Indigent Defense in N.Y. — A System in Crisis: Part 2

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By Lazar Emanuel
[Originally published in NYPRR November 2006]


(This is the second of a series describing New York’s indigent defense system.)

In NYPRR October 2006, we discussed the report of The Spangenberg Group (TSG), which was authorized by the Commission on the Future of Indigent Defense Services to investigate New York’s system for responding to the constitutional imperative to provide counsel for indigent criminal defendants. We traced the decisions, beginning with Gideon v. Wainwright, 372 U.S. 335 (1963), which have led New York to expand the right-to-counsel doctrine to include most traffic violations and all Family Court proceedings, and we quoted TSG’s conclusion: “New York’s indigent defense system is in a serious state of crisis. The ‘system’ is a patchwork composite of multiple plans. …The result is a fractured, inefficient and broken system.”

In this article, we will focus on the minimal standards expected of an efficient and compassionate system for ensuring adequate representation and defense for those persons whom New York has chosen to include in the definition of indigents entitled to subsidized counsel.

Neither the U.S. Constitution nor the New York Constitution mandates that subsidized counsel be made available to anyone other than indigent criminal defendants. However, the legislature has extended that right to persons involved in proceedings both in the Family Court and the Surrogate’s Court who “are financially unable to obtain” assistance of counsel. [See, Family Court Act, §262.]

Further, children involved in matters in both courts are presumptively eligible for counsel, who usually act as law guardians at state expense.

The burden of providing counsel in these non-criminal proceedings has imposed a great financial drain on the funds available for indigent criminal defendants.

We will cover the core issue of funding in a subsequent installment. For our purposes here, we simply point out: (1) the funding of indigent services, both criminal and non-criminal, is a joint function of the state (36%) and the individual counties (64%); (2) each county is allowed to choose its own system for providing these services (it may choose among public defender offices, private non-profit legal aid societies, bar association programs using private counsel, or any combination of the three); (3) funds for criminal and non-criminal indigents are neither maintained separately nor separately accounted for; and (4) virtually all commentators agree that the funds available to the system as a whole are woefully inadequate.

In other words, the statutes providing counsel to indigent persons in Family Court and Surrogate’s Court have had the unfortunate and unintended consequence of causing a competition for funds between indigent parties in these non-criminal proceedings and indigent criminal defendants. This, in turn, has made it more difficult to meet the minimal standards for an adequate defense of persons accused of crime.

ABA Standards for Defense System

The minimal standards for measuring the effectiveness of a state’s criminal defense system are contained in the guidelines of the American Bar Association (ABA) and the National Legal Aid and Defender Association (NLADA). The ABA guidelines define the qualities of a good statewide system; the NLADA guidelines list the standards which the courts and the lawyers in the system should meet.

The ABA has led the drive to promote universal standards for indigent defense systems in all the states. It has promulgated the 10 Principles of a Public Defense Delivery System. As they would apply to a populous state like New York, they may be restated as follows:

• Public defense must be independent. This includes selection, funding, and payment of defense counsel.

• When the caseload is high, the system should include both a public defender office and the private bar.

• Clients should be screened for eligibility and counsel should be assigned and notified of appointment as soon as feasible after the client’s arrest, detention or “request”.

• Defense counsel should be supplied with sufficient time and a confidential place to meet the client.

• Defense counsel’s workload should be controlled to provide quality representation. [Editor’s Note: On May 13, 2006, the ABA released Formal Opinion 06-441, dealing with the impact of excessive caseloads on the quality of defense for indigent criminal defendants.]

• The same attorney should represent the client throughout the case.

• The prosecution and defense counsel should have parity as to resources and should be equal partners in the justice system.

• Defense counsel should be provided with, and required to undertake, continuing legal education.

• Defense counsel should be supervised and their work reviewed for quality and efficiency under national and local standards.

Standards of NLADA

The National Legal Aid and Defender Association (NLADA), the country’s leading association for equal-justice lawyers and professionals — i.e., providers and supporters of legal assistance to poor and low-income individuals — has focused its guidelines more on the quality of counsel’s representation than on the system for providing counsel. Under the NLADA Performance Guidelines, counsel is expected or required to:

• Provide zealous and quality representation

• Be familiar with substantive criminal law and the law of criminal procedure

• Make sure they have enough time, resources, knowledge and experience to give the client quality representation

• Attempt to secure the pretrial release of the client

• Inform the client of his rights at the earliest opportunity and take steps to protect these rights

• Conduct a full and complete interview with the client as soon as possible after appointment

• Become familiar with the elements of the offense and the potential punishment

• Obtain copies of all relevant documents

• Conduct an independent investigation, regardless of the client’s statements regarding guilt

• Pursue discovery procedures as soon as possible

• Prepare and develop a theory of the case

• Keep the client informed of the progress of the case and of all available options

• Explore the desirability of a negotiated plea instead of a trial, including an explanation of the rights the client is waiving

• Explain and leave to the client the decision whether to demand a jury be prepared for all hearings

• Reject an excessive workload that will affect client representation

• Be alert to and provide against any conflict of interest

• Take steps to ensure that client gets a preliminary hearing expeditiously, unless there are strategic reasons not to

• Develop a sentencing plan that provides the least restrictive sentence acceptable to the client

• Become familiar with procedures concerning the preparation, submission and verification of the pre-sentencing report

• Inform the client of his right to appeal and the steps required to perfect an appeal, e.g., restrictions on time.

• Be familiar with the direct and collateral consequence of the judgment and sentence.

New York State Standards

Of course, both the ABA standards and the NLADA standards serve only as “benchmarks” for the quality of indigent defense services and are not binding on New York or its lawyers. As the TSG report points out, however, New York has developed its own sets of standards. Only one of these — the Disciplinary Rules of the Code of Professional Responsibility — is mandatory. The other sets – standards announced separately in 2004 by the NYSBA and the New York State Defenders Association, mirror many of the ABA and NLADA standards, but they are, as TSG reports, “largely unenforceable.”

The first and mandatory set of rules is imposed by the New York Code of Professional Responsibility and the Disciplinary Rules, which “state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action” (Preliminary Statement, p. 1). The Rules are amplified by the Ethical Considerations (EC’s) which, though aspirational in character, are often cited as persuasive by the courts.

One EC (EC 2-25), which promotes participation by lawyers in indigent defense, was amended on April 2, 2005. The amendment refers to “persons of limited financial means” and extends to civil matters as well as criminal or quasi-criminal proceedings. Thus, it goes far in encouraging NY lawyers to provide time for public interest and pro bono legal services:

Each lawyer should aspire to provide at least 20 hours of pro bono services annually by providing legal services at no fee and without expectation of fee to: (l) persons of limited financial means, or (2) not for profit, governmental or public service organizations, where the legal services are designed primarily to address the legal and other basic needs of persons of limited financial means, or (3) organizations specifically designed to increase the availability of legal services to persons of limited financial means.

The controlling provisions of the Code itself are DR 6-101 and DR 7-101, DR 7-102, and DR 7-106 through DR 7-110. These are the Rules which impose the requirements of competence and zealousness on all New York lawyers. They do not deal with or define separately those essential additional requirements which are the mark of a sound indigent criminal defense system. As a matter of fact, except for the two sets of “Standards” or guidelines of the NYSDA and the State Bar, there is no statute or rule that controls the quality of indigent defense in New York. As the TSG report declared:

A measure of an adequately functioning indigent defense system is an evaluation of whether defense counsel are able to follow the national and state performance standards in all indigent cases. Unfortunately…it was apparent that many providers of mandated legal representation, as well as the local systems themselves, fell far short of meeting these standards. The resulting conclusion is that the right to counsel of indigent defendants is being placed at serious risk throughout New York State.

As TSG reports, the problems confronting New York’s indigent defense system can be traced in large part to the state’s commitment to a county-by-county system instead of a state- wide system financed and administered entirely by the state. As we have seen, the state allows each county to choose its own system for administering defense services [see, County Law §722]. Each county is allowed to finance and function through a public defender office, a private legal aid bureau, or private counsel under a plan of a county bar association.

A public defender office is an office of the county itself, and its staff members are county employees. The public defender is appointed by a county board which fixes her term and salary. With the approval of the board, the public defender may hire and supervise lawyers and support staff.

A legal aid bureau is an independent, private, usually non-profit, organization, that contracts with the county to provide indigent criminal defense. The bureau depends on the county for its funds, but its employees are not county employees.

The bar association of each county is authorized to create a plan under which private lawyers may be designated to serve as indigent defense counsel. Lawyers are appointed on a rotating basis. In addition, several of New York’s 62 counties provide counsel assigned by the court. Nine counties provide no other means of defense than through assigned counsel.

Failure of a System

TSG recites a litany of ways in which New York has failed to fulfill its obligations to its criminal defense system:

Excessive Dependence on Counties. The ABA and the NYSBA have both declared the critical importance to indigent defense providers of independence from professional and political influences. Providers should be free to negotiate for funding without fear of interference or retaliation; funding should include provision for “investigative, expert and other services necessary for an adequate defense.” TSG cited several instances in which individual politicians or members of the county legislature interfered with the process by which public defenders were appointed and managed. In two counties, no one could be appointed to a county position unless he was a member of the ruling political party. In another county, the “District Attorney played a major role in the selection of the public defender.” In still another county, the Director of the Legal Aid Society complained that he had been threatened with replacement by another provider “if you don’t do what we want, if you don’t accept the budget terms…”

Excessive Caseloads. Neither the state nor any of the counties has established a standard for measuring whether a lawyer providing indigent defense has an excessive caseload. Relying on its experience in other states and on its knowledge of national standards, TSG concluded: “Unfortunately, defenders are not developing their own specific standards and across the state, they are handling heavy caseloads that are well in excess of the national standards.” In 1973, the National Advisory Commission on Criminal Justice Standards and Goals set the following maximum annual caseload standards for full time attorneys: 150 felonies or 400 misdemeanors or 200 juvenile court proceedings or 200 mental health cases or 25 appeals (lawyers handling more than one type of case should reduce their caseloads in each type proportionately). In New York, individual attorney caseloads in excess of 800 per year are not uncommon. On one day in one Suffolk County town court, four attorneys were faced with a docket of 30 cases. In Monroe County, one public defender reported an open caseload of 800 misdemeanors.

Part-time Defenders. As TSG discovered, 12 of New York’s 15 upstate counties staff their institutional providers either completely or partially with part-time lawyers. In some counties, these part-time lawyers are expected to handle full-time caseloads; this arrangement is convenient to lawyers who wish to maintain a private practice. In some counties, even full-time defenders are permitted to continue in private practice. In Schuyler County, for example, the Public Defender reported that she would not be able to continue in that role without a limited trial practice. In one small upstate county, only one of 15 candidates was willing to accept a $72,000 annual salary for the position of Public Defender.

Court Coverage. Problems in court coverage are caused in three different ways: inadequate staff, geographical constraints, and number of courts requiring coverage. Nassau County, for example, has 61 town and village courts. The institutional provider — in this case, the Legal Aid Society — does not have the staff to man all these courts. “At many local call dockets, there are no defense lawyers at all.” Some counties are so large that the problem is simply to cover the bases. In Westchester County, staff limitations often preclude daily attendance by defense counsel. In White Plains City Court, counsel is available only on Tuesdays and Fridays. Defendants must wait for arraignment only on those days.

Lack of Vertical Representation. In an efficient and compassionate defense system, one lawyer would handle a matter from arraignment to final disposition (vertical representation). In New York, instead, defense lawyers are generally assigned to cover a particular docket, such as the arraignment docket (horizontal representation) or a particular duty, e.g., jail interviews. This means that a single defendant can be represented by many lawyers before his case is tried. Obviously, this makes for inefficiency and extreme stress for the defendant, who is never able to form a meaningful attorney/client relationship.

Inadequate Resources. TSG found a lack of resources committed to indigent defense in every county. The lack was in all areas — support staff, office conditions, and technical resources. Many offices had no staff investigators and had to retain outside consultants. This slows down the investigative process and, in some cases, forces the provider to forego investigation all together. Many providers have little or no office space and their lawyers have to work in their own offices. Resources for case tracking, conflict checking and research are woefully lacking. Some offices have no access either to Lexis or Westlaw. In many offices, computer access is either inadequate or simply unavailable.

And that’s not all. Read Installment 3 in the December 2006 issue.

Lazar Emanuel is the publisher of NYPRR.

DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.

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