NY State Court of Appeals Rejects Claims of Six Bar Associations; Chief Judge Dissents

10/31/12

New York's City's agenda to move tens of thousands of criminal cases involving indigent defense from the hands of private attorneys to the Legal Aid Society and similar institutions is here to stay and has been declared legal by the NY State Court of Appeals on Tuesday. The narrow 4-3 decision rejected the claims made by six bar associations that the consent of bar associations under Article 18-B, Section 722, of the County Law was required to implement such a plan.

Writing for the majority, Judge Carmen Ciparick observed, “Rather than circumscribe the city's ability to respond to conflicts of interest, we think it more likely ... that the (state) legislature intended to permit the city to create a comprehensive indigent defense plan that accounts for such a frequently occurring circumstance.”

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The dispute arose, because since 1965, in cases of court-appointed lawyers having conflicts in indigent defense cases, the cases were reassigned to a panel of private attorneys known as 18-B lawyers appointed by county bars. However, in 2008, New York Mayor Michael Bloomberg set up a bidding process for legal aid groups to handle part of such cases, with a part continuing to be referred to 18-B lawyers. Under the new plan, which had been stayed pending appeal, all other such cases of indigent defense, except murder cases are to be referred to legal aid groups and not 18-B lawyers.

Six bar associations claimed that Article 18-B required the city to obtain consent of the bar associations in order to implement the plan. In 2011, Acting Supreme Court Justice Anil Singh in Manhattan dismissed the suit brought by the bar associations. On appeal the Appellate Division, First Department also found against the bar associations. On further appeal, on Tuesday, the New York State Court of Appeals ruled in favor of the city and found that the plan did not require the approval of the bar associations.

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Judge Cipatrick observed that the city maintained its rights to implement the plan for otherwise, “In effect, the bar associations would control the city's ability to fulfill its statutory mandate to formulate a comprehensive plan for indigent defense.”

However, Chief Judge Jonathan Lippman held that the new plan floated by the city was “dramatically different” from the plan that was enacted 50 years ago. He said “The 1965 bar association plan was not designed like a bit of lego for use in a range of interchangeable settings at the city's option.” Chief Judge Lippman was joined in dissent by Judges Eugene Pigott and Robert Smith.

The case is the Matter of New York County Lawyers' Association v. Michael Bloomberg, New York State Court of Appeals, No. 155.