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New York City’s Revised Indigent Defense Services Plan Upheld

The New York Court of Appeals – the state’s highest court – held last year that changes to New York City’s system of indigent defense, which permit the assignment of conflict cases to institutional providers without the involvement of county bar associations, do not violate state law.

In response to Gideon v. Wainwright, 372 U.S. 335 (1963), the 1965 New York legislature enacted County Law § 722, which mandated the creation of an indigent defense plan. Under the established plan, the Legal Aid Society was the primary indigent defense provider for New York City. When a conflict of interest among co-defendants existed, the court would appoint counsel, known as conflict counsel, from a list of qualified attorneys identified by the county bar associations. At the time, the Legal Aid Society was the only institutional provider of indigent legal services in the City.

In 1996 the City began contracting with other institutional providers to provide indigent defense services, but conflict counsel was still selected in accordance with the 1965 plan.

New York City did away with portions of the 1965 plan in January 2010 and allowed institutional providers to supply conflict counsel. Under the revised plan, the county bar associations no longer have control over the selection of counsel in conflict cases.

The New York County Lawyers’ Association and the New York Criminal Bar Association initiated a “hybrid CPLR article 78 and declaratory judgment proceeding” in state court, challenging the City’s 2010 indigent defense services plan. They argued that the plan violated County Law § 722 because that statute “neither contemplates nor allows the City’s assignment of conflict cases to institutional providers.”

The New York Court of Appeals disagreed, holding “that the City’s 2010 plan for indigent defense constitutes a valid combination plan under County Law § 722(4). Construed as a whole, section 722 affords the City the flexibility to appoint institutional providers to represent indigent defendants where a conflict of interest precludes representation by the primary provider.” In short, the City’s plan “allows for the defense of indigent criminal defendants by the Legal Aid Society, other institutional providers and the private bar, as a combination plan that serves the needs of the clients but also recognizes fiscal realities to be borne by the City.”

Chief Judge Jonathan Lippman and two other appellate judges dissented, noting that “[t]he City may have very sound policy reasons for the change it proposes, but as it goes about altering, perhaps irretrievably, the network of indigent defense service providers that has been in place for some 47 years, it would seem more than ordinarily important to insist upon compliance with the limitations contained in County Law § 722....” See: In the Matter of The New York County Lawyers’ Assn. v. Bloomberg, 979 N.E.2d 1162 (N.Y. 2012), reargument denied.

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