Though the plan involves only cases of indigent defense and where the initial legal aid group assigned to a defendant is prevented from representation due to a conflict, a group of bar associations told the Court of Appeals on Wednesday, that the plan amounts to usurping judicial authority.
Prior to 2010, cases in which legal aid groups were found to have a conflict questioning their ability to represent were reassigned to a pool of about 1100 private attorneys. These private attorneys are identified by county bars and generally referred to as 18-B lawyers. However, in 2010, the city decided not to continue relying solely on 18-B lawyers and solicit contracts from legal aid groups in questions of conflict.
Jonathan Pressment, representing county bar associations from all five boroughs, asked the Court of Appeals to cancel the plan. Pressment submitted that the plan was a ploy of city Mayor Michael Bloomberg to save money and tantamount to “an attempt by an executive to insert himself into the judicial process.”
The bar groups, which have challenged the indigent defense plan claim that the assignment of counsel in such cases was governed under Article 18-B of the County Law and consent from 18-B lawyers was required for implementation of the plan.
However, the Legal Aid Society and attorneys for the city of New York told the Court of Appeals panel that the plan was legal, as long as ‘some’ work was assigned to 18-B attorneys.
Julian Kalkstein of the City Law Department said, “The powers that be think it's in the best interest of the city in terms of efficiency and economics to both use multiple institutional providers and 18-B bar association attorneys.”
Kalkstein also added, “The bar associations are really unhappy (because) they are going to lose their monopoly in providing conflict counsel.”
However, the judges were skeptical, and Judge Eugene Pigott told the city lawyers, "You can't force the bar associations to be part of a program if they don't want to be," Judge Eugene Pigott told Kalkstein. "It's not a bar plan if they say, 'this is not our plan.'"
Under the new plan, 18-B lawyers would receive the homicide cases to ensure defendants received the services of veteran attorneys.
The case is the Matter of New York County Lawyers' Association, et al, v. Michael Bloomberg, et al, New York State Court of Appeals, No. 155.
