QUEENSBURY -- A state appeals court's recent ruling that the way local counties have been assigning lawyers to represent the indigent in court was illegal will cost the counties tens of thousands of dollars as they pay lawyers hourly instead of through a contract.
The ruling focuses on so-called "conflict defender" positions that Warren and Washington counties created in recent years to cut cost. Conflict defenders are lawyers who handle cases where the public defender's office has a conflict of interest at an annual contracted rate. The counties used to appoint lawyers to each case on an as-needed basis, and pay them hourly rates.
Counties moved to conflict defender programs years ago to cut costs, after the state approved a hike in the hourly rate that assigned counsel lawyers handle.
But the Appellate Division of state Supreme Court ruled late last year that it is illegal for counties to contract with "conflict defenders" run by the counties themselves because the process violates state law. That ruling came after a lawsuit in Cortland County that challenged the use of a conflict defender there.
It does not affect the use of a public defender's office, which handles the vast majority of criminal court and Family Court cases that involve the poor.
Amy Bartlett, an assistant county attorney for Warren County, briefed Warren County supervisors on the issue Thursday, telling them that the court ruling will mean that Warren County will have to go back to the more expensive way that lawyer assignments were done before it created the conflict defender position.
"The state has decided the way every county did it isn't allowed anymore," she said. "We're trying to figure out what the ramifications are."
Horicon Supervisor Ralph Bentley, chairman of the county Board of Supervisors' Criminal Justice Committee, viewed the decision as "another unfunded mandate from the state, this time from the courts."
"It will certainly increase our costs," he said.
The counties have typically contracted with lawyers for $20,000 to $30,000 a year to handle cases where the public defender's office has a conflict, depending on the court.
Now, they will instead have to pay $75 an hour and assign lawyers on a case-by-case basis.
Washington County Attorney Roger Wickes estimated that it will increase the county's costs by about 50 percent in cases where the public defender's office has a conflict of interest, though the exact impact was unknown because it will depend on how many cases there are.
"It was a fixed cost and eliminated the uncertainty," he said of the conflict defender program. "All it takes is one serious crime to blow your budget."
The Appellate Division decision does point out that the law allows the counties to go through their county bar associations to try to set up conflict defender programs, and he said Washington County officials are trying to do that.
Saratoga County was the only local county that did not create a conflict defender program. County Public defender John Ciulla said the county didn't because it "always questioned the legality of it."
He said the budget proposed by Gov. David Paterson earlier this week would change the law to allow the counties to use conflict defenders, but also create a new "Office of Indigent Defense" that would provide oversight of public defense and assigned counsel programs.
Washington County was one of a number of upstate counties that was sued by the New York Civil Liberties Union in 2007 after it was deemed not to be meeting state standards for indigent representation. Warren and Saratoga counties were not named in that lawsuit.