. THE ENCYCLOPEDIA OF 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 I I The encylopedia of strikes in American history I Aaron Brenner, Benjamin Day, Immanuel Ness [editors]. p.cm. 1 Includes bibliographical references and index. 1 ISBN 978-0-7656-1330-1 (cloth: alk. paper) I 1. Strikes and lockouts-United States-Encyclopedias. I. Brenner, Aaron. H. Day, Benjamin, 1979- III. Ness, Immanuel. HD5324.E39 2008 , 331.892'97303-dc22 2007036072 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 ATTORNEY STRIKES AT THE LEGAL AID SOCIETY OF NEW YORK CITY Michael Z. Letwin In 1970, Legal Aid attorneys in New York City representation in New York City, conditions did becan1e the first lawyers in the United States to go not change; politicians, judges, Wall Street lawyers, on strike, and they did so again in 1973,1974,1982, and Legal Aid management simply did not feel and 1994. Despite expectations to the contrary (and compelled to change them. for reasons that cannot be fully explored here) few ln 1968-69, these public defenders took mat­ lawyers elsewhere have followed their example. ters into their own hands by founding the As­ It is clear, however, that Legal Aid strikes in sociation of Legal Aid Attorneys (ALM), which New York City took place in the wake of Gideon v. conducted five major strikes between 1970 and Wainwright (372 U.S. 335, 1963), in which the U.S. 1994. Although widely decried as" unprofessional" Supreme Court dramatically expanded the right of by the city's political, judicial, and corporate elites, counsel for indigent criminal defendants. Instead these strikes were catalysts for systemic improve­ of establishing a public defender office to meet the ment of indigent criminal representation in New obligations imposed by Gideon, New York City's York City, including continuity of representation municipal government contracted with the Legal (assignment of the same triallpwyer throughout Aid Society, a privately funded charity established a given case), retention of experienced attorneys in 1876, as its primary public defense provider. 1b through higher compensation, workload limits, fulfill its city contract, the Society hired hundreds affirmative action, and health and safety. of public defenders. Thus, for more than three decades, labor rela­ Despite Gideon, however, New York City's tions in New York City's criminal justice system criminal justice system dealt contemptuously with have been characterized by a recurring cycle of poor defendants. Grossly inadequate city funding accumulated grievances, strikes, and their after­ for indigent defense meant low salaries and impos­ math. sible caseloads, turning the attorneys into glorified production workers who could offer only perfunc­ Industry Background (1876- tory representation for an overwhelming number 1966) of clients, nearly all of them African American and Latino. This assembly line was epitomizeCl by In 1876, Der Deutsche-Rechtsschutz-Verein was fragmented representation in which clients were established to provide free legal assistance to seen by a different attorney on each of many court German immigrants, primarily in civil matters. appearances in the same case. In 1896, under the auspices of leading members By the late 1960s, the civil rights movement of the private bar, it was renamed the Legal Aid had condemned such poor-quality indigent de­ Society. In the late nineteenth and early twentieth fense as just another reflection--alongside police centuries, criminal defense representation was brutality and discriminatory sentencing-of in­ typically provided by private solo practitioners, stitutional racism throughout the criminal justice often members of immigrant communities,· for a system. But despite a series of official reports and fee. During the Progressive Era, however, the legal mass inmate protests that sharply criticized such elite came to regard such attorneys as an impedi- 665 666 STRIKES IN THE PRIVATE SECTOR, SECTION 3 ment to swift and sure deterrence of immigrant Most major cities responded to Gideon by crime. Lawyers for the rich were also concerned establishing or expanding a governmental public that poor immigrants felt "that they were being defender office. Instead, New York City govern­ denied redress, protection and equality before the ment contracted with the already-existing Legal law," particularly in regard to ineffective criminal Aid Society to serve as its primary public defender defense representation. The resulting political organization. To fulfill this contract, the Society radicalization, warned Legal Aid Society president hired hundreds of young public defenders, many Charles Evans Hughes in a 1920 speech before the of them heavily influenced by the civil rights, stu­ American Bar Association, threatened to "open de-nt, and anti-war movements. a broad road to Bolshevism" in the United States. These new defenders were appalled by the Although initially concerned that the "public contrast between Gideon's lofty promise and the defender movement" was a socialist plot designed grim reality of daily Legal Aid practice. As Gerald to undermine private profit, the legal elite ulti­ Lefcourt recounted in a 1994 interview with the mately agreed with other reformers "to accept author, when he joined the Society in 1968: the replacement of private lawyers in indigent [criminal] cases, because they feared that assigned I had no training at all. There was no orientation. counsel gave the poor legitimate grievances that ... There were no mock trials. We did arraign­ contributed to social unrest and presented an on-· ments for a month, and then we were thrown going impediment to the efficient administration into battle. I had no clue as to what the right thing of criminal justice." In 1914, the first such indigent was to do. We had no research tools ... no real public defender office was established in Los An­ offices, no telephones. We couldn't call witnesses. geles. Subsequent years witnessed a national shift There was no anything. I never interviewed a to such agencies, the public or private character of defendant except in the prison or on the floor which depended on the influence of the organized of the hallway right before a hearing or trial. In bar in a particular jurisdiction. the back of my mind, I knew that I should do an These early reformers, the legal elite, and investigation, but there were only one or two institutional defenders all agreed that public de­ investigatorsoperating out of Manhattan for the fense institutions should adopt a nonadversarial whole [Legal Aid] Society. approach. In the words of one leading public de­ fender advocate, the prosecution and defense Moreover, clients (mostly African American or worked together to ensure that "no innocent man . Latino) saw different Legal Aid lawyers (mostly may suffer or a guilty man escape." WithotJ.t the white males) at each court appearance. financial incentive to prolong a case, it was argued,· Lefcourt and others responded by organizing public defenders would encourage most defen­ the Association of Legal Aid Attorneys, an indepen­ dants to plead guilty, if necessary by seeking to dent union that was certified as the lawyers' exclu­ withdraw from cases in which" guilty" clients were sive bargaining representative in December 1969. intransigent. Rather than seeking "technical" de­ (The Association of Legal Aid Attorneys affiliated fenses or go to trial, public defenders encouraged with District 65, an independent general union in their clients to testify, thereby ensuring that only 1978, and the union became a local of the United an innocent person was acquitted, and appeals Auto Workers [UAW] in 1996.) Several months were brought only on merit. later, city jail inmates rebelled, in part to protest Pursuant to this model, the New York Legal the poor quality of Legal Aid representation. The Aid Society gradually took on a growing but still Society responded by threatening to terminate limited number of criminal defense assignments. its contract with the city to defend criminals un­ This qualitatively changed only as a result of the less it received more funding. After briefly toying U.S. Supreme Court's 1963 decision in Gideon, with the idea of a public defender system, the city which greatly broadened the right of counsel to provided a small amount of additional money. criminal defendants, regardless of their ability to Regarding this as merely a token gesture, on May hire a lawyer. 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 News, that "in the next five years we will represent in Manhattan conducted the first lawyers' strike one million indigent clients. We are determined in the United States. to create conditions under which they can be The legal establishment reacted with hostil­ represented justly and effectively.... This strike ity. The New York Law Journal cited "authoritative will be won when no longer will you hear a judge sources" who "blame[ d) the strike on the increas­ ask a defendant: 'Do you want a lawyer or do you ing number of so-called 'militant' attorneys who want legal aid?'" have joined the society in recent years ..