12/05/07 - Conflict attorney cases heard in Supreme Court

(As published by Cortland Standard, Aimee Milks reporting)

Two of the four lawsuits regarding the county’s local law concerning the assigned counsel plan were heard Tuesday morning by state Supreme Court Justice Kevin Dowd.

Of the two lawsuits, Dowd is expected to make a decision on the local law or dismiss the suit entirely by the end of the year, said Frank Williams, one of the three attorneys who together filed a suit claiming the law illegal and invalid.

Williams and local attorney Edward Goehler, argued Tuesday that they need a decision as to which of three assigned counsel plans being used in the county’s courts is the right one to follow.

The three different assigned counsel plans in question within the county are the conflict attorney position created by the county’s local law of 2006, a standing decision from the County Court judges opposing the conflict attorney position and a Cortland County Bar Association plan that was used until the conflict attorney position was filled in August.

They added that they believe that the county’s Local Law No. 1 of 2006 — which is similar to plans in effect without opposition in at least 12 other counties — violates the state Constitution and state statutes.

Goehler said that before the law was passed the county had a functioning plan, which was the bar association plan approved by the state Office of Court Administration both in 1984 and again in revised form this year.

“We had a functioning plan; everything was working,” Goehler said. “To say everything is working now is not true. The law is an encroachment on state power. Cortland has no more right to pass this law than it has to lower the BAC (blood-alcohol content) levels or lower the age of consent.”

The Bar Association plan was implemented in the county in 1984 and used until attorney Tom Miller filled the conflict attorney position created by the county Legislature under Local Law No. 1 in 2006 in an attempt to cut the county’s expenses on assigned counsel for indigent defendants.

The position is called conflict attorney because it is the intent of the Legislature to have Miller represent clients the public defender cannot represent due to a conflict of interest. For example, when a husband and wife opposing each other in a custody case qualify for representation by the Public Defender’s Office, it would be a conflict of interest for the public defender to represent both of them. Under Local Law No. 1, the conflict attorney would be assigned to represent the husband or the wife.

The county, represented by Robert Bergan and Stacy Tamburrino from the Auburn law firm of Boyle & Anderson, argued Tuesday that the three local lawyers did not have standing for their case and asked for a dismissal.

Bergan said that for the lawyers to have standing to sue, they must show economic injury and show they are parties affected by the local law.

Williams responded by stating they are parties of interest because if they accept an assignment, they are violating the constitution and state statutes. Whereas, by not accepting an assignment, they are allowing other attorney’s to be in violation. This also affects indigent clients, he said.