ALBANY - A lawyer for the Bloomberg administration faced persistent questioning from Court of Appeals judges yesterday about whether New York City’s plan to tap more institutional legal service providers to represent poor criminal defendants would undermine the city’s 18-B assigned counsel system.

Assistant Corporation Counsel Julian Kalkstein defended the plan being challenged by five county bar associations who under Article 18-B of the County Law, passed in 1965 , participate in providing representation to poor defendants.

Julian Kalkstein, representing New York City, left, and Jonathan Pressment, representing the city’s five borough bar groups, argue yesterday before the Court of Appeals in Albany. Photos: Tim Roske

Under the existing plan in New York City, the Legal Aid Society or another provider is initially assigned to handle indigent criminal cases. 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 private 18-B attorneys on the assigned counsel panels, which are created and screened by the bar associations.

The bar groups in Matter of the New York County Lawyers’ Association v. Bloomberg, 155, oppose Mayor Michael Bloomberg’s assigned counsel plan as upsetting the long-standing arrangement between institutional providers and 18-B panels, Kalkstein said.

“The bar associations are real unhappy, and rightfully so, where they are going to lose their monopoly in providing conflict counsel,” Kalkstein said.

But Chief Judge Jonathan Lippman (See Profile) questioned whether the “practical effect” of the Bloomberg plan will be to “diminish” the role and plan of the bar groups without their having any recourse to challenge what the city aims to do.

“Aren’t you marginalizing, if not eliminating, the [bar associations'] plan and saying, ‘But it’s still their plan?’” Lippman asked. “Why isn’t that effectively what you are doing?”

“Not at all,” Kalkstein responded. “The statute empowers the City of New York as a governing body to utilize attorneys from a public defender, from institutional providers and from a bar plan.”

Kalkstein said private attorneys would still be assigned in some cases when legal services providers have conflicts, such as representing multiple defendants in the same trial.

But Kalkstein conceded that the city believes that relying on more institutional providers will make sense “in terms of efficiency and economics.”

Judge Eugene Pigott Jr. (See Profile) enumerated four changes the Bloomberg plan would make in the conflict case assignment system. The bar groups object to all four changes, such as empowering the city to make conflict counsel selections and providing more representation to institutional providers under competitively bid contracts.

Pigott said it makes no sense for Kalkstein to contend that the Bloomberg administration is maintaining the prior system when the associations all object to the proposal.

“How do you have a bar plan without the bar associations agreeing?” Pigott asked.

“I’ll explain that,” Kalkstein responded. “We have adopted a bar plan.”

“No, you haven’t,” Pigott countered. “You’ve got a plan that they did in 1965 and you’ve decided to modify that… Even if it’s the same plan and they don’t agree, you don’t have one, right? You can’t force the bar associations to be part of a program if they don’t want to be.”

“That is correct,” Kalkstein acknowledged.

The Court of Appeals judges listen to arguments yesterday in ‘Matter of New York County Lawyers’ Association v. Bloomberg.’ Photo: Tim Roske

Jonathan Pressment of Haynes and Boone, representing the county bar associations, accused Bloomberg of presenting a plan that largely writes out the bar groups’ participation, but which “masquerades” as a combination plan using both 18-B attorneys and the institutional providers.

“What we have here is a race to the bottom,” Pressment said. “It’s an attempt to save money. It’s an attempt by an executive to insert himself into the judiciary process.”

“Saving money isn’t such a terrible thing for an executive to do,” suggested Judge Robert Smith (See Profile).

“Not at all,” Pressment responded. “But your honor, John Adams once said, ‘We are a government of laws, not of men.’ …This is about one executive who wishes to insert himself into a process and he does so in defiance and disregard of the law.”

Zoë 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.

The plaintiffs—the New York County Lawyers’ Association, the Bronx County Bar Association, Brooklyn Bar Association, Queens County Bar Association and the Richmond County Bar Association—took the appeal to the Court of Appeals as a matter of right from a 3-2 ruling by the Appellate Division, First Department, where the majority held that the Bloomberg administration did not overstep its authority by formulating the new policy (NYLJ, March 16).

The 1965 law was adopted in an effort to give counties options in providing legal representation to poor criminal defendants as mandated by the U.S. Supreme Court in Gideon v. Wainwright, 372 US 335 (1963).

New York City opted to contract with institutional providers, the largest of which is the Legal Aid Society. Some 44,000 conflict cases a year are assigned to private attorneys on the 18-B panels.

The Bloomberg administration argued that many of those cases could be handled more efficiently by institutional providers who are made to bid competitively for the contracts.

The bar groups argued the city’s proposed plan was not approved by local bar groups in violation of the 18-B statute. They also contend the plan created under the 1965 law requires the assignment of attorneys by judges, not the administration of a mayor.

First Department Justice Richard T. Andrias (See Profile) held that the Bloomberg plan was not “arbitrary and capricious or irrational,” “does not require the consent” of the county bar groups and does not violate the 18-B law.

Two dissenters, Justices Sheila Abdus-Salaam (See Profile) and Angela Mazzarelli (See Profile), said the Bloomberg plan represented a “sea change” in the delivery of legal services to poor criminal defendants that would be implemented without the necessary approval of the bar groups.

The First Department affirmed a decision by Manhattan Supreme Court Justice Anil Singh (See Profile) granting summary judgment to the city in 2011 (NYLJ, Jan. 5, 2011).

Implementation of the plan has been stayed pending the resolution of the dispute.

The Court of Appeals is expected to hand down its ruling by the end of next month.