After the City of New York issued its Request for Proposals that would eliminate the need for the assignment of indigent defense to private lawyers, or 18-B as it’s known, the five county bar associations brought suit.   A sigh of relief rose from 18-B lawyers across the City. 

The press release was heavy on Gideon and concern for indigent defendants, but the gist of the issue was that the City froze the county bar associations out of the process, when they were entitled to have input.  They didn’t like being ignored, and filed suit on June 2nd.  The good news is that rumors are everywhere, based on a draft stipulation that circulated about two weeks ago, that the case has been settled.  The bad news is that the county bar associations got what they wanted, some feigned respect so they don’t look like toothless tigers in the eyes of their members, and sold the 18-B lawyers out.  Stabbed them in the back might be a better way to express it, since the lawyers thought that somebody gave a damn about them and supported the bar associations efforts. 

Genay Ann Leitman, president of the New York Criminal Bar Association (the one that covers New York City), realized that once the settlement was approved and became public, it would be too late.  The burial would be over and all she could do then was stare at the grave.  She decided not to let that happen, and sent off a letter.

I write as the President of the New York Criminal Bar Association (“NYCBA”), an affiliate of the National Association of Criminal Defense Lawyers (“NACDL”) and the oldest criminal defense bar association in the City of New York.  Our members include a significant number of the 18-B attorneys practicing in the five boroughs of this City, as well as members of the Legal Aid Society and the alternate defenders.  We have been informed that the county bar associations intend to enter into a stipulated settlement with the City of New York that, in essence, signals the death of the private indigent defense bar in this City. We urge you not to permit a settlement without a  public examination of the effects such an agreement will have on indigent defendants and the attorneys in this city that represent them.  Assuming that the present settlement resembles the “draft stipulation” that had been leaked to the public two weeks ago, then the settlement is a mistake of monumental proportions that shall adversely affect indigent defense in this City for years to come.

Genay goes on to extol the virtues of the current system and the lawyers who participate in it.

Members of the private bar who do indigent defense work are independent, experienced veterans with different views, incentives and attitudes toward the defense of their clients than the overworked, overloaded, underpaid and usually young public defenders. Without meaning in any way to denigrate the work of the Legal Aid Society or alternate defenders who do fine work as well, there is no doubt that the private defense bar contains many of the very best criminal defense lawyers in this City. Indeed, this is underscored through the very fact that 18-B counsel are charged with the sole duty to represent the indigent accused of homicide. Furthermore, year after year, the annual statistics kept by the Appellate Divisions in this City clearly show, for example, that the vast majority of cases tried are by 18-B counsel. Why is this so? Because the independent, private attorneys have different views and incentives than the over-worked public defender with 150, or 200, or more, open pending cases. And putting cynicism aside that the private indigent bar tries more cases because of the economic incentive, there are many, many, cases that really ought to be tried, but which for whatever reason end in guilty pleas.

While it’s difficult to accept Genay’s proposition that “if it ain’t broke, don’t fix it,” as there are substantial aspects of the 18-B system that could use improvement, it remains that the evisceration of the system, whether by unilateral fiat of the City or by settlement with the 5 county bar associations who clearly couldn’t care less about criminal defense lawyers or indigent defendants (unless they also happen to have a sweet personal injury case), would prove disastrous. 

If this settlement – as we understand it – is permitted to go forward, then indigent defense by the private bar in NYC is doomed. Phrases like “will remain substantially the same” are a minefield for the unwary. If the bar associations or this Court, are lulled into the belief that even with a new conflict defender’s office(s), that 18-B will remain “substantially the same”, then the bar associations and this Court are being misled. Without arraignment shifts, or on call days, a rapid atrophy will set in and the 18-B Bar, with over 1000 practitioners who have tied their very lives and fate to the defense of the indigent for many, many, years and who neglected following other career paths in the past so that they may engage in this laudable endeavor, will be undeservedly destroyed.

I’ve never been a huge fan of the 18-B system, what I’ve called “welfare for lawyers” because of its abuse by some and its reliance by too many as the sole basis for their “private practice.”  It’s one thing to supplement a practice with some 18-B work, but when a lawyer’s entire practice is based on doing indigent defense, something is very wrong.  There are some great lawyers doing 18-B and some really awful lawyers doing 18-B.  But no lawyer can claim to be a private practitioner when she lives off checks from the county.

However, that doesn’t mean that the wholesale elimination of 18-B is the answer.  Indeed, it’s the death knell for a very large swathe of the criminal defense bar, particularly at a time when money is tight, private cases scarce and lawyers are hanging on by their fingernails.  The ability to supplement a private practice with some indigent work spells the difference between survival as a criminal defense lawyer and doing real estate closing.  Oops, there aren’t many of those to be done either. Make that working at Dairy Queen.

As Genay notes, albeit with an excess of caution for fear of offending the brethren on the public dole, the 18-B bar adds a significant dimension to indigent defense, trying more cases and working under an entirely different incentive system, where lawyers need not take more cases than they can handle, aren’t overwhelmed with warm (and poor) bodies and may be more inclined to fight when they aren’t looking at the volume under which the Legal Aid Society operates.  The 18-B lawyers fulfill a purpose, even if there are some who don’t deserve a file. 

What’s most disturbing about this whimpering potential resolution to the crisis is how the county bar associations appear to have sold out the criminal defense bar.  It’s hardly surprising, of course, as the criminal defense bar never had much to do with the county bar associations, which were there for the civil lawyers, and is why criminal defense lawyers formed their own bar associations.  After all, civil lawyers don’t want to get too close to criminal lawyers lest something rub off on them and get their suits all dirty.

But it’s the county bars that were given the juice in the legislation to participate in indigent defense decisions.  It was all very formal and serious at the time, with power and politicis trumping any actual concern for indigents, and it now appears that as long as the City pays lip service to the county bars, the fate of indigents and the criminal defense bar can be tossed to the wind.  They only care about the City not “dissing” them; they don’t actually care what happens to poor criminal defendants (unless they also have a sweet personal injury case).

The New York Criminal Bar Association is staring at a conflation of threats against the criminal defense bar that could bring down criminal defense as we know it.  Genay and the Board are showing some real guts in facing the problems and standing up for criminal defense lawyers.