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.