ALBANY – The Bloomberg administration has established a legally valid plan for indigent defense that uses both institutional providers and private assigned counsel under Article 18B of the County Law, a narrowly divided Court of Appeals ruled today.

The majority of the 4-3 court said the plan introduced by Mayor Michael Bloomberg in 2008 and modified in 2010 satisfies the requirements of County Law §722 for a so-called “combination plan” in which the city assigns to institutional providers the cases of poor defendants where primary legal services providers have a conflict of interest.

Further, Judge Carmen Beauchamp Ciparick (See Profile), writing for the majority in Matter of the New York County Lawyers’ Association v. Bloomberg, 155, said city’s ability to do so is not contingent on the approval of local bar associations.

“In effect, the bar associations would control the City’s ability to fulfill its statutory mandate to formulate a comprehensive plan for indigent defense,” Ciparick wrote. “We do not believe the Legislature intended such a result.”

Rather, the court continued, §722 “appears to contemplate precisely what occurred here – that the City, in response to needs actual or perceived, could implement a combination plan apportioning conflict representation among both institutional providers and private counsel retained pursuant to the selection method created by the 1965 Bar Plan, the 18-B panels.”

The “Bar Plan” was devised by the New York City Bar and the New York County Lawyers’ Association to provide representation to indigent criminal defendants as required by the U.S. Supreme Court in its landmark ruling in Gideon v. Wainwright, 372 US 335 (1963). The joint plan depended on the Appellate Division for the First and Second departments to promulgate rules for the operation of a conflict counsel system using panels of qualified private attorneys maintained by the city bar groups.

The panel attorneys were to be called on when primary providers, such as the Legal Aid Society of New York City, were faced with a conflict most often posed by multiple defendants being charged in the same crime. In those instances, Legal Aid lawyers would represent one of the defendants and the others would be assigned to other providers or to assigned private counsel.

The Bloomberg administration’s 2008 plan called for more of the “conflict representation” cases to be handled by institutional providers under competitively bid contracts. The administration argued before state courts that its plan would still retain some participation by the bar associations, but that it could save significant amounts of money.

There are more than 1,000 private attorneys on the 18-B rolls in New York City and some 44,000 conflict cases a year are assigned to the private attorneys, according to briefs before the Court of Appeals.

NYCLA and the other plaintiffs—the Bronx County Bar Association, Brooklyn Bar Association, Queens County Bar Association and the Richmond County Bar Association—contended that the Bloomberg plan was prohibited by the County Law and would undermine the effective representation of defendants under the 18-B system for the sake of some cost savings by New York City (NYLJ, Sept. 6).

Judges Victoria Graffeo (See Profile), Susan Phillips Read (See Profile) and Theodore Jones Jr. (See Profile) joined in the majority ruling today.

In a dissent, Chief Judge Jonathan Lippman (See Profile) wrote that the city’s authority to contract out the conflict cases to institutional providers is limited legally by County Law §722.

The chief judge said it is both “prudent and natural” that if the 18-B panels are to be “retained and usefully administered as a representational resource,” the local bar groups that maintain the rolls of eligible attorneys should remain as partners with government in the cooperative venture of representing conflict defendants.

“The City may have very sound policy reasons for the change it proposes, but as it goes about altering, perhaps irretrievably, the network of indigent defense service providers that has been in place for some 47 years, it would seem more than ordinarily important to insist upon compliance with the limitations contained in County Law §(722, among them that bar association consent be obtained as a condition of a City plan purporting to rely on ‘a plan of a bar association,’” Lippman wrote.

Lippman noted that the bar groups that are plaintiffs in the case decided by the court today have all rejected the Bloomberg plan.

He added that the Bloomberg plan “reduces, and indeed will likely marginalize the participation of [18-B] panel attorneys.”

Judges Robert Smith (See Profile) and Eugene Pigott Jr. (See Profile) joined in the dissent.

Assistant New York City Corporation Counsel Julian Kalkstein argued for the Bloomberg administration. “We are pleased that the court upheld the lower court rulings and found in favor of the city’s plan to more efficiently and effectively deliver services for 18-B clients,” Kalkstein said in a statement.

Jonathan Pressment of Haynes and Boone represented the bar groups.

Zoe Jasper of Satterlee Stephens Burke & Burke appeared on behalf of the New York Criminal Bar Association, an intervenor in opposition to the Bloomberg plan. Daniel Kolb argued for the Legal Aid Society, which intervened in support of the plan.

Today’s ruling affirmed a 3-2 ruling by a First Department panel in Matter of New York County Lawyers’ Assn. v. Bloomberg, 95 AD3d 92 (2012) (NYLJ, March 16). Manhattan Supreme Court Justice Anil Singh (See Profile) had also supported the city’s position in the case in Matter of New York County Lawyers’ Assn. v. Bloomberg, 30 Misc 3d 921 (2011) (NYLJ, Jan. 5, 2011).

@| Joel Stashenko can be reached at jstashenko@alm.com.