NY County Bar Associations Seek Stay of Indigent Criminal System Overhaul



NEW YORK – The five New York county bar associations (the “County Bars”) today filed an emergency motion with the Appellate Division, First Department, seeking an expedited appeal and a stay enjoining the effectiveness of State Supreme Court Justice Anil Singh’s recent ruling dismissing the County Bars’ Article 78 Petition and authorizing the City of New York (the “City”), Mayor Michael Bloomberg and the Mayor’s Criminal Justice Coordinator John Feinblatt (the “CJC”), to proceed with their institution of a new plan for the provision of indigent defense services in violation of state law. The County Bars filed their notice of appeal Thursday, January 20, 2011. Principally, the County Bars seek to overturn Justice Singh’s conclusion that the law permits the City to adopt a plan that purports to be a “plan of a county bar association” where the County Bars neither devised nor approved that plan, and over the County Bars’ objection.


In June 2010, the County Bars filed an Article 78 Proceeding seeking to block the City, the Mayor and the CJC from unilaterally overhauling the City’s indigent legal defense system for criminal matters -- a system that has operated under a joint plan among the City and the County Bars for more than 45 years. The County Bars brought the lawsuit in light of their statutory obligations to serve as critical safeguards on behalf of New York’s indigent defendants, who are otherwise without effective means or recourse to challenge systematic inadequacies in the provision of criminal defense services.


The County Bars claimed in the underlying case that the City violated County Law Article 18-B, Section 722, which requires all counties in New York to implement a system that provides criminal defense attorneys to the indigent utilizing one of four options: (1) an office of the public defender, (2) a private legal aid society organized and operating for the provision of indigent legal counsel, (3) a panel of private attorneys furnished pursuant to a plan proposed by the local bar associations and approved by the state administrator, or (4) counsel furnished in accordance with a plan containing a combination of any of options (1) through (3). Since 1965, the City has satisfied its obligations under Article 18-B through a combined system of the Legal Aid Society of New York and alternate institutional legal service providers, and a plan proposed by the County Bars (and the Association of the Bar of the City of New York) and approved by the state administrator.


In February and March, 2010 -- without input or agreement from the County Bars -- the Mayor and the CJC took steps toward implementing a new system for indigent defense. The petition contended that these actions violated Article 18-B because they do not qualify as one of the four allowed options for the City's indigent defense plan, and they otherwise exceed the Mayor's and CJC's executive powers. The County Bars argued that the Mayor's proposed overhaul would also marginalize the County Bars’ core and statutory role in ensuring all New York residents receive fair legal representation when accused of a crime. 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. 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.


In defending their actions and to support their contention that their proposed new plan fell within the requirements of Article 18-B, the Mayor and the City contended that the new plan constituted a “combined option” plan consisting of a private legal aid plan and a plan of a local bar association. The County Bars argued this could not be so, given that the County Bars had not been consulted on the plan’s construction, had not approved of it, and indeed expressly objected to it.


In his January 3, 2011 ruling, Justice Singh dismissed the County Bars’ Petition, holding that the City can adopt a “combined option” plan (including a bar plan component) despite the County Bars’ objection. This holding, the County Bars contend in their appeal and stay motion, flatly violates the face of Article 18-B, which grants the County Bars the exclusive authority to author and approve a bar plan. The County Bars’ motion to the Appellate Division also contends that Judge Singh’s ruling ran afoul of a July 2010 amendment to Article 18-B with respect to the assignment of conflict counsel, which the County Bars contend is now expressly reserved to the County Bars’ plan.


Haynes and Boone represents the County Bars on appeal. The Haynes and Boone team includes David Siegal, Kendyl Hanks, Jon Pressment, Nora Whitehead, Lauren Perotti and David Dodds.


Haynes and Boone, LLP is an international corporate law firm with offices in Texas, New York, California, Washington, D.C., Mexico City and Moscow, providing a full spectrum of legal services. With more than 550 attorneys, Haynes and Boone is ranked among the largest law firms in the nation by The National Law Journal. The firm has been named one of the "Best Corporate Law Firms in America" (Corporate Board Member Magazine, 2001-2009) and recognized as a “Top 20 Law Firm” for culture and for diversity with respect to both women and minorities (Vault, 2011).

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