A Mandate Reform Initiative Allowing Office of Conflict Defender Should be Done with Care

The Executive’s announced “Mandate Reform Initiative” includes a provision (#64) allowing counties to create an Office of Conflict Defender.

Facing an immediate fiscal crisis, the State understandably seeks ways to increase cost-effectiveness in the provision of public defense services. Localities have long struggled to provide these mandated services, delegated to them by the State in 1965. The current fragmented system leads to fiscal inefficiencies and a well-documented lack of quality services.

While we believe that ultimately New York State needs to adopt the recommendations made to the Chief Judge in 2006 for an overhaul of the entire system, we encourage changes that will meanwhile improve the quality of public defense services. We oppose measures that would decrease even further the ability of public defense lawyers to provide quality representation to their clients. Any change in County Law Article 18-B should not address only cost savings.

Without seeing the explicit language of the proposed initiative, it is impossible to determine whether it will address the need to ensure quality. If the proposed bill simply adds to County Law Article 18-B the choice under § 722(1) to utilize, in addition to a public defender office, a county conflict defender office, it will represent an opportunity lost to include requirements for ensuring quality. That would be unfortunate given the public defense crisis that has arisen under the current statutory scheme.

What would be even more unfortunate would be to permit, overtly or obliquely, a practice now in use in some counties (though not provided for in the statute) that erodes the quality of public defense services. A change allowing any new form of public defense provider should specifically prohibiting public defense contracts let on the basis of cost alone. Contracts that pay a single lump sum for a block of cases regardless of how much work the cases require gives attorneys a direct financial conflict of interest with their clients; work or services beyond the bare minimum reduces the attorney’s take-home compensation. Use of "low-bid" contracts is universally condemned in national standards for provision of all public defense services.

The proposed change is, at best, a very modest “mandate relief initiative.” It is almost certainly intended to protect existing conflict defender offices in the wake of a recent court opinion finding one such entity to have been created illegally. If this can be done in a way that improves the quality of representation, it would make sense. But if only the question of cost is considered is addressing the court decision, further problems will no doubt ensue. The State, along with five counties, is already defending a lawsuit that sets out major, systemic failures to provide quality representation to public defense clients.