Low Pay A Deterrent To Would-Be Public Defenders

By Matt Perez | October 17, 2021, 8:02 PM EDT ·

The average starting salary attorneys can expect from public defender work remains low nationwide, according to new data, with experts noting that the lack of pay parity with competing law agencies and mounting law school student loan debt make the job a tough sell to new attorneys.

According to data released on Oct. 12 by Biglaw Investor, a company that provides financial advice to attorneys, public defenders see as little as $45,000 in entry-level compensation in cities like Tulsa and Oklahoma City, Oklahoma, as well as Louisville, Kentucky. California boasts the highest starting salaries in the nation, with Los Angeles paying an average of $89,707 and San Francisco paying $131,000, while Miami sets entry-level salaries for public defenders at $53,000, according to the data.

To collect the data, Biglaw Investor called multiple offices in the 50 largest cities in the U.S. and also attempted to include a city in each state, for a total of 72 cities. Both Manchester, New Hampshire, and Portland, Maine, were left out of the data set since they lack an average entry-level salary, with Biglaw Investor noting that in some jurisdictions, courts rely solely on an appointment system with no feasible way to calculate starting compensation.

"Criminal defense salaries, the ones that are set by government, quasi-governmental and nonprofit institutions, they don't seem to be subject to market forces in the same way that private salaries are," Biglaw Investor founder Josh Holt told Law360.

The company said the average starting salary for public defenders in the U.S. was $66,193, while the median sits at the $63,638 paid in Austin, Texas.

But Rosalie Joy, vice president of Defender Legal Services at the National Legal Aid and Defender Association, said the reality of what defenders are paid may be even lower, especially for attorneys working within an appointment system. In such jurisdictions, courts pay a flat fee for an appointed case, one that may not be enough to effectively represent the client.

"Some are so low that they can't attract anybody to take the jobs," Joy said.

In South Carolina, public defenders are unavailable for the majority of its 200 municipal courts and some fail to provide representation to indigent defendants, according to the American Civil Liberties Union. The group sued the City of Beaufort and Town of Bluffton over this practice in 2017, leading to a settlement two years later in which the municipalities must now contract with the 14th Circuit Office of the Public Defender.

States like Oklahoma and New Mexico, which sit on the lower end of the salary data set, must compete for attorneys with neighboring states like Texas as lawyers make paying their bills a priority, especially student loan debt.

"It pops up within not only the different states but within a state," said Steve Zeidman, at the City University of New York School of Law. "So a state like New York, for example, depending on where you are, there's either a public defender system, there's an individually assigned counsel system where you get paid an hourly rate, there are contract offices ... and they all have different salary ranges."

Zeidman said that as a professor, he feels a responsibility to encourage law students to consider the public defender route despite the inherent difficulties — "to say that you can make it, it will be a challenge, and hopefully there's loan forgiveness programs that will make it easier for you to do this work," he said.

A "silver lining" exists in which the public defenders who do stick it out are the most dedicated and committed to the work, Zeidman said, but he still sees students who enter law school gung-ho about social justice lawyering and later change course.

"We're starting at law school to try to cultivate interest in public defense," said Joy, who previously spent eight years serving as interim director of the Atlanta Public Defender's Office. "And I can tell you nine times out of 10, the reason you get a no from a student or a potential public defender is that they won't be able to afford it."

"Most everybody goes to law school on a student loan, and they anticipate the ability to pay that student loan, and you can't do it at $66,000 a year or less," Joy added.

In an American Bar Association survey published in 2020, three-quarters of respondents said they graduated from law school with more than $100,000 in debt, and a quarter said they had more than $200,000 in debt. The average debt owed by law students graduating between 2015 and 2016 was $145,000, according to a study by AccessLex Institute.

Public defender offices also find themselves competing with BigLaw firms, which can reach entry-level salaries of $200,000 per year. Some attorneys start out in private practice but end up taking a substantial pay cut to move into public interest work, according to a recent study surveying 4,000 alumni of six California law schools who graduated between 2001 and 2010. However, the majority of those who left law firms ended up in government or at a nonprofit, rather than in a public defender's office.

While Zeidman said he believes there is a consistent pipeline of law students who want to pursue public defender work straight out of law school, those who do often feel the need to leave to deal with their debts.

"You see more and more of the die-hard, passionate people leave after two or three years, so to try and get a cadre of incredibly talented, experienced public defenders is another challenge," he said.

Public defender offices are also struggling against other government law departments. Average public defender salary slightly trails the average $66,802 entry-level compensation of an assistant district attorney, according to data previously released by Biglaw Investor.

Zeidman and Joy noted that it's typical for average salaries for public defenders to be lower than for other legal department roles.

"Parity with city law departments [and] prosecutor agencies is largely nonexistent," Joy said.

Joy added that it makes little difference whether an attorney is in a traditional public defender's office, a court-appointed system or a contract system where the court has a standing agreement to have a local law firm provide public defense services.

"In none of those systems do you really ever see that the rate of pay for those lawyers is equal to or comparable to a prosecutor's office, even though they're all lawyers, they're all skilled at practicing criminal law," Joy said.

Public defender salaries also remain fairly stagnant as time goes on, Zeidman said.

In New York City, prosecutors and public defenders both requested pay raises in 2018, with Mayor Bill de Blasio promising in 2019 that salaries between prosecutors, public defenders and the city's Law Department would match within four years. The city has an average entry-level public defender salary of $73,440, according to Biglaw Investor's data.

"New York is just as expensive if not more expensive than San Francisco, so for public defenders, why are New York public defenders making $73,000, whereas San Francisco public defenders are making $131,000?" Biglaw Investor's Holt said, noting a similar difference between Tulsa's nationwide-low $45,000 compared to Tucson, Arizona's $63,500 starting salary.

Joy noted that some public defender practitioners have independent wealth or have an additional source of income as they pursue their career out a "love of justice."

"But then, in large part, the majority of public defenders are just your average Joe trying to raise a family and pay the bills just like everybody else, and they're doing it at wages that in some places would be considered poverty-level," she said.

--Editing by Alanna Weissman.

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