Cuomo’s Reform: Progressive And Regressive

There was no “registration” fee when I was admitted to the bar. Then again, there were no bar numbers, no official cards secure enough to pass inspection at Sing Sing, either. We said we were lawyers, and that was good eough. If there was doubt, we were asked for a business card. Somebody would dutifully inspect it, turning it right, left, and eventually nod and say, “go ahead.” And we were off.

Things have gotten a bit more “official” since then. One change was the institution of attorney registration fees. Most states have them, because it’s money and they can. The initial rationale was to pay for the costs associated with becoming more official, since somebody has to, but the relation between the cost of officialdom and the amount of fees has never been clear. The benefit is that you get to continue to be a lawyer, like you were before, but now with a bar number. It’s not really much of a benefit, at least for the lawyer.

In his State of the State address, New York Governor Andrew Cuomo made a number of announcements relating to lawyers, in general, and criminal law, in particular. Cuomo says we’re going to reform discovery. That’s good, given that we’ve been fighting that battle for four decades.

Plus there’s speedy trial reform, another long-time problem, and bail reform, which is likely to have unintended consequences that will make things worse. But these are fashionable issues, and change is needed. Will the lessons of four decades of experience, hard work and thought guide these reforms, or will they be based on whatever trendy magic bullet solutions of the moment? We shall see. And we’ll see if any change actually happens. Talk is cheap.

But buried in Cuomo’s “reforms” is another detail that, when viewed through the eyes of the insipid, might get some cheers. He’s going to raise attorney biennial regististration fees from $375 to $425. Not because attorneys are getting more bang for the buck. Just banged.

Why? To add $66 million to funding for indigent defense.

Funding indigent defense is a wonderful thing, a great thing. But what it is not is a lawyer thing. Gideon is a constitutional mandate on society, one that has been too often ignored or violated, and there is no question that more funding is needed. In fairness, New York does better than many states as far as indigent defense, not that public defenders still don’t gripe about it. But then, griping is a lawyer strength, so there’s no reason why they wouldn’t.

So if public defense is a constitutioal mandate, and indigent defenders need more funding to better fulfill their function, what’s the problem?

New York State Bar Association President Michael Miller described the fee increases as “a targeted tax on attorneys.”

“Our 70,000 members know that providing indigent criminal defense is a constitutional mandate,” Miller said. “It is a state obligation and a societal responsibility, and should be paid for from the (state’s) general fund and not by an additional tax or surcharge on lawyers.”

Good purpose thought it may be, it’s not a lawyer’s burden, but society’s. This misplaced burden comes atop the judiciary’s progressive imposition of pro bono requirements with the best of intentions. After all, there’s an A2J problem, all the woke kids tell us, and if we only give our time for free, surely we can fix it. Why not make freebies part of the lawyer’s duty, just like we do of garage mechanics, because poor people need to drive to work too.

While Cuomo is proud to polish his progressive cred by his sudden caring about a few of the many reforms that have been floating around for the decades, why indigent defense now?

In 2014, the state reached a settlement with the New York Civil Liberties Union over legal representation for the poor in upstate New York that initially ensured defendants in the affected counties would have a lawyer present when the individuals were charged with a crime; the settlement also imposed limits on caseloads for public defenders.

One can’t blame the NYCL, back when it still cared about civil liberties, for suing to assure that upstate defendants be represented. Unlike New York City, with its wealth of competing public defense organizations, plus 18b lawyers, upstate rural counties fell far short.

But the settlement mandated funding, which the New York lege provided. And who killed it?

State legislators tried to fund an expansion of the settlement to the entire state, but it was vetoed by the governor in 2016 because of the cost. A deal reached two years ago phases in a state takeover of indigent legal services costs by 2023, with an annual investment of $250 million.

Yes, Andy Cuomo was governor in 2016. Andy Cuomo vetoed funding of the mandate. Andy Cuomo didn’t want the people of the State of New York to be sad when their taxes were raised to cover the cost, and blame him for being too costly a governor. So our progressive governor put the kibash on it, like he twice did on gravity knife reform laws.

Instead, he’s now dumped the cost directly onto lawyers. After all, what are we going to do about it, vote for Cynthia Nixon? Stop being lawyers?

There will be lawyers who opine that they are happy, thrilled, to pay more for such a good cause. Some, from other states, may tell us that they pay more, so what am I bitching about. And some will sniffle and remind us that we enjoy the great benefit of being lawyers, a privileged group for sure, and the monopoly of providing legal advice and counsel.

While this may be so, it has no bearing on whether we’re an ATM for the state to fund a society mandate so Governor Cuomo can appear pseudo-progressive to most of his constituents while being decidedly regressive to lawyers. Fund indigent defense. Just not on our backs.

7 thoughts on “Cuomo’s Reform: Progressive And Regressive

  1. John Barleycorn

    $375 to $425
    Our 70,000 members.
    To add $66 million to funding for indigent defense.

    Where is the other 62.5 million going to come from, an employment tax on the bench, early retirement packages for prosecutors, or a shoe polish tax for bailiffs?

      1. John Barleycorn

        Not really…. A math jerk might have pointed out that the new and improved 50 buck bar tax is something like .00000000000001 percent of a typical members billing hours per year, but I didn’t.

        Speaking of which, what are the top three things a New York lawyer would actually do with an extra 50 bucks? You should run a poll on that before the woke figure out you can’t do the math-s.

        P.S. What’s a reserved loaf of marbled rye, south of 23rd Street, going for these days?

  2. B. McLeod

    Cuomo probably figures it is lawyers’ fault for not representing all the indigent people pro bono, and therefore, it is only fair that the cost of that be dumped back on lawyers via the registration system.

  3. Jim Tyre

    After all, what are we going to do about it, vote for Cynthia Nixon?

    Not in a million years, or until she makes amends for The Great Bagel Scandal. Whichever comes second.

    Then again, there were no bar numbers

    Common among more backward states such as yours. My dad got a bar number when he became a lawyer in 1935.

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