18B War In New York?

If there is a lawyer alive in New York City surviving on $75 per hour in legal fees, he's probably selling pencils on the side and sleeping in the IRT subway. A ten hour day at such a rate yields $750; a five day week would produce $3,750 at such rates. You can't pay the rent, a secretary, insurance and all the other bells and whistless needed to keep an office afloat at that rate and still earn a living.

Yet lawyers in Manhattan are prepared to go to war over an apparent threat to the current practice of paying counsel for indigent defense at the rate of $75 per hour. The city has promulgated an RFP that has some folks worring that this will spell the end of the so-called 18B lawyer. A war council has been put together to challenge the RFP.

Scott at Simple Justice is whooping it up on behalf of the war council. He sees Big Brother's hand at work here, and the loss of autonomy and independence for the bar. What's more, he uses this proposal as an example of what's wrong with a Universal Public Defender system, guaranteeing to all Americans the right to appointed council when accused of a crime. Scott's tilting at windmills.

I don't practice in New York, so I do not know the mechanics of the 18B circuit. But I suspect one concern the city has is with bundling. Suppose you are handling arraingments at a busy Manhattan court, and you are appointed to represent, let's say, ten clients on a given day. You might spend no more than 15 minutes with each client that day, and perhaps another couple of hours, let's say, three and one half to be generous, in court. That's 150 minutes with the clients, of two and one half hours, plus three and one half hours for court time. Call it a six hour day. What would happen if you billed the City $75 per hour for each client? The day suddenly looks lucrative: your've earned $4,500. Do that for a few days a week, and Manhattan suddenly looks affordable.

Whether this amounts to fraud is an open question. On the private side, I certainly would not double bill for my time if I were on an hourly retainer. If I wait in court cooling my heels for an hour while appearing on behalf of five clients, I just haven't spent five hours of time. But many lawyers will bill each client. There's profit even in the law for economies of scale.

I'm not saying that this is what is going on in Manhattan, but if it is, it's wrong.

I share the frustration over government set rates and fees. Indeed, I am so frustrated by them that I rarely accept work as a so-called Special Public Defender. Several years ago, I resigned in disgust from the federal Criminal Justice Act panel. My office was spending too much time negotiating with court clerks over vouchers: I was spending dollars to chase pennies. But the issue of lawyer convenience sidesteps the issue I am concerned with: Why is the forgotten middle class pressed to come up with legal fees when the prosecution knocks? There ought to be parity of resources for both state and defense. Hence my call for a universal public defender system.

Scott's paen for autonomy for lawyers strikes me as quaint. Sure, we all want to hang a shingle of our own and come and go as we please, and Mr. Smith still pines away for a seat in Washington, too. But its a tough market out there. Making sure we get paid enough to survive presses us into being not just advocates for our clients, but advocates for ourselves.

Hence the war council today among members of the New York criminal defense bar. I hope the group does more than take a shot at the RFP promulgated by the city. Why not consider a class action on behalf of inigent defendants challenging whether the current rate structure provides adequate assistance of counsel? The doctrine of associational standing provides a platfrom for action as a plaintiff. It is an open question whether a lawyer can offer effective assistance of counsel if he or she cannot pay her bills.

The real issue is not whether the rate of $75 per hour should be defended at all costs. The real issue is what it takes to provide effective assistance to counsel.

Comments: (3)

  • still scratching my head over the quote. it seemed...
    still scratching my head over the quote. it seemed simple to fix at first, but the more i think about it...
    but i agree with the commenter's main point: many useful, even essential endeavors go unpaid. in the current system, why should some be guarenteed a wage?
    but what i'd do, i'd change the system: all endeavors pay, provided x number of hrs per week is put in. that's arts, farms, inventions, law, sales, service, politics, and so on.
    the difference: they all pay exactly the same. and that "same" is enough to live a decent middle class lifestyle (the basics of housing, clothing, and medical care; some extras like entertainment, vacations, money to save, etc).
    i think this would improve things in many ways, not the least of which is that people would more often do what they are suited for...
    with things as they stand now, tho, and having once had a pd myself (who was new, and scared, and so bad it was even comedic to me *at the time*), there should be compensation at least sufficient not to make those with any sense skip it...
    Posted on February 17, 2010 at 10:49 am by iquanyin
  • Correction: "...nine attorneys get PAID, and one i...
    Correction: "...nine attorneys get PAID, and one innocent man go to prison." But you knew what I meant!?
    Let's see if I have it right: "I would rather see nine innocent men go free and one attorney go unpaid than nine attorneys get paid and one innocent man go to prison." By golly, I think we have it.
    Posted on February 17, 2010 at 2:37 am by William Doriss
  • Quoting my trial judge, the Dishnorable 'My-Way-Or...
    Quoting my trial judge, the Dishnorable 'My-Way-Or-The-Highway' Conway, and replacing a few words with a few other words, we have the following: "Earning a living as an attorney, Mr. Pattis, is a privilege and NOT a right,..." Who said attorneys should be paid enough to open an office, hang-out a shingle, hire a decent, good-looking secretary and buy a big, noisy Xerox machine?
    When once asked by a young female member of the audience if she thought the 'law' would be a good profession to go into, the inestimable Ann Coulter answered: "Sure, if you want to stand next to Xerox machine all day for the rest of your life!?!" Good answer, Ann; you are smarter than I thought you were.
    Who says attorneys should be 'paid' at all? Where is That Law written? Since members of the 'bar' actually 'produce' NOTHING--except misery and dissatisfaction for the rest of us non-attorneys--they should find alternative sources of income in order to support their luxurious 'practices' (or activities) we call Law,...such as cab-driving, bar-tending, cabinet-making, grave-digging, or farming.
    Well, these days, maybe 'programming',.. as if we did not have enough programmers already. That's why programming is going overseas.
    Thomas Jefferson was a farmer. Writing 'laws' and 'declarations' was a genteel hobby for this founding father. Perhaps his greatest contribution to the fledging country we call 'the united states' was fathering the children of Sally Hemmings. (You had to be there.)

    Perhaps a sizeable inheritance would help pay the bills. Who paid for your law school education anyway? Or did you perhaps 'work your way thru' Suffolk Law at nite? Ha! (Would not be the first one to perform that ungodly act.)
    To misquote a famous Supreme Court justice, "I would rather see nine innocent men go free and one attorney go unpaid than nine attorneys go unpaid and one innocent man go to prison."
    Lots of people do not get paid for their earthly endeavors, for any number of reasons: artists, graffiti artists, dancers, singers, philosophers and--yes--writers. Who is paying you to write this very blog when you could be 'productively' employed defending an 'innocent' client somewhere? If you actually took the IRT (or drove a Volkswagen) instead of the Mercedes to work, you could save a few shekels.
    P.S., Where do I go to get back the monies that I lost wasting two weeks of my life at GA 23 defending myself against false and malicious charges? In November, 2002, I did not make enough to pay the rent or my bills. In Jan., I was evicted from my premises and soon became 'homeless'. No sympathy here for any unpaid or underpaid attorney. You guys made your bed; now lie in it. The 'practice of law' is the lowest form of human activity on the planet.
    Posted on February 17, 2010 at 1:34 am by William Doriss

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