Legal Aid's Ability To Provide Comprehensive Services For Clients in Criminal, Civil and Juvenile Rights Matters Sets It Apart From Others As City Issues RFP For Criminal Work
MONDAY, MARCH 08, 2010

The New York Times is running a blog in City Room, Court Confidential (see below) about the Request for Proposals issued by the City for criminal defense trial representation and parole revocation defense work. Steven Banks, the Attorney-in-Chief, told the New York Times that the Society's ability to provide clients with comprehensive services sets it apart.

“It’s certainly up to the City to determine the level of 18-B representation that it will fund,” Mr. Banks said. “Our concern is ensuring that The Legal Aid Society continues its role as the primary defender in New York City because of our ability to provide greater resources and support for clients than others.” As long as Legal Aid continues to receive adequate financing, Mr. Banks said, the organization will be able to keep up with the rising caseloads. A new state law that sets caseload caps for lawyers for the indigent will also help Legal Aid manage its work, he said. The New York Law ran a story February 10 about the RFP.

Read the New York Times article.

New York Law Journal
City Seeks Proposals From Institutions for Conflict Cases
By Daniel Wise
February 10, 2010

New York City last week issued a request for bids from institutional providers to handle conflict cases, a move that could sharply limit the practice of 18-B lawyers, who now take most of the cases of indigent criminal defendants who cannot be represented by organizations with a city contract.

Word of the proposal caused "panic" to spread "through the ranks of 18-B lawyers," said Stephen J. Singer, a past president of the Queens County Bar Association.

"The overall effect of the city's approach is the imminent demise of assigned counsel in criminal cases for all practical purposes," said Mr. Singer, a member of the Second Department's 18-B screening panel.

Mr. Singer said he has convened a meeting for tomorrow to develop a response to the city's plan for conflicts providers.

But Steven Banks, the attorney-in-chief of the Legal Aid Society, said the city's solicitation advances a trend evident since Mayor Michael R. Bloomberg took office to place "greater reliance on legal services programs which offer higher quality representation through greater supervision, training and support resources."

Jason Post, a spokesman for the city, said in a statement that "the request for proposals issued last week is meant to encourage competition and innovation."

The deadline for submissions is March 15.

Since 1996, six groups have held contracts to represent the poor in criminal cases: the bulk of the work has been handled by Legal Aid, with five other groups, one in each of the five boroughs, taking a smaller amount of cases.

Private practitioners, primarily 18-B attorneys, have handled cases where the six institutional defenders cannot take a case because of a conflict of interest. The practitioners are referred to as "18-Bs" because they are compensated at the rate of $70 an hour under Article 18-B of the County Law.

There are 1,109 attorneys certified by Appellate Division panels in the First and Second departments to handle trial-level cases.

According to data maintained by the Office of Court Administration, the city paid 18-B attorneys $47.8 million in calendar year 2008 for handling indigent defendants' trial-level criminal cases.

The most common conflict arises when there are multiple defendants in a single case. Another typical conflict occurs when a defense organization has represented someone in the past who is expected to testify as a prosecution witness.

The city Office of Criminal Justice Coordinator, which is responsible for administering the legal-assistance contracts, estimates that there were approximately 34,300 conflict cases, most of them handled by 18-B lawyers, in the fiscal year (FY) that ended last June 30, according to figures in the RFP.

Overall, in FY 2009, the six defense groups and 18-B lawyers handled a total of about 358,600 cases.

The RFP stated that $92.5 million is available to fund groups with "primary" representation responsibilities and another $8.7 million for groups to handle conflict cases.

The $92.5 million is less than the $103.8 million being paid to Legal Aid and the five other groups for FY2010, which ends on June 30.

According to figures provided by both the city and Legal Aid, the difference is accounted for by the $11.3 million that City Council added to Mr. Bloomberg's proposal for the FY2010 budget which boosted Legal Aid's total city funding for trials to $79.1 million from $67.8 million.

The five other groups received a total of $24.7 million, according to city data: NY County Defenders, $6.3 million; Brooklyn Defender Services, $5.8 million; Bronx Defenders, $4.9 million; Queens Law Associates, $4.9 million; and Battiste, Aronowsky & Suchow Inc., $2.8 million. Legal Aid operates in the four largest boroughs, and Battiste Aronowsky is the sole provider in Staten Island.

Four-year contracts were last issued to Legal Aid and the five other institutional providers after a competitive bidding process in 2002. The city decided to put the contracts up for bid in 2010 because the original agreements, which had initially expired in 2006, had been extended several times.

Conflict cases are distributed among the groups and 18-B attorneys at arraignments. In the four largest boroughs, Legal Aid handled 76 arraignment shifts per week and lawyers from the other four groups operating in those boroughs handled 16. Lawyers from the 18-B program are assigned to each shift to handle any cases that either Legal Aid or the other groups cannot take.

The RFP expresses an intention to continue that type of arrangement but with a greater use of institutional providers to handle the conflict cases.

However in an "addendum" to the RFP, the city stated that "until responses to the RFP are received and new contracts are negotiated…the particular staffing of arraignment parts cannot be ascertained as yet."

The RFP states that the "city is interested in maintaining multiple providers" in at least the Bronx, Brooklyn, Manhattan and Queens.

Proposals are to be submitted on a county-wide basis, and a group, like Legal Aid, must submit separate proposals for each county in which it intends to operate.

The city "anticipates issuing awards to vendors who provide representation in conflict cases," according to the RFP. Conflict proposals, however, will only be considered in "conjunction with a proposal to be [a primary] provider in such county."

The RFP flatly states that the city will not award a contract to providers seeking to handle only conflict cases. It also requires that a conflicts provider handle matters on a county-wide basis.

Any 18-B attorneys who wish to compete for conflict cases would have to organize into groups that handle both primary and conflicts cases.

Reciprocal Representation?

Several experts in indigent representation said that the most likely outcome is that there would be two providers in each county to offer reciprocal representation of each other's conflict cases.

For example, Legal Aid would not be permitted to handle cases that conflict with the interests of its clients, but another organization could handle those cases.

Whether the current county-wide providers will ramp up to take all of the Legal Aid's conflict cases in their boroughs remain uncertain. Several experts said that some of the county-wide providers may be reluctant to hire the number of lawyers needed to handle all of Legal Aids conflict cases for fear that their own organization will become unwieldy and bureaucratic.

The RFP specifically continues the existing practice of having 18-B lawyers handle homicide cases.

Meanwhile, Mr. Singer said there is talk among 18-B attorneys of banding together to fight the new approach or possibly suing to stop it.

"I am about to tell 180 18-B lawyers [in Queens] that in short order they will lose their practices and have to find a new way of making a living," said Mr. Singer, a criminal practitioner at Sparrow Singer & Schreiber in Kew Gardens.

In addition to Queens' 18-B lawyers, Mr. Singer said, he has asked members of relevant bar association committees to attend tomorrow's meeting.