Too Poor To Defend The Poor

No one takes a job as a public defender because they’re in it for the money. Some do it because they believe in the social utility of the job, a critical cog in the grinding wheels of justice. Some for the experience, to get thrown into the deep end of the well and start being a lawyer on Day 1. No one, however, takes the job for the big bucks, and they understand going in that this is going to be a financial struggle.

So why should it come as a surprise that lawyers at the Legal Aid Society moonlight as Uber drivers and bartenders?

Ms. Boms and many of her Legal Aid colleagues are lawyers by day, representing those who most need, but can least afford, legal services. Then, out of financial necessity, they become bartenders, dog walkers or Uber drivers by night.

The Legal Aid Society, the nation’s oldest nonprofit legal services organization, offers law school graduates starting salaries of $53,582, which increase to $62,730 upon admittance to the bar, according to an internal document.

There are a couple things to remember when assessing the post-admission starting salary. First, this is New York City, not Peoria, and it’s an expensive place to live. Even if three people split a two-bedroom over the bridge, it’s expensive. There’s no way to avoid it. Second, many carry significant student debt, and while the wisdom of doing so may be controversial, combined with the choice of a job with a subsistence salary, the debt still has to be paid.

If you’re a single person and can survive without the comforts a three-year post-grad degree is supposed to provide, the salary is doable. If you’ve got kids or family depending on you, the salary isn’t good enough.

The average median salary for first-year associates at private law firms in 2017 was $135,000, according to the National Association for Law Placement.

This, of course, is a bad analogy, both because these lawyers could have taken jobs at law firms if they wanted a higher salary, but chose not to, and reflects the distortion of top-end Biglaw salaries with the far lower salaries at small firms. And then there are the lawyers who can’t get a job at all, or open solo practices, and would be thrilled to earn a LAS salary.

Legal Aid executives said the relatively low salaries were a barrier to recruiting and retaining strong lawyers.

Years ago, graduates of Harvard and Yale weren’t lining up to take jobs as public defenders. Today they are, because social justice. While retaining lawyers is a problem, because those darn kids want to eat every single day, it’s extremely competitive to get a LAS job these days, and students from lower-tier law schools can’t get a shake when compared to their Ivy rivals.

So what’s so terrible about lawyers taking a job they know pays poorly having to work a second job if they want more than the paycheck offers?

“We see this very much not as making sure the lawyers themselves get paid well for their own sake, but for the sake of their ability to provide the excellent representation to our clients,” said Janet Sabel, the chief executive and attorney-in-chief of Legal Aid.

“The job is hard because you’re seeing a lot of sadness, a lot of pain,” Ms. Sabel said. “You’re seeing people kept in cages, you’re seeing clients whose houses are covered in mold, you’re just seeing really, really sad things. We want people to have time off.”

The job is hard? The job makes them sad? Then it’s the wrong job for them. If it’s too painful for the lawyers to see people kept in cages, consider how it is for the people in cages. It’s no fun for them either. And if the lawyers earn more, it will still be sad and painful, but apparently less sad with a better salary.

But the far better argument than the sad feelings of the lawyers is pay parity with similarly situated lawyers, whether prosecutors or city law department personnel.*

They said they were not seeking private-sector salaries. Their goal is to reach pay parity with lawyers in the city’s Law Department, which pays roughly $108,000 to its lawyers with 10 years of experience. Legal Aid attorneys with similar experience earn about $90,000.

While they’re not getting rich either, they’re a little more capable of meeting the basic costs of living in the Big Apple. As they are all essentially lawyers serving the public interest, fulfilling roles required to keep the system functioning, there is no sound rationale for paying one position better than the other. Indeed, here the sadness might fairly come into play: working in the NYC Law Department is hardly as taxing as indigent defense, so a battle pay differential would be entirely justifiable

But then, the salary paid by the Legal Aid Society to its lawyers isn’t fixed by the City, or by government at all. LAS gets funded, and what it does with those funds is left to the sound discretion of its board. If they were paying the highest salary possible given their funding, then there would be no complaint about how scarce resources were allocated, but that’s not entirely the case.

The primary function of the Legal Aid Society is to provide defense to the poor accused of crimes. But then comes mission creep, as they also have civil, juvenile and immigration divisions. This isn’t to say they should or shouldn’t, as there is plenty of need for services in each of these areas. But that also means they need lawyers to staff these non-criminal areas, and those lawyers need to get paid as well. Choices get made, and one of those choices is to pay their criminal defense lawyers less so they can hire more lawyers to represent undocumented immigrants. Bear in mind, while indigent criminal defense is a constitutional mandate under Gideon, immigrant defense is not. It’s a choice.

As many as a third of Legal Aid lawyers in New York choose to work additional jobs, according to Jared Trujillo, the president of the Association of Legal Aid Attorneys, who pointed out that two-thirds of its staff attorneys come to Legal Aid with significant student loan debt, some owing $200,000 or more.

Should we feel badly that some have to moonlight, whether to cover family obligations, student loan debt or enjoy a slightly better than subsistence lifestyle? Sure we should. The obligation to defend the poor is societal, and not a burden for LAS lawyers to shoulder on their own so taxpayers don’t have to pick up the freight. The fair metric is their brethren working for the prosecution and city. They still won’t get rich, and some may still choose to bartend for fun and profit, but passionate feelings won’t pay the rent. Not even in Queens.

*Self-reinvented prosecutor Kamala Harris has seized upon this disparity:

Ms. Harris said last month that she would introduce a bill, the Ensuring Quality Access to Legal Defense Act, that would establish pay parity between public defenders and prosecutors across the nation within five years.

While the notion is nice, it’s grossly underfunded and imposes a local burden by federal law. That said, pay parity is the proper measure of indigent defense salary, even if it comes from Harris.

29 thoughts on “Too Poor To Defend The Poor

  1. delurking

    Man, your front page today is the quintessence of “journalists and lawyers can’t do math”.
    It starts with the useless percentages in the table in “Gravity, Repealed”, moves on to this:
    “The total spread of 49.5 is the absolute percentage difference between those two judges’ average percent differences” (WTF?), and closes with a misunderstanding of median (what the hell is an “average median”?), which is used because it is not significantly affected by the distortions created by extreme values in a distribution.

    1. SHG Post author

      Rather than leave a comment on the post to which you refer, and perhaps even adding whatever illuminating insight you might have (although they’re old posts, so who gives a shit?), you leave the first comment at this post, which your comment has nothing whatsoever to do with, thus shitting up the comments for me and everyone else with your personal problems. Is there a word in the DSM-5 that characterizes this sort of self-absorbed myopia?

      1. delurking

        It’s OK, I can’t do journalism or law. But reread your 2nd indented quote and your 5th paragraph, and have a chuckle.

    2. Richard Kopf

      delurking,

      I think you are referring to my post some days back entitled “The Luck Of The Draw.” If you are, and you think it dumb, I am fine with your dislike. Much of what I write strikes other people as dumb. Hell, afterwards, I sometimes come to the same conclusion.

      But, you really ought to carefully read the study I cited as it is apparent that you failed to do so since the language you complain about is explained therein. It is true that the words in the study requires more than fourth grade reading comprehension. And that should remind the both of us that: “The fault, dear Brutus, is not in our stars, but in ourselves . . . .”

      All the best.

      RGK

      1. delurking

        Dear Judge,
        I read the post and then went to the study to figure out what they meant. I did not think that what you wrote was dumb. The way the data is presented in the study is really obtuse, though. Whether that is because the authors themselves aren’t experienced with presenting data, or because they were trying to present it in a way they thought their audience could understand, doesn’t change the initial point.

        1. losingtrader

          delurking,
          You remember what happened to Tim Robbin when he used “obtuse” in Shawshank Redemption?
          A month in the hole for you.

  2. pgu

    Immigration removal defense isn’t a constitutional right but knowing the immigration consequences of a criminal plea is (Padilla is the case). So, immigration attorneys working at LAS or Bronx Defenders aren’t add-ons but necessary to the functioning of those offices.

      1. Robert

        I’m going to assume pgu works for Bronx Defenders, having introduced it into this post despite its not having been mentioned. As a former LAS lawyer, it’s enormously disturbing that the new crowd of baby PDs are incapable of rational argument or logical thinking, as reflected by pgu’s comment. Like you, this has concerned me for a while now, and I fail to understand how anyone who could write such an inane comment could be allowed to defend the poor. They deserve better than this dope.

        1. SHG Post author

          When one so desperately needs the ideology to work, despite all reason, something has to give. I keep hearing from baby PDs that they’re brilliant badass lawyers. I keep hearing from experienced and former PDs that they’re not, except in their own minds.

        2. B. McLeod

          If one would recruit from the Ivy League, one must be willing to accept the consequences. I have no doubt that all the fine youngsters are exceedingly wokey.

        3. pgu

          Just answering to this claim:

          “Choices get made, and one of those choices is to pay their criminal defense lawyers less so they can hire more lawyers to represent undocumented immigrants.“

          Having immigration attorneys on staff isn’t a choice, it’s a constitutional necessity.

          Not arguing about anything else.

          1. SHG Post author

            No, not “answering to this claim.” Immigration proceedings aren’t criminal proceedings, and the duty under Padilla applies to the criminal defense lawyer, not having immigration lawyers on staff. Stop digging.

            1. pgu

              Right and you need imm attorneys to help criminal attorneys figure out what are the immigration consequences of any particular plea.

              The INA, you may have heard, is complicated and it interacts with state law in weird ways. That’s why you have Padilla attorneys.

              Maybe in your view criminal attorneys should handle it all together, but that’s just not feasible given the realities of the job.

            2. SHG Post author

              Sigh. It’s not only feasible, but its how every criminal defense lawyer does it who doesn’t work for an organization with money to burn. How the fuck do you think the rest of the criminal bar manages? But you’re still missing the point, that this is about representation in immigration proceedings, not criminal court, which is clear to everyone but (apparently) you.

          2. Robert

            There’s something seriously wrong with you. Stay away from defendants and see if you can manage a job driving an Uber without killing anyone.

      2. Sgt. Shultz

        Oh please, Greenie. You know that baby PDs hate you because you use your mean old man facts and logic to point out the irrationality and idiocy of their passionate social justice ideology. Just get over yourself and let them enjoy their echo chamber where they can dispense with all inconvenient facts and enjoy their fantasy where they are the saviors of humanity, you shitlord.

          1. B. McLeod

            Hey, the ones with 10 years experience and the $90,000 salaries already get a special break, in that they can maintain ABA memberships by paying only twice the dues the newbie private firm lawyers with the $135,000 salaries pay. What more should they want? Free cupcakes on top of that would be excessive.

  3. Scott Jacobs

    But then comes mission creep, as they also have civil, juvenile and immigration divisions.

    I wonder if there is a difference in pay between the criminal defense and the other divisions. Certainly the statement about base salary suggests there is not but one can only wonder, what with the other less constitutionally mandated make after a year or two compared to the CDLs on staff. They are, after all, more social-justicey.

    1. SHG Post author

      I would assume it’s the same, but can’t say for sure. Perhaps someone from LAS can enlighten us?

  4. wilbur

    Not being from nor having lived in the great state of New York, my brain continues to read “LAS” as “Liberal Arts and Sciences”. Legal Aid jumps to the forefront next.

    At least it doesn’t then default to “Los Angeles Stars”, an original ABA franchise.

    And permit me to offer an genuine welcome back from your glacial sojourn.

  5. pml

    My question would be is this unique to NYC, because in our county upstate, ADA’s and APD’s get paid the same. The one exception is the DA who’s pay is set by the state.

  6. Jonathan Levy

    Small point. “Choices get made, and one of those choices is to pay their criminal defense lawyers less so they can hire more lawyers to represent undocumented immigrants.” The funding streams are separate. Ms. Sabel would have a more convincing argument that a defendant deserves a lawyer who had a night’s sleep rather than a night bartending. Most jobs worth doing are hard.

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