A former chief Federal Defender says it was the only way to save his office from the worst of the sequester
By Steven Nolder
I’ve been a lawyer for more than 26 years. Eight years into my career, I closed my private practice and joined the newly formed Federal Public Defender’s Office for the Southern District of Ohio. Until that time, I was part of a small cadre of lawyers in the private bar providing indigent representation in Columbus, Cincinnati, and Dayton, which are the three seats of court comprising the Southern District of Ohio. We did our best with the limited resources we had to ably serve our clients but we were unable to match the “gold standard” of representation provided by federal defender offices. Consequently, our district court judges pushed for the formation of a federal defender office.
I began as an Assistant Federal Public Defender and my role evolved to be the First Assistant Federal Public Defender about nine years later. In 2005, I was named the Acting Federal Defender and was appointed to be the leader of the office in 2006, serving in that capacity for the next seven years.
I was lucky enough to inherit a quality staff of defenders who were both passionate and zealous about their commitment to serving our clients; to me, this is the hallmark of the Sixth Amendment. My management philosophy was simple—hire quality people, give them the tools and support so they can effectively represent their clients, and don’t micromanage. In return, I simply asked of my employees three things: (1) don’t lie to me; (2) don’t be late to work; and (3) provide better representation than our clients could get from private bar. It was a simple philosophy that the overwhelming majority of my colleagues internalized.
The legal market tightened a few years ago, which meant that when we advertised we were hiring, we were inundated with resumes from quality applicants we could only dream about hiring when the office opened in 1995. These candidates had legal educations from first tier law schools, were superbly trained, had a commitment to public service, and some even came from federal judicial clerkships. To state the obvious, it was certainly an employer’s market, which enabled me to recruit great people with backgrounds and language skills that my office sorely needed. Most of these candidates uprooted themselves from outside Ohio and moved to the Southern District of Ohio with nothing more than my promise that we had the caseload to justify their position and the obvious security that a government job provides. To those who had no ties to a legal community, had young families, and faced the crushing financial obligations of a recent law school graduate, my commitments were important.
At the dawn of the 2013 calendar year, my office was positioned to weather the storm once the “fiscal cliff” was averted. However, this can was not crushed; instead it was “kicked down the road” to be dealt with in March. By the end of February, reality began to take shape. Even though my office was responsibly staffed and was exceeding all workforce measurements set by our supervising budget committees and the Administrative Office of the United States Courts, after the sequester was applied to our budget, we were about $300,000 short. Over the next few weeks, the budget message evolved with the deficit numbers ebbing and flowing. Despite this frustrating uncertainty, there was one thing that was certain: my office faced a significant budget crisis. Most troubling, the picture for Fiscal Year (FY) 2014 was worse.
We did the math and determined the deficit for FY 2013 would be addressed through both a series of cuts to the discretionary side of our budget as well as across the board furloughs (unpaid leave). These cuts eliminated staff training, travel, purchase of office equipment and computer systems, courthouse office space, and cell phones for the management staff. The funds used to pay these obligations were reprogrammed to address our budget deficits and made only a minor impact because about 85 percent of our budget pays salaries and benefits. When these savings were combined with a few crumbs recently thrown to the defender program by the Executive Committee of the Judicial Conference, my office still faced 15 days of furloughs for all staff members for FY 2013. Moreover, if the budget projections for FY 2014 came true, my office faced 30 to 45 days of furloughs.
My Administrative Officer told me early on that these budget projections meant I was going to be forced to eliminate staff as that was, by far, our biggest expense. I resisted this thought because we had the caseload to justify our staff and we were otherwise good stewards of the public’s money. I assumed that my office’s fiscal responsibility would be recognized at some point. Over time, however, I came to accept that her assessment was spot-on as the sequester was applied across the board and was blind to the needs and unique circumstances of its targets.
My problem then became, who do you choose for termination? Conventional wisdom is “last in, first out.” I looked at the last five lawyers I hired and there was a common thread running through them: they all came from outside the State of Ohio, were not licensed to practice law in Ohio (you don’t have to be if you practice solely in federal court), and many either came here with families or started them once they established roots in Ohio. Furthermore, I was troubled by the fact that the decision on my doorstep was not driven by either sub-par job performance or declining caseload; instead, it was the result of a political game that two omnipotent political parties were playing, leaving the federal defender program in the crosshairs.
I also examined the opportunities these lawyers had if they were terminated and quickly concluded the five who had targets on their backs had relatively few in the Southern District of Ohio. By comparison, I began considering the opportunities I had if I separated. Even though I was the leader of my office, I made sure I never fell into the rut of simply being an administrator. I defined myself first as a lawyer and second as a manager of the office. Consequently, I always took a full caseload, which enabled me to remain connected to the practice of law. I quickly concluded that I had more opportunities than the younger lawyers.
Toward the end of March, I announced that I was resigning. The overwhelming majority of my colleagues were saddened by my decision. Many in the court system also resisted my decision and challenged me to reconsider. To be sure, I was troubled by the timing of my decision as it was made at the height of the budget crisis and would be viewed by some as cowardly. After all, shouldn’t the captain go down with the ship? That thought went through my mind and my decision, I hope, ensures that my ship won’t go down. Finally, given the budget crisis that was enveloping the federal defender program, my decision could not be delayed because time was of the essence.
My decision has been very controversial to some, but leaders of smaller federal defender offices wear two hats—they are both lawyers in and managers of their offices. When I wore my lawyer hat, my leaving made no sense because of the impact on our talent pool. When I put on my manager hat, however, my decision was sound and one with which I could live. My employees in the budgetary crosshairs were loyal to me and they deserved the same in return. I had far more opportunities in this legal community than they did, so I needed to test those turbulent waters of private practice. This, I hope, ensures the remaining legal staff is preserved.
In my resignation letter, I asked the Chief Judge of the Sixth Circuit Court of Appeals to appoint my successor from within my office so the number of employees in my office would shrink, as would its payroll. Although this has not happened, an “acting” defender from another district has been appointed for an interim period, which still has the impact of shrinking our payroll and number of employees. Additionally, two staff members left with me, which also helped our bleak budget outlook.
I’m now two weeks into private practice and have landed in a wonderful environment in which to practice law. As you can tell, I still haven’t let go of the federal defender program as my pronouns are still “my” and “our” when I reference the program on both a micro and a macro level, and I hope that never changes.
I’m disappointed by the apathy and indifference with which the plight of the federal defender program has been met with over the last five months. There was a hearing in the Senate last month where the focal point was the impact of sequestration on the defenders. One senator pandered to his party’s line by making a point that “we have no money.” I thought this was a curious statement when more than $350 million dollars were reprogramed to ensure the Department of Justice (DOJ) avoided furloughs in FY 2013 and they are scheduled to have an additional $79 million dollars added to their FY 2014 appropriation. In contrast, DOJ’s counterparts, the federal defenders, whose budget makes up .05 percent of the entire nation’s budget, face the prospect of an additional 23 percent cut for the same budget cycle.
If the intention is to dismantle the “gold standard” of our nation’s public defense systems, our lawmakers are succeeding. Don’t fall for the party line that these cuts are designed to save money—this is sophistry! The legal representation will be provided by others and likely will be more costly. Like me, you should be outraged!
Steve Nolder spent over eighteen years as a federal defender in the Southern District of Ohio before leaving the office to save junior staff from layoffs and furloughs in the midst of the sequester’s drastic budget cuts. He is now in private practice at Scott & Nolder LPA, (www.ohiocrimelaw.com) in Columbus, Ohio.