The “Shedding” of Legal Aid Society Cases to 18-B Panel Attorneys at Arraignment


This chapter examines the extent to which the Legal Aid Society shed cases that possessed no potential conflict of interest (non-conflict cases). The cases in focus were shed to 18-B Panel attorneys at arraignment. The following pages demonstrate that, despite the Legal Aid Society’s contractual commitments, arraignment-case shedding occurred frequently. Shedding resulted from a combination of factors: the work habits and size of the Society’s arraignment team, the readiness of Panel attorneys to substitute for Society staff attorneys at arraignment, and judges’ desire to expedite the processing of cases. The end result of arraignment-shedding is to increase the likelihood that a defendant is represented by an attorney who, regardless of competence, does not have the organizational resources to provide a meaningful defense.

In order to explain how the 18-B Panel of private attorneys came to carry a caseload far in excess of that which the 1966 Plan contemplated, we describe the circumstances under which indigent defendants were referred to Panel attorneys in the arraignment courts. We begin with an analysis of the extent to which the Legal Aid Society fulfilled its contractual obligations at arraignment. Next we consider the role of Criminal Court judges in the appointment of Panel attorneys to arraignment shifts. We also discuss the tensions and contradictions which underlied the substitution of Society attorneys by Panel attorneys in non-conflict cases. Finally, we devote considerable attention to the explanation that the Society put forward for the judicial appointment of Panel attorneys in non-conflict cases. The Society has contended that the ability of its attorneys to pick up equal numbers of cases at arraignment was constrained by differences in certification: some were limited to misdemeanors and others could not handle the most serious felonies. Our analysis reveals significant variation in the percentage of cases accepted, even among those attorneys for whom certification-status provided no constraint.

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