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December 1, 2009

2009.12.01: Attorney Strikes at the Legal Aid Society of New York City (Encyclopedia of Strikes)

2009.00.00 — Encyclopedia of Strikes in American History — ML Article on ALAA — OCR

THE ENCYCLOPEDIA OF STRIKES

IN AMERICAN HISTORY

AARON BRENNER

BENJAMIN DAY

IMMANUEL NESS

EDITORS

c:Jv.f.E.Sharpe

Armonk, New York

London, England

Copyright© 2009 by M.E. Sharpe, Inc.

All rights reserved. No part of this book may be reproduced in any form

without written permission from the publisher, M.E. Sharpe, Inc.,

80 Business Park Drive, Armonk, New York 10504.

Library of Congress Cataloging-in-Publication Data

The encylopedia of strikes in American history I Aaron Brenner, Benjamin Day, Immanuel Ness [editors].

p.cm.

Includes bibliographical references and index.

ISBN 978-0-7656-1330-1 (cloth: alk. paper)

1. Strikes and lockouts-United States-Encyclopedias. I. Brenner, Aaron. H. Day, Benjamin, 1979-

III. Ness, Immanuel.

HD5324.E39 2008 ,

331.892’97303-dc22

Printed in the United States of America

The paper used in this publication meets the minimum requirements of

American National Standard for Information Sciences

Permanence of Paper for Printed Library Materials,

ANSI Z 39.48-1984.

MV (c) 10 9 8 7 6 5 4 3 2

Publisher: Myron E. Sharpe

Vice President and Editorial Director: Patricia A. Kolb

Executive Editor: Lynn Taylor

Production Director: Carmen Chetti

Production Editor: Angela Piliouras

Editorial Assistants: Kathryn Corasaniti and Nicole Cirino

Typesetter: Nancy Connick

Cover Design: Jesse Sanchez

2007036072

I

ATTORNEY STRIKES AT THE LEGAL AID SOCIETY

OF NEW YORK CITY

Michael Z. Letwin

In 1970, Legal Aid attorneys in New York City

becan1e the first lawyers in the United States to go

on strike, and they did so again in 1973,1974,1982,

and 1994. Despite expectations to the contrary (and

for reasons that cannot be fully explored here) few

lawyers elsewhere have followed their example.

It is clear, however, that Legal Aid strikes in

New York City took place in the wake of Gideon v.

Wainwright (372 U.S. 335, 1963), in which the U.S.

Supreme Court dramatically expanded the right of

counsel for indigent criminal defendants. Instead

of establishing a public defender office to meet the

obligations imposed by Gideon, New York City’s

municipal government contracted with the Legal

Aid Society, a privately funded charity established

in 1876, as its primary public defense provider. 1b

fulfill its city contract, the Society hired hundreds

of public defenders.

Despite Gideon, however, New York City’s

criminal justice system dealt contemptuously with

poor defendants. Grossly inadequate city funding

for indigent defense meant low salaries and impossible

caseloads, turning the attorneys into glorified

production workers who could offer only perfunctory

representation for an overwhelming number

of clients, nearly all of them African American

and Latino. This assembly line was epitomizeCl by

fragmented representation in which clients were

seen by a different attorney on each of many court

appearances in the same case.

By the late 1960s, the civil rights movement

had condemned such poor-quality indigent defense

as just another reflection–alongside police

brutality and discriminatory sentencing-of institutional

racism throughout the criminal justice

system. But despite a series of official reports and

mass inmate protests that sharply criticized such

665

representation in New York City, conditions did

not change; politicians, judges, Wall Street lawyers,

and Legal Aid management simply did not feel

compelled to change them.

ln 1968-69, these public defenders took matters

into their own hands by founding the Association

of Legal Aid Attorneys (ALM), which

conducted five major strikes between 1970 and

1994. Although widely decried as” unprofessional”

by the city’s political, judicial, and corporate elites,

these strikes were catalysts for systemic improvement

of indigent criminal representation in New

York City, including continuity of representation

(assignment of the same triallpwyer throughout

a given case), retention of experienced attorneys

through higher compensation, workload limits,

affirmative action, and health and safety.

Thus, for more than three decades, labor relations

in New York City’s criminal justice system

have been characterized by a recurring cycle of

accumulated grievances, strikes, and their aftermath.

Industry Background (1876-

1966)

In 1876, Der Deutsche-Rechtsschutz-Verein was

established to provide free legal assistance to

German immigrants, primarily in civil matters.

In 1896, under the auspices of leading members

of the private bar, it was renamed the Legal Aid

Society. In the late nineteenth and early twentieth

centuries, criminal defense representation was

typically provided by private solo practitioners,

often members of immigrant communities,· for a

fee. During the Progressive Era, however, the legal

elite came to regard such attorneys as an impedi666

STRIKES IN THE PRIVATE SECTOR, SECTION 3

ment to swift and sure deterrence of immigrant

crime. Lawyers for the rich were also concerned

that poor immigrants felt “that they were being

denied redress, protection and equality before the

law,” particularly in regard to ineffective criminal

defense representation. The resulting political

radicalization, warned Legal Aid Society president

Charles Evans Hughes in a 1920 speech before the

American Bar Association, threatened to “open

a broad road to Bolshevism” in the United States.

Although initially concerned that the “public

defender movement” was a socialist plot designed

to undermine private profit, the legal elite ultimately

agreed with other reformers “to accept

the replacement of private lawyers in indigent

[criminal] cases, because they feared that assigned

counsel gave the poor legitimate grievances that

contributed to social unrest and presented an on-·

going impediment to the efficient administration

of criminal justice.” In 1914, the first such indigent

public defender office was established in Los Angeles.

Subsequent years witnessed a national shift

to such agencies, the public or private character of

which depended on the influence of the organized

bar in a particular jurisdiction.

These early reformers, the legal elite, and

institutional defenders all agreed that public defense

institutions should adopt a nonadversarial

approach. In the words of one leading public defender

advocate, the prosecution and defense

worked together to ensure that “no innocent man .

may suffer or a guilty man escape.” WithotJ.t the

financial incentive to prolong a case, it was argued,·

public defenders would encourage most defendants

to plead guilty, if necessary by seeking to

withdraw from cases in which” guilty” clients were

intransigent. Rather than seeking “technical” defenses

or go to trial, public defenders encouraged

their clients to testify, thereby ensuring that only

an innocent person was acquitted, and appeals

were brought only on merit.

Pursuant to this model, the New York Legal

Aid Society gradually took on a growing but still

limited number of criminal defense assignments.

This qualitatively changed only as a result of the

U.S. Supreme Court’s 1963 decision in Gideon,

which greatly broadened the right of counsel to

criminal defendants, regardless of their ability to

hire a lawyer.

Most major cities responded to Gideon by

establishing or expanding a governmental public

defender office. Instead, New York City government

contracted with the already-existing Legal

Aid Society to serve as its primary public defender

organization. To fulfill this contract, the Society

hired hundreds of young public defenders, many

of them heavily influenced by the civil rights, stude-

nt, and anti-war movements.

These new defenders were appalled by the

contrast between Gideon’s lofty promise and the

grim reality of daily Legal Aid practice. As Gerald

Lefcourt recounted in a 1994 interview with the

author, when he joined the Society in 1968:

I had no training at all. There was no orientation.

… There were no mock trials. We did arraignments

for a month, and then we were thrown

into battle. I had no clue as to what the right thing

was to do. We had no research tools … no real

offices, no telephones. We couldn’t call witnesses.

There was no anything. I never interviewed a

defendant except in the prison or on the floor

of the hallway right before a hearing or trial. In

the back of my mind, I knew that I should do an

investigation, but there were only one or two

investigatorsoperating out of Manhattan for the

whole [Legal Aid] Society.

Moreover, clients (mostly African American or

Latino) saw different Legal Aid lawyers (mostly

white males) at each court appearance.

Lefcourt and others responded by organizing

the Association of Legal Aid Attorneys, an independent

union that was certified as the lawyers’ exclusive

bargaining representative in December 1969.

(The Association of Legal Aid Attorneys affiliated

with District 65, an independent general union in

1978, and the union became a local of the United

Auto Workers [UAW] in 1996.) Several months

later, city jail inmates rebelled, in part to protest

the poor quality of Legal Aid representation. The

Society responded by threatening to terminate

its contract with the city to defend criminals unless

it received more funding. After briefly toying

with the idea of a public defender system, the city

provided a small amount of additional money.

Regarding this as merely a token gesture, on May

3-6, 1970, amid international protest against the

ATTORNEY STRIKES AT THE LEGAL AID SOCIETY OF NEW YORK CITY 667

U.S. invasion of Cambodia, Legal Aid attorneys

in Manhattan conducted the first lawyers’ strike

in the United States.

The legal establishment reacted with hostility.

The New York Law Journal cited “authoritative

sources” who “blame[ d) the strike on the increasing

number of so-called ‘militant’ attorneys who

have joined the society in recent years … [and

whose] attitude … is that only through action can

change be accomplished.”

This brief strike yielded mixed results. To

counteract favoritism and promote attorney job

retention, the union’s first contract included a

twelve-step salary scale; direct client representation,

however, was not significantly improved.

Tile 1973 Strike

Three years later, Legal Aid attorneys hoped that

such conditions would be remedied by the unprecedented

federal court decision in Wallace v. Kern

(392 R Supp. 834), which ordered a limit on Legal

Aid’s criminal caseload. On June 27, 1973, however,

these hopes were dashed when the federal appellate

court overturned the decision on jurisdictional

grounds. On July 2, therefore, Legal Aid attorneys

voted 178 to 79 to strike for lower caseloads, private

client interview facilities, stenographic help, more

time for research, better salaries, and, above all,

continuity of representation.

The strikers were immediately attacked by

the presiding appellate court justices. As reported

in the July 6, 1973, New York Law journal, these

justices denounced the strikers for “abandoning

the responsibility to the indigent which union

members assumed upon their employment,”

recruited private attorney strikebreakers, and

threatened that if the strike did not end, “we will

be compelled to take such action as is warranted

by the circumstances.”

Union president Karen Faraguna answered

this attack by arguing, as reported in the July 17

New York Times, that the inadequate quality of Society

representation had been” abandoning [clients]

for years,” and that, as reported in the July 9 New

York Law Journal, “we are on strike to implement

the very [continuity] recommendations made by

the Appellate Divisions’ own committee.” She also

pointed out, reported the July 3 New York Daily

News, that “in the next five years we will represent

one million indigent clients. We are determined

to create conditions under which they can be

represented justly and effectively …. This strike

will be won when no longer will you hear a judge

ask a defendant: ‘Do you want a lawyer or do you

want legal aid?'”

Perhaps the most effective answer came from

forty-one inmates who refused to leave their cells

for court appearances.

The broader legal community was split. As for

the mainstream bar, the New York Times reported

that “from the Wall Street firms and the Associa··

tion of the Bar of the City of New York-publicly

at least-came not a word of support for their

ov’erburdened brethren.” However, in a July 2

New York Law Journal advertisement, the National

Lawyers Guild and National Conference of Black

Lawyers asked private lawyers to refuse reassignment

of the Society’s struck work, pointing out

that “your acceptance of [strikers:] assignments

will decrease the effectiveness of the strike. We

ask you to consider seriously the implications

of the present crisis and to join us in supporting

the Association’s action.” An advertisement

in the July 19 New York Law ,Journal, signed by

professors at New York and Hofstra law schools,

“urge[d] members of the private Bar to support

this important [strike].” Similar statements of support

were issued by the New York Civil Liberties

Union and the Puerto Rican Legal Defense and

Education Fund.

When the strike ended just six days later on

July 9, the ALAA had won continuity of representation

within the same court, to “the maximum

extent feasible,” and an experimental program

for continuity between misdemeanor and felony

courts. New York 1Ymes columnist Tom Wicker, who

had covered the Gideon case, wrote approvingly

that “the net effect … should be to treat a client’s

case more nearly as his or her case rather than as a

file folder. That is what the constitutional right to

legal counsel is all about.”

The 1973 contract also established workload

grievance mechanisms, salary increases, eventual

“substantial parity” with assistant district

attorneys, shorter probationary periods, greater

Spanish-language training, confidential interview

conditions, greater office space, and the provision

668 STRIKES IN THE PRIVATE SECTOR, SECTION 3

of office equipment, such as desks, chairs, and

telephones.

In practice, however, the 1973 strike yielded

few representational improvements. Although

the number of Legal Aid public defenders had

tripled since 1970, the agency remained starved

for adequate city funding and attorneys still lacked

adequate offices, interview space, or workload

limits. Moreover, judges undermined the contractually

mandated continuity experiment and

were increasingly hostile to Legal Aid attorneys’

vigorous advocacy.

The 1974 Strike

In response to these conditions, union members

set a strike deadline for September 11, 1974. When

management nonetheless equivocated on continuity

of representation and blamed the city for

the Society’s refusal to offer meaningful raises,

attorneys voted 193 to 144 to walk out.

Echoing their ‘1973 attack on the union, the

presiding appellate justices declared, according

to the New York Daily News, that Legal Aid strikers

were “attorneys, professionals, not day laborers,

and should act accordingly,” and threatened to

bring disciplinary charges, recommendations of

dismissal, and replacement by private attorneys.

The same newspaper also reported the

union’s reply that “we are striking today because

the judiciary and the management of The Legal

Aid Society have continued to ignore their ;responsibility

to indigent defendants in this state.

… The Presiding Justices’ statement amounts to

the ancient practice of strikebreaking.” The union

filed charges at the National Labor Relations

Board (NLRB) against the presiding justices and

repeatedly offered to end the strike in exchange

for binding arbitration, a proposal rejected by

the Society. Speaking to a strike rally, then-House

member Edward I. Koch responded to the presiding

justices by declaring, as recounted years later

in a 1982 News World article, that “to threaten a

man-any man-be he lawyer or laborer, with

Joss of employment, loss of the right to earn his

living at his chosen occupation for speaking his

mind, for striking to improve his lot, is not only

uncalled for but repugnant to our law.”

But by the end of the nineteen-day strike,

about one-third of the attorneys had crossed

the picket line because, Faraguna recalled in an

interview years later, “many people did not want

another strike when improvements were in progress.”

Thus, the remaining strikers returned to

work, even though management remained free to

modify, or even to abandon, continuity in order to

handle more cases. As the New York State Bar journal

late:J; explained,

When it was over, the strikers returned to work

with a lot less than they had at the beginning.

They were out 20 days’ pay. The future of their

five-year-old union-called with proper professional

dignity The Association of Legal Aid Attorneys

of the City of New York-was in jeopardy.

And the two issues over which they walked out

in the first place-cost-of-living increases and the

right to represent their clients from the start to

finish of each case-were still unresolved.

In June 1975, the union sustained another

blow, when a committee of the New York County

Lawyers Association issued an opinion that the

strike had violated professional ethics. Attorneys

nonetheless conducted a one-day strike on October

26, 1976, to reinstate a colleague deemed to have

been fired for her union activity.

The 1982 Stdke

In negotiations over a 1982 contract wage reopener,

the union, which by now had affiliated with District

65, UAW, again sought salary comparability

with assistant district attorneys. At the same time,

Rockefeller drug laws enacted in the mid-1970s

had further exacerbated attorney workload, in

response to which management increased the

pressure on individual attorneys. One of these

was Weldon Brewer, an attorney fired in 1982 for

having told a judge that he was unable to file a

motion due to his high caseload.

Brewer’s firing quickly became a symbol for

everything that was wrong with Legal Aid representation.

Legal ethics specialist Monroe H. Freedman,

of Hofstra Law School, writing in an op-ed

piece in the November 7, 1982, New York Times,

declared that Brewer “has taken up the fight where

Mr. Gideon left off,” and former U.S. Attorney GenATTORNEY

STRIKES AT THE LEGAL AID SOCIETY OF NEW YORK CITY 669

eral Ramsey Clark agreed to represent Brewer. On

October 22, enraged by the firing, ALM members

rejected management’s salary offer and voted by

a two-to-one margin to strike.

Staff attorney support for the strike was strong;

by the fifth week, only 5 percent had crossed the

picked line, compared with 30 percent by the third

week of the 1974 strike. Scabs were dealt with

harshly, union spokesperson Gary Sloman told the

New York Law Journal, “because … people who are

working are stabbing us in the back.”

Support staff represented by Local1199 continued

to work, but supported the strike in a wide

variety of ways. The strike was endorsed by local

criminal bar associations, including the New York

Criminal Bar Association, which in a letter appearing

in the New York Law Journal, “urge[d] our

members, and other private lawyers, not to accept

court assignments to indigent defendants now

represented by a striking Legal Aid attorney.”

In the strike’s fifth week, nearly a thousand

strikers and supporters rallied at City Hall Park. On

November 22, UPI reported a speech by Ramsey

Clark, who told a rally of 300 strikers and supporters

that the strike represented “a struggle for

equal justice” in a system that permitted millions

of dollars for defense of the rich, but provided only

“pennies for [defense of] the poor.” On November

26, eighty-one city judges issued a statement citing

the crucial role of Society attorneys in both

civil and criminal cases and called for the quickest

possible resolution of the strike.

Visitors to the picket line included Lt. Governor

Mario Cuomo, City Clerk David Dinkins, City

Council member Ruth Messinger, Judge Bruce

Wright, contingents of court officers and other

unionized court employees, and delegations of

labor and community leaders. Teamsters employed

by United Parcel Service and by heating oil companies

refused to cross picket lines at courthouses and

Legal Aid offices. In a message of support reported

in the union’s November 24, 1982, strike bulletin,

Coretta Scott King wrote: “Martin Luther King,

Jr. [who was assassinated in 1968 while visiting

Memphis to support striking sanitation workers]

gave his life in a trade union struggle, and if he

were with us today, I believe he would also be

among your strongest supporters …. Together we

shall overcome.”

Society supervisors, meanwhile, appeared

on pending criminal cases without files, and were

soon unable to accept new criminal cases at arraignments.

The refusal of private attorneys to cross

the lines to take struck Legal Aid cases-and the

inexperience of many of those who did-caused

numerous criminal defendants to be arraigned

without counsel. As long trial and sentencing

delays piled up, the jails became overcrowded.

Commenting on this logjam, the same issue of the

union strike bulletin made clear that:

None of us gloats over the impact of our strike

on our clients-we all work at Legal Aid because

we believe in our clients’ rights to quality representation

…. Yet we must recognize that our

strongest leverage with management is our ability

to close down the courts and this necessarily

means putting aside the short term needs of our

clients for their long term need for experienced,

conscientious lawyers. It is management’s refusal

to agree to our demand for a decent wage

increase, and indeed its refusal to bargain at all,

which has prolonged the strike, not any action

by the union.

The December 21,1982, strike bulletin reported

that 416 Rikers Island inmates signed a petition

stating that “the striking attorneys are balking at

the very idea of ‘Assembly Line justice.’ Underlying

the demand for salary increase is the less

publicized demand for lighter caseloads and a less

hectic pace …. We, as detainee/defendants, should

all support this strike! It is imperative that they win,

because in the long run, we win!” Similarly, theN ovember

23, 1982, bulletin reported the comments

of one criminal defendant’s mother, who declared

that “[the strikers] are definitely underpaid, and

overworked …. I know what’s right and what’s

wrong-and they’re right.”

Soon, however, the strikers came under fire

from the alliance of Legal Aid management, city

government, court administration, and the press.

Before the strike was even a day old, management

threatened to cut off strikers’ health benefits and to

discipline attorneys, particularly probationers, for

“abandoning” clients. In a November 5 statement,

the Society’s board called the strike “indefensible

economically and incompatible with the Society’s

670 STRIKES IN THE PRIVATE SECTOR, SECTION 3

mission of providing legal representation to the

poor of New York City.” Management counsel

Robert Batterman threatened to seek legislation

prohibiting strikes by Legal Aid attorneys and

sought a court order restraining union disciplinary

proceedings against scabs-who were given free

representation by the Wall Street firm of board

member Robert Patterson. In late Octobe1~ the

union responded by filing an unfair labor practice

charge against management, and in early November

filed a federal lawsuit to enjoin administrative

judges from coercing strikers into returning to

work.

The November 10 New York Daily News reported

that Mayor Koch, who as congressman

had supported the Legal Aid attorneys in their·

1974 strike, had now raised the ante by denouncing

the strikers as” unethical” and instructing City

Criminal Justice Coordinator John Keenan (who,

according to the New York Law Journal, had already

stated publicly that “I don’t think they [Legal Aid

attorneys] should have the right to strike”) to study

“replacing” the Society with a governmental public

defender agency. New York Times editorials labeled

the strike “foolish” and urged Koch to “maintain

the pressure by getting standby legislation that

permits him ‘to replace the society with a public

defender system at any time.” The union’s December

8 strike bulletin publicly challenged this

plan to replace the unionized Legal Aid Society,

asking, “what, then, distinguishes any City attempt

to replace Legal Aid with, for example, the dosing

of a factory and moving of it to another state solely

to avoid unionization? This is the classic runaway

shop situation and is illegal under current labor

law.” On December 21, according to the New York

Law Journal, Koch’s “Keenan Commission” conceded

that:

Creation of a public defender system with simultaneous

abandonment of Legal Aid is not the

course to take. It involves numerous startup costs

and on-going expenses …. There would seem to

be little point in jettisoning an established organization,

well qualified to perform the desired

function, equipped as it is with able personnel

and fortified by long experience … [and) known

for its vigorous independent representation of

indigents.

The report also found the Society to be of

higher quality and more cost effective than private

(18-B) representation. The commission, however,

called for replacement of the ALAA’ s right to strike

with arbitration binding on the Society and the

union, but not on the city-which funded the

Society’s criminal defense work.

Finally, on January 3, 1983-ten weeks into a

strike that had paralyzed the criminal courts-the

parties reached a settlement. It included an 11.2

percent salary increase over two years (compared

with management’s 4.31 percent prestrike offer),

establishment of a joint union-management

working conditions committee, and selection of

caseload arbitrators. Weldon Brewer would remain

suspended with pay, pending an arbitrator’s decision

(which ultimately upheld his dismissal).

These improvements were the result of a long

strike that had been characterized by a high degree

of democratic rank-and-file control, in which only

46 (or 8.5 percent) of the union’s 540 members

had crossed the line. As a result, no striker was

disciplined by management, the city, the courts, or

the bar. And although the strike cost each striker

thousands of dollars in salary, they had emerged

proude1~ more active, and more confident.

Shortly after the strike, however, a committee

of the Association of the Bar of the City of

New York issued an opinion-at Koch’s urgingsuggesting

that striking Legal Aid attorneys were

ethically obliged to continue to represent their

criminal clients.

The 1994 Strike

The 1982 strike won eight years of relative labor

peace. From 1990 to 1992, however, conflict erupted

when, after years of rising attorney workload, due

largely to a dramatic increase in prosecution for

crack cocaine, management sought to reduce attorney

health benefits and other compensation. The

ALMand 1199 support staff, working in unprecedented

alliance, conducted a series of escalating

protests, one-day strikes, and other actions.

By 1994, however, a strike seemed unlikely. In

June, the Society had convinced the city to deal

with the costly and poor-quality criminal representation

provided by private (18-B) lawyers by

increasing Legal Aid’s role. As a result of relentATTORNEY

STRIKES AT THE LEGAL AID SOCIETY OF NEW YORK CITY 671

less labor strife, the Society’s board of directors

came under the control of a more union-friendly

leadership, which agreed to raise senior attorney

salaries, implement more aggressive affirmative

action, improve health and safety, and otherwise

lift the quality of representation. A settlement

was anticipated by October 1, when the union’s

contract would expire.

In the middle of September, however, the expected

agreement was effectively vetoed by Mayor

Rudolph Giuliani, who declared it inconsistent

with his hardline position in upcoming municipal

labor negotiations. Although the Society emphasized

that it would self-fund the agreement, the

mayor issued an ultimatum: even modest salary

increases would provoke his severe displeasure.

Fearing retribution from its primary source of

funds, the Society agreed.

When the union contract expired on October

1, the mayor personally vowed to cancel Legal

Aid’s contracts if the attorneys struck; his criminal

justice coordinator privately reminded the union

that when Giuliani worked for Ronald Reagan

he had helped break the 1981 air traffic controller

(PATCO) strike.

At a mass meeting on the morning of Monday,

October 3, union members weighed their

options. Despite the mayor’s threats, most would

neither accept a net cut in compensation nor surrender

their National Labor Relations Act rights,

as private sector employees, to strike. Moreover,

many believed that Society management would

capitulate before Giuliani could actually carry out

his threat, or simply felt that they had no choice but

to fight back. Thus, attorneys voted overwhelmingly

to strike, before marching down the middle

of Broadway to join picket lines already erected by

striking 1199 support staff.

Within minutes, as reported by the New York

Times, Giuliani went on live television to declare

that “The canon of ethics says that you can’t

abandon cases, so I don’t know where lawyers

come off striking. And here they are abandoning

cases for an entire city. I’m not going to let

them do that.” Although Legal Aid supervisors

were prepared to fully staff the courts, Giuliani

unilaterally terminated all of the Society’s city

contracts, which, he said, would be replaced by

new agreements with other contractors. As a

result, he was quoted in the New York Daily News

saying, “This will be the last time lawyers strike

against the public interest.”

Although some press reports portrayed the

strikers sympathetically, the city elite enthusiastically

supported the mayor’s hardline position.

According to the Wall Street Journal, Arthur Liman,

a former Legal Aid Society president and onetime

Iran-Contra prosecutor, said that Giuliani “had a

responsibility” to end the walkout. The Daily News

editorialized that ‘/while [strikers] have every right

to bargain and demand higher wages, their ability

to shut down something as vital as the courts gives

them too much power … they must be held to the

same no-strike law as other key city employees.

. . ‘. They must never again be permitted to hold

the city hostage.”

The next day, Tuesday, October 4, the ALM

sought countermomentum with a mass press

conference on the City Hall steps. Foreshadowing

Giuliani’s later restrictions on First Amendment

expression, hundreds of police prevented the media

from contact with the strikers, who defiantly

chanted //Rudy, Rudy is his name, union-busting

is his game.”

Notably absent, however, were Governor Mario

Cuomo or City Council Speaker Peter Vallone, both

of whom were leading Democrats. Also missing

were leaders of the major municipal unions. On

October 5, the New York Times reported that Stanley

Hill, executive director of the American Federation

of State, County and Municipal Employees DC 37,

had publicly advised both sides to return to the

bargaining table. Six days later the New York Post

reported that Sonny Hall, president of Transport

Workers Union Local100 (subway and bus workers),

said, /The Legal Aid lawyers’ strike was indeed

a careless act, although they had an excellent case

for their demands …. Our concern is not why the

mayor said no, but how he said it.” Privately, the

leadership of both DC 37 and the United Federation

of Teachers (UFT) assured Giuliani that they were

1/neutral” about the attorneys’ strike, presumably

in hopes of softening the mayor’s demands for

$200 million in cuts in their members’ health care

benefits. As the New York Times explained:

Whether the Legal Aid workers realized it, they

had walked off their jobs at a critical point in

672 STRIKES IN THE PRIVATE SECTOR, SECTION 3

the city’s relationship with its work force. Mr.

Giuliani, having just completed a round of

budget cuts and staff reductions, has now gone

back to the workers, seeking more job cuts and

asking them to start contributing toward their

health-care benefits …. The Giuliani administration

seemed to fear that by striking, the lawyers

threatened the spirit of collective sacrifice.

Or, as City University of New York professor

Stanley Aronowitz pointed out, “Labor’s strategy

has become Giuliani’s strategy. The big fry make

their deals.”

Similarly, many private lawyers regarded the

1994 strike as an opportunity for enrichment rather

than solidarity, as they told Newsday. “I’ve got to

make a living,” explained attorney William Blasi,

who was anxious to pick up struck cases. Mitchell

Salloway, another private attorney, rejoiced that,

for him, the strike meant: “More cases. More

money. More food on the table.”

Further emb’oldened by such support, Giuliani

announced that any striking attorney who

did not return to work by the following morning

would be permanently blacklisted from all

future city-fvnded representation. Under these

overwhelming threats, the strikers returned to

work on Wednesday morning, and that evening,

they voted 544 to 150 to ratify a slightly improved·

agreement.

This brief but intense battle left attorneys feeling

a mixture of bitterness, defiance, and pride.· One

junior attorney, Young Ran Ra, told the New York

Times that “when I took this job I knew I wouldn’t

be paid well, but. .. [a] lot of people are contemplating

leaving because of what has happened.” Luis

Roman said, “if I’m back here tomorrow, the sign

on my door will read ‘Dump Rudy Headquarters.”‘

Mary Beth Mullaney spoke for many when she said,

in a letter printed in the New York Times,

Seven months ago I left my family and friends in

Irmo, S.C. … to work as a staff attorney for the

Legal Aid Society in New York It is the job I had

most wanted. On Oct. 1, I went on strike with

about 800 of my colleagues …. I was asking Legal

Aid Society management to redistribute funds

already within the society …. There was nothing

unethical about the strike …. I am ridiculed

by my family and friends for the work I do. But

I am proud of it because I am fighting to uphold

individual rights for everyone, not just those

who can afford it.

However, the New York Times praised Giuliani’s

“firm foundation in fiscal reality” and declared that

the strike had been” a foolish challenge.” Writing in

th<; New York Post, former Mayor Ed Koch praised

Giuliani’s” courage in taking on the striking Legal

Aid attorneys.” Newsday quoted Lawrence Kudlow,

economics editor of the right-wing National Review

and a chief budget economist in the Reagan administration,

who predicted that “Giuliani’s action

on the Legal Aid lawyers was a very significant

development; to some extent it’s a New York City

version of Reagan’s PATCO confrontation ….

I’m sure it has sent a lot of public union officials

scurrying.”

Opposition to the mayor’s conduct fell to

commentators such as writer and former public

defender James S. Kunen, who wrote in the New

York Times that “the strike was fated to fail because

these advocates for the indigent were demanding

the one form of compensation their fellow citizens

are unwilling to give them: respect.” In Newsday,

radical labor analyst Robert Fitch predicted that

municipal unions would suffer from their abandonment

of the Legal Aid strikers:

What’s surprising is not that Giuliani broke the

[ALM] strike by threatening to fire everybody

and is now picking his teeth today with the attorneys’

bones. It’s that the rest of the city’s municipal

labor movement-once regarded as the

most militant and powerful in America-mostly

looked on while the mayor gnawed away on the

carcasses of their fellow trade unionists.

The mayor, however, seemed determined to

inflict further punishment for the brief strike. According

to Newsday, he declared that the attorneys

“have a hope, not a reality of keeping their jobs,”

and he vowed that any “new [contract] between

the Society and the city … [must] prohibits trikes in

the future.” When blocked by an NLRB investigation

from pursuing a permanent ban on Legal Aid

strikes, he demanded an immediate $13 million cut

in the Society’s $79 million city criminal defense

ATTORNEY STRIKES AT THE LEGAL AID SOCIETY OF NEW YORK CITY 673

funding. This cut led Legal Aid criminal-defense

attorneys to surrender a week’s compensation in

order to prevent the layoff of 1199 support staff and

junior attorneys. The New York Times applauded

these cuts for yielding II cheaper, more efficient

defense services.”

Mayor Giuliani also announced plans to transfer

an additional 25 percent of the Society’s city

criminal funding to nonunion contractors, thereby

ensuring, reported the New York Times, that the city

would “no longer be at the mercy of one group that

could decide in the future to go out on strike, and

then all of a sudden you have a massive backup

in the criminal justice system.”

But strikebreaking was not the mayor’s only

purpose. The autumn 1995 City journal, a publication

of the Manhattan Institute, a Giuliani administration

think tank allied with the right-wing

I-Ieritage Foundation, charged that the Society

was dominated by the union and “leftist” poverty

lawyers whose successful representation of public

housing tenants, the homeless, and juvenile offenders

had interfered with the Giuliani administration’s

efforts II to improve the city’s quality

of life.” But “with Legal Aid cut down to a more

appropriate size,” the mayor could ;’undertake a

broad legal and political counterattack against the

pernicious consent decrees and court mandates …

[and] campaign more effectively in the Legislature

for needed reforms in such areas as juvenile justice

and homeless policy.”

Recognizing such motives, Council member

Adam Clayton Powell IV, representing East Harlem

and the Bronx, was quoted in the New York Times

as denouncing the transfer of Legal Aid funds to

nonunion contractors as “another vicious attack

in a long line of vicious attacks on the poor, the

African-Americans and Hispanics who get caught

up in this system. For [Giuliani] to be taking this

type of action simply as retribution for the strike

that they undertook last year is really appalling.”

Similar statements were issued by former mayor

David Dinldns and the Central Labor Council. The

Amsterdam News wrote:

Giuliani has been more cruel than human, on

the cutting edge of the kind of psychosis that

he regards poor whites, Blacks and Hispanics

as butterflies, whose wings he can tear off with

impunity while he has the temporary power of

the bully …. The Legal Aid Society has taken a

bold step [of opposing new Giuliani indigent

defense contractors]. It is imperative that they

be supported.

The bluntest statement, jointly issued by the

Center for Constitutional Rights, the National

Conference of Black Lawyers, National Emergency

Civil Liberties Comrnittee, and the National Lawyers

Guild stated that they “reaffirm our support

for The Legal Aid Society and its unions in reversing

Mayor Giuliani’s attacks, in particular, call for

attorneys to withhold any and all aid and comfort

to new strikebreaker indigent defense agencies.”

‘ By July 1998, the Giuliani administration used

such contracts to slash Legal Aid criminal funding

by an additional $13 million, without any significant

decrease in the Society’s overall workload,

leading one judicial oversight body to report, according

to Newsday, that the Socie.ty ‘/is obligated

to represent almost the same number of clients for

substantially fewer dollars,” thereby overwhelming

Legal Aid attorneys with impossible caseloads,

arraignments, and other work. In the process, this

posts trike de-funding seriously; weakened continuity

of representation and other gains long fought

for by the ALM.

Ironically, howeve1~ this same period led to

dramatic improvement in the Society’s internal

labor-management relations, including the Legal

Aid board’s deliberate rejection of the mayor’s

demand to break the ALM, and its appointment

of new management whose primary mission was

to ensure labor peace.

As a result of such changes, ALM contracts

in 1998 and 2000 yielded an average 6 percent

compensation increase-by far the greatest in the

ALAA’ s history, and far higher than that negotiated

by municipal unions for the same period.

Moreover, both the ALM and 1199 won a unique

level of influence over the Society’s hiring, promotion,

legal practice, budget, and other critical

issues. Not until after Giuliani left office in 2001,

however, were the Society and its unions able to

recoup some of the millions in lost city funds. And

Giuliani’s nonunion contractors have outlived his

administration, thereby posing an ongoing threat

to the unionized Society.

674 STRIKES IN THE PRIVATE SECTOR, SECTION 3

Since it was founded in 1876, the Legal Aid

Society in New York City-the oldest and largest

legal aid agency in the United States-became

the national model for small, private nonprofit

charities representing indigent clients in civil

(and later juvenile) cases. In the 1960s, however,

it was largely transformed into the world’s largest

indigent-criminal defense (or public defender)

agency. Within just a few years, this nearly unique

transformation led to the first attorney strikes in

the United States. Therefore, New York City’s

Legal Aid strikes, which took place between 1970

and 1994, have been a response to the often-dismal

state of indigent criminal defense representation.

See also: Three Strikes Against the New York City Transit

System, 277.

Bibliography

Letwin, Michael. “History of The Association of Legal

Aid Attorneys UAW Local 2325.” Available at www.

alaa.orypages/History.pdf. Revised August 1999.

Lindenauer, Susan E. “Equal Justice: The History of the

New York Legal Aid Society.” Update on Law-Related

Education 18, no. 3 (Fall1994).

“Legal Aid Society.” In The Encyclopedia of New York City,

ec;l. Kenneth T. Jackson, 661-62. New Haven: Yale

University Press, 1995.

Legal Aid Society. Encyclopedia of Company Histories (n.d. ).

Available at http://www.answers.com/topic/the-legal-aidsociety.

Mirsky, Chester L. “The Political Economy and Indigent

Defense: New York City, 1917-1998.” In 1997 Annual

Survey of American Law, 891-1017.

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