LOUISVILLE, Ky. — A shortage of attorneys at the Jefferson County Public Defender's office is driving up caseloads for those who remain on the job, making it increasingly difficult to provide clients the representation they are constitutionally guaranteed, according to attorneys in the office who have unionized to improve conditions. But that unionization effort has hit a roadblock with management.
In January, by a vote of 32 to 5, attorneys in the office formed the Louisville Metro Public Defender’s Union, citing “untenable working conditions.” But for months, management has “refused to bargain with the union,” said Ben Basil, general counsel with the IBEW Local 369, the union with which the public defenders have organized.
“They refuse to provide us any information,” Basil said. “They refuse to do any of the things that they’re obligated to do under federal law.”
A National Labor Relations Board complaint filed against the public defender’s office last week supports Basil’s claim. Management in the office “has been failing and refusing to bargain collectively and in good faith with the exclusive collective-bargaining representatives of its employees,” the complaint says.
Leo Smith, executive director of the public defender’s office, explained the situation differently in a Metro Council Budget Committee hearing Monday.
“Contrary to what has been said, I am not opposed to unions,” he said. But Smith added that there are concerns over whether it is ethical for lawyers in the public defender’s office to unionize. To settle that question, Smith said his office is waiting on a ruling from the Kentucky Bar Association, which will then be taken to the Kentucky Supreme Court.
Once the public defender’s office receives the final ruling, Smith said, “we will proceed accordingly with the definitive guidance of the court.”
Basil said there is no ruling necessary. “There is no prohibition,” he said. “And there are union lawyers all over the country, including in Louisville right now.”
A ‘crisis’ in the courtroom
Despite their dispute over what’s holding back the union effort, attorneys and management in the public defender’s office agree on many of the issues it faces.
Most pressing is the low salary for attorneys working in the office. The starting annual salary is $45,000, which Smith said is so low that it prevents attorneys from seeking jobs as public defenders and makes it more difficult to keep those who work there.
The hours are also long. Smith said the expectation is that attorneys work 60 hours a week, meaning an attorney making the office’s starting wage earns $14.42 per hour.
This information is known to would-be public defenders and prevents them from joining the office, said Metro Councilwoman Cassie Chambers Armstrong, who is also a professor at UofL’s law school.
“Salary and caseloads are really creating this crisis,” she said. “It’s making it so that bright young people who really want to make a difference, do criminal defense, do it for folks who can’t afford attorneys, either aren’t going into the field or aren’t staying there once they’re in.”
Smith said the office has 78 positions, but only 53 are currently filled. That’s resulted in an average caseload of roughly 110 clients per attorney, with some handling significantly more and some, particularly those who work on death penalty cases, handling fewer. The union claims the number is much higher, tweeting last month that case numbers range from 350 to 200 per attorney.
“It is [the] hope that the increases in funding will allow our office to improve employee salaries which would help staff attrition and in turn reduce caseloads,” Smith told Metro Council.
These problems are not unique to Louisville. In December, the Lexington Herald-Leader reported that underpaid public defenders are resigning all across Kentucky, leaving the system in crisis. Over the years, the American Bar Association has released a series of reports on the public defender shortages across the nation, from New Mexico to Louisiana, and Oregon to Rhode Island.
The result is a legal system that may fail to provide suspects with the defense they deserve. “The public defender’s job is to represent indigent people, the most vulnerable people in our community,” Basil said. “To the extent that a lawyer is overwhelmed with 200 or 300 cases, that obviously doesn’t serve the client very well.”
Basil added these people are all innocent until proven guilty and public defenders are an essential part of “keeping the system honest, to make sure that police and prosecutors follow the law, that they get their evidence legally, and that they get the right person.”
It is increasingly common for the people charged with upholding that constitutional guarantee to turn to organizing their offices. In April 2020, the American Bar Association reported that unionization among public defenders was on the rise. Cities such as Philadelphia, Los Angeles, and Lancaster, Pennsylvania have seen their public defenders move toward unionization.