New York Cnty. Lawyers' Ass'n v. Bloomberg

• Decision Date: 15 March 2012
• Citation: New York Cnty. Lawyers' Ass'n v. Bloomberg, 2012 NY Slip Op 1876, 95 A.D.3d 92, 940 N.Y.S.2d 229 (N.Y. App. Div. 2012)
• Parties: In re The NEW YORK COUNTY LAWYERS' ASSOCIATION, et al., Petitioners–Appellants,The New York Criminal Bar Association, Inc., et al., Intervenors–Petitioners–Appellants, v. Michael R. BLOOMBERG, etc., et al., Respondents–Respondents,The Legal Aid Society of New York, Intervenor–Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01876

940 N.Y.S.2d 229

95 A.D.3d 92

In re The NEW YORK COUNTY LAWYERS' ASSOCIATION, et al., Petitioners–Appellants,The New York Criminal Bar Association, Inc., et al., Intervenors–Petitioners–Appellants,

v.Michael R. BLOOMBERG, etc., et al., Respondents–Respondents,The Legal Aid Society of New York, Intervenor–Respondent–Respondent.

Supreme Court, Appellate Division, First Department, New York.

March 15, 2012.

Haynes and Boone, LLP, New York (Jonathan D. Pressment, David M. Siegal and Kendyl T. Hanks of counsel), for the New York County Lawyers' Association, the Bronx County Bar Association, the Brooklyn Bar Association, the Queens County Bar Association, the Richmond County Bar Association, appellants.

Satterlee Stephens Burke & Burke LLP, New York (Zoë E. Jasper and Alun W. Griffiths of counsel), for The New York Criminal Bar Association, Inc. and Anastasios Sarikas, appellants.

Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein, Larry A. Sonnenshein and Thaddeus Hackworth of counsel), for Michael R. Bloomberg, The City of New York and John Feinblatt, respondents.Davis Polk & Wardwell LLP, New York (Daniel F. Kolb, Daniel J. O'Neill and Jennifer Marcovitz of counsel), for The Legal Aid Society, respondent.

ANGELA M. MAZZARELLI, J.P., RICHARD T. ANDRIAS, KARLA MOSKOWITZ, ROSALYN H. RICHTER, SHEILA ABDUS–SALAAM, JJ.

ANDRIAS, J.

In this article 78 proceeding, we are called upon to judge the legality, not the wisdom or the prudence, of the City of New York's proposed revisions to its Indigent Defense Plan with respect to the assignment of counsel in cases in which the initial provider at arraignment is unable to represent the indigent person due to a conflict of interest. Upon our review of the record and relevant statutes, we conclude that the City's revised plan, and its proposed implementation pursuant to Chapter 13 of Title 43 of the Rules of the City of New York (43 RCNY 13–01 et seq.), is not arbitrary and capricious or irrational ( see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 230–231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ), does not require the consent of the county bar associations (the County Bars), and does not violate section 722 of article 18–B of the County Law (as amended by L. 2010, ch. 56, pt. E, § 3) or Municipal Home Rule Law § 11(1)(e).

The revised plan is a lawful “combination” plan under County Law § 722(4), providing indigent representation under the “private legal aid bureau or society” option of § 722(2), which, contrary to petitioner's contention, is not restricted to primary assignments, and the “plan of a bar association” option of § 722(3), which, contrary to petitioner's contention, does not give the County Bars the exclusive right to provide “conflict counsel.” Although the revised plan provides for the assignment of conflict cases to institutional providers under § 722(2), it continues to permit the assignment of conflict cases to private counsel serving on Criminal Defense Panels (see 43 RCNY 13–03) created under the authority of Executive Order 178 of 1965 and pursuant to the 1965 “Bar Plan,” to be administered in accordance with the rules of the Appellate Division, First and Second Departments (Executive Order 136 of 2010), and does not improperly usurp the role of the County Bars. Nor does the plan either eliminate the judiciary's right under County Law § 722(4) to assign counsel when a conflict of interest prevents assignment pursuant to the plan or displace the judiciary's role in authorizing the appointment of experts ( see 43 RCNY 13–05).

County Law § 722

In 1965, in response to the United States Supreme Court decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 [1963] and the Court of Appeals decision in People v. Witenski, 15 N.Y.2d 392, 259 N.Y.S.2d 413, 207 N.E.2d 358 [1965], New York State enacted article 18–B of the County Law (§ 722 et seq.) (L. 1965, ch. 878), which provided, “[T]he board of supervisors of each county ¹ and the governing body of the city in which a county is wholly contained shall place in operation ... a plan for providing counsel to persons charged with crime ... who are financially unable to obtain counsel” ( sec 1, § 722). The county or city was given four options for providing such counsel: representation by (1) “a public defender appointed pursuant to county law article [18–A]”; (2) “counsel furnished by a private legal aid bureau or society”; (3) “counsel furnished pursuant to a plan of a bar association ... whereby the services of private counsel are rotated and coordinated by an administrator,” or (4) “according to a plan containing a combination of any of the foregoing” (L. 1965, ch. 878, sec 1, § 722[1]-[4] ). On June 22, 2010, County Law § 722(3) was amended to add an “office of the conflict defender” option:

“3.(a) Representation by counsel furnished pursuant to either or both of the following: a plan of a bar association in each county or the city in which a county is wholly contained whereby: ( i ) the services of private counsel are rotated and coordinated by an administrator, and such administrator may be compensated for such service; or (ii) such representation is provided by an office of conflict defender ” (L. 2010, ch. 56, pt. E § 3) (amendments in italics).²County Law § 722(4) also provides that if the county or city does not have a plan conforming to option 3 or 4 and the court is satisfied that “a conflict of interest prevents the assignment of counsel pursuant to the plan in operation, or when the county or the city ... has not placed in operation any plan conforming to that prescribed in this section, the [court] may assign any attorney,” and that attorney will receive compensation pursuant to article 18–B.The Evolution of the City's Indigent Defense Plan

On November 27, 1965, then Mayor Robert Wagner issued Executive Order 178, which, in conjunction with the joint plan of the Association of the Bar of the City of New York and the New York County Lawyers' Association (the 1965 Bar Plan) that was approved by resolution of the City Council on April 28, 1966, established a County Law § 722(4) combination plan employing the § 722(2) and § 722(3) options. For the § 722(2) component, the Legal Aid Society (LAS) was designated as the primary provider for persons charged with crimes within the City who were determined by a court to be entitled to representation under Article 18–B. For the § 722(3) component, when a court deemed that counsel other than LAS was required because of either a conflict of interest or other good cause, or because the crime charged was punishable by death or life imprisonment, representation was to be provided from a panel of private lawyers identified by the County Bars and screened by committees in which the County Bars played a role.

On January 6, 2010, Title 43 of the Rules of the City of New York was amended, effective February 5, 2010, to add Chapter 13 (43 RCNY 13–01 et seq.), entitled, “Indigent Defense Plan for the City of New York.” Note 1 to § 13–01 explains:

“The most recently promulgated Plan was published on November 27, 1965, in Executive Order Number 178: Furnishing of Counsel to Indigent Criminal Defendants Within the City of New York (“1965 Plan”). In the intervening forty-three years, the City has made several changes in the procedures governing the provision of indigent defense in order to ensure that the highest quality representation is provided to indigent defendants, and that the most advantageous arrangement for the City is implemented. In order to bring the Plan into conformity with current practice, this rulemaking is necessary” (emphasis added).

While LAS is still the primary institutional provider, one of these “changes” occurred in 1996, when the City began contracting with other institutional providers to provide indigent legal services pursuant to County Law § 722(2). New sections of the Appellate Division rules approved by the County Bars had also been adopted in 1980 by the First and Second Departments whereby committees designated by the Appellate Division would perform the function of screening attorneys for the Criminal Defense Panels ( see 22 NYCRR 612.0 et seq. ; 22 NYCRR § 678.1 et seq.).

Accordingly, 43 RCNY 13–02 addresses the procurement of institutional providers. 42 RCNY 13–03 addresses the assignment of counsel at the trial and appellate levels in criminal matters, providing in part:

“In any case where, due to conflict of interest or other appropriate reason, Providers decline or are unable to represent an indigent person at the trial or on appeal in a criminal matter, counsel shall be furnished by attorneys assigned by the ACP [Assigned Counsel Plan] from the appropriate Criminal Defense Panel of the Appellate Division, First or Second Judicial Department, or by alternate providers selected by the CJC [Office of the Criminal Justice Coordinator] through the City's procurement process.”

The Criminal Defense Panels are to be managed by the newly created Office of Assigned Counsel Plan (OACP), which is overseen by two administrators in consultation with the Presiding Justices of the First and Second Departments and administered in accordance with the rules of those courts (43 RCNY 13–01).

43 RCNY 13–04 addresses the assignment of counsel at the trial and appellate levels in family law matters. 43 RCNY 13–05 addresses the appointment of experts in matters handled by panel members. 43 RCNY 13–06 sets forth payment procedures in criminal matters handled by attorneys on Criminal Defense Panels and experts assigned to those matters. These include submitting vouchers to the OACP “for review prior to payment by the comptroller.”

Pursuant to Chapter 13, on February 3, 2010, the City issued a request for proposals (RFP) inviting bids by private institutional vendors for the provision...