City's New Plan To Give Conflict Cases To Legal Aid And Others Begins On September 9

The City's plan to allocate criminal defense conflict cases to The Legal Aid Society and smaller borough-based providers will go into effect on September 9. Steven Banks, the Attorney-in-Chief of The Legal Aid Society, told the New York Law Journal that the City's plan is "the right plan." The Law Journal reported that the allocation of cases and funds has not yet been finalized. "As the primary provider in all five boroughs, we expect to receive a substantial number of additional cases," Banks said, though he said it was too early to estimate how many.

Various county bar associations had sued to block the plan, but the Court of Appeals ruled against them last year in Matter of the New York County Lawyers' Association v. Bloomberg, 155 (NYLJ, Oct. 31, 2012). The Legal Aid Society intervened in that litigation and supported the City's plan in order to enable the Society to provide comprehensive client services to greater numbers of New Yorkers charged with crimes, often wrongfully.

The New York Law Journal
Defense Groups Take Conflict Cases Under City's New Plan
By Brendan Pierson
September 6, 2013

On Monday, The Legal Aid Society and criminal defense groups in Manhattan, Brooklyn, Queens and the Bronx will begin representing indigent defendants in cases where the primary defense organization is barred by a conflict, taking the place of 18-b attorneys in most cases.

The change puts in place a controversial plan proposed by Mayor Michael Bloomberg in 2008 over the fierce opposition of the county bar groups. The city maintains that the plan will save money and, on average, provide better outcomes for indigent defendants.

as the city's primary providers of criminal defense services. Legal Aid handles about two thirds of indigent defendants in all five boroughs, while New York County Defender Services, Brooklyn Defender Services, The Bronx Defenders and Queens Law Associates handle the remaining defendants in their boroughs. The groups are assigned shifts during which they handle arraignments.

In effect, the city's new plan means that Legal Aid and the borough defenders will rotate as primary defender and conflict defender. When Legal Aid is acting as primary defender, the borough defenders will step in for conflict cases, and vice versa.

Until now, the city has relied on 18-b attorneys to represent defendants in conflict cases. Conflicts typically arise where more than one defendant is accused in connection with the same crime.

Under the new plan, 18-b attorneys will still be paid to be present at arraignment shifts, and will still be given cases where both Legal Aid and the borough defender are conflicte d out.

The 18-b attorneys will also handle homicide and conflict cases in Staten Island, as they have in the past.

Initially, the city's new plan will be in effect only for weekday arraignments, according to a memo from the Office of the Criminal Justice Coordinator to the city's supervising judges, dated Sept. 4. It will be phased in for night and weekend shifts over the following weeks, and is expected to be fully implemented by December, according to the memo.

The city's 2013-2014 budget allocates $14 million to assign 26,000 conflict cases to institutional defenders. Once reductions in 18-b assignments are included, the city has estimated it would save $6 million in fiscal 2015, $6.2 million in fiscal 2016 and $6.4 in fiscal 2017 and years after that.

Brooklyn Criminal Court Judge George Grasso, the supervising judge in charge of arraignments throughout the city, said he and other supervising judges would do their best to "streamline" implementation of the new plan.

"We're going to do everything we can to make things work," he said. "We'll work with whatever system we have."

A spokesperson for the mayor's office, Kamran Mumtaz, said there were 20 responses to the city's RFP and that after a competitive selection process, the city chose five institutional providers "that have strong track records of providing quality representation to indigent criminal defendants."

Steven Banks, attorney-in-chief at Legal Aid, said the city's plan was "the right plan." He said the allocation of cases and funds had not yet been determined.

"As the primary provider in all five boroughs, we expect to receive a substantial number of additional cases," Banks said, though he said it was too early to estimate how many.

Lisa Schreibersdorf, executive director of Brooklyn Defender Services, said the plan would allow her organization to reach more clients. She said her group offers more services than criminal defense, including immigration and Family Court representation.

"I'm very pleased that we can give more people access to those services," she said.

At least one group of about 20 attorneys, led by Wayne Bodden of Queens, put in a bid competing with the established groups.

"Although our proposal was not acted favorably upon we are grateful to those who considered our proposal," Bodden said. "Their collective efforts were appreciated and we were humbled to be so highly considered. The individuals in our group are obviously disappointed but nevertheless still committed to indigent criminal defense as we have been for a quarter of a century."

Michael Marinaccio, president of the Bronx County Bar Association, one of the bar groups that sued to block the plan, said he believed it would fail. "It's not going to result in any cost-saving, and, frankly, in my view, it probably exacerbates the delays that are already being experienced in Bronx County," he said.

Marinaccio said that, with only two organizations in each borough handling primary and conflict cases, many more conflicts would arise. He also said that the institutional providers are already underfunded and overburdened.

"Eventually, with only two providers doing conflict work, in addition to the primary work that they're contracted to do, the plan is going to collapse under its own weight," he said.

Marinaccio also criticized the city for keeping 18-b attorneys "in the dark" until only days before the plan takes effect.

"It's certainly ironic that in this 50th anniversary [year] of Gideon v. Wainwright, it seems that indigent defense is under assault," Marinaccio said.