LOCKPORT – A new set of guidelines for assigning defense lawyers to clients may lead to increased costs for Niagara County – or not, depending on whom you ask.
The county has a small staff of part-time conflict defenders that represent defendants whose cases can’t be taken by the public defender’s office.
The most common reasons for that situation include the existence of multiple defendants in the same case, or when it is learned that one of the public defenders has previously represented a witness in a case.
When public defenders are ruled out, the court staff has the job of finding a private lawyer willing to take the case, at a state-mandated fee of $75 an hour for felonies and $60 an hour for misdemeanors. Those tabs are paid by county taxpayers.
The salaried conflict defender staff was created in 2006 to reduce the number of times the courts have to do that. Since its founding, the conflict defender’s office has saved the county an estimated $1.7 million in legal fees.
But the conflict defenders, all veteran lawyers, sometimes have conflicts of their own, forcing the court to assign counsel to affected defendants.
Last year, the state Office of Indigent Legal Services issued new rules and standards for how conflict attorneys are selected and supported.
“They’re not new. They’re largely taken from the existing [state] Bar Association standards,” said William J. Leahy, director of the Office of Indigent Legal Services.
The standards are meant to make cases as fair as possible for defendants who can’t afford a high-priced private lawyer. Leahy said that’s a major priority for the court system.
Niagara County Legislature Vice Chairman Clyde L. Burmaster said he’s convinced the standards will drive up county costs for defense of indigent clients.
“It doesn’t have to be the best there is. It’s the best [the available] money can buy,” Burmaster said. “We feel it’s more to benefit the legal system in New York City.”
The new standards say conflict defenders should have the access they need to expert witnesses and investigative services.
Burmaster said he doesn’t believe the county should have to pay for DNA testing and other expert interventions for the defense. The conflict defender’s budget for expert witnesses is only $8,000 this year, which was a cut of $2,000 from 2012.
Leahy said counties aren’t allowed to cut conflict defense too much. The 2010 funding level is the minimum that must be provided. For Niagara County, that was $587,918, including $175,000 for private counsel assigned when conflict defenders are ruled out.
The 2013 budget is $689,752, including $260,000 for outside counsel. The latter figure is an $18,000 cut from 2012, but in a sense the budget is irrelevant. If the court assigns a lawyer to handle a case, that lawyer must be paid. The county isn’t allowed to say lawyers can’t be assigned because the funding has run out.
Reviewing their bills and making sure the bills are legitimate is the job of the assigned counsel administrator, who also heads the six-person conflict defender staff.
Robert M. Pusateri, who had headed the office since its founding, retired at the end of 2012. On Jan. 2, the Legislature appointed lawyer Kathleen A. Kugler of Lockport to succeed him, at a salary of $31,419 a year.
“I don’t have authority to hire and fire anyone,” said Kugler, the niece of well-known Lockport political gadfly George Kugler. “We just oversee the vouchers, the billing statements.”
Leahy said the standards are likely to have their greatest effect on rural counties without deep pools of lawyers to draw from. The standards call for appointing lawyers who have enough training and experience to match the complexity of the cases they may be confronted with.
“Niagara’s not one of the rich counties, but we’ve had good cooperation from up there,” Leahy said.
He said counties may compete for $4 million in available state grant funding this year and for another $4 million that’s expected to become available each of the next three years; those funds can be used to bolster conflict defense budgets.
Leahy also is asking for a $10 million increase in the next state budget in funding to relieve lawyers handling indigent defense from their proverbially heavy caseloads.
“It’s not correct to say we’re going to use the standards to bludgeon the counties into compliance,” Leahy said.
David J. Mansour, a lawyer who frequently accepts court assignments in Niagara County Court and Niagara Falls City Court, said he doesn’t see the new standards affecting Niagara County’s courts.
“At least at first glance, what they’re talking about happens in Niagara County,” Mansour said. “It’s been my observation that judges wouldn’t assign people to anything where the judge doesn’t have confidence in the ability of the attorney to handle these types of cases.”
The state rules call for fast assignment of conflict attorneys. Mansour said, “In City Court, as soon as the court is aware of a conflict, someone gets assigned within 24 hours. And the same is true in County Court. … At no time are people unrepresented.”
Any lawyer who practices criminal law can place his name on the list for potential assignments, but in practice, judges turn again and again to a pool of regulars who are willing to step into cases for the $60 to $75 an hour the state allows. Many well-known lawyers charge far more than that and thus are seldom, if ever, seen on court-assigned cases.
“In City Court, you might spend an hour and resolve a case. You might spend 100 hours on a County Court case,” Mansour said. “It’s unpredictable.”
Mansour said one of the problems with assigned counsel is building up trust with a client who has no say over who his lawyers is, because they don’t understand the process once it has to go beyond a public defender.