The Appellate Division, Second Department, has stopped taking applications for its trial-level 18-B panels, saying it has plenty of available attorneys to represent indigent criminal defendants and it expects that New York City’s new assigned-counsel program, which involves greater reliance on institutional providers, will result in a decrease in the demand for 18-B attorneys.
Within the past week, a Second Department committee handling assigned-counsel matters has temporarily paused from accepting new applications for attorneys to sit on 18-B panels, said Aprilanne Agostino, the department’s clerk of the court.
The move marks one of the first repercussions of Mayor Michael Bloomberg’s plan to issue contracts for institutional providers to take on more "conflict representation" cases in indigent criminal defense matters (NYLJ, Oct. 31, 2012).
The reasoning behind the Second Department’s decision was twofold, said Agostino: There were already "more than enough people to do the work" and administrators "anticipated a decrease" in the number of cases assigned to 18-B attorneys going forward.
Agostino said attorneys on the panel could be "under-utilized" as more institutional providers step in to handle cases.
But if demand for assigned counsel does not decrease after the city implements its program, the department will resume accepting applications, she said.
A source familiar with the Second Department’s assigned-counsel program said he could not recall a time when 18-B applications were suspended for any reason.
Susanna Rojas, clerk of the court for the Appellate Division, First Department, said that court is still accepting applications and has not made any re-calibrations in the wake of a Court of Appeals ruling in October 2012 that found the mayor’s plan valid.
Rojas said she did not anticipate having to make any changes in 18-B administration, but said adjustments could be considered if needed.
"Right now, we’ll proceed as we’re normally proceeding," she said.
The "conflict representation" cases arise when the primary legal service provider, such as the Legal Aid Society, has a conflict of interest, for instance, when there are multiple defendants charged with the same crime.
In those instances, the provider represents one defendant while the others would be represented by the assigned counsel from 18-B panels, named for the article of County Law that provides for the assignment of private lawyers to represent the poor.
But Bloomberg unveiled a plan in 2008 and modified in 2010 that would give more of those cases to institutional providers through competitively bid contracts.
Several bar associations sued the city, arguing that Bloomberg’s plan interrupts the flow of cases to 18-B panels, which are part of a bar group plan provided for under County Law §722(3) that cannot be altered without their consent.
Last October, a 4-3 majority of the state Court of Appeals found in Matter of the New York County Lawyers’ Association v. Bloomberg, 155, that the city had established a legally valid indigent defense plan that uses both institutional providers and private counsel under Article 18-B of the County Law.
In a dissent, Chief Judge Jonathan Lippman said the plan "reduces, and indeed will likely marginalize the participation of [18-B] panel attorneys."
The Legal Aid Society intervened in the litigation in support of Bloomberg’s plan.
Steven Banks, the organization’s attorney-in-chief, said Legal Aid planned on participating in the city’s program as an institutional provider. He said several other factors could be in play that may reduce the need for assigned counsel, such as the possibility of revamped stop-and-frisks policies and a proposal to reduce arrests for low-level marijuana possession.
The city’s current contract with the Legal Aid Society provides for the organization to handle 211,000 cases this fiscal year across the five boroughs.
Still, said Banks, "We are ready, willing and able to provide cost effective and comprehensive representation to additional New Yorkers accused of crimes, often wrongfully."
Stanford Bandelli, a Brooklyn and Staten Island-based defense lawyer who handles about one 18-B case a year, called the suspension "disappointing" because the assigned-counsel program "provided a very valuable service" to defendants and the courts.
A member of the advisory committee to the assigned-counsel plan for the Second Department himself, Bandelli, said many 18-B lawyers are former prosecutors or Legal Aid attorneys who are "experienced and compassionate" and institutional providers were not "a good substitute."
"It seems to me an attempt to manage the finances of the city is undermining the quality of the defense available to these individuals," he said.
@|Andrew Keshner can be contacted at firstname.lastname@example.org.