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Not only did William J. Bolger get his jaw broken in three places by a client who sucker-punched him in court while his back was turned, but he also had to pay the $10,000 in medical expenses out of his pocket because Westchester County, N.Y. — the entity responsible for paying 18-B lawyers, or public defenders — declared it was not liable for injuries suffered by an “independent contractor.” To add to the indignity, news of Bolger’s mishap in 1997 and his fist-wielding client became fodder for Jay Leno’s opening monologue on “The Tonight Show.” His friends advised him to quit, but Bolger opted to stay. “The work is necessary,” said the 25-year veteran of the 18-B program (named for the County Law section that governs the assigned counsel program). “Somebody needs to represent these people because the Legal Aid Society of Westchester County is not large enough to handle all the cases.” In 1965, following federal and state court rulings guaranteeing counsel to poor people in criminal cases, Westchester County developed a system to provide free legal counsel for low-income residents. Counties were granted the right to devise alternatives in establishing their systems. Westchester decided on a mixed system in which Legal Aid provides counsel in all felony cases, and an 18-B panel of private lawyers handles misdemeanors and those felony cases that Legal Aid could not handle (due to conflicts or other reasons). But noble as Bolger may find the cause, other lawyers are not so sure. Although lawyers interviewed spoke jokingly about the meager statutory compensation rate for court-appointed work — $40 for in-court work, $25 for time spent out of court — their frustration runs deep. Nearly all mentioned how salaries for state legislators, judges and prosecutors have increased while the rate for court-appointed lawyers has stayed the same for 16 years. No action was taken this year by the New York Legislature on Chief Judge Judith Kaye’s proposal to increase the rates to $75. “The State Legislature is not going to raise the rates to help criminals who can’t afford lawyers; it would be political homicide,” declared Kenneth L. Bunting of Bunting-Smith & Bunting in White Plains. “And any kind of lobbying or organizing effort (for) 18-B attorneys would go nowhere.” With the prevailing working conditions and a robust legal job market, it is perhaps not surprising that fewer and fewer attorneys are signing up for the 18-B panels. NUMBERS DROPPING A January 2000 study by the Unified Court System showed an alarming decline in criminal panel attorneys for the Second Department, which includes the Ninth Judicial District, while the caseload has increased. In 1989, the panel had 940 lawyers available to take assignments; in 1999, that number declined by more than two-thirds, to 300. In the Westchester Family Court, the assigned counsel panel dropped by almost half, from 310 in 1994, to 170 in 2000. Westchester County Court Judge Mary H. Smith acknowledged that she has had difficulty staffing cases, especially for murder trials because so few panel members are approved to do the work and available to conduct a trial. “At this point, if an attorney is competent and they show up in court, they will get an assignment,” she said. “We just don’t have enough people.” Those who keep indigent representation alive and well in the north suburbs appear to be a small cadre of old-timers who have practiced 18-B for a decade or two, and young lawyers who are looking to obtain courtroom experience. Yet some lawyers said the real reason they practice 18-B is because they can afford to. ONLY A SMALL PORTION In Bolger’s case, one-fourth of his private practice at Bolger Hinz & Zutt in Putnam Valley is devoted to 18-B; the bulk is devoted to a matrimonial and criminal practice where he can charge $200 an hour. Best known for defending 18-B client, James Watt, a defendant in the notorious Mount Vernon day care center case, Bolger handled the trial for 13 months in 1986, the longest running trial in Westchester County history. Recalling how the case was suddenly dropped in his lap, Bolger said he never expected the case to last so long. “My partners carried me throughout the year. I got paid the same salary, but it cost the firm a lot of money. The final bill I submitted to Westchester County ended up $50,000 — which is three or four times less the amount that I would have made (were I) in the office,” he said. Bunting also survives by combining a private and 18-B practice: half is 18-B work and half matrimonial and criminal law for private clients, for which he charges from $175 to $250 an hour. He said he makes $30,000 a year from 18-B cases. PRACTICE UP 300% Unlike most attorneys interviewed whose 18-B practice has dipped over the years, Bunting estimated his caseload has actually increased in the past 10 years, from 100 cases in his first year of practice to 400 cases today. Lawyers suggested that to make 18-B practice workable for them requires drive, hard work and low overhead. CUTTING COSTS Working out of one’s home and forgoing a secretary also helps, commented Ron Stokes, a solo practitioner whose home office is in Mohegan Lake, New York. Stokes, who has done 18-B work since 1979, said he has accepted fewer 18-B cases because of the low rates. Its share of his practice has steadily declined from 100 percent 21 years ago to 50 percent today. Practicing in one district, he added, can keep commuting costs down and potentially generate retained cases. “So much of it is showing up,” said Stokes. “The judges don’t have the time to waste to call attorneys about cases. If you’re standing there, there’s a really good chance that you’ll get assigned.” Another key to maintaining a successful 18-B practice, said lawyers, is to know the judges and develop an expertise in certain cases. Although the rotation rules require judges to assign cases randomly, the reality is that judges pick a lawyer familiar with the legal issues involved and move a case along quickly, they said. “Attorneys fresh out of law school get caught up in motion practice,” Bunting said. “It’s important to be goal-oriented, and many clients are shortsighted. If the judge knows you have that kind of insight, and you work well with difficult clients, he or she will remember you for the next case,” he said. But with the number of experienced lawyers jumping ship to more lucrative ventures, judges worry about the quality of representation now and in the future for the indigent. “The Legislature has to realize that the quality of justice is dependent on fairness, and we need to be fair to both prosecuting and defense attorneys or our system of justice will be compromised,” said Judge Smith. Robert Beck, a White Plains, New York, attorney who handles 10 percent of his practice as an 18-B law guardian, agreed. “There will always be attorneys for 18-B; the question is for how long (we) will be able to keep them in the system so they develop an expertise, so the indigent defendant can reap the benefits.”

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