Public defenders argue their own case

Starting out in 2022 as an assistant public defender in Monroe County, Gregory Lebens-Higgins had a general sense of the injustices that occur in the criminal justice system.

But, inundated with case after case, often brought against poor people in tough circumstances, those injustices, as he calls them, would soon become very real and personal, a process that he says every public defender is forced to grapple with.

“Everybody’s got to find their coping mechanisms,” Lebens-Higgins says. “We’re somewhat comparable to a doctor. We can often diagnose the problem, we can provide a prognosis, but we can’t always heal the patient. There are times when people are going to get convicted, and they are going to get long sentences, but we can at least make sure that justice is upheld, at least in the sense that the letter of the law is applied correctly.”

Some of these injustices stem from the high demands placed on public defenders amid a disparity in resources between them and prosecutors and law enforcement, he says. 

Part of what drew Lebens-Higgins to the Monroe County Public Defender’s Office was the fact that its staff was initializing a unionization campaign to push for better working conditions that may improve their ability to defend clients, and he has since become a member of its organizing committee.

First recognized in October 2022, and kicking off talks with the county the following summer, the Monroe County Public Defender Union has since been locked in negotiations, particularly over key economic terms that remain unsettled. 

Talks have been protracted—partially due to “stonewalling” by the county, the union committee contends. This year, roughly $300,000 in cuts are coming to the PDO, while the district attorney’s office is getting a $3.1 million bump. In the face of this, the union has launched a pressure campaign to get a deal done, including courting the support of elected officials and circulating a public petition.

In a statement, the county has said that County Executive Adam Bello has directed its negotiators to continue talks in good faith with the union to reach an agreement and that he has demonstrated a strong commitment to county employees by raising their pay over the past five years.

Lebens-Higgins says there is a sense that the tone at the bargaining table has changed after public support, and that organizers hope to be able to bring a contract proposal to their membership in the next few months.

“We are hoping that we can build the structure here in this first contract, and these are the issues that we can continue to talk about and find ways to address so that we can come back to the next round of negotiations in a position of strength,” he says.

But there are certainly still more sessions to come as the union hopes to gain concessions in several areas: caseload management, competitive compensation, maintenance of benefits, and burnout prevention.

Caseload management

The union is pushing for measures to hold the PDO to the New York Office of Indigent Legal Service case assignment standards issued in 2016. These are aimed at ensuring public defenders are assigned caseloads that allow them to devote the time necessary to provide adequate defenses for their clients as is demanded by the Constitution.

In the county’s recently approved 2025 budget, the PDO marked achieving “near complete compliance” with these standards eight years after their issuance despite the Office of Indigent Legal Service expecting the standards to be phased in over a two-year period. 

“Near complete compliance with the minimum constitutional requirements for case standards is another way of saying we are not compliant with the constitutional minimum for providing indigent legal services to our community,” noted Assistant Public Defender Iain Phillips at the county Legislature’s Nov. 12 meeting.

According to a statement from the MCPDU’s committee, the union finds its members are routinely assigned caseloads above the ILS standards. 

In his first year working on misdemeanors in city court, Lebens-Higgins says he was assigned roughly 350 cases, well over the state standard of 300. He says he would sometimes have more than 100 clients at a time and get caught in court nearly every day, sometimes twice a day, waiting to be called up and unable to touch base with clients.

“The client is frustrated because they haven’t heard from you,” he says. “You might get surprised when you get to court because the client hasn’t called to inform you they haven’t attended a class or paid the restitution or done whatever they’re expected to do. You’re not finding out until you get there to court and it’s time for their case to be called. That certainly diminishes your effectiveness.

“Discovery, negotiation, client communications, writing, motions—the more cases you have, the more each one of those is going to be just a little bit weaker, whether you want it or not, because you’re gonna have less time overall for review, for a second look, things like that,” he adds.

The union committee says the county has refused to agree to strict adherence to these standards, but the union is looking for the implementation of a formal review process by supervisors targeting compliance.

Competitive compensation

Assistant public defenders in Monroe County are the second-lowest paid among New York counties that run their own public defense offices rather than contracting with nonprofits, even when controlling for cost of living, according to an analysis by the MCPDU that Lebens-Higgins says was conducted by looking at job postings online. (Some of the data in the analysis has since become out-of-date).

MCPDU found that Allegany County is the only county that pays less than Monroe County, but it also offers a 35-hour work week. It also found that the value of the starting salary in Monroe County has decreased by 7 percent since 2017 due to inflation, and public defenders are also impacted by the county cutting its quarterly $1,000 retention bonuses late last year. 

The union is pushing for this to be corrected with a fair contract, the committee says. It is also looking to cut into discrepancies between pay for public defenders and prosecutors and law enforcement. 

The starting salary for assistant DAs is nearly $10,000 higher than that for assistant public defenders, according to the union committee. The district attorney’s office’s 2025 budget hike comes alongside the ratification of a new union agreement with the Monroe County Sheriff PBA that secured higher yearly wage increases than public defenders see.

“This is just exemplary of the way that we are treated, as opposed to the way that law enforcement is treated,” Lebens-Higgins says. “And when there are more resources going into law enforcement, that also means that we are going to have to do more work. More people are going to be arrested. The police are going to do a better job with the paperwork. Less cases are going to get dismissed, more things are going to head to trial.”

Maintenance of benefits

The protection of current benefits is the floor on which the union would like to see the first contract built, the committee says. This includes two primary areas: work-from-home and overtime benefits.

The union is looking to maintain the PDO’s current work-from-home policy, which allows them to work remotely one day per week.

The union is also looking to at least maintain current standards for overtime.

Public defense work is irregular and unpredictable, often requiring overtime work, the union committee says. Monroe County public defenders also have to work so-called “counsel at first appearance” shifts, which are 12-hour on-call shifts, typically on holidays or weekends, during which attorneys represent defendants at arraignments (one of the first steps in a court case, where a defendant is read the charges against them by a judge).

Currently, public defenders receive no overtime pay for these additional hours. Rather, the hours are logged in what the county calls a “flexible time bank” capped at 120 hours that can be used as vacation time or to supplement lighter work weeks.

Up until the most recent bargaining session, the county has proposed cutting this cap to 60 hours, but it has since agreed to increase the bank cap to 160 hours, the union committee says.

Burnout prevention

Public defenders face intense and varied chronic stressors, including stress borne of confrontation with a penal system that often targets and punishes the most disadvantaged, found a 2020 study based on 87 interviews with public defenders around the country. 

These stressors, alongside the traumatic exposure to the experiences of clients and victims that contribute to high levels of secondary traumatic stress among public defenders, may have a significant negative impact on job satisfaction among public defenders, another 2020 study found based on data from a survey of 35 public defenders in an office in the western U.S.

This is true in Monroe County as well, the union committee says.

The PDO’s 2021 Annual Report noted a high level of turnover—from 2018 to 2021, 47 attorneys were hired to the Town Court Bureau, while 25 left the Town and City Court Bureaus. 

Lebens-Higgins says many attorneys jump ship for less-stressful and higher-paid positions, even if they still feel a call to the principles of service that often drive attorneys into public defense work.

The result is patchwork measures to keep clients’ cases handled and ease client dissatisfaction.

“The numerous departures, in addition to promotions when attorneys in the felony bureaus leave, resulted in clients experiencing too-frequent changes in attorneys as cases were transferred from departing attorneys to newer attorneys taking over the files,” the 2021 Annual Report reads. “Clients have expressed frustration as they have had more than one change of counsel.”

The union committee says less-qualified attorneys are sometimes promoted to felony assignments at rates higher than anticipated upon hiring to cover gaps. Exits by experienced attorneys lead to the loss of institutional knowledge—resulting in less support for clients facing serious charges.

Preventing this is at the absolute core of the unionization effort, Lebens-Higgins says.

“The major point of this unionization effort is to retain attorneys in the office so that we can build institutional knowledge and, you know, raise the quality of indigent defense in our community,” he says. “So, rather than attorneys jumping ship for another job with better pay, better benefits, we’re hoping that they have mechanisms that would allow them to take a break within the office.”

The union’s pitch for caseload management ties into its push for stress management, but the MCPDU also has wider goals for a burnout prevention plan.

Currently, one such measure is informally used in the office—a one-month “case intake pause” during which an attorney can be freed from taking on any new clients. The county has agreed to this policy alongside a proposal for felony attorneys to have the chance to take a six-month rotation in a lower bureau as a means of relief from more gruesome cases.

What the union would like ideally, Lebens-Higgins says, is an actual sabbatical. Public defenders receive a fair amount of vacation time, but they have to find individual coverage for their cases to use it, which has led to attorneys having trouble taking advantage of it, he says.

“We’re trying to find ways to structure those sort of breaks so that people can return to this work refreshed, ready, and able to really give it their all,” he says.

Public support

Without much progress on economic talks, the union has turned to a public pressure campaign. Its members have spoken twice at county Legislature meetings and garnered support from a suite of elected officials. This includes City Councilmembers Stanley Martin and Mary Lupien, as well as a number of county legislators. 

However, Lebens-Higgins notes some in the county Legislature were jarred when Deputy County Executive Jeffrey McCann circulated a letter saying advocating for the union would be “counterproductive” to negotiations. Legislator Rachel Barnhart called the Code of Ethics argument “baseless” and the letter a “troubling overreach that could have a chilling effect on free speech.”

“County legislators have a long history of advocating for workers, including walking picket lines, writing letters and signing petitions,” she further wrote. “We have a duty and obligation to ask questions and advocate as we choose. This is prior restraint and an attempt to infringe on our speech. Put another way: we can support any union we want and join them in demanding a fair deal. Period.”

Nonetheless, the union has continued circulating a public letter of support. It has garnered about 200 signatures so far, Lebens-Higgins says, with the hope that the public can help push a deal over the finish line.

Justin O’Connor is a Rochester Beacon contributing writer. 

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