It sounds awfully reasonable to claim that it needed time for “debate, thought and reflection,” until one realizes that every other criminal bar association managed to accomplish its mission.  Or perhaps all the others acted rashly, acting first and thinking later?  Maybe the NYCBA and NACDL are insignificant organizations as compared to the very important NYSACDL? 

I doubt that this was what Shapiro meant, but it’s the message that comes from making thoughtless excuses.  And it leads to heightened scrutiny when they finally get their act together and take a position.

The better way to view this resolution is to step back and ask, what does it accomplish.  On the plus side, it takes a stand against the RFP, which by no means was a given.  The NYSACDL has been conflicted in recent years as to who it represents.  While it was founded as the voice of the private criminal defense bar, indigent defenders have gained a great deal of influence amongst the Board and officers, making it difficult to maintain a clear vision when internal conflicts of interest abound.  When the issue is criminal defense versus prosecution, the answers come more easily than when the issues are intramural. 

On the down side, beyond coming late to the party, there is no call for action, nor even a thought that action was in the offing.  It’s a resolution that, at its bottom line, says the association strongly opposes the change.  Who cares?  It offers neither compelling reasons for the position, particularly reasons that might be persuasive to the City, nor a meaningful challenge the change.  Did the association suspect that the City thought 18b bar would be happy about it and will now, learning that they are not, drop the change?  Does the association believe that vaguely inspirational words are going to change anyone’s mind?

There is serious doubt that the NYSACDL could say or do anything that will alter this situation.  It may be a lost cause already.  But of the positions taken by the NYCBA, QCCBA and NACDL, it is by far the weakest, least rational and most irrelevant position.  That’s what comes, I suppose, from too much “debate, thought and reflection.”  Or maybe this is just a horse designed by a committee of very important lawyers.

At least the other associations have demonstrated the will to fight the elimination of 18b in New York City, and with it the resource that sustains the private criminal defense bar.  Maybe a lawsuit against the City will fail.  Maybe the call for study of the impact of this seismic change on the provision of indigent defense services before the evisceration of 18b will be ignored.  Maybe nothing will save 18b.  But at least they won’t let it happen without a fight.

11 thoughts on “Upon Reflection, The NYSACDL Speaks

  1. SHG

    It appears that some of the Board and officers are very angry with me for telling their secrets and saying mean things about them. They won’t say them to me, of course, but write to each other about how I hate the association and don’t appreciate how the association has many conflicting constituencies, how hard they worked to reach consensus and how hard they are trying to fufill their fiducuary duties to the members, a word they discovered after the last financial fiasco.

    I thought you would want to know.

  2. KC Law

    In the immortal word(s) of General McAuliffe when surrounded by the Germans: “Nuts!”

    Or if Kris Kristofferson better reflects the mood:

    On the Sunday morning sidewalk,
    Wishing, Lord, that I was stoned.
    ‘Cos there’s something in a Sunday,
    Makes a body feel alone.

  3. SHG

    A board member emailed me yesterday, after some of the others went on the attack against me, to tell me that no emperor likes it when someone reveals he’s wearing no clothes.  But the image of George Golzer naked was more than I could stand. 

    To borrow another lyric from Kris Kristofferson, freedom is just another word for nothing left to lose.  During the many years I spent on the board and as a VP of the association, I tried to fight the tide of incompetence, pomposity and paternalistic deception.  Now that I’m free of constraints, I can tell the truth and hope that the those who are blinded by their desire to become important criminal defense lawyers (as if), as well as the members who are now being treated like idiot children, will realize what they’ve done to the association.  They all have a choice, to continue to allow the association to follow its present course of uselessness or do something about it. 

  4. Blind Guy

    After reading some posts about how this issue was handled it appears very clear that unanimity and consensus were the goals rather than coming to a concrete position with concrete reasoning. There is nothing in the NYSACDL Res. that tells the city why it should keep 18b lawyers. References to John Adams and Clarence Darrow do not exactly carry the day.

    Making unanimity a goal rarely works and tends to disappoint almost everyone.

    As for fiduciary duty, the Board forfeited the right to even use that phrase after their decision not to fire the previous Exec. Dir. after her behavior was unearthed.

  5. Eric Lipman

    Since some of your readers are wary of me based on my lack of comments posted to other legal blogs, I thought I’d weigh in here:

    In “A Few Good Men,” Demi Moore “strenuously” objects, not “strongly” objects.

    How’s that for a comment?

  6. SHG

    So maybe I was wrong in thinking that the NYSACDL doesn’t stand for anything.  It stands for consensus, even if it means the end of the private defense bar.  After all, you can’t offend the 10% of public defenders to stand up the irreparable harm being done to the 90% of members who are private criminal defense lawyers.  Thanks for clearing that up.

  7. Eric Lipman

    Easing into it, much like a cold pool.

    Could have been worse. I could have corrected your spelling of George Goltzer’s name, and mentioned that I’ve seen him in action in SDNY and he’s a pretty persuasive advocate.

  8. SHG

    A few more lessons from the blawgosphere.  First, not every post is an opportunity for a joke. Some subjects are serious (such as Crazy Joe Arpaio and this post), and attempts at humor really aren’t appropriate.  Second, typos happen, especially with those of us who aren’t being paid to write.  Alerting the author of a typo so that he can corrected is considered a kindness.  Pointing out typos as a “gotcha” is poor form, usually done by smarmy kids and trolls.  And finally, comments are to the post at issue, so staying on topic is important. This post has nothing to do with George’s competence as a lawyer, but his stewardship as the association president.

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