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Bar Groups Appeal NYC Indigent Defense Order

MANHATTAN (CN) - The bar associations of New York City's five boroughs filed a motion for an expedited appeal against Mayor Michael Bloomberg's competitive bidding plan, which would assign tens of thousands of conflict cases involving indigent defendants to the already "overburdened and underfunded" Legal Aid Society and other institutional providers.

A New York County judge had dismissed the associations' first petition for an injunction against the plan, finding that the city had acted within its rights by passing an order to abandon the structure set up in 1965, which created the system of representation for criminal defendants who cannot otherwise afford counsel.

"The court recognizes that the city's current plan may cause substantial hardship to private 18-B attorneys," Justice Anil Singh wrote on Jan. 3, referring to private lawyers who take on indigent defense clients assigned by the court. "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."

In the appeal filed Jan. 20, the bar associations say the city cannot adopt a plan that regulates their work without first getting their approval.

"Instead of relying on the plan the city implemented with the advice and cooperation of the county bars in 1965, the mayor was seeking to select all defense providers without the county bars' input, through a confidential competitive bidding process that threatened to emphasize low-cost over quality of legal services," according to a statement released by Haynes and Boone, which represents the associations. "This proposal poses a serious risk that New York City's system for providing legal services to the poor will fall below state and federal constitutional standards."

The bars renewed their plea for an injunction in the motion, claiming that under Bloomberg's plan "the county bars will immediately be sidelined in the indigent defense system."

"The county bars merely wish to maintain the status quo in the indigent defense system to ensure that, during the pendency of this appeal, it continues to operate as it has for the past 45 years," the motion states. "Absent such relief, it is likely the bar plan panels will either be disbanded or threatened by the loss of membership. ... With the already fragile constitutional protections of the indigent at stake, these likely consequences cannot be tolerated when a status quo that has existed for decades can be maintained by a stay for the period it takes to determine the appeal."

Under the 1965 system, county law 18-B was enacted to give indigent defendants four options for representation: public defender, private legal aid society, private attorneys who are paid an hourly rate and furnished by a bar and approved by a state administrator, or any combination of those plans.

"By reserving oversight for the county bars and the courts, Article 18-B ensures that the city cannot unilaterally fashion an indigent defense system by fiat," the groups claimed in their original petition.

"New York City's indigent defense system is already over-burdened and under-funded," that filing states. "Respondents' proposed overhaul of the system ... threatens to further stress and financially starve both the institutional providers and any remaining private attorney panels under the control of the city without any participation by the county bars as advocates and monitors for the constitutional rights of the indigent."

The bidding system, moreover, is also a "new, untested system in which there are no stakeholders free from financial conflicts of interest," the bar associations claim.

They say they want to reinstate the 1965 system "to protect the rights of countless poor New Yorkers whose constitutional right to the effective assistance of counsel is imminently threatened by respondents' plans to replace a legislatively mandated indigent defense system."

They also claim the new system comes with a 30 percent drop in funding. Whereas the budget for indigent defense counsel in the city was $140.1 million in 2009 and nearly $152 million in 2008, the budget for Bloomberg's "entire new plan" is just $101.1 million, the bar groups claim. Meanwhile, there is no sign of a reduction in "burgeoning caseloads."

"Particularly in times of economic crisis, there is every reason to believe the number of people qualifying for assigned counsel will increase," the original petition states.

The bar associations continue to be represented by David Siegal with Haynes and Boone.

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