NYC Indigent Defense Panels See Drain Of Local Lawyers

By Andrew Strickler | March 8, 2020, 8:02 PM EDT

Struggling with burnout and stagnant pay, New York lawyers are fleeing a program that provides experienced private counsel for poor defendants and people in family court, putting a strain on the system and chipping away at a career stepping stone for locally trained attorneys.

While some are still able to jump to small firms or to other legal roles, the stresses of the so-called 18-B indigent defense job, named for the law that mandates legal representation for those who cannot afford it, are forcing others to pivot toward other areas of the law or out of the profession altogether.

In what the state top judge has called a “crisis” for the program and tens of thousands of poor people who depend on it, panel lawyers say they’re seeing double-digit drops in their ranks and rising frustration about stubbornly low rates. Chief Justice Janet DiFiore of the New York State Court of Appeals is among those who have called for a pay increase for those attorneys, but it’s unclear when or if that might happen.

Attorney Veronica Escobar, a born-and-raised Queens local, said her eight years on her borough’s family court panel gave her a wealth of courtroom time, along with vital training in managing challenging cases and clients on a hectic schedule.

But Escobar says she has no regrets about moving on from the panel a year and half ago to focus exclusively on her elder, special-needs law and trusts and estates practice. She's also looking forward to paying off this year the last of her student loan from Fordham University School of Law.

“I’m busy, I’m happy, and I feel like I’m being compensated like I deserve to be, and like any lawyer who works hard should be,” she said.

“The panel has lost a lot of good attorneys who were not given the opportunity to continue to do the work on a part-time basis,” Escobar added. “Faced with lack of options and the below-market hourly rate, they opt to leave to focus their efforts and talents elsewhere.”

Often overlooked in the scrum of city courthouses, 18-B lawyers work alongside legal aid and pro bono attorneys to represent impoverished criminal defendants in state court, as well as children and parents in some of the most sensitive family-focused matters — custody, paternity, neglect and abuse.

The attorneys, many of whom came through city law schools and started their careers at the Administration for Children’s Services or in prosecutor offices, must apply for spots on the court-appointee panels, undergo background checks and other screening.

Critically, they must also show they’re ready through references and real-world experience in relevant areas of the law and appearances.

The taxpayer-funded rates — $75 an hour for felonies or children defendants, $60 an hour for misdemeanors — haven’t changed since 2004. By comparison, federal panel attorneys are paid $148 an hour for noncapital cases.

While 18-Bs are “private” lawyers, many say they’re left with little professional control under the courts’ expectation that they’ll take all cases assigned to them at regularly scheduled “intake” days. And the sheer number of cases makes a job many may have envisioned as a part-time supplement to a “regular” practice an all-or-nothing proposition.

“Maybe a decade ago, it was possible to be on the panel and pick up a few cases, and the pay wasn’t great but you were doing a pro bono-type thing,” said attorney Philip Katz, an panelist for the last decade who leads an 18-B association for Manhattan family court.

But over the years, attrition in the ranks has led to bigger caseloads for those who remain, while the costs of renting office space, buying health insurance and other necessities continues to rise.

The constants, Katz said, are the complexity of the cases, the bureaucratic hoops, and the $75 an hour.

“In these cases, there may be several family members involved, multiple respondents. There are children, and mental illness. You’ve got families divided up that need to be put back together, and the attorney can’t just say to that family, ‘I can’t be there,’” he said. “So the reality is, you’re working all day, every day.”

Katz said that, taking into consideration the number of new cases that come into his court daily, his panel should be about 75 lawyers. At the beginning of last year, it was at 66. Today, there are 58, he said, eight of whom have effectively “topped out” and can’t take on new cases.

Attorney Sarah Tirgary, president of the Assigned Counsel Association of the Queens Family Court, said she’s also seen a nearly 20% drop-off since the beginning of last year, as well as “pure frustration” even as some who remain carry as many as 150 cases at a time.

Both attributed the downward trend in part to a growing reluctance among even well-qualified lawyers trained in the ACS or other agencies to take on the commitment of 18-B work, even as a transitional step to something else.

“We’ve got men and women lawyers, black, white and Hispanic, we’re multireligious, multilingual, and it’s the best pool of family law lawyers you’re going to find anywhere,” Katz said. “But it’s remarkable to me that some have stayed as long as they have. The pay, it’s denigrating.”

18-B panels are overseen by individual courts and there is no statewide tally. But officials say that, anecdotally, the shrinking numbers in New York City are reflected in many courts around the state.

In a recent speech in Albany, Chief Justice DiFiore called for lawmakers to give a significant pay bump to deal with a “major exodus” from assigned counsel panels and recruiting problems.

“This is a crisis that cannot be ignored, not if we want to ensure that indigent criminal defendants are accorded their constitutional right to counsel and not if we want to ensure that the rights of children are protected when their safety and welfare are at stake,” she said.

And in testimony to a court commission on mandated parental representation in child welfare cases concluded last year, state Family Court Judge Robert Mulroy called the need to increase 18-B panels across the state “pressing, if not desperate.”

Mirroring a series of calls in recent years from the chief justice, the state bar, and others, that commission called for a new rate of $150 an hour. New York Gov. Andrew Cuomo’s proposed budget for fiscal year 2021, released in January, does not include an 18-B rate increase.

But even if lawmakers do eventually act, it will still be a fight to restore the morale and experience on the city’s 18-B panels.

Escobar said fewer lawyers of her generation or younger appeared interested in the job or in staying there long.

“My objective was always to leave so I could dedicate myself to my other practice areas, and I worked very hard to shed that family law hat and to promote myself,” she said. “I have all of that family law knowledge that I have not forgotten and I may return to that practice area, in some capacity, one day, but I would do it on my own terms, not as part of the panel.”

Another former 18-B lawyer in Queens, Joseph Nivin, said that, even if the pay had been raised, the caseload and the frustrations of not having enough time for clients would have still pushed him towards the door.

“The trial experience is great. There are days when you get assigned a case and you do a hearing that day, and my clients now like that I’m not afraid to go to trial,” said Nivin, a 37-year-old Long Island native who now leads a four-lawyer family law firm. “But it’s exhausting and very, very difficult to pay for an office and an assistant on $75 an hour.”

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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