New Rules Trouble Some Defense Lawyers for the Poor - City Room Blog - NYTimes.com

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March 5, 2010, 4:33 pm

New Rules Trouble Some Defense Lawyers for the Poor

By JOHN ELIGON

Last month, the mayor’s office unveiled new guidelines for assigning public defenders to represent indigent criminal defendants. Now, some defense organizations are voicing their displeasure, fearing that the new rules will take work from experienced lawyers and overburden less experienced ones.

For years, the practice in New York City has been to give the Legal Aid Society or another approved indigent defense provider the first review of cases involving defendants who cannot afford lawyers. If Legal Aid or one of the other services cannot pick up the case, then it usually goes to a solo practitioner who participates in the state’s Assigned Counsel Plan, known as 18-B.

Generally speaking, conflicts may prevent a legal service provider from picking up a defendant in a case. For instance, in a case with multiple defendants, the same service provider can represent only one defendant. And so 18-B lawyers tend to pick up those defendants excluded by a conflict.

But what has some upset about the new guidelines is that the city is now allowing Legal Aid and the other defender services to represent defendants in cases in which there are conflicts — a move that some fear will take work away from 18-B lawyers. The guidelines also state that those who receive contracts to represent indigent defendants will be expected to provide a larger network of services, such as social workers, paralegals and investigators.

Many 18-B lawyers who are solo practitioners may not be able to meet this requirement.

“No empirical studies show that this change would benefit the criminal justice system,” said Genay Leitman, president of the New York Criminal Bar Association. “It would make the system worse.”

For one thing, Ms. Leitman said, the new system would pour more cases onto Legal Aid and other local defender services that are already overburdened. This will make it more difficult for lawyers with those organizations, many of whom are young, to represent their clients adequately, Ms. Leitman said.

Lawyers on the 18-B panel, on the other hand, tend to be more experienced and generally are not bogged down with large caseloads, Ms. Leitman said. They are better equipped to handle difficult cases, she said.

“This is not the appropriate way to defend the indigent,” Ms. Leitman said.

But the new guidelines do not affect at least one provision: All homicide cases involving indigent defendants will continue to go to 18-B lawyers.

Ms. Leitman said she also believed that under the new system, Legal Aid and other defender services would be at the mercy of the city, which controls the financing. Agencies might pour fewer resources into cases to make sure they stay within city budgets out of fear that they could lose contracts if they go over, Ms. Leitman said. Lawyers on the 18-B panel earn $75 an hour and receive financing for extra expenses incurred during a case such as hiring investigators and experts.

The city has budgeted just over $100 million annually for indigent defense, not including expenditures for 18-B lawyers. Additional financing is expected to come from the City Council.

In its request for proposal, the city says it maintains the right to negotiate its own rate with defender services.

Ms. Leitman said that she believed cutting costs was one of the city’s motives.

But Jason Post, a spokesman for the mayor’s office, denied that claim.

“This is not about saving money, this is about improving services for the indigent,” Mr. Post wrote in an e-mail message.

The process, he added, “produces competition and innovation, which usually produces better results.”

“We shouldn’t be afraid of new ideas and new approaches,” he said.

And even 18-B lawyers may apply for contracts under the new system, Mr. Post said.

Yet he did note the importance the city has placed on contracting with providers who offer a variety of services, referring to a line in the request for proposal that says the city wanted to ensure that providers “provide collateral consequence services, thereby representing clients in ancillary matters in such areas as immigration, housing, and other situations arising from a criminal case.”

Steven Banks, the attorney in chief of the Legal Aid Society, said that the organization’s ability to provide clients with numerous services has helped set it apart.

“It’s certainly up to the city to determine the level of 18-B representation that it will fund,” Mr. Banks said. “Our concern is ensuring that the Legal Aid Society continues its role as the primary defender in New York City because of our ability to provide greater resources and support for clients than others.”

As long as Legal Aid continues to receive adequate financing, Mr. Banks said, the organization will be able to keep up with the rising caseloads. A new state law that sets caseload caps for lawyers for the indigent will also help Legal Aid manage its work, he said.

Still, the new guidelines could threaten Legal Aid’s standing as the primary indigent defender service in New York. The guidelines allow for the possibility that some primary cases would go to other defender services, meaning that Legal Aid no longer would get first right of refusal on indigent defendants.

Proposals are due by March 15, and contracts will take effect July 1, running through June 30, 2012. But Ms. Leitman and others are attempting to persuade the city to reconsider. The criminal bar association last week put out a resolution opposing the city’s request for proposal. The National Association of Criminal Defense Lawyers has followed suit.

“Any significant change to the indigent defense system in the City of New York, particularly one as radical as that now being contemplated by Mayor Bloomberg’s office, should come only after careful study, consultation and hearings,” William P. Wolf, co-chairman of the association’s indigent defense committee, said in a press release Monday. “This is about much more than a budget line item in a challenging economic environment. What’s at stake are the well-established constitutional rights of the rapidly growing ranks of poor persons and the unambiguous constitutional responsibility of New York to ensure that indigent persons accused of a crime enjoy their Sixth Amendment right to effective assistance of counsel.”

New Rules Trouble Some Defense Lawyers for the Poor - City Room Blog - NYTimes.com.