ALAA Roots — An Unofficial Site

March 19, 2010

2010.03.19: RE: RFP news

From:  Letwin, Michael
Sent: Friday, March 19, 2010 9:50 AM
To: Martin, Margaret; CRIMINAL BKLYN ATTYS ALL
Subject: RE: RFP news

Just in case anyone thinks that the scab (non-union RFP) groups aren’t our enemies, that $24.7 million the city pays them comes out of our funding. And that’s without any additional LAS funds they may get in this current RFP process.

_____________________________________________

From:  [M.]
Sent: Thursday, March 11, 2010 9:46 AM
To: CRIMINAL BKLYN ATTYS ALL
Subject: RFP news

Lawyers Weigh in on Plan to Shift Conflict Cases to Group Providers

Daniel Wise

New York Law Journal

March 11, 2010

Deputy Criminal Justice Coordinator Shari Hyman faced close, sometimes hostile, questioning at a City Council budget hearing yesterday over a plan to move the handling of conflict cases from private criminal defense lawyers to groups like the Legal Aid Society.

More than 50 private lawyers, whose work for indigent criminal defendants would be sharply curtailed under the city’s plan, attended the hearing conducted by the City Council’s Fire and Criminal Justice Committee.

The lawyers made clear their sentiments with waves of applause when panelists asked Ms. Hyman pointed questions, and groans of dismay at her responses.

Elizabeth Crowley, the head of the committee, started the questioning by asking Ms. Hyman what comparative data her agency had concerning the cost and effectiveness of private lawyers as opposed to institutional providers.

Ms. Hyman reported that the average per case cost for institutional providers is $306 compared to $873 for private lawyers working under the 18-B program.

The audience burst into applause when Ms. Crowley, D-Queens, followed up with a question suggesting that the 18-B lawyers’ costs were higher because they took many more cases to trial and spent more time on them.

Ms. Hyman defended the new plan, saying it would bring “sunlight” to the 14 percent of the criminal caseload not handled by legal services groups.

John Feinblatt, the city’s criminal justice coordinator, said in an interview that the city “is not interested in taking business from anybody,” but instead is “open to hearing all ideas and proposals” to carry out its responsibility for developing the “best system possible” for the representation of indigent criminal defendants.

Councilman Daniel Halloran, R-Queens, who is an 18-B lawyer, challenged Ms. Hyman for being unable to affirmatively state how many of the cases handled by 18-B lawyers are conflicts as opposed to cases surrendered by Legal Aid “willy nilly” to 18-B lawyers when the group’s clients asked for “a real lawyer.”

Mr. Halloran cited data, which his staff identified as coming from the Office of Court Administration, showing that 18-B lawyers are 17 times more likely to take a case to trial than Legal Aid lawyers.

Ms. Hyman’s lack of a direct answer to Mr. Halloran’s question, “Don’t you need statistics to evaluate whether tax dollars are being spent wisely?” drew audible groans from the audience.

Mr. Halloran told Steven Banks, attorney-in-chief of the Legal Aid Society who also testified, that he supported Legal Aid and recognized that it handled too many cases, according to a spokesperson for Legal Aid.

Mr. Banks, in statement to the Law Journal, said that “out of 240,000 cases that we handle each year, we are relieved from 14,000 cases when clients retain counsel or conflicts develop, including approximately 3,000 cases which are reassigned to 18-B lawyers.”

“While there has been a great deal of focus on the status of 18-B,” Mr. Banks noted, “our concern is ensuring that the Legal Aid Society continues its role as the primary defender in New York City because of our ability to provide greater resources and support for clients than others.”

New Approach

Last month, the Criminal Justice Coordinator’s Office issued a request for proposals (RFP) from legal services organizations to handle conflict cases. Conflicts, which most commonly arise in multi-defendant cases, are now handled by private lawyers who have been certified under the 18-B program (NYLJ, Feb. 10).

The move to institutional providers would eliminate most of the work handled by 18-B lawyers. Private lawyers would continue to represent defendants in homicide cases, and get assignments in cases with more than two defendants.

Under the 18-B program, which is named for Article 18-B of the County Law, private lawyers are paid $75 an hour.

There are 1,109 attorneys certified by Appellate Division panels in the First and Second departments to represent indigent defendants at the trial level.

According to data maintained by the OCA, the city paid 18-B attorneys $47.8 million in calendar year 2008 for handling indigent defendants’ trial-level criminal cases.

In the RFP, city officials estimate there were some 34,300 conflict cases, most of them handled by 18-B lawyers, in the fiscal year that ended last June 30.

The RFP states that $8.7 million is available to fund contracts for groups to handle conflict cases.

All Contracts Up for Grabs

The RFP also opens to bidding contracts that have been awarded to the Legal Aid Society and five other groups to staff arraignment parts since 1994. The last time those contracts were opened for competition was in 2002.

The groups are responsible for completing any case they initially handle at arraignment.

In fiscal year 2009, according to the RFP, Legal Aid and the other groups handled more than 90 percent of the cases that passed through the arraignment parts.

Applications from groups interested in handling conflict cases are due on Monday. None of the groups that pick up their cases at arraignment have publicly declared their intention to expand their contracts to include conflict cases, though it is quite likely that several will do so.

In the current fiscal year (FY 2010), the Legal Aid Society received $79.1 million to represent indigent defendants at the trial level.

The five other groups received a total of $24.7 million for FY 2010, according to city data: NY County Defenders, $6.3 million; Brooklyn Defender Services, $5.8 million; Bronx Defenders, $4.9 million; Queens Law Associates, $4.9 million; and Battiste, Aronowsky & Suchow Inc., $2.8 million.

The RFP specifies that in order to qualify to handle conflict cases, a group must cover arraignment shifts, and are required to represent all defendants arraigned during those shifts except for cases exposing them to a conflict of interest.

In the four largest boroughs, Legal Aid handles 76 arraignment shifts per week and lawyers from the other four groups operating in those boroughs handle 16.

To the extent new groups receive contracts to handle conflict cases their current funding will have to be increased so they can accommodate the additional cases. The question will be whether the cost of increased funding will exceed the $75 per hour rate now paid to 18-B lawyers.

In a separate development yesterday, the OCA issued a new rule that could drive up the costs of groups representing indigent defendants. (See accompanying article.)

@|Daniel Wise can be reached at dwise@alm.com.

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