Department of Justice, Federal Government, Job Searches, Money, U.S. Attorneys Offices

Would You Work as a Federal Prosecutor — for Free?

Being a federal prosecutor, an assistant United States attorney (AUSA), is a great legal job. The work is interesting and challenging, you’re serving the public, and you’re paid decently — maybe not Biglaw bucks, but reasonably well when compared to many state government or public interest positions. And if you want to earn more money later, perhaps as your kids approach college age, you can walk through the revolving door into the world of private practice, which values AUSA experience.

I worked as an assistant U.S. attorney in my home state of New Jersey from 2003 to 2006 (under then-U.S. Attorney Chris Christie). My colleagues enjoyed their work. I remember that when I interviewed for my position, I met one AUSA who told me, “I love my job so much, I’d do it for free!”

Well… would you? Because that’s what some U.S. attorney’s offices are offering: the opportunity to work there, for no pay, with a minimum commitment as to time period.

And apparently lawyers are lining up for the opportunity….

Last year we wrote about how the district attorney’s office in Marin County, California, was looking to fill uncompensated positions as deputy district attorneys. Marin County wasn’t the only DA’s office doing this; we’ve heard of many others across the country with such volunteer programs. Given the shrinking budgets and growing caseloads faced by many state and local prosecutors, it’s perfectly logical for them to tap into the huge pool of unemployed or underemployed J.D. talent.

And the federal government is seeking free labor too, as numerous tipsters have told us. This shouldn’t come as a shock, given the Department of Justice hiring freeze that was announced back in January and remains in effect. Because of the freeze, U.S. Attorney’s Offices generally (note the “generally”) can’t hire paid employees to fill vacant positions — even positions opened up through attrition.

But the feds can seek unpaid labor, in the form of unpaid “Special Assistant U.S. Attorneys” (SAUSAs). The SAUSA title is not new; when I was in the U.S. Attorney’s Office, we had some SAUSAs who were detailed from other parts of the federal government. But the phenomenon of the unpaid SAUSA, paid neither by the U.S. Attorney’s Office or some other part of the DOJ or federal government, seems to have grown more common in recent times. (It seems to have started up during the Great Recession and continued into the present day.)

You can find several listings for unpaid SAUSA positions on the DOJ’s Attorney Vacancies page, for districts including the Southern and Northern Districts of Georgia, the Eastern District of Virginia, the District of Maryland, and the District of Connecticut. Here’s an excerpt from the SAUSA posting for the Western District of Virginia:

Responsibilities and Opportunity Offered: The Office of the United States Attorney for the Western District of Virginia is seeking applications from attorneys who are willing to accept unpaid temporary positions that offer a valuable opportunity to gain exposure to the office while also obtaining litigation experience and conducting trials. Successful applicants will serve as Special Assistant U.S. Attorneys (SAUSAs) with responsibilities that include researching legal issues, drafting briefs, conducting hearings and trials, and attending judicial proceedings….

SAUSAs will not be hired by this office as Assistant U.S. Attorneys at the conclusion of their SAUSA terms. However, they may apply for AUSA positions in the office after completing their service as SAUSAs. Only applicants with outstanding academic records and superior legal research and writing skills will be considered. Any applicant invited for an interview will be required to submit a writing sample. Recent law school graduates should include a copy of their law school transcript with their application.

Prior litigation experience is preferred, but the positions are open to lawyers who are finishing judicial clerkships and to highly qualified lawyers who have recently graduated from law school….

Salary Information: This is a one-year appointment without compensation. Note that employees of the Department of Justice, including uncompensated SAUSAs, may not engage in the compensated practice of law outside of the office. Attorneys are not eligible to serve as SAUSAs if the have been deferred by a law firm and received a payment for the period of their deferral, or if they will receive any payment from a law firm during their unpaid employment with the Department of Justice.

Here’s the take of one tipster:

So what is the deal here?

The “volunteer” uncompensated attorney cannot be hired at the end of the hitch, but can apply for other positions. And, of course, can apply for AUSA or any other legal position nationwide, boasting a year’s experience.

It looks like a boon for the rich kids whose parents can float their living expenses for a year. It also appeals to kids who have a spouse or unmarried partner who is willing to support the family while the lawyer volunteers. (Those are the people who often get dumped after the lawyer makes the big time).

But the non-wealthy working kids, and the ones with huge student debt, are out in the cold. They cannot afford to go income-free for a year, and find themselves at a disadvantage when competing with the experienced volunteers.

Well, in fairness to the federal government, people with wealthy parents or spouses will always have an easier time in life. The federal government is understaffed, and U.S. attorney’s offices — whose mission is to enforce federal law, for the benefit of rich and poor alike — need help. What’s wrong with them getting free assistance from people who can afford to volunteer? Isn’t this really just like the federal government being subsidized, voluntarily, by people who can afford it (or whose families can afford it)?

Working for free can raise labor law issues, but the SAUSA positions are kosher, according to our tipster:

It is all legal under the Fair Labor Standards Act. Even if the lawyers do not qualify as bona fide professionals, they are protected as volunteers for a government agency. Volunteering for a public agency is legal as long as an employee does not volunteer for his or her own job. The federal government has hundreds of volunteer programs.

http://www.usa.gov/Citizen/Topics/PublicService.shtml

The Labor Department has made it clear that people can volunteer for governmental agencies. Here is their policy:

“When Congress amended the FLSA in 1985, it made clear that people are allowed to volunteer their services to public agencies and their community with but one exception – public sector employers may not allow their employees to volunteer, without compensation, additional time to do the same work for which they are employed.”

I don’t have a huge problem with the SAUSA program, so I’ll let a second source argue against it:

Times are tight for the federal government, so I realize the position the USAOs are in. But if they have a need for prosecutors, is it good to fill that need with lawyers who are either so independently wealthy or so desperate for a job that they’ll commit themselves to working for free for one year with no hope of being hired afterward? Who can possibly afford to take this glorified internship? Are there a bunch of Mike Lowrey’s out there running around with law degrees? [“Bad Boys” reference, Will Smith’s character, rich kid who becomes cop.]

[T]he terms [of these SAUSA postings] say that they can’t be compensated at all. If nobody applied for these uncompensated SAUSA offerings, would the USAOs eventually pony up the cash to pay someone?

My guess is “no” — and I’d cite the status quo, hiring freeze and all, as evidence. Not having uncompensated SAUSAs will just make life harder for AUSAs who are already overworked. Thanks to the thawing of the lateral market, lawyers are starting to leave U.S. attorney’s offices again — and many of their positions are going unfilled, due to the freeze. This means that the lawyers who remain in the USAOs have more cases and fewer hands on deck to help. The SAUSA program is a way of dealing with this difficulty.

Maybe I’m biased because I aspire to be a federal prosecutor, but I can’t afford to do it for free.

There are many experiences out there in the world that are more readily available to people with money. For example, I would like to spend the summer at a house in the Hamptons. But just because I can’t afford a house in the Hamptons doesn’t mean I think nobody should enjoy a house in the Hamptons. (By the way, feel free to invite Team ATL to your beach house — in the Hamptons, or Fire Island, or the Jersey Shore — by email.)

A third ATL reader, who actually applied for a SAUSA position but ultimately turned it down, had these (seemingly sensible) thoughts:

I think it’s an idea with promise that needs refinement. Federal prosecution experience is valuable, and the DOJ has been hurting from hiring freezes, so this can net USAOs qualified people who want and can afford the experience. (The selection rate can be as low as 1/10 – I think a news article said that Atlanta/NDGA got 40 applications for 4 positions…. They’re getting pretty decent caliber people.)

However, in order to be a “win-win,” rather than wholly favoring the government, I think the concept needs two reforms. First, the requirement to commit to an unpaid year is overly harsh. A better approach would be a 6-12 month flexible term — long enough to ensure that the government got a return on its training and background check expenditures, but flexible enough to allow a SAUSA to jump to a paid position if one materialized, without burning bridges at the USAO.

Note: some of the SAUSA positions are for shorter terms. See, e.g., the District of Maryland (six months to a year).

Second, USAOs should be willing to consider SAUSAs for paid employment at the end of the term. The stated excuse for the contrary policy is wanting to “discourage competition” among the SAUSAs, but I think that barring an attorney who has given them a year of free labor from even being considered for paid employment is insulting and objectionable.

This is a fair point. Look: competition is a fact of life. And it’s not bad for SAUSAs to be as motivated as possible during their term of “employment.”

Here at ATL, on the state government side, we’ve heard of volunteer assistant district attorneys who worked their tails off during their period of free labor, eventually landing themselves full-time, paid jobs in the DA offices where they volunteered. That seems to be a “win-win” situation for everyone.

Readers, what do you think of SAUSA programs? Would you work for free for six months or a year as a federal prosecutor? And do you think the government should even have such a program — or should it stop the program, since it’s unfair to those who can’t afford the financial sacrifice?

Justice Department Under Hiring Freeze [Main Justice]
Big slowdown in fed hiring [Federal Times]

Earlier: District Attorney Looking for Lawyers — Free Lawyers, of Course

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