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For the first time in 34 years, the process for assigning counsel for the indigent was re-examined Thursday, as New York’s Committee on the Representation of the Poor held public hearings to review proposals from 23 experts in criminal and family practice. And while the experts testifying at New York’s Appellate Division, 1st Department, courthouse did not form a consensus about what needs to be done, they all agreed that serious steps need to be taken to address lawyer shortages and other problems facing the program. The system for assigning lawyers to the poor, called 18-B after the section of the County Law that authorizes bar associations to establish panels of attorneys to accept court appointments, has not been reviewed since 1966. At that time, New York City established a system for providing lawyers to defendants in criminal cases in the wake of the U.S. Supreme Court’s decision in Gideon v. Wainwright, which mandated court-appointed counsel for those who could not afford representation. But with a tremendous rise in the caseloads of both the criminal and the family courts, and with the retreat of many assigned counsel from these cases, the system has slowly broken down. Attorneys testified that several factors contribute to cynicism and the flight of assigned counsel from the program: inadequate rates of compensation, disrespect from clients and judges, and the difficult circumstances under which 18-B attorneys labor every day. According to Norman Reimer, vice president of New York County Lawyers’ Association, services to the poor are malnourished “to the point of starvation” because the criminal defendants and those parents accused of child abuse or neglect are unpopular and unable to speak on their own behalf. The Committee on the Representation of the Poor was established last year to study the problem, focusing on four specific issues: creating an institutional provider for both criminal defense and parental representation; establishing a resource center staffed with full-time investigators, social workers and other experts needed in criminal and family cases; limiting caseloads and giving the courts a more active role in overseeing cases; and instituting a permanent oversight panel. Those testifying from the criminal and the family bars disagreed on whether any of these proposed solutions were necessary, and if so, to what extent. Most practitioners agreed that creation of a resource center would help 18-B practitioners as well as all lawyers representing the poor. They suggested that the center should be fully staffed with investigators and social workers, and also have translators, a full library, DNA expertise, legal training and appellate-support services. But Adele Bernhard, of the Indigent Defense Organization Oversight Committee, suggested to the nine-member panel that rather than recommend establishing such a resource center, it should go one step further and create a full institutional provider for both criminal defense and parental representation. “End the reliance on 18-B,” proclaimed Bernhard. Although a resource center would be better than nothing, she said, the heart of the problem is that many assigned counsel do not know when to use investigators and social workers. She suggested that the panel look at other cities such as Los Angeles, which currently has an institutional public defender. “Parents are the only party not represented by an institutional provider … and you have seen this detriment,” said Andrew Scherer, director of the Legal Support Unit of Legal Services for New York. According to Scherer, only an institutional provider such as his group or the Legal Aid Society can provide an array of legal services necessary for families in trouble, including housing, custody, domestic violence and Supplemental Security Income. But not everyone agreed that the creation of one body to take over cases from 18-B lawyers would solve the problem. “Underfunded institutional providers of legal services do not offer a panacea for representation of the indigent in Family Court,” said William R. Dalsimer, a private practitioner who said he has been representing the poor for 30 years. Dalsimer added, that institutions “have a tendency to develop institutional personalities” that create “the urge to perpetuate personal power within the organization, and institutional power outside of the organization.” He argued, as did Benjamin B. Berlin, a family law practitioner, that if the 18-B system were preserved and strengthened, there would be less bureaucracy, and a wider array of attorneys would be drawn to represent poor clients. On the other hand, in appellate practice, an institutional provider delivers the best services to clients, argued Robert S. Dean, director for Center for Appellate Litigation. Even if 18-B rates were raised, he said, institutional appellate defenders like his own and the Office of Appellate Defender would still provide superior services to indigent clients. “An appellate lawyer is not a trial lawyer that can write,” Dean told the panel. “Appellate practice is a very narrow specialty that requires specific expertise.” Most participants agreed that creating a permanent oversight committee was a good idea, but many stressed that the committee’s role should be the oversight not only of assigned counsel, but also of the whole criminal defense and family law system. One participant claimed that the work of attorneys for the poor is constantly scrutinized and evaluated, while the work of attorneys for the middle class or the rich is not. And some said that 18-B attorneys are already regulated by many different institutions, including Family Court judges and the Appellate Divisions. It is already a “hodgepodge of rules” said Berlin. “Too many cooks spoil the stew,” he added. Yet those attorneys that welcomed the idea of an independent oversight committee stressed that for the committee to be effective, it had to include representatives of the poor, criminal defense attorneys and lawyers in appellate practice. They implored the panel not to appoint a committee that did not understand the areas of law it was scrutinizing. The Committee on the Representation of the Poor, which was first formed in October, is expected to issue a report on its findings.

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