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Public defenders, facing abysmal pay, attempt to unionize

“I think the uncertainty is really what makes people leave,” said Rachel Scotch on the high turnover of public defenders.
Jim Davis/Globe Staff
“I think the uncertainty is really what makes people leave,” said Rachel Scotch on the high turnover of public defenders.

As a public defender in Malden, representing clients who can’t afford to hire a lawyer, Rachel Scotch makes less than $49,000 a year, which she augments with a job as a greeter at Fenway Park in order to cover her rent and pay down her considerable law school debt.

Of the 36 lawyers who started working for the Committee for Public Counsel Services five years ago, Scotch said she is one of only 10 remaining — a consequence, she says, of the low salaries and uncertain career paths at the state agency. Indeed, public defenders are paid less in Massachusetts than in any other state, ranking just below West Virginia when cost of living is accounted for, according to the Massachusetts Bar Association.

In an attempt to improve working conditions and salaries, Scotch and her fellow employees are attempting to unionize. But it’s no simple undertaking.

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Public defenders have tried to organize twice before, in 1979 and in 1993, but were rejected by the state labor relations department because of what they say is an oversight in the collective bargaining statute that gives public employees the right to unionize. They are also trying, for the second time, to get a bill passed that would fix the problem.

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Joining the ranks of the Service Employees International Union,
Local 888, would give the attorneys more power to bargain for higher salaries and regular promotions, they say, which would help reduce the turnover among the state’s 500 full-time public defenders and more than 200 secretaries, investigators, and social workers.

They argue that this would save the state money by cutting back on training and recruitment of a steady stream of new lawyers.

“We’re asking them to do incredibly important work,” said state Senator Jason Lewis, Democrat of Winchester, who is sponsoring a bill that would clear the way for the public defender’s office to organize. “This is a constitutional right that you’re innocent until proven guilty and if you’re indigent that you will have good, strong representation. But if we are not paying our public defenders a fair and adequate wage, then that puts at risk the basic constitutional right to representation.”

The difficulty in forming a union stems from the fact that the Committee for Public Counsel Services, or CPCS, is not considered a public employer in the executive or judicial branches, whose workers are covered by the state’s collective bargaining statute for public employees.

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The statute also does not specifically name CPCS as a public employer. For this reason, the state labor relations department has twice ruled that the committee’s employees are not eligible to organize.

While they wait in hopes of a legislative change, the public defenders are trying a different tactic, petitioning to organize under a private-sector collective bargaining statute that also covers state employees that are not subject to the jurisdiction of the National Labor Relations Board, including MBTA employees and those who work for the Steamship Authority.

The Committee for Public Counsel Services responded in a statement that the agency has long advocated competitive compensation for its staff. Those efforts have intensified recently, resulting in a funding increase in this year’s state budget. Chief counsel Anthony Benedetti did not say whether that additional money would result in raises.

“We have always maintained that CPCS staff should receive salaries that are at least equal to those paid to like positions in other Commonwealth agencies and those of other public defender offices across the country,” he said. “Over the last several years, our advocacy has become more aggressive, urging well-deserved, improved compensation for both our public staff and private counsel.”

Benedetti did not address the union campaign.

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Other attorneys employed by the state are unionized, such as staff members of the Department of Children and Families, the Department of Correction, and the Department of Transitional Assistance. Public defenders are also organized in other states, including Legal Aid attorneys in New York City and county employees in Chicago and Seattle.

The work of a public defender is intense, CPCS attorneys say. They are in court almost every day, representing clients in desperate straits: drug addicts, people suffering from mental illness, and poverty-stricken defendants charged with serious crimes.

“You’re standing up and speaking for someone who often doesn’t have a voice,” said Ben Evans, 45, a public defender in Fall River who makes $56,000 a year as a 10-year veteran. “Treating that person with respect and dignity makes a tremendous difference for them.”

But the low pay and lack of concrete job protections mean that many Massachusetts public defenders don’t stick around for long. One former employee recently left for a better-paying job at a law firm in Boston. Another is on his way to the Baltimore public defender’s office, where starting attorneys make about $16,000 more than they do in Massachusetts.

“I think the uncertainty is really what makes people leave,” said Scotch, the Malden public defender, “because they just don’t know what their career is going to look like.”

Related:

Low pay blamed for high turnover among public defenders

Criminal justice lawyers are becoming ‘working poor,’ study says

Katie Johnston can be reached
at katie.johnston@globe.com. Follow her on Twitter @ktkjohnston.