Update on 18-B Litigation: Acting Supreme Court Justice Anil Singh Upholds City's Plan to Assign Conflict Cases to The Legal Aid Society

The Court in the 18-B litigation issued a decision yesterday accepting our argument that the City has the legal authority to assign The Legal Aid Society a combination of non-conflict and conflict cases. Steven Banks, the Attorney-in-Chief of The Legal Aid Society, told the New York Law Journal that, "We are gratified that the court agreed with our argument that the City has the legal authority to assign the Legal Aid Society a combination of non-conflict cases and conflict cases so that we can receive the case load and the associated funding we need to maintain our staffing and comprehensive client services."

A copy of the decision is attached. Daniel Kolb, a Vice Chair of the Society and a partner at Davis Polk & Wardwell LLP, argued the case before the Court. Dan Kolb heads the Davis Polk legal team that has been working with the Society on these matters.

Download the decision (PDF).

The New York Law Journal
City's Plan to Assign Conflict Cases to Institutional Providers Upheld
By Daniel Wise
January 05, 2011

A state court judge in Manhattan ruled yesterday that New York City may proceed with plans to assign to institutional providers, such as the Legal Aid Society, as many as 44,000 conflict cases a year that up to now have been handled for indigent criminal defendants by individual private lawyers.

Acting Supreme Court Justice Anil Singh in New York County Lawyers' Association v. Bloomberg, 107217/10, rejected the legal position of the five county bar association plaintiffs who sought to enjoin the city from making the switch. He said that accepting the bar groups' position would render "meaningless" the key provision in Article 18-B of the County Law, which specifies the methods for providing representation to indigent criminal defendants.

However, Justice Singh (See Profile) enjoined the review of vouchers by a city-funded Office of the Assigned Counsel Plan after approval by the court and before they are forwarded to the comptroller for payment.

He noted that the city's plan set no limits on the city and no criteria for the projected review. Thus the city's review plan "usurp[s] the Court's discretion under the statute to fix reasonable compensation for services rendered by 18-B attorneys."

The comptroller retains the authority to audit vouchers for fraud and abuse prior to payment, the judge said.

Justice Singh's decision dealt with issues of statutory interpretation. The bar organizations also have filed a challenge to the constitutionality of the city's plan, which is pending in federal court.

Justice Singh concluded by saying that "[t]he court recognizes that the City's current plan may cause substantial hardship to private 18-B attorneys. The economic hardship must be balanced against the City's statutory right to implement a plan that provides adequate representation to indigent defendants charged with a crime. Whether the plan as implemented by the City will meet constitutional standards is yet to unfold."

David M. Siegal, of Haynes and Boone, who represented the five county bar associations, said in a statement, "While we are encouraged by the Court's recognition of the County Bars' important role in ensuring that the City complies with the law, we are disappointed in the result of the Court's analysis, and our clients are exploring all their options."

John Feinblatt, the city's criminal justice coordinator, said, "We're pleased with the judge's ruling, which confirms that we had the legal standing to award contracts as part of the competitive bidding process. Our goal has always been to give the City's indigent defendants the best possible legal services."

There are 1,100 attorneys in New York City who have been approved by screening panels appointed by the First and Second departments of the Appellate Division to handle criminal cases in New York City for indigent defendants.

Most of the work done by the private lawyers has been in conflict cases, though they have also been assigned to homicides. In 2009, New York City paid 18-B attorneys $45.7 million to handle conflict cases.

The city's new plan, issued in February, specified only that homicide cases would continue to be assigned to private lawyers. The city solicited bids from institutional providers to handle conflict cases and provided no limit on the number of cases that would be contracted out (NYLJ, Feb. 10, 2010).

There are seven institutional providers in the city, with the biggest by far being the Legal Aid Society, which has a contract to handle approximately 230,000 primary cases a year for $79.4 million.

Private lawyers, often referred to as 18-B lawyers, are paid on an hourly basis with work on felonies compensated at $75 an hour and work on misdemeanors at $60 an hour.

Private lawyers have been handling conflict cases and other matters that Legal Aid and the other groups declined to handle since New York City started paying for the defense of indigent defendants as required by the U.S. Supreme Court's seminal 1963 ruling in Gideon v. Wainright, 372 U.S. 335.

The five county bar associations, which were all signatories to the city's 1965 plan, contended that New York City lacked the authority to move conflict cases to institutional providers without first getting bar group approval. The five plaintiffs are the New York County Lawyers' Association, and the county bar associations for Brooklyn, Queens, Bronx and Staten Island.

The only original signatory to the bar association plan that did not join the lawsuit was the New York City Bar, which has repeatedly declined to elaborate on its reasons for staying out of the litigation beyond stating that it is studying the issue.

Four Options

Article 18-B in County Law §722 gives the city several options in establishing a plan for the representation of indigent criminal defendants. The city has always embraced three of the four options: the selection of institutional providers to serve as the primary defenders who pick up all new indigent cases in arraignment parts throughout the city; County Law §722(2), with judges appointing private lawyers under a bar association plan; and County Law §722(3), the assignment of conflict cases that the primary defenders are ethically precluded from taking.

The fourth option, which the city does not use, would have been to establish a government-run public defender office, County Law §722(1).

Because the city's original plan was developed in conjunction with the six bar groups in 1965, the plaintiffs argued that their approval was needed because the plan had been developed under County Law §722(2), the bar association prong of the statute.

The groups further contended that an amendment adopted in June to the bar association provision bolstered their argument that they had to sign off on any changes made by the city.

The amendment added a clause that broadened bar association plans to include "representation" provided through "an office of conflict provider."

Justice Singh rejected the bar groups' arguments that by placing the new language in the bar association alternative under County Law 722 (3) the Legislature intended to bar the re-assignment of cases without the groups' consent.

The groups' reading of the amendment as giving them the exclusive role to provide conflict counsel, Justice Singh concluded, "renders meaningless the choice given to the city under Section 722(4): Representation according to a plan containing any of the foregoing."

"In short," he added "a plain reading of the statute" allows the city to choose how it will provide conflict counsel either through a legal aid group under County Law §722(2) or a bar association plan §722(3).

Thaddeus Hackworth, senior counsel at the Law Department who handled the case for the city said in a statement, "The decision makes clear that the plan, which seeks to provide indigent defense services with a greater reliance on institutional providers, is fully compliant with state law requirements,"

Justice Singh allowed the Legal Aid Society to intervene on the side of the city and the New York City Criminal Bar Association to intervene on the side of the county bar groups.

Steven Banks, the attorney-in-chief of Legal Aid, said in a statement, "We are gratified that the court agreed with our argument that the City has the legal authority to assign the Legal Aid Society a combination of non-conflict cases and conflict cases so that we can receive the case load and the associated funding we need to maintain our staffing and comprehensive client services."