When the 1966 Bar Association Plan was adopted, two rationales were offered to explain why it was necessary to secure a role for the private bar in the representation of poor people. As we noted in Chapter Two, the first justification was that the participation of the private bar would guard against the institutionalization of the criminal bar and, to the extent that this was effective, would prevent the subjugation of the interests of poor defendants to those of the state. This theory assumed that the financial independence of private attorneys qualified them to resist the “conflict of interest” inherent when the state paid for institutional defenders as well as for prosecutors of indigent criminal defendants. The second rationale was that these private lawyers would volunteer on a pro bono basis and provide the same quality of representation to the poor in criminal cases as they did to fee-paying clients.

In retrospect, it is difficult to see how anyone familiar with state criminal practice could have seriously entertained these two beliefs. There was no empirical evidence to suggest that private lawyers had ever participated at the trial level in New York City courts on a pro bono basis to an extent sufficient to justify these expectations. Furthermore, it became clear that certain 18-B Panel attorneys depended on court assignments for their livelihood, and saw Panel work as a viable type of law practice. In 1975, a decade after the introduction of the 1966 Plan, the Subcommittee on Legal Representation of the Indigent reported that some attorneys “relied on [P]anel clients for 50 percent or more of their practice.” The Subcommittee also reported that while Panel work was a permanent source of income for some attorneys, it provided a service for those leaving the Legal Aid Society and the District Attorney’s office, easing them into private practice by helping them meet start-up costs until they built reputations as private practitioners and attracted fee-paying clients.