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In the Matter of the New York County Lawyers' Association, et al v. Michael R. Bloomberg

October 30, 2012

IN THE MATTER OF THE NEW YORK COUNTY LAWYERS' ASSOCIATION, ET AL., APPELLANTS, THE NEW YORK CRIMINAL BAR ASSOCIATION, INC., ET AL., INTERVENORS-APPELLANTS,
v.
MICHAEL R. BLOOMBERG, & C., ET AL., RESPONDENTS, THE LEGAL AID SOCIETY OF NEW YORK, INTERVENOR-RESPONDENT.



The opinion of the court was delivered by: Ciparick, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

This appeal presents the question of whether the City of New York's 2010 plan for indigent defense, permitting representation by both institutional providers and private attorneys in cases in which a conflict of interest precludes representation by the initial provider, constitutes a valid combination plan within the meaning of article 18-B of the County Law (County Law § 722). Petitioners, various county bar associations, challenged the proposed plan and its implementing regulations (see 43 RCNY 13-01 et seq.) as violative of County Law § 722 and Municipal Home Rule Law § 11 (1) (e). We conclude that the City may assign conflict cases to institutional providers, that its ability to do so is not contingent on the consent of the county bar associations and that the City's proposed indigent defense plan does not run afoul of the County Law or Municipal Home Rule Law.

I.

In 1965, the Legislature enacted article 18-B of the County Law (County Law § 722) in response to the Supreme Court's landmark decision in Gideon v Wainwright (372 US 335 [1963]), which held that the fundamental right to counsel in criminal cases creates an attendant obligation of the state to provide indigent defendants with representation (see id. at 344-345). Accordingly, County Law § 722 mandates that "the governing body of the city in which a county is wholly contained shall place in operation . . . a plan for providing counsel to persons charged with a crime . . . who are financially unable to obtain counsel." Pursuant to section 722, New York City may adopt any one of the following plans for representation:

"1. Representation by a public defender appointed pursuant to county law article eighteen-A . . . [*fn1 ]

2. . . . representation by counsel furnished by a private legal aid bureau or society . . .

3. (a) Representation by counsel furnished pursuant to either or both of the following: a plan of a bar association in each county or the city in which a county is wholly contained whereby: (i) the services of private counsel are rotated and coordinated by an administrator, and such administrator may be compensated for such service; or (ii) such representation is provided by an office of conflict defender . . . [*fn2 ]

4. Representation according to a plan containing a combination of any of the foregoing."

Subsection (4) further provides that when the city has not enacted a plan conforming with subsections (3) or (4) and "the judge . . . is satisfied that a conflict of interest prevents the assignment of counsel pursuant to the plan in operation . . . the judge . . . may assign any attorney in such . . . city."

Also in 1965, the Association of the Bar of the City of New York (not a party to this case) and the New York County Lawyers' Association (NYCLA) proposed a joint plan for indigent defense (the 1965 Bar Plan) that, consistent with section 722 (4), "combine[d] representation by a private legal aid society [pursuant to subsection (2)] and by private attorneys [pursuant to subsection (3)]." Under the 1965 Bar Plan, the county bar associations would submit a list of names of qualified attorneys to administrators, appointed by the Appellate Divisions of the First and Second Judicial Departments and paid by the City, who would prepare and coordinate panels of attorneys pursuant to article 18-B. The 1965 Bar Plan designated The Legal Aid Society as the primary provider of indigent defense services. It further provided that where the "court deems the assignment of other counsel to be required in the interest of justice because of . . . a conflict of interest . . . the court shall appoint counsel" from an 18-B panel. Finally, the 1965 Bar Plan granted the First and Second Departments authority to promulgate rules with respect to the plan's operation.

In November 1965, then Mayor Robert F. Wagner, Jr. issued Executive Order No. 178 establishing a combined option plan as proposed by the bar associations for indigent defense pursuant to County Law § 722 (4). In conformity with the 1965 Bar Plan, Executive Order No. 178 designated The Legal Aid Society as the primary provider of counsel to indigent defendants and stated that "[i]n those cases where by reason of a conflict of interest . . . the Legal Aid Society declines to represent any such defendant, such defendant shall be represented by counsel furnished pursuant to the [Bar Plan]." It should be noted that at that time The Legal Aid Society was the only institutional provider of legal services in New York City.

While in subsequent decades the provision of indigent defense functioned in accordance with the plan established by Executive Order No. 178, it was not wholly without practical alterations. In 1980 and 1991, the First and Second Judicial Departments adopted new rules, which the county bar associations approved, whereby committees designated by the Appellate Division would perform the function of screening attorneys for the 18-B panels (see 22 NYCRR 612.0 et seq.; 22 NYCRR 678.1 et seq.). Beginning in 1996, the City began contracting with other institutional providers in addition to The Legal Aid Society. Presently, institutional providers furnishing indigent defense services also include Staten Island Legal Services, the Bronx Defenders, Brooklyn Defender Services, New York County Defender Services, Neighborhood Defender Services and Queens Law Associates.

In June 2008, recognizing that The Legal Aid Society was no longer the sole institutional provider of primary defense counsel, Mayor Michael Bloomberg issued Executive Order No. 118, which repealed Executive Order No. 178. Executive Order No. 118 provided that the Office of the Criminal Justice Coordinator (CJC) "shall select Providers through a competitive procurement process," to serve as primary counsel at both the trial and appellate levels. Conflict representation would continue to be provided exclusively by 18-B panel attorneys.

On January 6, 2010, the City adopted chapter 13 of title 43 of the Rules of the City of New York (43 RCNY 13-01 et seq.) entitled "Indigent Defense Plan for the City of New York." Of great significance to this appeal, chapter 13 addressed the assignment of conflict counsel, providing:

"In any case where, due to conflict of interest or other appropriate reason, Providers decline or are unable to represent an indigent person at the trial or on appeal in a criminal matter, counsel shall be furnished by attorneys assigned by the ACP [Assigned Counsel Plan] from the appropriate Criminal Defense Panel of the Appellate Division, First or Second Judicial Department, or by alternate providers* ...


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