Willing to work for free? Try the feds

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By Elizabeth Ahlin
Dolan Media Newswires

When job announcements have trickled out from offices of the United States Attorney around the country in recent months, they have often included listings for “special” assistant U.S. attorneys.

The positions are not unique from regular attorney job listings; they don’t require special skills or involve unusual job tasks. The positions are special because the job applicants who are chosen agree to work for free.

About 112 Special Assistant U.S. Attorneys, or uncompensated attorneys, are employed around the country, said Ashley McGowan of the Executive Office for U.S. Attorneys. Such positions are authorized under a section of federal law that allows the appointment of special assistants to the U.S. Attorneys. The law authorizes them to decide their salaries, which has been interpreted to include gratuitous employment.

The practice has earned the ire of the National Association of Assistant United States Attorneys. Its president, Robert Gay Guthrie, sent a letter to the Deputy Attorney General requesting the discontinuation of the use of unpaid attorneys. In a response, Guthrie was reassured that the practice of using unpaid attorneys is legal. But Guthrie said the objections of the NAAUSA reach beyond whether the practice is permitted under law.

“We think that people who take opportunities such as unpaid positions do so to get training and experience so they can go out and essentially oppose us,” Guthrie said. “It doesn’t make sense to us that the U.S. Attorneys would support that.”

Unpaid attorneys have been detrimental to morale, Guthrie argued, and it runs counter to an effort to create continuity with cases by training and keeping new attorneys. Guthrie acknowledges that the practice has increased during budget cuts, sequestration and the recently lifted hiring freeze. But Guthrie said the U.S. Attorney should be more aggressive in budget negotiations.

“Our U.S. Attorney system brings in, depending on how you look at the numbers, anywhere from three to seven times what it spends on us,” Guthrie said. “We not only pay our own way, but pay multiples of our own way in terms of collection of money judgments and other types of civil penalties and fines.”

U.S. Attorney General Eric Holder might have the same idea. Holder recently stressed the $8 billion collected by the Justice Department through civil and criminal actions in 2013. Calling support for federal prosecutors a “sound investment” he praised the returns seen by the taxpayer.

Another criticism of unpaid attorney positions is that it is an unfeasible opportunity for most new attorneys who graduate with significant student loans and other financial burdens. The positions can be seen as providing an advantage to new attorneys who are either wealthy, have financial family support or have spouses who can pay the bills. But it can still be good experience, several law school career counselors said.

“I realize that there may be considerations concerning the volunteer nature of the position, and the student’s financial needs for income. But from a career development perspective, the experience will have value to the student, paid or unpaid. It could potentially serve as a “foot in the door” in an otherwise difficult to break into position,” said Andrew Lehner of William Mitchell College of Law.

Career counselors at Minnesota-area law schools said the positions have not been promoted by their career offices or the subject of much conversation by students. But most said they would make the possibility known when it arises, because it can be a great opportunity for new attorneys, even without a salary.

“Some (students) are thrilled to volunteer and do anything they can to get into their dream offices, particularly if they can afford it,” said Nancy Lochner, director of career services at Hamline University School of Law. “Student and alum situations are definitely not one-size-fits-all, so I never assume and just try to make all options known.”

But new attorneys and students alike should make sure they understand the position when entering into an agreement to work for free, said Kendra Brodin, director of career and professional development at the University of St. Thomas School of Law.

“The risk is then always on the graduates to make sure they’re clear on the expectations and make sure they’re not taken advantage of in any sort of work relationship,” Brodin said.

The practice has grown under since 2011, when a hiring freeze was instituted for the Justice Department. During that time, as result of budget cuts and the hiring freeze, more than 4,000 employees were lost, and those slots were not filled. But hiring unpaid employees was permitted.

California, which is home to four federal judicial districts, has the most uncompensated attorneys. But The District of Columbia, which is the biggest federal district, has the most of any district with about 13 percent of the federal total.

Bill Miller, spokesman for Ronald C. Machen Jr., the U.S. Attorney in the District of Columbia, declined to comment on the use of unpaid attorneys, saying he doesn’t comment on budget or personnel issues. But he did note that his district is unique in that it handles both local and federal cases amounting to about 20,000 cases each year.