Criminal Practice Extern Program Featured in New York Law Journal
Legal Aid's Irwin Shaw with, from left, Ilona B. Coleman, Rosemary Vassallo and Rachel B. Kane. (NYLJ Photo/Rick Kopstein)

The Legal Aid Society's Criminal Practice Extern Program in the Manhattan office is featured in today's New York Law Journal. The program was started to help lawyers handle their cases, help demonstrate to government that even making the same use of pro bono assistance as the District Attorneys do there is still an urgent need for more criminal defense funding, and enhance our relationship with the firms that support the Civil Practice. As Steve Banks said in this article, this program is no substitute for Legal Aid staff.

The program involves externs in law firms working with experienced Criminal Practice lawyers to assist our attorneys who have caseloads in excess of 100. The program provides associates with invaluable practical experience. The work of the externs does not reduce or even alleviate the need for increased funding, especially in the face of major budget cuts. The Criminal Trial Practice handles 227,000 a year. The program began with Dewey & LeBoeuf LLP. Participating in the current program are: Cooley Godward Kronish LLP; Davis Polk & Wardwell; Debevoise & Plimpton LLP; Kramer, Levin, Naftalis & Frankel LLP And White & Case LLP. Link to law journal story.

The New York Law Journal
From the Suites to the Streets
Thomas Adcock

A small but potentially broader solution to budget cuts plaguing the Legal Aid Society's criminal defense division has been found in a new, unusual externship program involving mid-level litigation associates from private firms.

While a network of some 60 firms has long been the pro bono backbone of Legal Aid's civil practice, never before have lawyers in service to those accused of crime in the suites turned their talents to crime in the streets.

But now with city and state funding cuts to Legal Aid's criminal practice this fiscal year and next, something had to give. Already the society's criminal defense budget was cut $2.7 million for this fiscal year, down to $93.6 million. And another $1 million cut, plus a potential $1.6 million in additional reductions was proposed this week to Albany lawmakers by Governor David A. Paterson.

As the economy began to crumble in October, Legal Aid officials dusted off a six-month pilot project quietly conducted last year and signed up nine associates from private firms, all of whom are involved in varying degrees in white-collar criminal defense. They were put to work under Irwin Shaw, attorney-in-charge of the Legal Aid's Manhattan office of criminal practice.

In difficult economic times, and when once respectable corporate titans are increasingly seen doing perp walks, Mr. Shaw and Steven Banks, Legal Aid's attorney-in-chief, suggested mutual benefit to private firms and the agency's obligation to provide adequate legal counsel despite its depleted coffers.

"I think the big firms would like the lawyers in their litigation departments to get a broadened experience," said Mr. Shaw.

At the same time Legal Aid's current budget was reduced, Mr. Banks noted an increase in the criminal caseload, to approximately 217,000 this year from some 210,000 in 2007. The upward trend, he said, is expected to continue into 2009. The average criminal defense lawyer, said Mr. Banks, now manages 103 cases simultaneously, with misdemeanor charges accounting for about 70 percent of the work.

Due to toughened state and federal statutes, Mr. Banks said, the collateral consequences of misdemeanor convictions are greater in terms of employment opportunity, lease rights to public housing, immigration status and receipt of public benefits. Between budget cuts and ever harsher consequences faced by low-income defendants who rely on Legal Aid, said Mr. Banks, "We struggle with the government to provide constitutionally mandated representation."

Ilona B. Coleman, an associate in Dewey & LeBoeuf's white-collar defense and regulatory investigations department, saw how the other half lives during her trailblazing stint in the first half of 2007, a test that became today's externship program involving five additional firms: Davis Polk & Wardwell; Debevoise & Plimpton; Kramer Levin Naftalis & Frankel; White & Case; and Cooley Godward Kronish.

For six months last year, Ms. Coleman did what Legal Aid's criminal defense staffers do every day in Manhattan Criminal Court, including the gritty business of night arraignments.

"You meet clients in the holding cell and you have to build rapport very quickly, which is difficult because their impression, usually, is that you're just another suit they can't trust and can't relate to," said Ms. Coleman.

"But you have to make a determination on case theory, you have to get facts, you try to figure whether or not the judge will set bail," she said. "You make phone calls to family and friends, anybody who can vouch for your client and have a place for him to go on release from jail."

Ms. Coleman added, "This is all going on from five in the afternoon until one in the morning. The judge is tired. You're tired. Your clients have been in jail for 24 hours, they're not so clean and maybe they're coming off substance abuse."

Nevertheless, Ms. Coleman does not regard the work as hardship duty.

To the contrary, she said, "The experience I got at Legal Aid was the best I've had as an attorney for the past seven years. I went to court, I argued before judges, I changed my clients' lives. Some of them still call me up."

Private firm attorneys are obliged to attend a two-day training session at Mr. Shaw's office, after which they are assigned to senior Legal Aid staff attorneys for supervision during their six-month tenures. Pro bono attorneys are expected to devote from 25 percent to 30 percent of their work week to Legal Aid. For the time being, the program is confined to the Manhattan criminal practice office.

"Criminal Court tends to be informal," said Rachel B. Kane, in her seventh year at Cooley Godward, where her practice includes complex commercial and securities litigation as well as white-collar criminal defense. "There can be surprises. It takes a lot of thinking on your feet."

For example, Ms. Kane was at an arraignment last week and "right in the middle of it," she said, "I was served with a grand jury notice by an assistant D.A. So I served cross-notice."

Mr. Shaw, accustomed to unceremonious procedure as a veteran Legal Aid lawyer, said proudly of his uptown extern, "See how cool, calm and collected she is? Nothing fazes her anymore."

Experience a Plus

There is another side to the learning curve, noted Legal Aid staff attorney Rosemary Vassallo, assigned to be Ms. Kane's mentor, a term Mr. Shaw said he prefers to supervisor.

Of the new externs generally, she said, "The thing is, they're experienced lawyers already, so it's different from working with law students you have to constantly supervise. They know how to research and write, how to act respectfully in a courtroom, how to deal with an adversary. You tell them something once, they'll remember it."

Of Ms. Kane in particular, Ms. Vassallo added, "I've learned from her style and mannerisms in court. Rachel is very quiet, but very persistent. She has a way of getting her point across without being overly aggressive. It's lovely."

Perhaps a certain prosecutor found it unlovely when Ms. Kane prevailed in an evidence suppression motion in Manhattan Criminal Court involving the case of a man charged with the class B misdemeanor of smoking marijuana on a tenement stoop, a man simultaneously facing a felony charge in Supreme Court. Ms. Kane persuaded the judge that the arresting officers could not have ascertained that the marijuana at question was burning, nor even in plain sight, from the interior of a squad car some 60 feet distant.

"That's huge," said Ms. Vassallo. "The case was dismissed and sealed."

Likewise, Ms. Coleman trumped at preliminary stage by issuing a subpoena to the New York Police Department for arrest records in the case of a 16-year-old charged with misdemeanor disorderly conduct, obstruction and assaulting an officer.

"I suspected some [police] brutality," said Ms. Coleman. "I had really good law on my side, and the [police] department was thoroughly unprepared. The judge turned over the records. I was thrilled."

Rather than proceed to trial, Ms. Coleman got the teen's charges reduced from misdemeanor status to a single juvenile violation with no jail time.

Hesitant at First

As much as he appreciates pro bono assistance for the Manhattan contingent of his 435 criminal defense lawyers, Mr. Banks said private lawyers are "no substitute for our staff attorneys."

And much as Mr. Shaw expresses enthusiasm for the successful performances of private bar externs - in a venue where successes are few and far between - he admitted hesitation when the idea was first laid out to him a year ago by David W. Weschler, attorney-in charge of Legal Aid's overall pro bono program.

"I will be candid," said Mr. Shaw. Pro bono lawyers from private firms doing his brand of criminal defense work was "not something that's been done. But it interested me greatly. I'm always looking for new ideas."

Back in late 2006, Ms. Coleman was working in Dewey & LeBoeuf's Washington, D.C., office where she, too, entertained new ideas: adding to her pro bono portfolio by doing free criminal defense work, and moving to Manhattan to be with her fiancé.

Ms. Coleman consulted with Scott Fishman, director of pro bono at Dewey & LeBoeuf, and eventually with Mr. Weschler since she knew that Legal Aid attorneys were "really stretched," as she put it.

Then she was cleared for a transfer to New York and a wedding next May.

"I asked for six months to work in the trenches," Ms. Coleman said of her agreement with Messrs. Shaw and Weschler.

Of the pilot program, she added, "We didn't really know how it would work out."

Ms. Coleman underwent standard training with a class of newly hired Legal Aid lawyers, then shadowed a senior criminal defense staffer and was assigned a mentor.

It worked out.

"Over time, this thing will grow," Mr. Shaw predicted.

Mr. Banks envisions the program extending beyond Manhattan to the city's other four boroughs.

Ms. Coleman said fellow corporate litigators should follow the path she charted because, "it made me a stronger lawyer."