“We feel unsupported by our own agency and the judicial system in general. This is not an easy or glamorous job; it is a hard and thankless one,” testified Brenda Lightbody, a Minnesota public defender at a Minnesota House hearing on public defender job conditions.

Represented by Teamsters Local 320, on March 18, Minnesota public defenders voted to authorize a strike over a bargaining impasse, possibly the first of its kind in the history the nation. As a result of their strike vote, the Minnesota public defenders secured two major victories in their fight for better working conditions. From their employer, Minnesota public defenders’ strike authorization vote secured an acceptable contract offer within 24 hours, avoiding any work stoppage. The new contract includes a pay raise, new coverage of overhead costs, and a promise to hire additional support staff. Politically, the strike authorization vote has led to a sea change in the form of bipartisan political support for legislation providing for a $50 million increase (~25%) in the budget of the state public defender’s office that even prosecutors are attributing to the public defenders’ March strike vote. By acting collectively in this way, Minnesota public defenders have provided a blueprint for public defenders around the country to advocate both for their own needs as workers, and for additional resources to better serve their clients.

Teamsters Study on Minnesota Public Defender Conditions

Well before the strike authorization vote, Minnesota public defenders had been pressing legislators and their employer to have their needs met. Following their union publishing a survey on work conditions, on January 12 of this year, public defenders testified at a Minnesota House hearing about their inability to keep up with growing caseloads that have been exacerbated by the pandemic. The results of the study were staggering; 84% of attorney and staff support respondents agreed that Board of Public Defense (BoPD) leadership fail to adequately support frontline staff, and 71% of BoPD staff reported that leadership had created working conditions that make it hard or impossible to provide quality services to indigent clients.

“We don’t have the time necessary to read through all the evidence in our case. We don’t have the time to talk to our clients. We don’t have time to meet with our clients in jail sufficiently,” assistant public defender Ginny Barron explained at the January 12 hearing.

Compounding these issues, public defenders report substantial difficulty in recruiting and retaining new staff due in no small part to their low pay. Currently, prosecutors are paid 30% more than public defenders in Minnesota — a difference of up to $20,000 in starting salary despite requiring the same qualifications. Public defenders are also denied overtime pay for long hours required by overwhelming caseloads.

The job conditions of public defenders in Minnesota and throughout the country are in many ways reflective of the orientations that states have towards the criminal legal system in general — while the state’s prosecutorial and carceral systems rarely want for funds, services whose function is to prevent incarceration or tend to the legal needs of the poor are often chronically underfunded. Minnesota public defenders’ decision to take this issue into their own hands and force a response from the state through a strike authorization vote is a powerful example of an exercise of worker power directly improving both the working conditions of the workers in the public defenders’ office and also improving the quality of legal representation that indigent criminal defendants in the state will receive.

Sixth Amendment Question

The prospect of public defenders striking brings with it direct constitutional implications as the Sixth Amendment (as interpreted in Gideon v. Wainwright) guarantees legal representation to criminal defendants facing incarceration who cannot afford their own.

Quite simply, states are not able to incarcerate people if they are not able to provide them with legal representation that satisfies the Sixth Amendment’s requirement for effective representation. The resources that the state would have to expend to provide stopgap lawyers if the state’s public defenders went on strike would likely be immense, and convictions could be overturned on constitutional ineffective assistance of counsel claims insofar as non-specialists are relied upon to fill the gap.

Given these potential implications, it is unsurprising that the success of the strike vote was enough to bring the Board of Public Defense to the table with an acceptable offer within 24 hours, and to move the political needle enough to secure the necessary bipartisan support for a piece of legislation providing for a substantial increase in the funding for the state’s public defense board.

Professional Ethics

Given that lawyers are governed by a professional code of ethics that regulates when they may withdraw from representing clients, there are also ethical implications involved in a potential strike by public defenders. On this issue, the Minnesota Office of Lawyers Professional Responsibility issued an advisory opinion stating that public defenders “may not ethically abandon a case just because they are on strike.” This warning did not hinder Minnesota public defenders, and despite this warning, public defenders looking to strike elsewhere could likely avoid such a problem with a creative work stoppage that would see them continue to deal with the cases to which they have already been assigned, but refusing to take on new cases, to still have the effect of bringing the state’s criminal legal system to a halt, while also continuing to render service to those who would be most immediately adversely affected by a strike.

National Implications

Minnesota public defenders have shown public defenders throughout the country that the threat to strike can be a powerful tool to improve their working conditions. The Minnesota public defender strike was facilitated by the fact that Minnesota does not prohibit public employee strikes, whereas other states, like Massachusetts, do ban such strikes. Notably, no Minnesota court has been called upon to interpret whether public defenders are essential employees who should be prohibited from striking under Minnesota law.

Conclusion

Public defenders play a critical role in the American legal system on behalf of working-class people, who are charged disproportionately with crimes. At the same time, public defenders are workers themselves who deserve fair wages and good working conditions that permit them to effectively do their jobs. Despite their importance to the legal system, they are often severely underfunded, overworked, and put in positions where they are unable to effectively advocate for their clients. The results of Minnesota public defenders’ decision to authorize a strike demonstrate that public defenders’ collective action can be incredibly powerful, bringing about better job conditions from their employers and creating political will for increased funding from the state, to facilitate better quality service to the people they represent. Both prospects should be compelling incentives for public defenders deciding whether to join a union and act collectively.