Alan Feuer’s article in the  New York Times paints a grim picture, but one that needs to be seen.

The lawyers — there are more than 1,000 in the city — occupy a difficult and middling spot in New York’s crowded legal cosmos, somewhere between the chauffeur-driven celebrities who moonlight as trial-coverage pundits on TV and the earnest young altruists at Legal Aid. They are creatures of the courthouse, where they spend so many hours in proceedings or waiting in hallways for their cases to be called that they are known to justices and janitors alike.

While sometimes thought of as the 97-pound weaklings of the criminal-justice system (“If someone said my name and ‘18-B’ in the same sentence, I’d probably commit suicide,” a more highly paid lawyer said), they are, in a sense, the heart of that system, serving the city’s neediest defendants for what usually amounts to little pay.

Yet this was an article that was close to never being written.  In his research, Feuer sought out lawyers willing to talk about how the recession impacted their practice, and what the future, or lack thereof, would mean to them.  Nobody wanted to be the poster boy for failure. 

While sympathetic to those lawyers who braved the hard work and uncaring judges, and without even mentioning how defendants treated their free lawyers neither respect nor appreciation, Feuer wanted to put a face on the desperate straits of New York City’s criminal defense lawyers, some exceptionally good lawyers, some less so.  it was a struggle. 

Feuer sought out lawyers whose practice consisted primarily of 18B representation, private lawyers defending the indigent and paid by the county.  But lawyers are a proud bunch, ego being one of the few constants necessary to do the job, and no matter how bad the economy or long the 18B checks languished, they keep a brave face. 

There’s no point in complaining, as no one wants to hear it, and the idea of being profiled in the New York Times as a starving lawyer flew in the face of careful efforts to craft a successful persona, the sort that paying clients would seek out to retain.  Going on the record for this article was like committing economic suicide.  Or worse still, conceding defeat.  Who wants their name to become synonymous with failure?

Lawyers, even (especially?) those doing indigent defense, are still subject the influences of finance in world of noble beliefs.  Ivan Vogel, who was brave enough to stand up for what he does, and the situation he’s in, may have cut the frills from his practice, but that doesn’t make him any less a tiger in the courtroom, or a savior to the poor he defends.  Sadly, there isn’t always a direct correlation between quality and caring and cash.  Life isn’t fair, a theme that dominates the story as well as the lives of all involved.

Not long ago, it was possible to earn a decent living — or at least to pay one’s bills without unnecessary travail — as an 18-B lawyer, most of whom, in flusher times, could count on supplementing their low-yielding indigent work with lucrative private clients. With the economic downturn, however, many complain that remunerative retainer cases are harder to find than ever, and that the defendants who do hire private lawyers are increasingly unwilling, or unable, to afford substantial rates.

Historically, indigent defense filled in the gaps.  It gave new criminal defense lawyer, often fresh out of Legal Aid or a District Attorney’s office, a cushion to enable them to start a practice, get the chops needed to run it and practice law, and allow them pay the rent.  As they developed a name to go along with their skills, privately retained clients would come and success would follow.  For others, for whom the telephone never rang, they would survive on 18B, though it was never intended as a primary source of income. 

It’s very different today.  The number of cases is a fraction of what there were 20 years ago.  While the cost of a mid-level criminal defense hasn’t change much,, and may in fact be lower than it was, it’s still more than most defendants can afford.  And that left 18B to fill in the time and cover the costs.  At $75 an hour out of court, pre-tax, it wasn’t enough.  The numbers don’t work.

And these are the halcyon days compared to what’s on the horizon.

On Feb. 3, 2010, however, the Mayor’s Office of the Criminal Justice Coordinator issued its request for proposals, seeking to increase “the administrative efficiency and cost effectiveness of indigent services.” In the request, the city said that it planned to employ “multiple providers” to handle conflict cases, which are now handled solely by 18-B lawyers, and that while it expected to pay these providers by reimbursing their costs, as is done in the 18-B system, it reserved the right “to select any payment structure that is in the city’s best interest.”

This, in short, is the death of 18B.  The New York City criminal bar associations are fighting to stop it, but they  lost the first round and it’s now on appeal.  And with the end of 18B may well come the end of 1000 lawyers who struggle daily to provide legal representation to the indigent. 

There are institutional providers who will replace the cadre of 18B lawyers, but its unclear what will happen to them as well should this plan go into effect.  Would you want to focus your legal career on criminal defense knowing that there was no future in it, no place to go after working for Bronx Defenders?  While the job is pretty darned good for a starting lawyer, it’s not the job for a midlife lawyer with kids going to college who wants to take her spouse out for dinner once a week.

When economic times were better, I was critical of lawyers whose practices relied entirely on 18B.  I called it “welfare for lawyers,” and urged a limit to how many cases, how much revenue, any individual lawyer could make, so that they were forced to work harder and better to get the private retainers.  Lawyers got lazy and slopping living off 18B alone when there was private work to be had.

But when there are far too few private cases, the equation changes.  The fight for a good case became too fierce, and a buyer’s market saw some lawyers cutting fees, and others gasping for air.  It was foolish in the long run, taking cases that couldn’t pay for themselves, but hunger does strange things to the brain.  And neither the cut-rate private work nor the declining 18B was doing much of a job providing a living income.

With the end of 18B on the horizon, the lack of sufficient private work, the well will run dry.  There’s a very strong likelihood that the greatest city on earth will have no criminal defense bar to speak of, with only a few at the top and institutional defenders doing the rest. 

If the first thing one does to assure tyranny is to get rid of all the lawyers, it looks like New York City has an effective game plan.