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To Cope with Sequester, Justice Department Staffs Unpaid Attorneys

DOJ has defended hiring of unpaid special assistant U.S. attorneys, who do much of the same work as their paid counterparts.

The Department of Justice currently employs 96 unpaid attorneys in U.S. attorney offices across the country, due in large part to a department-wide hiring freeze. (Gavel photo ©iStockphoto.com/DNY59)

The Department of Justice has an opening for what could be a dream job for many newly minted lawyers: serving as a special attorney in the Office of Enforcement Operations. Among other responsibilities, the new hire could be helping the Electronic Surveillance Unit review applications for wiretaps in major federal criminal investigations.

But they’ll have to forego a salary for experience: the one-year position is completely unpaid.

We’ve reported on the mounting trend of unpaid internships among college students and recent graduates. But an increasing number of trained attorneys in the Department of Justice are also working for free, with 13 uncompensated positions for “experienced attorneys” (many of them full-time) currently listed on the agency’s web site.

The program “provides a valuable support to the Justice Department as we continue to address the staffing challenges imposed by sequestration and still fulfill our commitment to protect the American people,” said a Justice Department spokesperson, in an emailed statement. The Department of Justice began posting uncompensated special assistant U.S. attorney positions in January 2011, after Attorney General Eric Holder announced a department-wide hiring freeze (individual U.S. attorney offices had hired unpaid lawyers before then, the spokesperson said).

There are currently 96 unpaid special assistant U.S. attorneys working for the department, according to a spokesperson, who said paid assistant U.S attorneys have starting salaries ranging from $44,581 to $117,994.

Many of the special assistant U.S. attorneys are doing much of the same work as their paid counterparts. According to one job posting from the U.S. attorney’s office in Puerto Rico, they “have the opportunity to represent the interests of the United States of America...and to exercise responsibility that is unparalleled in any other job that a litigator might undertake. [They] immediately undertake numerous cases, many high profile, in any of several units within each division.” The position requires three years of legal experience.  

One former special assistant U.S. attorney, who asked not to be named, said she was given her own caseload, the way other paid assistant attorneys were. She said the program gave her hands-on trial experience she wouldn’t have had otherwise.

Some say the program is a practical solution to growing budget pressures. “I see [it] as a stopgap measure,” said lawyer David Lat, managing editor of the legal news site Above the Law and a former assistant U.S. attorney.“This is an attempt to manage their caseloads and their budgets.”

The sequester slashed $1.6 billion from the Justice Department’s budget. A November report from the Inspector General’s Office said the department should “redouble its efforts” to cut costs.

But critics say the department can’t “volunteer” its way out of a budget crisis. “The government can’t run itself that way,” said Carrie Cordero, director of national security studies at Georgetown University Law Center and a former special assistant U.S. attorney. “The entire government is under a budget strain. Every department can’t just start hiring free labor.”

Some assistant U.S. attorneys claim the positions violate a federal law, known as the Antideficiency Act, which says the government can’t be staffed with unpaid volunteers.

In November, the National Association of Assistant U.S. Attorneys wrote to the to Executive Office of U.S. Attorneys to “urge the Department of Justice to discontinue the practice of hiring uncompensated [special assistant U.S attorneys].”

“The Department of Justice's continued actions to secure the unpaid services of individuals performing the same work that paid Assistant U.S. Attorneys perform is inconsistent with the Antideficiency Act,” said Bruce Moyer, counsel to the National Association of Assistant U.S. Attorneys.

The Executive Office for U.S Attorneys responded to the association’s letter six months later, defending the unpaid positions.

“We continue to believe the department’s long-standing use of uncompensated [special assistant U.S. attorneys] is legally permissible,” wrote H. Marshall Jarrett, director of the Executive Office for U.S. Attorneys. While special assistant U.S. attorneys have a legal maximum salary, he said, there’s no minimum. Which means the Justice Department considers itself free to set their salary “at a gratuitous rate of pay (i.e. $0).”

The law on government volunteers is far from cut and dry. The Antideficiency Act’s original intent, according to the Government Accountability Office, was to keep agencies within budget by preventing them from using “volunteer” workers who would later expect to be compensated. The GAO and the Attorney General’s office have since said some unpaid government gigs are allowed, as long as it’s clear from the outset that they’re not (and never will be) paid positions. Agencies still can’t waive wages for employees whose salaries are fixed by statute.

The association sent a follow-up letter to Holder on June 4, calling the Executive Office for U.S. Attorneys interpretation “overbroad and inconsistent” with the law. Holder has not yet replied.

Their complaint also raised concerns about what it means to have unpaid, short-term lawyers representing the U.S. in federal court.

Cordero penned an op-ed in the National Law Journal after a number of law students she advises inquired about the unpaid positions. Many lawyers were surprised, she said, to learn the Justice Department was hiring uncompensated attorneys. “These are positions of public trust,” she said. “If you want top talent you pay them competitive salaries.”

Though “uncompensated” is listed on the postings in big capital letters, U.S. attorney offices say they haven’t had a shortage of qualified applicants. Lawyer Steven J. Harper, author of “The Lawyer Bubble: A Profession in Crisis,” said that’s likely due to the grim job market facing lawyers today.

“Last year we graduated a record number of new lawyers, [and] next year we’ll graduate even more,” he said. Of law school students that graduated in 2012, only 56 percent were able to get a full-time job requiring a law degree.

Meanwhile, “law school tuition has grown at a rate that is far greater than medical school or anything else,” Harper said. Law school grads now face over $100,000 of debt on average. “Who can afford to do something unpaid after you’re out of law school [with] this overhang of student loan debt?”

Unpaid lawyers in U.S. attorney offices could qualify for student loan deferment. But as a former unpaid assistant U.S. attorney pointed out, they aren’t eligible for the Attorney Student Loan Repayment Program, which helps pay off student loans in return for a three-year position with the Department of Justice. Most unpaid positions are capped at a year.

Many hope the use of unpaid attorneys is just a temporary fix. But as Cordero sees it, the practice “devalues a law degree.”

“I see them do so many externships,” Cordero said of her students. “If that’s extending to post graduation, when does it end? At what point can they start getting paid?”

See the rest of our reporting on the unpaid intern economy, and share your intern story with our reporters. 

Well, that explains why they ignore gross injustice now, but what about before the sequester…?

One of the tragedies of this situation is that instead of examining how they could streamline processes and invest in operations that offer more scale the justice department is just doing it the same old way, but not paying their workers. 

Why not have every attorney position unpaid? You could afford more judges and reduce wait times for justice to be enacted.  Why stop there? Lets stop paying the new judges too, surely there are prospective judges out there who could use the “experience” more than the paycheck.  We could go even farther and start doing courtrooms with sponsored ads, so the government wouldn’t have to spend a dime.

Doing unpaid labor is not the answer, especially if it is full time work.  If was part time the attorneys might be able to subsist on another part job for income, but it wouldn’t justify the lack of payment by the justice department.

The biggest problem in the legal industry right now is a lack of best business practices implementation and education.  It goes from the new JD’s straight through to the highest courts.  But who is going to enforce the law when the enforcers are the ones likely breaking it.

What’s more, a Special A.U.S.A cannot accept any outside funding from an private or public institution. I seriously considered applying for one of these Special A.U.S.A. positions when I graduated from law school in May 2011.  My law school offered unemployed new graduates a non-renewable $4,000 grant to do public interest or government work for 12 weeks.  When I called one U.S. Attorney’s Office to ask if I could use that grant to cover at least part of my tenure as a Special A.U.S.A., the office’s spokeswoman said outside funding was not permissible.  Apparently “uncompensated” REALLY means uncompensated.  It’s too bad, too.  Working for a year in a U.S. Attorney’s office would be a great experience—if you can afford it.

I have an idea, lets find more of the wasteful spending like IRS line dance parties and other government abuse Of tax payer money, which no doubt is rampant in other agencies. Maybe we could put that money to better use, I don’t know to pay attorneys? Or end the sequester?

Well, now lawyers can join artists in having people tell them “No need for pay, because you love what you do.”  What a croc!

Any attorney stupid enough to work for free should be disbarred.  How low had the power of labor fallen that we put up with this crap.  More ironic that it is the administration supported by Big Labor that perpetrates the crime of extracting free work from the debtors classes.

It’s clear what they are doing here, as a brilliant sidestep: They are hiring people who can afford not to get paid. This means people with rather unusual financial means can afford to take these jobs, and obtain the power that goes along with them. Which of course can be extended in ways that can be construed as ‘uncompensated’—if life really existed in a bubble.

Touche, USA.

Joe, now that you bring it up, it reminds me that a few law schools—to protect their precious placement numbers—have started opening pro bono firms where they pay their recent graduates peanuts.  There are no openings, because we literally have too many lawyers, so they’re creating bogus openings so that they don’t need to tell candidates about it.

This really should be a wake-up call that (a) law school doesn’t guarantee you a job and (b) the government has become like any company, willing to exploit anybody who doesn’t have better prospects.

Meanwhile, I have a way to get this money.  We pay our public servants, and we pay them a pension.  We do this not out of respect or piety, and not to be nice, but to insulate them from material needs and thus protect our government from material influence.

We know that “material influence” has been the order of the day, though, from lobbyists buying extravagant dinners to future executive or lobbyist positions to Al Gore cashing in on laws he helped pass for millions (his sale of Current TV).  Let’s tax that non-public income at 110%.  The bird-to-stone ratio is appealing, I think.

The tax cuts that got us here were sold on the premise that they would “create jobs” yet here we sit in an economy that is growing at a geologic pace and we cannot even afford to pay young AGs but are instead dropping paid staffers (i.e. actual jobs) in favor of desperate debt-amassing recent graduates.  Apparently cutting taxes does not create jobs it only makes for unpaid internships.

The whole concept of unpaid labour has been dealt with by most civilised countries.  The idea that the US is able to exploit young workers while preaching to the rest of the world about labour practices is abhorrent.

Rodney Patterson

July 5, 2013, 2:51 a.m.

Unpaid makes that position a prime corruption target. Drug gangs and organized crime figures must be jumping for joy.

Willard Trimble

July 11, 2013, 12:32 a.m.

Those lawyers could’ve at least been given allowances for their services. They worked hard for it anyway. Besides, it will really be an insult to the law degree because lawyers nowadays are just being made into volunteers.

This article is part of an ongoing investigation:
Internships

Internships

The number of internships in the United States has ballooned over the past few decades. But oversight and legal protection for unpaid interns hasn't kept up.

The Story So Far

The number of internships in the United States has ballooned over the past few decades. But oversight and legal protection for interns hasn’t kept up. We’re investigating companies that may be violating labor laws by employing unpaid workers, schools’ role in the issue and how it’s affecting American workers.

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