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September 22, 2015

Suggesting unionization as a (partial) solution to to federal indigent defense problems

An informed reader, in response to the recent NACDL report about the state of federal indigent defense resprentation (noted here), sent me a letter and requested I post it in this space.  I am happy to do so:

The National Association of Criminal Defense Lawyers has just issued a hard-hitting report [available here], "Federal Indigent Defense 2015: The Independence Initiative."  The first of its seven points is that federal indigent defense needs independence from the judiciary. In response, the libertarian Cato Institute has already argued [here] that "one reform that is entirely absent from the report is the introduction of client choice and free market competition into the indigent defense system."  The idea is, among other things, impractical.  The one practical reform "that is entirely missing from the report" is something else entirely: unionization of attorneys in Federal Defender offices (which nation-wide represent most federal criminal defendants).

The one unionized federal defender office — Federal Defenders of New York, Inc., which covers all of New York City and several surrounding counties — has been a success story. Without fear of losing our jobs (except, of course, for cause), lawyers in our unionized office can devote ourselves more effectively to our primary mission: zealous representation of clients. No lawyer needs fear dismissal for reasons that are political, unfair or arbitrary.

We work in an office with superb management and in two federal districts with outstanding judges.  Like others around the country, the good faith of everyone in the criminal justice system goes a long way.  But we also live in a country of laws, not just people, and we benefit from institutional structures, including a union, that allows us to make arguments before judges as compellingly as we can, as respectfully as we are — and without fear.  

I am attaching a more detailed letter that I wrote to the NACDL Federal Indigent Task Force a year ago.  [Available here: Download Letter on NACDL Federal Inidgent Task Force.7.25.2014] 


Douglas G. Morris

Vice-President – Unit for Federal Defenders of New York

Association of Legal Aid Attorneys, UAW 2235 (AFL-CIO)

Assistant Federal Defender

Federal Defenders of New York, Eastern District of New York

September 22, 2015 at 02:35 PM | Permalink


I don't see much need for unionization of FPD offices. AFPD positions already attract excellent lawyers, and the pay is good (the same as AUSAs). Anyone familiar with the federal criminal justice system will tell you that AFPDs on average provide the best indigent representation, and generally provide better representation than most retained counsel, in part because AFPDs have an exclusively federal practice.

The much bigger problem, in my view, is the low rates paid to CJA panel attorneys, which definitely a affects the quality of representation in many districts.

Posted by: Anon | Sep 22, 2015 3:31:27 PM

I am also at a loss for why unionization is needed and would interested to hear Mr. Morris (or another commenter) offer a reason for his conclusion. Pending that, I agree with the first comment that the CJA panel system is ripe for the application of free market principles. I would support creating a true voucher system that allows indigent defendants to hire counsel of choice, as long as that attorney was willing to work for the CJA rate. If implemented, it would allow younger attorneys in private practice the opportunity to obtain appointed work. Currently, the system (at least in my district) is set up so as to discourage adding an attorney to the panel who lacks trial experience, even though 98% of cases plead out and younger attorneys rare have trial opportunities. If the bulk of the work is non-trial practice and a defendant is comfortable with an attorney who lacks trial experience, why should that attorney be boxed out of 98% of possible work because he (presently) lacks experience on the 2% of possible work?

Posted by: J | Sep 22, 2015 4:44:37 PM

I would support unionization if it was not mere rent seeking. For example, the job should be considered an equivalent to a residency in medicine. You come out of school having superficially sampled many law subjects. To your dismay, the real world does nothing you learned in law school. And you learned nothing about what the real world does in law school. It takes 10,000 hours to get good, so work 40 hours, you need 5 years. Work 60 hours, it happens in 3 years. Work 80 hours, it happens in 2.5 years. You then take your narrow expertise, and sell it at $300 an hour to criminals with money.

The salary is correct for know nothing trainees. The case load benefits the trainee by rushing them toward competence.

I would support unionization if it included adherence to standards of professional due care over and above the current ones.

1) Today, the work of the PD is to carry a message from the prosecution on a plea deal. Email or the post office may replace the majority of the work of the PD. I do not understand how they can have any professional pride being mere agents of the person seeking the personal destruction of the client. I find the PD morally disgusting.

2) No plea deals for factually innocent clients. All innocent defendants go to trial.

3) Mandatory personal attacks on the judge and on the prosecutor. Any refusing of such a standard of professional competence and the PD should be fired and sued for malpractice. Every biased utterance, personal communication goes into a national database, a registry if you prefer. Pull out all cards to seek the personal destruction of the mortal enemy of the client. All trials must include a motion for judge recusal and for disqualification of the prosecutor.

Make a checklist from one of the many practice manuals available.


4) If a plea deal for a guilty client is the best option, review the hundreds of civil consequences, in accordance with Padilla.

Posted by: Supremacy Claus | Sep 22, 2015 5:43:09 PM

I want to know from Douglas G. Morris if he would fire on the spot any defender who conducted business as I proposed was the professional standard of due care. PD's are at will employees. subject to the whims of real low life scum.

Here is another item to add to the list.

5) Civil service protection for public defenders.

Do any of the dirt bag lawyers here think that will ever, ever happen?

Posted by: Supremacy Claus | Sep 23, 2015 1:35:08 AM

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