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NYC Public Defenders, District Attorneys Demand Pay Parity

By RJ Vogt | October 28, 2018, 8:02 PM EDT

Pauloma Martinez, a public defender for the Legal Aid Society of New York, testified during a recent City Council hearing that, eight years into her law career, she just started making $85,000 a year. With two young children and a mortgage, she said she still needs roommates to help make ends meet as a full-time attorney.

"That's a disgrace," she told a hearing convened by Rory Lancman, chair of the council’s Committee on the Justice System. "To be one of the least-paid players in the system is very demoralizing."

Martinez's impassioned testimony on Thursday spoke to a national problem: Overworked public defenders and even some prosecutors often earn far less than attorneys in other government agencies or private practice, leaving both sides of the criminal justice scales struggling to recruit and retain quality counsel.

Akin Akinjiola, another public defender, questioned whether the disparity can be attributed to the fact that those who need public defense often come from severe poverty.

"Why do you think our work as attorneys deserves less? I've been racking my brain to figure out how you would justify the disparity, and the only conclusion I can come to is that you don't value our clients and their constitutional rights to a defense," he said.

Councilman Lancman, who announced his bid for the Queens district attorney position in September, has proposed creating a temporary task force to study pay parity for public defenders and prosecutors. Thursday's hearing allowed key players to make the case for why Mayor Bill de Blasio's office should close the pay gap between those attorneys and ones with the same level of experience who work in the city's Law Department.

Lancman began by comparing salaries for public defenders to salaries for Law Department attorneys, who represent the city and its agencies in affirmative and defensive civil litigation, among other proceedings. He said the pay for starting public defenders ranges from $61,000 to $68,000, while Law Department attorneys start at $68,000; at the five-year mark, his figures showed public defenders make between $70,000 and $78,000, while the Law Department attorneys make $79,000.

"It therefore comes as no surprise that city agencies have better retention rates than our district attorney offices and indigent service providers," he said.

As the hearing unfolded, both DAs and public defenders said that a task force was unnecessary because the solution to the pay disparity problem — paying them more — was already apparent, and because the problem of retention is already so dire.

"We're losing people now," said Tina Luongo, chief defender for the criminal practice at Legal Aid NYC. "By the time I get back to my office, I'm afraid I'm going to see another resignation."

Part of the problem is New York City's high cost of living: median rent costs $2,850 per month for a one-bedroom apartment. Luongo also noted the soaring student debt incurred by future lawyers, adding that a recent report by Forbes found 98 percent of applicants for the Public Service Loan Forgiveness Program have been denied since President Donald Trump took office.

"When the city of New York pays a [Law Department] attorney with 10 years of experience an annual salary of $108,153, the city is recognizing the need to keep pace with the cost of living," Luongo said. "That salary is $18,000 more than we are able to pay for an attorney at the same experience level."

The disparity is felt by prosecutors, too. Judge Darcel Clark, DA for the Bronx, testified that since May, 50 of her assistant district attorneys have left to get jobs at higher-paying agencies, including 10 who joined the NYC Law Department. In the last year, she said she's seen an attrition rate near 20 percent.

"As a result of attrition, our average experience level continues to drop," Clark said. "Currently, the average experience level of an ADA in my office is three years, eight months. That is not significant experience to handle complex investigations in felony cases like homicides."

In 2017, the city granted her office $2 million to provide parity with the Law Department for prosecuting attorneys with one to five years of experience, Clark said. While she appreciated that sum, she noted that it created a salary crunch for those with more than five years of experience, many of whom had stuck around in hopes of getting raises only to see their younger counterparts rewarded instead. And she's still waiting to hear about the remaining $4 million she requested to bring the rest of her office up to pay parity.

"ADAs work, on average, a 45-hour workweek," she said. "Which amounts to $18.53 an hour. That's only $3 more than the minimum wage. This is not a fair and reasonable compensation for professionals who ensure public safety, prosecute fairly and meet the highest ethical standards."

Michael McMahon, DA for Staten Island, noted that a sanitation worker with five and a half years of experience earns an average salary of over $88,000, "and rightfully so," he added. Meanwhile, McMahon's ADAs with the same amount of experience make $81,000.

According to Elizabeth Glazer, director of the Mayor's Office of Criminal Justice, her office takes the needs of DAs and defenders "very seriously." In her testimony, she touted steep increases in resources for the DAs — including the money already granted to provide pay parity for lawyers with one to five years' experience — while remaining mum about ongoing contract negotiations for defenders.

"I’m aware that the council has proposed a temporary task force on pay parity," Glazer said. "At this time, we're still examining this issue."

But according to Debbie Wright, president of the Association of Legal Aid Attorneys, which represents many of New York City's public defenders, there's not much need to examine "an issue we have been struggling to get any kind of attention put on for a very long time."

"They have the ability to fix it now," she added. "Today, if the administrative wanted to."

After the hearing, Lancman downplayed the importance of the proposed legislation.

"If the task force is necessary down the road, we can always look at that option," he told Law360. "But I think all of our attention and focus really needs to be on getting the money out of the administration in the next six months or so."

When asked where he expects the increase in funding could come from, he said, "We're not talking about a huge sum of money in the scheme of things."

"We have an $80 billion-plus city budget," he said. "I'm not worried about where we are going to get this money from. We're not talking about 'How are we going to fund Medicare for all?' here. It's just a perfectly doable thing."

--Editing by Katherine Rautenberg.