The Lawyering Practices of 18-B Panel Attorneys

Introduction

In this chapter we consider the extent to which 18-B Panel attorneys meet national standards for the defense function.  We first examine the development of the attorney-client relationship. One measure of this relationship is whether defendants represented by Panel attorneys are continuously represented by the same attorney from arraignment through final dispositions. Other indicators useful in analyzing whether Panel attorneys fulfill their obligations as defense lawyers are the extent to which Panel attorneys interview their clients engage in investigation, and make pre-trial motions related to protecting their client’s constitutional rights.

We also consider the 18-B Panel attorney’s scrutiny of the state’s case. In particular, we examine whether Panel attorneys conducted interviews which might have revealed the facts of the case and any potential legal defense; whether attorneys undertook an independent investigation of the facts by discovering the identity of potential witnesses, interviewing witnesses, and visiting the crime scene; whether they used the services of investigators and experts; and whether they prepared pre-trial motions, including motions for dismissal of the charges and suppression of the evidence. Finally, we consider the extent to which Panel attorneys attempted to develop a coherent theory of defense before advising the defendant whether to plead guilty. Our specific areas of inquiry include whether the attorneys prepared for trial, effectively negotiated with the prosecution regarding guilty plea offers, and consulted with defendants regarding the available plea options.

Although the adequacy of representation provided by 18-B Panel attorneys has been questioned in the past, previous inquiries were based on impressionistic data which did not permit a systematic analysis of the quality of Panel representation. In 1975, the Office of Court Administration’s Committee on the Legal Representation of the Indigent inquired into the quality and adequacy of representation provided by Panel attorneys; in 1982, the Committee on Criminal Advocacy of the City Bar Association addressed the same issue. These inquiries identified specific shortcomings, among them the failure to communicate with defendants, to obtain adequate knowledge of the facts and circumstances, and to appear and effectively represent the client in court as required. In the absence of empirical data, however, the committees were unable to estimate “the actual degree of dissatisfaction” with Panel representation.

The administrative mechanisms set up by the screening committees to remove attorneys and process complaints about their conduct were also of limited value in estimating the extent of incompetent representation. In the first thirteen months of its existence, the First Department’s Office of Projects Development received only fifty-eight complaints, which concerned fifty-five 18-B Panel attorneys. The Office acknowledged that these complaints did notreflect the full extent of attorney incompetence:

Many attorneys do not want to complain about the work of fellow members of the legal profession . . . . Although defendants will not hesitate to complain out of any sense of loyalty to the attorney, they may have the attitude that nothing will be accomplished and therefore do not bother to complain.

We found no judge, prosecutor, or defense attorney who had confidence in the capacity of the complaint system to identify or remedy incompetent representation.

In light of the need for a systematic inquiry into the quality of 18-B Panel representation, we devised two strategies for measuring the extent of attorney competence against national standards for the criminal defense function. Our primary strategy entailed a quantitative analysis of over 14,000 Panel attorney vouchers claiming compensation for defense services rendered. Because Panel attorneys used these vouchers to claim the tasks they performed for each defendant, a computer analysis of the vouchers yields quantitative data about the lawyering services regularly provided by Panel attorneys.

Our second strategy involved observing 18-B Panel attorneys in New York County while they represented 124 defendants on four hundred and one calendar dates. We hypothesized that, at a minimum, competent representation requires the establishment of an attorney-client relationship. One measure of an attorney-client relationship is whether the same attorney represents the defendant at arraignment and at all subsequent court appearances. We determined the frequency with which the attorney designated to represent a particular defendant appeared on all required calendar dates.

Our study of 124 defendants’ cases also served two additional functions with respect to the data we acquired through our voucher analysis. First, the time we spent in court observing 18-B Panel attorneys and defendants allowed us to gather data on the quality of lawyering services provided by Panel attorneys. We compared these data with the results of our voucher analysis of the lawyering tasks claimed by Panel attorneys with the understanding that conclusions based on analysis of the vouchers alone would not reveal the full extent of lawyering tasks neglected by Panel attorneys. Second, our presence in court allowed us to test the accuracy of in-court voucher claims. We discovered overclaiming in 27 percent of the vouchers. Thus, the vouchers overstate the extent of lawyering tasks performed by Panel attorneys.

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