To The Readers Of The Metropolitan Corporate Counsel:
NYCLA, The City And Access To Justice
Since its founding, NYCLA has been committed to assuring access to justice for the poor and disadvantaged. NYCLA has worked strenuously on behalf of low-income New Yorkers to ensure adequate funding for the City's indigent defense system and its Pro Bono Department has offered diverse programs for over 20 years.
Criminal Indigent Defense And The County Bars' Lawsuits
In her April column, my predecessor, Ann B. Lesk, wrote about New York City's attempt to make unilateral changes in its indigent defense system that would eliminate the role of the county bars. This plan, motivated by financial considerations and a desire for mayoral control, would have ended the independent role the county bars have played in indigent defense in New York City for 45 years. NYCLA, along with the four other county bars, Bronx, Kings, Richmond and Queens County, filed a civil action in New York State Supreme Court on June 18 alleging that recent attempts by Mayor Bloomberg, the City of New York and the Criminal Justice Coordinator to overturn the City's indigent defense system are unconstitutional under the New York and United States Constitutions.
This complaint follows the filing of an Article 78 proceeding on June 2 to challenge the City's unilateral overturning of the indigent defense system operated for over 40 years through a joint plan among the City and County Bars. The County Bars, represented by a team from Haynes and Boone, LLP, who are providing pro bono counsel, brought the lawsuit on behalf of New York's indigent defendants. The complaint, like the Article 78 proceeding, seeks to halt the City's contract-procurement process and preserve the status quo unless and until the City reaches an agreement with the County Bars that meets the statutory requirements and preserves indigent defendants' access to adequate legal counsel.
The City's Response And Reaffirmation Of The County Bars' Independent Role
On July 15, the City responded to the County Bars' Article 78 petition with a motion for summary judgment on a number of grounds, including mootness and lack of standing. The City's papers disclose, however, that if the case is moot, it is because the City has actually issued a new Executive Order correcting "mistakes" in previous statements and RFPs. The new Executive Order makes clear that the County Bar role and the existing plan remain in effect, as does the role of 18B lawyers in conflicts cases (although, depending on what contracts may be awarded, some conflicts cases may also be handled by institutional providers). The City's papers also assert that there will be no decrease in spending on indigent defense, which remained intact despite cuts throughout the budget.
The City's concession that it cannot change the County Bars' role unilaterally is a welcome and important victory for the County Bars, who nevertheless intend to work cooperatively to monitor future funding and performance and press for funding and standards that will assure constitutionally adequate defense of the poor.
The Road Ahead
The landscape of the future may differ from the landscape of the past. The New York legislature has created a statewide Office of Indigent Defense to oversee the area and has also amended the relevant statute to preserve the role of the County Bars. And the Court of Appeals has affirmed the standing of plaintiffs supported by NYCLA and other bars to challenge the inadequacy of the indigent criminal defense on a systemic, statewide basis.
But there is a long road ahead before any of the County Bars - or any lawyer in America - can truly take comfort, let alone pride, that many of the poor have meaningful access to justice or the representation any of us would want for ourselves when facing a serious legal problem, whether criminal or civil. NYCLA, like many bars, trains and helps lawyers provide representation to the poor. But all the valuable services we and other bars perform are but drops in a bucket against an ocean of need. Serious funding of first-class indigent defense is a moral and constitutional obligation and should be a first priority of government.
In August, NYCLA, among other bar associations in New York and beyond, will co-sponsor resolutions of the American Bar Association recognizing "civil Gideon " - a right to counsel in matters, which, while non-criminal, have profound consequences for indigent people. The U.S., which should be a leader in the protection of fundamental rights and freedom, now lags behind Europe and much of the world in providing indigent legal aid. It is an unfair and unconstitutional situation legally, a dangerous one politically and a shameful one for any lawyer committed to the goals of the legal profession.
Feisty Is Good
The Mayor's recent action confirms that NYCLA and its fellow county bars will continue to play their historic role in indigent defense in New York. This is only the first of many battles. I noted when I was inducted as NYCLA's 57th president that NYCLA had a reputation as a feisty bar organization, but that feistiness was good when important issues are at stake. This is one area where we all have a duty to be feisty.
James B. Kobak, Jr.