By Dan Wiessner
Albany, N.Y., Sept 5 (Reuters) - New York City's plan to
shift tens of thousands of criminal cases involving indigent
defendants from private attorneys to the Legal Aid Society and
other groups is illegal and an attempt to usurp judicial
authority, attorneys for a group of bar associations told the
Court of Appeals on Wednesday.
Six bar groups are challenging the plan, which was adopted in
2010 and would only affect cases in which the initial legal aid
group assigned to a defendant cannot provide representation due
to a conflict.
Before 2010, cases in which aid groups had a conflict were
reassigned to approximately 1,100 private attorneys, known as
18-B lawyers, who were identified by the county bars. But the
city decided to solicit contracts from aid groups to handle
conflict cases instead of continuing to rely solely on 18-B
Jonathan Pressment, who is representing county bar
associations from each of the five boroughs, urged the Court of
Appeals to invalidate the plan, which he called "a race to the
"This is an attempt to save money and an attempt by an
executive to insert himself into the judicial process,"
Pressment argued, referring to Mayor Michael Bloomberg.
The bar groups claim the plan, which has been stayed pending
the outcome of the litigation, required their consent under
Article 18-B of the County Law, the statute that governs the
assignment of counsel in indigent defense cases.
But attorneys for the city and the Legal Aid Society, which
handles up to three-quarters of all criminal cases in the city,
told the Court of Appeals panel that the plan is legal, so long
as 18-B attorneys could still be assigned some conflict cases.
"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,"
said Julian Kalkstein of the City Law Department.
He said the amendment was passed largely to save the city
money, though he didn't specify the amount.
"The bar associations are really unhappy (because) they are
going to lose their monopoly in providing conflict counsel,"
Some of the judges on Wednesday appeared skeptical of the
"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
A divided panel of the Appellate Division, First Department,
in March upheld the law, finding that the city's plan did not
require the bar groups' consent.
At the time, a spokeswoman for the Legal Aid Society
estimated that the city's proposal would affect roughly 44,000
Legal Aid participated as an intervenor on the city's side,
while the New York Criminal Bar Association was an intervenor on
the bar groups' side.
Under the city's new plan, 18-B lawyers would continue to
handle all homicide cases, to ensure that those defendants
receive the expertise 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.
For the county bar associations: Jonathan Pressment of
Haynes and Boone.
For the New York Criminal Bar Association: Zoe Jasper of
Satterlee Stephens Burke & Burke.
For the city: Julian Kalkstein of the New York City Law
For the Legal Aid Society: Daniel Kolb of Davis Polk &
(Additional reporting by Joseph Ax)
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