The office of New York City’s mayor has recently proposed the use of institutional providers to handle conflict cases, a move that could sharply limit the Assigned Counsel Plan, a group of attorneys who are appointed to represent indigent criminal defendants. Speaking from a legal as well as a practical perspective, informed by my own experience as a former member of the plan, as well as my work as a Criminal Court judge over the past five years, I believe this proposal to be a terrible mistake.
As many already know, the Legal Aid Society is the primary provider of criminal defense for the indigent in New York City. I have had the pleasure of observing their attorneys perform their services in a dedicated, conscientious and exemplary manner. At all times, these lawyers consistently embody the high standards and commitment to quality representation of the impoverished which has earned their organization its well-deserved, fine reputation.
However, Legal Aid cannot handle the defense of the destitute all by themselves. Besides the sheer number of defendants who appear before the Criminal Courts of New York, there are conflicts of interest that arise which prevent the fine attorneys of the Legal Aid Society from representing all. Cross complaints are an obvious example, where two people have brought charges one against the other. Co-defendants are another—when two or more people are arrested together, each may wish to assert a contrary defense.
Every county boasts independent defender services, which are small, independent offices of criminal defense attorneys who augment Legal Aid and handle these conflicts. Manhattan even has two, the Neighborhood Defenders of Harlem, and the New York County Defenders. But what happens when there are four defendants arrested in a robbery, or five people accused of being in a car together with a loaded gun, or 10 people arrested in a drug sale conspiracy?
In these instances, and others more complicated and less obvious, New York state provides for private attorneys to step in and handle the defense in cases where there is a conflict of interest. These attorneys are called “18-b,” named for the section of the County Law enacted to establish the availability of their services.
18-b attorneys are members of a panel that has been thoroughly screened for competency, and are often experienced former prosecutors and Legal Aid members who have formed their own private offices. However, the city wants to eliminate 18-b counsel for all but murder cases, relying upon more of the defender services groups.
Recently, much has been made in the local news of the hourly rate paid to 18-b attorneys, and a strict financial examination would seem to be on the city’s side of the equation. Based on data provided by the Office of Court Administration, in 2009, citywide, the Legal Aid Society handled approximately 231,692 criminal cases for a total cost of about $77.2 million. In that same year, 18-b counsel represented 42,212 defendants for a cost of $48.5 million. By comparison, the various defender services in all five boroughs handled the cases of 80,122 people for a cost of about $26.6 million.
However, these numbers do not tell the whole story of the service 18-b counsel provide. The private defense attorneys of the Assigned Counsel Panel handled 367 murder cases, and almost 21,000 other felony matters in 2009. All six defender services combined handled the defense of a grand total of 39 homicide cases and 10,689 other felonies, a fraction of the homicides handled by 18-b, and a little more than half the volume of felony cases assigned to 18-b attorneys.
Besides homicides, felonies are the hardest cases for any criminal defender. The client is often facing years of incarceration, sometimes based upon the testimony of one witness. A former prosecutor, who tried cases on behalf of the district attorney’s office, can now bring his or her years of experience to bear on behalf of the accused, all for the rate of $75 an hour. In a city where many attorneys charge upwards of $500 an hour, this is indeed a Mercedes defense on a Hyundai budget.
Further, the hourly rates paid to 18-b panel attorneys is used to finance their own, privately maintained offices. When I served on the 18-b panel, I paid my office rent, phone bill, secretarial services, quarterly taxes and 401k, as well as health, malpractice and office insurance out of what I received to represent the indigent, and at that time, the rate was $40 an hour in court, and $25 an hour for out of court work.
The $125,000 or so I made in a year was soon whittled down to approximately $60,000 in taxable income. Frankly, no matter how hard the members of the Legal Aid Society work, after taxes, contributions to their retirement accounts, and presumably health insurance costs, there are no other overhead expenses applied to their yearly salaries.
It is true that 18-b panel members may perform other work to augment their wages. But how much outside work can such an attorney do when he or she is in the middle of a six month trial of a 10 defendant drug sale conspiracy? It is not uncommon for an 18-b panel member to try felony matters all year, making it impossible to maintain much, if any, alternative practice.
Consider also the financial benefits such a group of independent lawyers bring to the counties in which they maintain their respective offices—office rents, quarterly taxes, staff salaries, outside service providers (such as messengers and process servers), and in general, spending their salaries here in New York City. These financial advantages cannot easily be ignored.
The decision to disband much of the 18-b panel cannot be made solely on a fiscal basis. The law requires that a criminal defendant receive an adequate defense. How will the city and state meet this mandate if they do not provide attorneys when Legal Aid and the various defender services have a conflict of interest?
I do not pretend to be cognizant of all the fiscal factors that go into the mayor’s proposal, nor can I comment on the political issues. However, I am well aware of the benefits these attorneys bring to the defendants they represent, and can attest to the continuing value of their services. Thus, I can say with confidence that if the city were to subtract 18-b panel attorneys, the people of New York would be ill served.
John H. Wilson serves as the night court arraignment judge in Brooklyn Criminal Court.