New York City did not overstep its authority when it decided to contract with institutional legal service providers to represent indigent criminal defendants in conflict cases instead of assigning those cases to private practitioners under Article 18-B of the County Law, a closely divided appeals court has ruled.

The 3-2 ruling by the Appellate Division, First Department, in New York County Lawyers Association v. Bloomberg, 107216/10, handed down March 15, dealt a blow to a coalition of bar groups, which had argued that under Article 18-B, the city needed their consent to change its policy for assigning conflict counsel for poor criminal defendants.

Writing for the majority, Justice Richard T. Andrias (See Profile) held that the city’s new plan “is not arbitrary and capricious or irrational,” “does not require the consent of the county bar associations” and does not violate Section 18-B. He was joined by Justices Karla Moskowitz (See Profile) and Rosalyn H. Richter (See Profile).

The bar groups—the New York County Lawyers’ Association, Bronx County Bar Association, Brooklyn Bar Association, Queens County Bar Association, the Richmond County Bar Association and the New York Criminal Bar Association—sued the city shortly after it announced its new plan in 2010. Implementation of the new plan has been stayed pending resolution of the case.

Under the old plan, an approved legal service organization, usually the Legal Aid Society, is initially assigned to handle criminal cases against poor defendants. If Legal Aid cannot represent a defendant due to a conflict of interest, the case is assigned to one of the more than 1,000 so-called 18-B lawyers. These lawyers are drawn from criminal defense panels approved by screening committees designated by the First and Second departments.

The city now wants to solicit bids from institutional providers to represent defendants in conflict cases, although it has insisted that it would continue to assign individual attorneys as well. There currently are seven institutional providers in the city, with the biggest by far being Legal Aid, which has a contract to handle some 230,000 primary cases a year for $79.4 million. The institutional providers could apply to take conflict cases or new organizations could be formed to seek contracts.

The dispute hinges on the interpretation of County Law 18-B, which was enacted in 1965 in the wake of the U.S. Supreme Court’s landmark decision in Gideon v. Wainwright, 372 US 335 (1963), which held that indigent criminal defendants are entitled to counsel at public expense. Article 18-B gave the city four options for complying with Gideon: They could appoint public defenders, contract with private legal aid groups, provide legal services “pursuant to a plan of a bar association” or use some combination of those three options.

The old plan was a combination plan, contracting with Legal Aid as the primary defender and turning to private 18-B lawyers for conflict cases and homicides. In 1996, the city began contracting with several smaller, borough-specific institutional providers in addition to Legal Aid for primary defense, but the role of 18-B lawyers remained unchanged.

The 2010 proposal would create an Office of Assigned Counsel Plan under the mayor to oversee the assignment of counsel to poor criminal defendants. This office could use institutional providers to handle conflict cases, rather than 18-B lawyers. The plaintiffs in the lawsuit argued that, because they were party to the original 1965 bar association plan, the city could not change it without their consent.

Manhattan Supreme Court Justice Anil C. Singh (See Profile) granted summary judgment to the city in January 2011, prompting the bar groups to appeal to the First Department (NYLJ, Jan. 5, 2011). Oral arguments were heard on May 31, 2011.

‘Sole Discretion’

Justice Andrias wrote in the majority opinion affirming Justice Singh that the city did not need the bar groups’ consent for its new plan. The Legislature, he wrote, “gave the county or city, not the County Bars, the sole discretion to select the components of the plan, provided that the plan conformed to one of four statutory options.”

The new plan, Justice Andrias wrote, did not change the fact that 18-B lawyers remained involved in indigent criminal defense, meaning that it was still a combination plan under the statute.

“Even if the practical effect of the revised plan will be to reduce the number of conflict cases assigned to 18-B attorneys, the revised plan does not eliminate the participation of private attorneys through Criminal Defense Panels appointed by the First and Second Departments upon the recommendation of screening or advisory committees established under rules of those courts,” he wrote. “Rather, recognizing that [Legal Aid] has not been the sole institutional provider of indigent defense services since 1996, the revised plan rationally supplements the original 1965 plan by providing that where one institutional provider declines or is unable to represent an indigent person due to a conflict of interest, representation shall be provided by an attorney assigned from a Criminal Defense Panel…or by an alternate institutional provider.”

‘Sea Change’

Justices Sheila Abdus-Salaam (See Profile) wrote in a dissent, joined by Justice Angela M. Mazzarelli (See Profile), that, rather than merely modifying the 1965 plan, the new plan was a “sea change” requiring the bar groups’ approval.

She wrote that “the salient point is that there were no provisions under the 1965 Bar Plan—the only Bar Plan that was formulated and approved by the County Bars—for an office of the Mayor to oversee the panels.”

The dissent continued, “Despite the majority’s repeated pronouncements that the City’s plan is a bar plan, it is in fact a plan of the Mayor, the City and the [Office of the Criminal Justice Coordinator] that has been imposed upon the County Bars and permits bar members to act as conflict counsel, not pursuant to a Bar Plan crafted by them, but in accordance with the City’s vision and design.”

Justice Abdus-Salaam wrote that the city’s position that its approach remains a combination plan, even though the bar groups did not approve it, “defies logic.”

“The city has the right to competitively bid all indigent criminal legal services, including conflict cases, and the Appellate Division’s decision today affirms it,” John Feinblatt, the city’s criminal justice coordinator, said in a statement. “We will continue to work to ensure that all of the city’s indigent defendants receive the excellent legal representation they deserve.”

The city was represented by Senior Counsel Julian Kalkstein of the Corporation Counsel’s Office in the appeal and by Senior Counsel Thaddeus Hackworth and Deputy Chief John Pines in the lower court case.

“We are gratified that the majority agreed with our legal argument that the city has the authority to assign the Society a combination of non-conflict cases and conflict cases so that we can receive the case load and the associated funding we need to maintain our staffing and comprehensive client services as the primary provider in all five boroughs,” said Steven Banks, attorney-in-chief of Legal Aid.

Legal Aid, which intervened in the case, was represented by Daniel F. Kolb, Daniel J. O’Neill and Jennifer Marcovitz of David Polk & Wardwell.

The bar groups said they were “disappointed” with the ruling.

“We are going to be in consultation with our client and considering all our options,” Jonathan D. Pressment and David M. Siegal of Haynes and Boone, counsel to the county bar groups, said in a joint statement.

“We are disappointed in the majority decision, which we believe is based on a fundamental misreading of the statute and the scope and nature of the plan which the city is seeking to implement,” said Zoë E. Jasper of Satterlee Stephens Burke & Burke, counsel to the New York Criminal Bar Association.

A 3-2 Appellate Division decision in a civil case carries with it an automatic right of appeal.