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It took nearly three years, but an outside lawyer has finally completed her investigation into gender pay disparities in state contracts with public defenders. She has concluded that “there has been considerable inconsistency in how attorneys are paid,” although whether men or women benefited depended on the year.
In most years, however, “the number of women applying for exceptions to the pay policy was dwarfed by the number of men,” wrote the investigator, Jill Goldsmith, J.D., of Workplace Solutions Northwest. That led Goldsmith to surmise that there were either fewer qualified women in Oregon to perform the work—or “women were more likely to be unaware that they could apply for an exception to the pay policy.” (Her report notes that, in 2016, more women than men graduated from law school for the first time.)
The investigation, long beset by delays and “obstacles,” according to her report, was conducted at the request of the American Civil Liberties Union, which asked for it in 2021 after fielding complaints from women lawyers that they were making sometimes far less money per hour than their male counterparts.
The Oregon Public Defense Commission, the state agency that funds public defense, provided WW with a copy of Goldsmith’s report today following her briefing of commission members this morning.
A spokesperson provided a statement acknowledging the problem and saying the agency had already instituted reforms. “It’s clear that past decades’ record keeping and review of pay rate differentials was inconsistent,” said Jessica Kampfe, executive director of the Oregon Public Defense Commission. “I’m happy to report that attorney pay today is standardized by attorney qualification and case type.”
Sandy Chung, head of ACLU Oregon, tells WW that the report is just the “tip of the iceberg.” The ACLU requested an investigation into not just pay disparities but also retaliation by a male agency executive that was not addressed in the report. (Goldsmith’s presentation says “a second issue involves a personnel matter and is being handled separately.”)
“It took way longer than two years, they haven’t even presented all parts of it, and there’s no clarity about what the next steps are going to be,” Chung says. “That’s all very concerning.”
The root of the pay disparities, Goldsmith says, is that public defenders are underpaid to begin with. Right now, there’s so few of them willing to do the work that hundreds of defendants are facing criminal charges in Multnomah County with no attorney.
To encourage more lawyers to take on more complex cases, the state instituted an ad hoc system decades ago in which attorneys could demand exceptions to the standard hourly pay rate. These exceptions are granted for “compelling circumstances.”
Yet, most women Goldsmith talked to said they had no idea asking for more money was even an option. And the ones who did found out only through word of mouth.
Goldsmith reviewed emails to and from the agency’s general counsel and found that “there were times when he provided detailed information to attorneys who asked him questions about policies and rates which he acknowledged in at least one email was not publicly available.
“This kind of subjectivity in information sharing can and often does lead to serious disparities in information a particular group has at its fingertips.”
Plus, what constitutes “compelling circumstances” has been fuzzy. “There isn’t a real set criteria for these requests,” an OPDC supervisor wrote in an email obtained by Goldsmith.
The agency also provided Goldsmith with a spreadsheet of exception requests. It didn’t specify gender, so she did her best to fill it in. It also turned out to be riddled with errors, which she fixed.
The most concerning period, according to Goldsmith, was 2007 to 2014, when the number of men asking for higher pay doubled that of women for noncapital cases. And, when they did ask, men tended to ask for more.
Obtaining those documents proved troublesome for Goldsmith. “This case was significantly hindered by several factors, including ten months during which OPDS did not allow me to access information or witnesses,” she wrote.
She was referring to the Oregon Office of Public Defense Services, an agency that proved so ineffective at its job that the Legislature disbanded it and replaced it with a new one: the Oregon Public Defense Commission, which just took over the state’s efforts to fix the public defense crisis this year.
This story has been updated with a statement from the ACLU.