While I do not disagree with that part of the majority’s analysis concluding that a County Law § 722 (2) indigent defense plan may draw upon institutional providers for both primary and conflict representation, I do not view that conclusion as necessary or even helpful to a correct analysis of whether the indigent defense plan now before us comports with the County Law.
As the majority has so meticulously detailed, the City, after purporting to jettison the combined (County Law § 722 [4]) plan that had been in place since 1965 and replace it simply with a section 722 (2) plan in which panel attorneys would play no part, has now clarified that that was not its intention at all and that its new plan is, like the plan it is to supplant, actually a County Law § 722 (4) combination plan, in accordance with which legal services would be provided by private practitioners pursuant to a section 722 (3) bar association plan, and by private institutional providers pursuant to section 722 (2). The salient and transformative difference between the new and old plans is that under the new plan institutional providers may be called upon to provide either primary or conflict representation, whereas under the old plan, both as formulated by the bar associations and implemented by the City, representation in conflict cases was to be handled exclusively by panel attorneys. The new plan reduces, and indeed will likely marginalize the participation of panel attorneys, dramatically shifting from them to institutional providers retained through competitive bidding, the conflict defense function.
*726The legal issue immediately posed by this shift is not whether it is within the City’s power to accomplish, but whether it is permissibly accomplished by means of the particular section 722 (4) combination plan the City has evidently settled upon. That plan, like its forerunner, purports to rely in essential part upon “Representation by counsel furnished pursuant to ... a plan of a bar association” (County Law § 722 [3] [a]). Indeed, the new plan purports to rely on the very same bar association plan used in connection with the now repeatedly repealed 1965 plan (see majority op at 718-719). However, no bar association has agreed to the use of the 1965 plan in the dramatically different context that would be created by the expanded subdivision (2) component of the City’s new plan.
As the majority acknowledges, and as is in any case clear from the record, it was an express element of the 1965 bar association plan and of the consequent City plan adopted in the same year that panel attorneys would be assigned all of the matters in which the then sole private institutional provider,1 the Legal Aid Society, was conflicted. Stripped of that critical allocation of responsibility, the bar association plan is that in name only; it is, in its starkly pared aspect, simply a plan of the City attributable to a bar association only by highhanded assertion. The 1965 bar association plan was not designed like a bit of LEGO for use in a range of interchangeable settings at the City’s option. Rather, it contemplated a particular relation between institutional and panel providers with specific, well-defined functions assigned each. Plainly, that relation has been fundamentally altered in the City’s new plan.
Inasmuch, then, as the City’s presently proposed combination plan lacks an essential combinative element, namely “a plan of a bar association,” it is not a valid County Law § 722 (4) plan and that is where the analysis logically must find its point of repose. The majority, however, would avoid this conclusion, not because it is sensible to suppose that the bare retention of the panels is or may be deemed “pursuant to . . . a plan of a bar association,” but because it finds unacceptable the notion that bar associations may, by withholding consent to a City plan for the provision of panel attorneys, “unilaterally block the City from *727adopting a plan for conflict representation that includes institutional providers” (majority op at 723). But, of course, if one accepts the majority’s conclusion that conflict representation may be provided by institutional providers under a simple section 722 (2) plan, it cannot be that the bar associations have the veto power the majority ascribes to them.
While, under the statute, the absence of “a plan of a bar association” operates to prevent the City from devising a subdivision (3) plan or a subdivision (4) plan depending on a subdivision (3) component, these limitations manifestly do not prevent the City from fulfilling its statutory mandate to formulate a comprehensive plan for indigent defense. And, given the majority’s understanding of what a subdivision (2) plan may include, it is clear that the City may adopt a plan that will meet its dominant motivating objective of shifting conflict representation to institutional providers. Indeed, the present plan’s subdivision (2) component, standing alone, would appear independently to be statutorily compliant as a subdivision (2) plan.
Although the City may prefer a combination plan involving the retention of panel attorneys so as to assure that there will be no situation in which a court will appoint conflict counsel pursuant to section 722 (4),2 that is not a preference that the statute may be read to accommodate, unless there is in fact a bona fide subdivision (3) bar association plan. Certainly, the existence of the preference does not justify disregarding the statutory condition of its gratification.
The City doubtless has considerable discretion to fashion an indigent defense plan, but like any other locality charged with the obligation of devising such a plan, its discretion is limited by County Law § 722; it does not have laissez-faire to construct a plan except from the elements the statute makes available (see e.g. Goehler v Cortland County, 70 AD3d 57 [3d Dept 2009] *728[declaring the County’s creation of an office of conflict attorney invalid because the newly created office did not correspond to any statutorily sanctioned option]).3 Here, because the City’s combination plan relies upon an element that does not exist, it does not conform to the statute and is violative of Municipal Home Rule Law § 11 (1) (e). This does not mean that the City should be indefinitely stymied in implementing an indigent defense plan, only that it cannot while complying with the statute implement the present plan with its subdivision (3) piece. What would remain after dispensing with that defective element would, I believe, be a valid subdivision (2) plan on the basis of which the City could proceed. This would, as noted, entail judicial appointment of counsel in conflict situations where institutional conflict defenders were unavailable, but that is what the statute requires where there is no plan of a bar association for the provision of private counsel.
The City may have very sound policy reasons for the change it proposes, but as it goes about altering, perhaps irretrievably, the network of indigent defense service providers that has been in place for some 47 years, it would seem more than ordinarily important to insist upon compliance with the limitations contained in County Law § 722, among them that bar association consent be obtained as a condition of a City plan purporting to rely on “a plan of a bar association.” This is not simply a question of logic and manners. The purpose of the statute is to assure that there will be quality representation for indigent defendants pursuant to the mandate of Gideon v Wainwright (372 US 335 [1963]), and toward that end the legislature has, quite reasonably, required localities to act cooperatively with the bar associations whose members are to be drawn upon for their professional services. If the panels are to be retained and usefully administered as a representational resource, it would be prudent and natural that it would be according to a sustaining plan devised not only by the City but also in part by legal professionals concerned first and foremost with the delivery of quality representation. That is, in any event, what the statute requires and what municipal discretion therefore is not appropriately invoked to excuse.
*729Judges Graffeo, Read and Jones concur with Judge Ciparick; Chief Judge Lippman dissents in a separate opinion in which Judges Smith and Pigott concur.
Order affirmed, wdthout costs.
. While it is true that there have since 1996 been institutional defenders other than Legal Aid integrated as service providers within the City plan, those providers merely enlarged the pool of primary defenders; they were not used to supplant the panel attorneys from their agreed upon role as conflict defenders under the original City combination plan.
. The statute provides in relevant part:
“when the county or the city in which a county is wholly contained has not placed in operation a plan conforming to that prescribed in this subdivision or subdivision three of this section and the judge, justice or magistrate is satisfied that a conflict of interest prevents the assignment of counsel pursuant to the plan in operation . . . the judge, justice or magistrate may assign any attorney in such county or city and, in such event, such attorney shall receive compensation and reimbursement from such county or city which shall be at the same rate as is prescribed in section seven hundred twenty-two-b of this article” (County Law § 722 [4]).
. Section 722 (3) has since been amended to permit conflict defense services to be provided by an office of conflict defender pursuant to a plan of a bar association (L 2010, ch 56, § 1, part E, § 3).