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.

But notice what Scott is not saying: He is not saying that public defenders are not real lawyers. That is a common slur endorsed by many in the private bar for little more than marketing purposes. I know many public defenders who are excellent attorneys. I also know a lot of mopes chasing squad cars for a buck on the private side. Recepit of government funds does not yield ineffective assistance of counsel: It just might mean, however, that there is a dress code in the office and you can't wear your cowboy hat and spurs to the office.

The war council today among members of the New York criminal defense bar should aim high. 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.