The Legal Aid Society Receives Bi-Partisan Support at City Council Budget Hearing; Criminal Case Caps Announced by State Court Administrators
Steven Banks, Attorney-in-Chief, and Seymour James, Attorney-in-Charge of the Criminal Practice, testify at City Council budget hearings.

Steven Banks, Attorney-in-Chief, received bi-partisan support when he testified before the New York City Council yesterday warning that proposed City cuts for criminal defense and civil legal services in the Mayor's Fiscal Year 2011 Preliminary Budget will hurt low income New Yorkers in the midst of this severe economic downturn.

In response to questions about the City's Request for Proposals for the indigent criminal defense trial work allowing institutional providers to bid for conflict cases, which are normally handled by private criminal defense lawyers called 18-B lawyers, Steven Banks said:

"While there has been a great deal of focus on the status of 18-B, 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 receives adequate financing, 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. Our staff attorneys have an average of 13.5 years of experience and our supervisors have an average of 25 years of experience so we are well positioned to continue to provide the comprehensive services requested in the RFP.


Criminal Case Caps

Yesterday, Chief Administrative Judge Ann Pfau promulgated a criminal defense case cap rule for New York City. The Chief Administrative Judge's rule adopts the First Department's standards which limit annual criminal defense attorney caseloads to 400 misdemeanors or 150 felonies, with felonies counted as 2.66 misdemeanors in mixed caseloads.

Banks told the Law Journal that the the case cap rule "represents a huge breakthrough" in the defense of low income individuals charged with crimes. (Read full story)

Currently, nearly 83 percent of our criminal defense attorney staff has caseloads significantly in excess of the annual standards set by the First Department, and the annual weighted caseload for attorney staff who handled more than the First Department standards permit is now 718 cases. As set forth in the State case cap law that the Legislature enacted in April 2009, there will now be a four-year implementation period beginning on April 1, 2010 and the Chief Administrative Judge's rule is binding effective April 1, 2014. The rule is modeled on the Juvenile Rights client case cap rule which applies to our offices and will thereby enable a substantial caseload reduction in the Criminal Defense offices as has occurred in the Juvenile Rights offices.

The issuance of this rule is an important breakthrough that was accomplished through the joint efforts of the Society, ALAA and 1199, Banks said.


The New York Law Journal
Lawyers Weigh in on Plan to Shift Conflict Cases to Group Providers
By Daniel Wise

Deputy Criminal Justice Coordinator Shari Hyman faced close, sometimes hostile, questioning at a City Council budget hearing yesterday over a plan to move the handling of conflict cases from private criminal defense lawyers to groups like the Legal Aid Society.

More than 50 private lawyers, whose work for indigent criminal defendants would be sharply curtailed under the city's plan, attended the hearing conducted by the City Council's Fire and Criminal Justice Committee.

The lawyers made clear their sentiments with waves of applause when panelists asked Ms. Hyman pointed questions, and groans of dismay at her responses.

Elizabeth Crowley, the head of the committee, started the questioning by asking Ms. Hyman what comparative data her agency had concerning the cost and effectiveness of private lawyers as opposed to institutional providers.

Ms. Hyman reported that the average per case cost for institutional providers is $306 compared to $873 for private lawyers working under the 18-B program.

The audience burst into applause when Ms. Crowley, D-Queens, followed up with a question suggesting that the 18-B lawyers' costs were higher because they took many more cases to trial and spent more time on them.

Ms. Hyman defended the new plan, saying it would bring "sunlight" to the 14 percent of the criminal caseload not handled by legal services groups.

John Feinblatt, the city's criminal justice coordinator, said in an interview that the city "is not interested in taking business from anybody," but instead is "open to hearing all ideas and proposals" to carry out its responsibility for developing the "best system possible" for the representation of indigent criminal defendants.

Councilman Daniel Halloran, R-Queens, who is an 18-B lawyer, challenged Ms. Hyman for being unable to affirmatively state how many of the cases handled by 18-B lawyers are conflicts as opposed to cases surrendered by Legal Aid "willy nilly" to 18-B lawyers when the group's clients asked for "a real lawyer."

Mr. Halloran cited data, which his staff identified as coming from the Office of Court Administration, showing that 18-B lawyers are 17 times more likely to take a case to trial than Legal Aid lawyers.

Ms. Hyman's lack of a direct answer to Mr. Halloran's question, "Don't you need statistics to evaluate whether tax dollars are being spent wisely?" drew audible groans from the audience.

Mr. Halloran told Steven Banks, attorney-in-chief of the Legal Aid Society who also testified, that he supported Legal Aid and recognized that it handled too many cases, according to a spokesperson for Legal Aid.

Mr. Banks, in statement to the Law Journal, said that "out of 240,000 cases that we handle each year, we are relieved from 14,000 cases when clients retain counsel or conflicts develop, including approximately 3,000 cases which are reassigned to 18-B lawyers."

"While there has been a great deal of focus on the status of 18-B," Mr. Banks noted, "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."

New Approach

Last month, the Criminal Justice Coordinator's Office issued a request for proposals (RFP) from legal services organizations to handle conflict cases. Conflicts, which most commonly arise in multi-defendant cases, are now handled by private lawyers who have been certified under the 18-B program (NYLJ, Feb. 10).

The move to institutional providers would eliminate most of the work handled by 18-B lawyers. Private lawyers would continue to represent defendants in homicide cases, and get assignments in cases with more than two defendants.

Under the 18-B program, which is named for Article 18-B of the County Law, private lawyers are paid $75 an hour.

There are 1,109 attorneys certified by Appellate Division panels in the First and Second departments to represent indigent defendants at the trial level.

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

In the RFP, city officials estimate there were some 34,300 conflict cases, most of them handled by 18-B lawyers, in the fiscal year that ended last June 30.

The RFP states that $8.7 million is available to fund contracts for groups to handle conflict cases.

All Contracts Up for Grabs

The RFP also opens to bidding contracts that have been awarded to the Legal Aid Society and five other groups to staff arraignment parts since 1994. The last time those contracts were opened for competition was in 2002.

The groups are responsible for completing any case they initially handle at arraignment.

In fiscal year 2009, according to the RFP, Legal Aid and the other groups handled more than 90 percent of the cases that passed through the arraignment parts.

Applications from groups interested in handling conflict cases are due on Monday. None of the groups that pick up their cases at arraignment have publicly declared their intention to expand their contracts to include conflict cases, though it is quite likely that several will do so.

In the current fiscal year (FY 2010), the Legal Aid Society received $79.1 million to represent indigent defendants at the trial level.

The five other groups received a total of $24.7 million for FY 2010, 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.

The RFP specifies that in order to qualify to handle conflict cases, a group must cover arraignment shifts, and are required to represent all defendants arraigned during those shifts except for cases exposing them to a conflict of interest.

In the four largest boroughs, Legal Aid handles 76 arraignment shifts per week and lawyers from the other four groups operating in those boroughs handle 16.

To the extent new groups receive contracts to handle conflict cases their current funding will have to be increased so they can accommodate the additional cases. The question will be whether the cost of increased funding will exceed the $75 per hour rate now paid to 18-B lawyers.

In a separate development yesterday, the OCA issued a new rule that could drive up the costs of groups representing indigent defendants.


The New York Law Journal
New Rules Are Established on Caseload Caps for Indigent Defense Counsel
By Joel Stashenko

ALBANY - State court administrators have filed rules to establish the first New York City-wide caseload limits for attorneys who provide services to indigent criminal defendants.

When fully implemented on April 1, 2014, the rules will set annual caseloads at no more than 400 misdemeanors or 150 felonies in a 12-month period, with felonies representing the equivalent of 2.66 misdemeanors in mixed caseloads.

Steven Banks, attorney-in-chief of the Legal Aid Society in New York City, said the rules issued by Chief Administrative Judge Ann Pfau (See Profile) represent a "huge breakthrough" in the quality of representation that will ultimately be provided by publicly funded lawyers to poor criminal defendants.

Mr. Banks said reduced caseloads will allow lawyers more face-to-face time with clients and more court preparation time, as well as provide attorneys with better investigatory resources.

"Lawyers with fewer clients can [obtain] more just results and quicker resolutions of cases …in the clients' best interests," Mr. Banks said in an interview.

He estimated that just over 80 percent of his 470 attorneys handling criminal cases have caseloads above the new limits.

Chief Judge Jonathan Lippman said yesterday that the caps will help the trial courts avoid injustices as well as repeated prosecutions on remand by appeals courts.

"Attorneys are human beings like anybody else and indigent defense is quite a daunting task," Judge Lippman said. "It can't necessarily be done by X amount of lawyers and X amount of resources in terms of trying to provide the most basic representation to meet the rights of constitutional liberties."

Judge Lippman, Mr. Banks and others were involved in negotiations last year that led to inclusion of the caps in the 2090-10 state budget (NYLJ, April 6, 2009). The limits are to be phased in over the next four year, pursuant to orders from Judge Pfau.

The judiciary's budget for the next state fiscal year, which begins April 1, includes a proposed $10 million appropriation to get the cap requirement off the ground.

Advocates for higher criminal services funding estimated in 2009 that it might take $40 million more per year to meet the new limits, when they are fully instituted.

The chief sponsor of the bill, Assemblywoman Helene Weinstein, D-Brooklyn, said yesterday it is difficult to know how much more money will be needed to implement the plan. But she said the issue is one of fundamental fairness toward people convicted of crimes who cannot afford the legal representation guaranteed under the U.S. Supreme Court's ruling in Gideon v. Wainwright, 372 U.S. 335 (1963).

The Legislature's increase of the fees paid to attorneys representing indigent criminal defendants under the state's so-called "18-B" program is not meaningful until the caseloads of those attorneys are eased, Ms. Weinstein said.

Sponsors of the caps said they will only apply within New York City in their first four years because that is where the caseloads are most onerous on attorneys.

Judge Lippman last year helped negotiate the limits with the Legislature and Governor David A. Paterson, but he declined further comment yesterday, citing to Hurrell-Harring v. State of New York, 66, a case the Court of Appeals is scheduled to hear on March 23.

Hurrell-Harring is a challenge to the current county-based indigent defense system as not providing uniform, constitutionally guaranteed legal representation of the poor (NYLJ, July 17, 2009).

The new cap rules are similar to those established beginning in 2007 for the number of cases law guardians can carry.