From: Michael Letwin
Sent: Thursday, December 22, 2005 2:51 AM
To: 1199 Members; ALAA MEMBERS
Subject: We Have Been in the Transit Workers’ Shoes
As discussed below,* we better than anyone know the need for solidarity with the transit workers. For in 1994, we too struck to defend salary and benefits — and were viciously attacked by the very same forces now trying to break the TWU. We shouldn’t have been left to stand alone then; the transit workers shouldn’t be left to stand alone today.
[*Excerpted from History of the Association of Legal Aid Attorneys UAW Local 2325 (Revised August 1999), posted at: http://www.alaa.org/pages/History.pdf%5D
At midnight Friday, September 30, , 150 ALAA and 1199 members chanting “strike” marched into Manhattan Criminal Court arraignments and escorted their working colleagues out to a candlelight vigil that continued late into the night.
On Saturday and Sunday, union members from across the city joined the Manhattan picket line. Like earlier generations of Legal Aid lawyers, the mood was grave but defiant. ALAA told the press:
“If you cannot attract and retain experienced attorneys to represent indigent clients, then the experienced lawyers will be working only for those who can pay — and that’s not the kind of equal justice we believe in. Poor people deserve no less than the Menendez brothers or O.J. Simpson when it comes to quality legal representation. Until Legal Aid lawyers are treated fairly, the highest quality legal representation is reserved for the rich”. . . .
The administration replied by threatening to wipe out both Legal Aid and the union. City Criminal Justice Coordinator Katie Lapp privately warned that Giuliani would cancel the Society’s contracts if ALAA members voted Monday for an all-out strike. She stressed the Mayor’s determination by recounting his prominent part in breaking the 1981 PATCO air traffic controller strike. Giuliani uttered the same threats publicly, vowing that “[w]hat my administration will do . . . if they refuse to go to work . . . is to cancel the [Legal Aid] contract.”
October 3 Strike Vote
It was in these circumstances that ALAA members convened at New York University on the morning of Monday, October 3. While the subsequent strike vote may, in retrospect, appear hard to fathom, the decision facing ALAA members was far from obvious. Indeed, for nearly two hours, the members freely and openly debated the choices. . . .
[A]rmed with coverage by the United Auto Workers (UAW) strike fund, members voted 482-304 on the first ballot, and 681-56 on the second, to extend the strike into the regular work week. The immediate mood was spirited, but sober. . . . Quickly adjourning after the strike vote, 800 Staff Attorneys — surrounded by TV cameras — marched down the middle of Broadway, past City Hall, to Manhattan Criminal Court, where they joined 1199 support staff already staffing the picket lines.
PATCO Revisited: Giuliani Cancels Legal Aid Contracts
Within minutes, Giuliani boasted to live television news that “[t]he 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.” He then announced both termination of all the Society’s city contracts — criminal and civil — and his decision to issue requests for proposal (RFPs) for the Society’s criminal work. “Hopefully,” said Giuliani, “this will be the last time lawyers strike against the public interest.”
Joining in the attack was Paul Crotty, a recently-departed Legal Aid Board officer who had remained bitter that the 1992 ALAA contract had been too generous. Now Giuliani’s Corporation Counsel, Crotty publicly demanded that the Board “fire those lawyers for going out on strike.” While he “conceded that the courts would face disruption” if the city proceeded with RFPs, Crotty “insisted upon punishing the Legal Aid Society”. . . .
As in the past, some press reports treated the strikers sympathetically, while the city elite lined up with the Mayor. Paul Weiss partner Arthur Liman, a former LAS president and onetime Iran-Contra prosecutor, announced that Giuliani “had a responsibility” to end the walkout.
The Daily News editorialized that “[w]hile [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.”
May 4 Blacklist Ultimatum And Contract Settlement
The next day, Tuesday, October 4, ALAA sought to generate counter-momentum by bringing strikers and their allies to a press conference on the City Hall steps. Foreshadowing subsequent Giuliani administration attempts to repress First Amendment expression, hundreds of police physically blocked the media from contact with the strikers, who defiantly chanted “Rudy, Rudy is his name, union-busting is his game”. . . .
Notably absent, however, were the major city unions that Giuliani’s attack on ALAA was designed to intimidate. Publicly, DC 37 Executive Director Stanley Hill advised “[b]oth sides [to] go back to the bargaining table.” Privately, DC 37 and the United Federation of Teachers (UFT) — the two largest municipal unions — conveyed to Giuliani their “neutrality,” presumably hoping to earn his favor in upcoming negotiations on his demands for $200 million savings in their members’ healthcare benefits.(12)
Sonny Hall, president of Transport Workers Union Local 100 (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.”
As the New York Times explained, the municipal union leaders were unwilling to antagonize the administration:
“Whether the Legal Aid workers realized it, they had walked off their jobs at a critical point in 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. . . . Until now, the municipal unions have worked unexpectedly well with the Republican Mayor, recognizing both the city’s fiscal difficulties and their own shortage of political support among the general public. But hard times and pent-up wage demands can be a volatile mix for labor leaders to handle unless they convince their members that the pain is shared and no one has a choice. The Giuliani administration seemed to fear that by striking, the lawyers threatened the spirit of collective sacrifice.”
Or, as CUNY professor Stanley Aronowitz pointed out, “[l]abor’s strategy has become Giuliani’s strategy. The big fry make their deals.” Also notably silent were City Council Speaker Peter Vallone and Governor Mario Cuomo — both Democrats.(13)
The strikers received support in some corners of the organized bar. NYCLU director Norman Siegel appeared at ALAA’s October 4 press conference.
The National Lawyers Guild/NYC Chapter offered its “support for your decision to strike over wages,” denouced “Giuliani’s decision to cancel the [LAS] contract” as being “designed to disenfranchise the city’s legal indigent defendant population and also cripple some of the most progressive elements in the New York City Bar,” and offered to cosponsor a press conference with the National Conference of Black Lawyers to back the ALAA. . . .
Many private lawyers, however, regarded the 1994 strike as an opportunity for enrichment, rather than solidarity. . . .
Late that afternoon, emboldened by this alignment of forces, Giuliani issued the public ultimatum that any striking attorney who did not return to work by the following morning would be permanently blacklisted from all future city-funded representation:
“If you want to show us that you’ll live up to your ethical obligations of not walking out on your clients, you have until tomorrow to do that. If you don’t then you’re not part of a responsible workforce that we could rely on in the future . . . There are many lawyers in the city looking for work. Privately, he demanded that the Society’s Board avoid settlement in order to have the chance to make good on this threat.”
While most ALAA members continued to respond courageously, ALAA’s leadership realized the union could not put its very existence at the mercy of Giuliani’s escalating — albeit illegal — threats. On Tuesday evening, after learning that the Board leadership was similarly concerned for the Society’s future, ALAA met Society at the offices of New York Assembly Speaker Sheldon Silver, where they negotiated a slightly better package than that rejected by union members a day earlier.
Pursuant to this tentative agreement, the ALAA Bargaining Committee directed members to report to work the next morning, hoping thereby to deprive Giuliani of an excuse to blacklist ALAA strikers. On the evening of October 5, ALAA members convened at 1199’s auditorium and ratified the agreement by a vote of 544-150-3. . . .
But Giuliani, now robbed of an excuse for mass firings, asserted that ALAA’s settlement meant nothing without his approval, that “[t]hey [Legal Aid attorneys] have a hope, not a reality of keeping their jobs,” and that any “new [contract] between the Society and the city . . . [must] prohibit strikes in the future.” Asked about the likelihood of issuing RFPs for the Society’s work despite the strike’s brief duration, Giuliani replied, “[i]t’s very likely.”
Giuliani’s “victory” over the strikers was the subject of widespread comment. The New York Times praised the Mayor for his “firm foundation in fiscal reality . . . . The [strike] was a foolish challenge.” Ed Koch, who had supported the 1974 strike, before unsuccessfully trying to break the 1982 strike, now celebrated Giuliani’s “courage in taking on the striking Legal Aid attorneys.”
Lawrence Kudlow, economics editor of the far-right National Review and a chief budget economist during the Reagan administration, gleefully 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.”
Writer and former public defender James S. Kunen came to ALAA’s defense in the Times:
“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.”
Labor analyst Robert Fitch concluded that “what’s surprising is not that Giuliani broke the [ALAA] 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”. . . .
Quality Representation Under Increased Attack
In the days, weeks and years that followed the strike, the Giuliani administration has pressed its attack on Legal Aid and its unions. Its plan to use the strike as a cover with which to undermine indigent criminal representation was laid out in an internal memo of October 5, 1994, the day that the strikers returned to work. These included ending ALAA’s right to strike, breaking continuity of representation through an “arraignment bureau” and replacing annual salary increases with “merit” pay. Blocked by an NLRB investigation from pursuing a permanent no-strike clause, Giuliani relentlessly pursued these objectives by other means.
Within days of the strike, Giuliani announced his demand for an immediate $13 million cut in the Society’s $79 million city criminal funding. The Mayor specified that Legal Aid achieve this by drastically reducing the number of CDD and CAB supervising attorneys, thus creating a pool of experienced criminal defense lawyers, most of whom chose to blame their predicament on the Society and ALAA, rather than on the administration. While ALAA and 1199 lobbied fiercely against this cut, a fearful Legal Aid Board offered only mild resistance. Organized bar reaction was similarly meek. . . .
Faced with this fait accompli, the union was forced to renegotiate the October 5 contract settlement; on January 23, 1995, members voted by 369-88 that each CDD and CAB Staff Attorney would surrender a week’s compensation in order to protect 1199 support staff and junior Staff Attorneys from involuntary layoff. On January 30, support staff finally voted 311-59 to ratify their contract, which provided for a two percent salary increase and a $300 bonus. And in early February, the Society signed a new city criminal contract that reduced its funding by 16.5 percent, from $79 million to $66.4 million. . . .
By July 1998, the Giuliani administration had slashed Legal Aid criminal funding to $53 million, without any significant decrease in the Society’s overall workload. Some of these funds have gone to 18-B assigned counsel, whose cost has increased since 1994 from $49 million to $62 million.
Giuliani Establishes Runaway (Nonunion) Defenders
The bulk, however, has gone to runaway (nonunion) contractors specifically established to bid for Society work pursuant to Giuliani administration RFPs first issued on October 19, 1995 for 25 percent of the Society’s criminal funding. Although the administration claimed that the RFPs introduced “healthy competition” into indigent defense representation, it explicitly barred Legal Aid from bidding. More candidly, Giuliani reiterated that their underlying purpose was to generate permanent strikebreakers so 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.”
Lurking behind administration policy was the Manhattan Institute, a Giuliani think-tank. . . .
Although the mainstream bar reacted to this attack with cowardice, others came forward to oppose the Giuliani/Manhattan Institute’s RFP agenda. El Diario/La Prensa denounced the RFPs, which “can only be interpreted as an attack against our society’s vulnerable segments.”
Gary Abramson, chief attorney of the Orange County Legal Aid Society, pointed out that Giuliani “appears to be acting more out of animosity toward Legal Aid than from a point of fiscal responsibility or honest interest in uninterrupted court operation.”
In early November 1995, City Council hearings on the RFPs, Councilmember Adam Clayton Powell IV, representing East Harlem and the Bronx, characterized the RFPs 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 you [the Giuliani administration] to be taking this type of action simply as retribution for the strike that they undertook last year is really appalling.”
Columbia Law School dean Lance Leibman stated that Experts around the country have studied the best way to supply legal services to the poor, and those experts have always concluded that the methods used in New York by The Legal Aid Society supply outstanding services and quality at the right price to the taxpayer. This is a system that is working, and it would be a great mistake to change it in this way.
Maryland Law School Professor and former ALAA member Douglas L. Colbert wrote that “the lawyers’ decision to strike was intended to hold onto their most senior lawyers. Like prior Legal Aid lawyer strikes, which were necessary to accomplish reasonable caseload limitations and continuous representation by the same lawyer, last year’s strike was tied to maintaining adequate client representation.”
On November 30, 1995, a statement issued by 47 Supreme, Criminal, Civil, and Court of Claims judges said that “[w]e believe it would be a mistake for the city to fragment the representation of criminal defendants, and that such fragmentation would adversely affect the effective administration of justice for several reasons.” Similar statements were issued by former Mayor David Dinkins, 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 has the temporary power of the bully . . . The Legal Aid Society has taken a bold step [of opposing the RFPs]. 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 Committee, and the National Lawyers Guild, “reaffirm[ed] 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.”
To neutralize such opposition, the administration awarded the RFP contracts to runaway shops managed and staffed by former LAS personnel, many of them well-regarded attorneys,(14) including three out of four of ALAA’s 1988-89 officers.(15)
In exchange for these contracts, the beneficiaries named themselves as collaborators willing to bestow legitimacy on the dismemberment of LAS by embracing the administration’s violation of continuity of representation, and to falsely accuse Society staff of “inefficiency” and strike-related “disruption.” Their very participation proved invaluable in confusing the loyalties and perceptions of many who would otherwise have instinctively understood and resisted the administration’s objectives.
Having obtained contracts, the runaways have acquired an urgent and independent need to elevate their “legitimacy,” particularly within the courts and the broader legal community, in order to survive beyond Giuliani’s possible year 2000 Senate Race or 2001 mayoral term-limit, whichever comes first.
Not surprisingly, the administration’s policies have inflicted severe damage on the quality of indigent criminal representation, as reflected in reports by independent agencies. In 1998, for example, the Indigent Oversight Panel of the Appellate Division, First Department, reported that the Society “is obligated to represent almost the same number of clients for substantially fewer dollars,” while the runaway defenders are abundantly funded to handle a limited caseload, thereby overwhelming Legal Aid attorneys with impossible caseloads, arraignments and other work.
Impact On Legal Aid
This asphyxiation of Legal Aid has seriously weakened vertical continuity and other essential elements of high-quality representation. Staff Attorneys’ ability to resist has been further undermined by the runaway defenders’ willingness to curry favor with the administration by abandoning vertical continuity; participating in arraignment body count contests; pandering to judges, court administration and even district attorneys; replacing seniority with “merit”-based salaries unilaterally set by management; and, in some offices, permitting part-time private practice.
12. Ray Markey, president of DC 37 Local 1930, recalls that when he rushed to the executive director’s office to seek support for striking ALAA and 1199 members, he found Randy Levine, Giuliani’s labor chief, already enlisting Hill’s support. In the end, members of DC 37, the UFT and numerous other municipal unions ended up with a two-year wage freeze and replacement of union jobs with workfare participants. Collaboration with Giuliani finally caught up with Hill in November 1998, when, surrounded by the indictment of his cronies for stealing DC 37 funds, he was forced to admit that his administration had stuffed ballot boxes to ensure ratification of this unpopular contract. DC 37 is now in trusteeship and Hill has resigned.
13. In November 1994, Republican George Pataki defeated Cuomo, despite Giuliani’s support. In 1998, Democratic gubernatorial candidate Vallone restored $2.5 million more to the Society than the administration had proposed. 14. The seven runaway shops are: “Appellate Advocates” in the Second Department (ex-CAB deputy chief Lynn Fahey); “Bronx Defenders” (ex-Legal Aid attorney Dan Arshack and Neighborhood Defender Services deputy chief Robin Steinberg); “Brooklyn Defender Services” (ex-Brooklyn CDD supervisor Lisa Schreibersdorf); “Center for Appellate Litigation” in the First Department (Fahey’s husband and ex-CAB manager Bob Dean); “Queens Law Associates” (ex-Queens CDD supervisor Laurie Zeno); “New York County Defenders Association” (ex-Brooklyn CDD supervisors Michael Coleman, Carolyn Wilson and Kevin McConnell); and “Battiste, Aronowsky & Suchow” in Staten Island.
15. These were: John Yong (president), Alan Rosenberg (Secretary) and Steve Dean (Treasurer). Fortunately, few other representatives — current or former — defected.