Monthly Archives: April 1997

1997.04.29: Questions & Answers Concerning National Association of Criminal Defense Lawyers Resolution on NYC Legal Aid

Questions & Answers Concerning
National Association of Criminal Defense Lawyers
Resolution on NYC Legal Aid

April 29, 1997

      Q.  What is the subject of the proposed NACDL resolution on The New York Legal Aid Society?

At issue is the Giuliani administration’s policy of fragmenting indigent criminal defense services in New York City by awarding thousands of Legal Aid Society cases to non-union contractors—runaway shops—established pursuant to administration “requests for proposal” (RFPs).

Q.  What is the extent of this policy?

Pursuant to a 1995 RFP, about 10% of the nonprofit Legal Aid Society’s criminal work has been awarded to “Appellate Advocates,” “Brooklyn Defender Services” and the explicitly for-profit “Queens Law Associates.” Pursuant to a 1996 RFP, it is about to sign additional contracts with “The Center for Appellate Litigation,” “Bronx Defenders,” “New York County Defender Services,” and “Battiste, Aronowsky & Suchow, Inc.” for an additional 10-15% of the Society’s work.

Largely because Giuliani has funded far higher staff attorney salaries at the trial-level RFP groups, this policy will cost the City millions of dollars more than comparable Society representation.

Q.  What is the impact of these RFPs on Society representation?

Since 1994, the Giuliani administration cut the Society’s City funding for criminal work by some $19 million, or 25 percent.  Consequently, the Society’s Criminal Defense Division (trial-level) attorneys will have dropped from 532 in September 1994 to less than 400 by June 1997, with a comparable decline in the Criminal Appeals Bureau.  Despite these cuts, the Society’s criminal caseload has decreased by only 1 percent.  Goldstein, Legal Aid’s 1996 Caseload in City Down a Mere 1%, N.Y.L.J., Jan. 10, 1997, at 1, col. 3. Society staffing will drop further if the City accompanies the second round of some $12 million in RFP awards with anticipated additional reductions in Society funding.

The Report of the Indigent Defense Organization Oversight Committee to the Appellate Division First Department for 1996 found compelling evidence of damage wrought by this unrelenting attack.  Notwithstanding what it characterized as the enthusiasm, innovation and commitment of the Society’s staff, the Committee reported that City cuts have already caused “[Manhattan and Bronx] workloads [to] greatly exceed. . . the Oversight Committee’s Guidelines. . . . [50][and a] noticeable diminution of in-court supervision [in Manhattan] [51],” thereby threatening the quality of client representation.

The report also found that Giuliani’s policy has caused a significant shift in the Society’s workload from felonies to misdemeanors.  “If this trend continues,” it warns, “[Society] lawyers will be tempted to leave Legal Aid earlier in search of trial experience and the challenges of a felony practice [53]. . . . in turn, reduc[ing] the quality of representation not only by Legal Aid, but by the alternative defense providers and 18B panel, to which many Legal Aid lawyers eventually move.”  [55-56.]

Q.  Why is Giuliani attacking Legal Aid?

Giuliani is motivated not by any desire to improve indigent defense services, but rather by the following interrelated goals:

 

!Union Busting. First and foremost, the RFPs are part of a campaign of illegal retaliation for the Association of Legal Aid Attorneys’ (ALAA) legally-protected October 1994 strike, which lasted for two weekdays, in response to Giuliani’s demand for a net cut in staff attorney compensation.[1]

Notwithstanding striking attorneys’ appearance—at no pay—in cases already on trial, Legal Aid’s readiness to meet its contractual obligations and the strike’s minimal impact on the criminal justice system, Hoffman, Despite Legal Aid Walkout, Courts Run Mostly as Usual, N.Y. Times, October 5, 1994, at B4, col. 1, Giuliani reprised his previous role of firing PATCO strikers in 1981 by immediately canceling all of the Society’s city contracts, threatening to permanently blacklist the striking lawyers[2] and announcing that he would issue RFPs to “break up” the Society—a threat as old as the Union itself.

These RFPs represent a sharp reversal in the widely-applauded expansion of cost-effective Society representation immediately prior to the strike, and reflect Giuliani’s well-known intolerance for police commissioners, judges, press, defense attorneys, or anyone else who express even minor independence—especially in regard to criminal justice.

!Weakening Indigent Defense.  The RFPs are also designed to help Giuliani undermine continuity of representation, Goldstein, City Council Hears Debate on Legal Aid Budget Cuts, N.Y.L.J., November 18, 1994, at 1, col. 3—the principle that the same lawyer should handle a criminal case from beginning to end.

Continuity was achieved more than twenty years ago through strikes and other efforts by the Association of Legal Aid Attorneys (ALAA), and has been embraced by the Society and virtually every major standard or report on indigent defense services as essential to effective representation.[3]

Since the 1994 strike, ALAA and the Society have firmly rejected Giuliani’s demand for surrender of felony continuity provided for by union contract and Society policy.  As noted in the Oversight Committee’s report, the Society continues to “ensure the continuity of representation” from the moment a felony defendant is first arraigned.

Continuity, however, appears nowhere in the RFP awards.

The RFPs also threaten to undermine ardent representation.  For example, on October 3, 1996, a judge ordered a Legal Aid attorney held in contempt, handcuffed and removed from a case for vehemently objecting to disparate plea offers made to co-defendants in a narcotics sale.  Within minutes, a newly-assigned Brooklyn RFP group’s lawyer pled the former-Legal Aid client guilty on the terms so vigorously resisted by the Society’s attorney.

More broadly, it is hard to imagine that the non-union providers will possess the necessary independence to pursue litigation heatedly opposed by the City, such as that brought by the Society for arraignment within 24-hours, People Ex Rel. Maxian o/b/o Rountree v. Brown, 164 A.D.2d 56 (1st Dept. 1990), aff’d 77 N.Y.2d 422 (1991), or minimally humane City jail conditions.  Benjamin v. Jacobson, 75 Civ. 3073 (HB).[4]

Thus, the origins and nature of the RFPs enable Giuliani to threaten that, if the Society and ALAA resist over such issues as continuity, judicial abuse, or class action litigation, the City will simply turn to more “cooperative” non-union providers.

!Undermining the Society’s Non-Criminal Representation.  The RFPs also serve to undermine the Society’s ability to provide effective non-criminal representation, a goal specifically presented just one day before issuance of the first RFP in a pro-Giuliani magazine.  Stern, The Legal Aid Follies, City Journal, Autumn 1995 22.[5]

Q.  But can’t the RFP groups play an innovative and positive role, regardless of Giuliani’s purpose?

      As recognized by the Indigent Oversight Committee, The Legal Aid Society has overcome tremendous odds to develop a collaborative relationship with its staff and an innovative approach to indigent criminal defense—changes viewed with great hostility by the Giuliani administration.

In sharp contrast, the only—and defining—innovative features of the contract providers is that they are non-union and, in at least one case, for-profit.  Indeed, Giuliani has ended funding for the one truly innovative non-Legal Aid provider, Neighborhood Defender Services.[6]

Moreover, independent, high quality indigent defense is entirely incompatible with the political origins and design of the RFPs:  replacement of a strong, unionized, independent institutional defender with small, one-borough, non-union contractors in order to break the Union and weaken the Society’s advocacy on behalf of the poor.

Q.  What is being done to oppose Giuliani’s policy?

The Society and ALAA have filed suit citing the Giuliani administration’s violation of state and federal law in its establishment of the RFPs.

Q.  Why should NACDL take a position on this potentially divisive issue?

The events discussed here do not concern personalities or the legal skills of one or another individual.

Rather, they concern a national political attack on a strong and independent defense bar, represented here by a Union that has consistently fought to improve and defend quality indigent representation since its establishment in 1968,[7] and by a reformed Legal Aid Society more dedicated that ever to fulfilling that mission—both of which count among its alumni many NACDL members.  If unchecked, this attack will have a destructive impact well beyond the 240,000 indigent criminal defendants represented each year by The Legal Aid Society of New York City.

In recognition of such facts, on November 29, 1995, “support for the Legal Aid Society as the most cost-effective, high quality provider of indigent criminal defense services and . . . concern over the City’s RFP to fragment those services” was voiced by a coalition including former Mayor David Dinkins, New York State Bar Association President Maxwell Pfeifer, Columbia Law School Dean Lance Liebman, CUNY Law School Dean Kristin Booth Glen, Former Appellate Division Justice John Carro, former mayoral counsel Frederick Schaefer and former New York City Corporation Counsel Peter Zimroth.

In Fall 1996, the Center for Constitutional Rights, National Conference of Black Lawyers, National Emergency Civil Liberties Committee and National Lawyers Guild issued a strong joint resolution against establishment of the non-union RFP contractors.

No matter how difficult, NACDL simply cannot afford to stand on the sidelines of this critical battle.

Q.  How can NACDL help?

      In addition to adopting the pending resolution against Giuliani’s policies, NACDL can play a key role in mobilizing the legal community and in filing amicus papers in pending litigation.


[1]The strike took place after the Giuliani administration prohibited the Society from self-funding a modest ALAA settlement.

[2]According to Corporation Counsel Paul Crotty, “They [Society management] could always fire those lawyers for going out on strike.  That’s an option they ought to consider.”  Patrick, Giuliani, Legal Aid Society Go Toe-to-Toe, Mayor Cancels Group’s Pact With City After Attorneys Vote To Go On Strike, S.I. Advance, October 4, 1994, at A15, col. 1.

[3]See, e.g., Indigent Defense Organization Oversight Committee, General Requirements for all Organized Providers of Defense Services to Indigent Defendants (July 1, 1996), Article II(A)(“Trial counsel should be able to provide quality representation throughout each case, from initial assignment through final judgment and any necessary post-judgment proceedings.”); ABA Standards for Criminal Justice Providing Defense Services, 3d  5-6.2 (1992)(“Counsel initially provided should continue to represent the defendant throughout the trial court proceedings”);  National Legal Aid and Defender Assn., National Study Commission on Defense Services 5.11 (1976)(“Defender  offices should provide for continuous and uninterrupted representation of eligible clients from initial appearance through sentencing”);  Supreme Court of the State of New York, Appellate Division, First and Second Departments, Subcommittee on the Legal Representation of Indigents, Report on the Legal Representation of the Indigent in Criminal Cases 10-12 (February 17, 1971)(“The heart of effective representation lies in establishing the attorney-client relationship in which the total responsibility for the outline of the case lies with one attorney.”

[4]See, e.g., Pines, City Takes Aim at Long-Standing Consent Decrees, N.Y.L.J., February 7, 1996, at 1, col. 3;  Lorch, New York City Files Suit Over Court Rules for Jails, N.Y. Times, May 31, 1996, at B3, col. 5.

[5]    This article urged Giuliani to “break up the Legal Aid Society . . . [by] mov[ing] immediately to bid a separate contract for each [Society] function.”  Id. at 33.  Citing neither fear of another Legal Aid strike, nor criticism of the cost or quality of the Society’s work, the article complained that the Society was dominated by a “leftist” poverty law ideology that had won due process rights for public housing tenants faced with eviction, forced the City to house the homeless and opposed harsher treatment of juvenile offenders, all of which undermined the administration’s efforts “to improve the city’s quality of life.”  Id.

“With Legal Aid cut down to a more appropriate size,” the administration can “undertake a broad legal and political counterattack against the pernicious consent decrees and court mandates. . . [and] campaign more effectively in the Legislature for needed reforms in such areas as juvenile justice and homeless policy.”  Id.

[6]The City has never provided the Society with the high level of funding required for full implementation of NDS’ team model.

[7]For an overview of the Union’s establishment in relationship to such issues, see, e.g., 25 Years After ALAA’s Birth, a Co-Founder Tells of Legal Aid in 1968, When it All Began to Change, (interview with Jerry Lefcourt), 1 Working for Justice 12-13, 19 (July 1994) (attached).