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September 20, 2000

2000.09.20: Court approves Legal Aid Society Free Speech Suit (NYLJ)

Filed under: 1994 Strike,Funding — nyclaw01 @ 12:00 am

2000.09.20 – Court approves Legal Aid Society Free Speech Suit – NYLJ – ALAA — OCR

Court Approves

Legal ./lid Society ·

Free Speech Suit


A BITTER LEGAL dispute between.

the Legal .!Xid Society and Mayor Giu-·

liani triggered. by a four-day strike in

1994 should live to see another day in

a truncated form, a Southern. District

judge ruled yesterday.

Judge Sidney H. Stein, ruling on the

City’s motion to dismiss lawsuits. filed

by Legal Aid and·its 80(}.1aw)rer union,

kept alive clahns that the Mayor had

retaliated against protected First


activity. But ‘

the judge, in

Legal’ Aid

Society v. Giuliani;

9&5141} ;Sfiarpl¥ cut


the National·Labor Relations Ad.

The dispute·erupted.when•Legal Aid

lawyers went out on strike in. October

1994. The Mayor immediateiy terminated

the Legal Aid Society’s contract

as the exclusive provider of representation

to indigents accused of crimes in

New York City.

Legal Aid Society Claims .Survive

Continued from page 1, column 3

Four days later the strike was over,

after Mayor Giuliani had given the striking

lawyers an ultimatum: return to

work .within 24 hours or face a permanent

bar on work funded by the City of

New York.

The Mayor also insisted that any

future contract contain a “no-strike”

provision, and that the Society relinquish

its contractual status as. the sole

provider of indigent legal representation

in criminal cases.

In .the wake of the strike, the City

negotiated $20 million in contracts with

seven new legal aid organizations; and

cut the Legal Aid Society’s funding by

that amount to $59 million.

In the lawsuits, which were- filed in

1996, both the union and Legal Aid cdntende<;

Itnat thene:wcontracts and cut~

ba:cks•were:the.resultof retaliatioq;fon:

their (lSS.ertiqn of rights. protected by

theNatibnahLabor. Relations -Act and

the FirstlXinendment; .

The•.co~traef wasi ultimately reinstated

in. F:ebrJ:Iary 1995, but only after.

Legal Aid had negotiated a “modification,”

inwhich it agreed that City could

contract with others “in whole or in

parf’ to provide the work it had previ~

ouslyprovided exclusively under the

contract it had with the City going back

to 1966. –

Key Concession

Judge Stein looked to that concession

in concluding that Legal Aid had

waived its rights to challenge the

Mayor’s actions as· impermissibly

intruding.upQn the collective bargaining

process protected by the National

Labor Relations Act.

While that language contained no

specific waiver of the right to sue, Judge

Stein concluded that under applicable

precedents from the U.S. Court of

Appeals for the Second Circuit, it was

sufficient that a waiver could be

implied. An analysis ofthe modification

signed by Legal Aid, he wrote, made it

clear that the provision allowing the

City to contract out work was “a safeguard

intended to minimizethe possible

disruption from future strikes.”

While barring Legal Aid from pursuing

its labor act claims, Judge Stein, did

rule that discovery could proceed· on

the uilion’s claims that City had intruded

into · the collective bargaining

process by insisting on a contract that

barred any wage increase, even one

that was self-funded without the use of

City money.

But Judge Stein also rejected any

labor Jaw claim. stemming from the

City’s decision to insist upon having

the right· to contract with new

providers and to cut Legal Aid’s budget,

“Common sense alone suggests,” he

; wrote, that the City in for

legal:services shouldbe.p.ermitted to

seek out “new;o~~~ernative1~providers

to a~oid “potentially disruptive labor

disputes,” . ,.·.··. t .: ……….. ·· •..

Judge Stein cu:lqeq.thathe was· letting

Ui~;Fi17st~ Amendirient. claims’ proceed

because tne U.S. Supreme Court has

held a higher standard ..:.:. “clear and

compelling”‘ evidence , to .apply in

assessing. whether a.waiver had taken

place ..

Since the Supreme Court did not

clearly enunciate the circumstances in

which.a government contractor could

pursue a claim for First Amendment

retaliation until after. the February 1995

modification,.he wrote, Legal Aid could

not have “knowingly” and “intelligently”

waived its First Amendment claims.

The City’-was represented by Assis.

tant Corporation Counsel tewis Finkelman.

Legal Aid was represented by D. Stuart

Meiklejohn, of Sullivan & Cromwell.

The Association of Legal Aid Attorneys

was represented by Alan Levine. Daniel

Engelstein, of Levy, Ratner & Behroozi

represented Local 1199; the union for

Legal Aid’s non~legal staff.

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