April 20, 2020 Public Defense

Trend in Public Defense: Unionization

Malia Brink

Nationwide, union membership numbers have been on the decline for decades. In public defense, however, an opposite trend seems to be taking hold. More and more public defender offices across the country have moved to form collective bargaining units.

More and more public defender offices across the country have moved to form unions.

More and more public defender offices across the country have moved to form unions.

Jose Luis Pelaez Inc/DigitalVision via Getty Images

In December 2019, the majority of the attorneys in Defender Association of Philadelphia announced their intention to unionize in partnership with the United Automobile Workers, which already represents attorneys at Community Legal Services, the largest civil legal aid provider in Philadelphia. The collective bargaining unit would represent about 200 public defenders. The attorneys asked the Defender Association to voluntarily recognize the union. The Association did not, and thus a formal election was held. The public defenders voted in favor of unionization 142-65.

In May 2019, in Lancaster County, Pennsylvania, the public defenders joined with the assistant district attorneys in voting to form a union through the Teamsters local, which already represents the county employees in the probation and domestic relations departments. In 2018, the Los Angeles County Public Defenders’ Union, which was organized through the American Federation of State, County, and Municipal Employees (AFSCME) was formally recognized by the county. In 2016, the Connecticut public defenders voted to form a union through AFSCME, and in March 2019, they signed their first collective bargaining agreement.

In Massachusetts, a state law has impeded the unionization of public defenders. Public defenders wishing to organize have supported a legislative fix to permit unionization, which has been introduced several years in a row but never received a vote in the Massachusetts Legislature.

Why Unionize?

Typically, unionization is viewed as a route to better pay and working conditions. In the public defense community, however, the goals of recent unionization efforts appear broader. The petition to unionize submitted to management at the Philadelphia Defender Association stated: “We have all chosen this work because we are passionate about protecting the Constitutional rights of our clients and giving them a voice in a system that otherwise does not. . . . We believe that by collectively improving our workplace, we will better serve our clients.” A press release from the Defenders Union stated, “the mission of the office can only be fully realized through recognition of worker’s rights, in the tradition of all social justice movement.” It goes on to state that the lawyers want “a greater voice in the decision-making processes” and “opportunities for professional growth and development.”

Rachel Scotch, president of Mass Defenders, similarly stresses that unionization is about more than pay. Indeed, public defense attorneys in Massachusetts have received significant pay raises in the past few years. But, she notes, there is no structure for raises and recent raises have come at a high cost. “Most of the big raises we have gotten are through attrition. We used to have in-house social workers and investigators and those positions seem to be disappearing from the agency.” According to Scotch, a recent employee satisfaction survey showed that people do not feel heard. “The union is needed to ensure that the people who represent clients have a say in the governance of the organization.” The issues she hopes a union could address include workloads, transfer issues, formalization of a disciplinary and appeals process, appropriate support staffing, and promotion opportunities. “We also want to be able to speak with a collective voice for our clients and their issues. For example, we have been on the front lines of the opioid crisis for a decade and we were trying to advocate for more treatment and less punishment. These efforts were largely ignored because we’re just diffuse individual voices. It was a real missed opportunity. We could have been much more powerful if we could have spoken with a single voice.”

In Los Angeles, public defenders similarly viewed unionization not only as a mechanism for obtaining better salaries and working conditions, but also to influence criminal justice reform. In an article for Knock LA, Ace Katano, one of the union organizers, noted, “Los Angeles is the largest jailer in the world, and the policy decisions that are made here have ripple effects all over the country. Our voice has been absent from the conversation for too many years.”

Experience in Unionized Public Defender Offices

While many public defense offices have only recently considered unionization, some offices have been unionized for decades. In New York, the Association of Legal Aid Attorneys represents over 1,000 attorneys in New York. The ALAA, founded in 1969, is the oldest union to include public defenders. It currently represents members from not only the Legal Aid Society of New York City, but also the Federal Defenders of New York and the Neighborhood Defender Service of Harlem, which voted to unionize this year.

The experience of these offices demonstrates that a union can be a vehicle for a greater voice in law reform. From the beginning, the ALAA was focused not only on the interests of its attorney members, but also on the interests of their clients. One of the first issues the union advocated for was vertical representation—allowing a single public defender to represent a client throughout the life of the case, allowing lawyer and client to develop a more comprehensive and trusting relationship. The ALAA later went on strike to win better pay for attorneys and greater accountability mechanisms to address police misconduct. Today, in addition to working on pay raises for attorney members, the ALAA is part of the reform efforts aimed at providing right to counsel in housing court, improving loan forgiveness for legal services attorneys, and closing Rikers Island. Tina Luongo, attorney-in-charge of the Criminal Defense Practice at the New York Legal Aid Society, notes that unionization has numerous positives. “The union has been an excellent partner in law reform efforts and efforts to seek increased pay for our attorneys,” said Luongo.

Is There a Downside to Unionization?

Unions do also have conflict with management. Sometimes, those conflicts can get in the way of maintaining a joint and unified focus on the client. One supervisor in a unionized office noted that the processes required can feel like an obstacle. The most obvious example is the disciplinary process. “When you have a lawyer who is not meeting standards, even when you think the matter is clear, you have to follow the process. It can feel long and sometimes frustrating, but you have to follow the process.” Another supervisor in a unionized office echoed these concerns, noting that even small changes, like distributing staff to nearby offices to accommodate caseload changes, requires a significant process of review, consultation, and, if necessary, dispute resolution. Some supervisors note that this process can be frustrating, particularly when the change is clearly connected to better client service. In at least one jurisdiction, a union opposed efforts to ensure representation at first appearance without first negotiating terms for additional pay and frequency of the requirement because it would require attorneys to work additional and unusual hours.

Type of Union Matters

One thing is clear from the history of public defense unionization—the bargaining unit matters. In some jurisdictions, the public defenders are in a bargaining unit with the district attorneys or other public lawyers. Such a structure may improve the likelihood of achieving parity of benefits and pay, but inevitably will reduce the union’s ability to advocate for law reform efforts to benefit public defense clients, such as the advocacy by the ALAA to close Rikers Island. By contrast, a bargaining unit that is specific to public defense and legal aid lawyers will be more able to engage in broader law reform efforts but may not be as able to create an identity of interests between defense lawyers and other public attorneys, prosecutors or civil, in seeking improvement in pay and benefits.

As the efforts of public defenders to unionize play out across the country, the next few years will demonstrate what unions are able to do for the public defense and client communities and whether this trend toward unionization will continue.

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Malia Brink serves as the associate counsel for public defense to the ABA Standing Committee on Legal Aid and Indigent Defendants.