United States: Pro Bono Update December 1999 - Part 2

Pro bono work typically provides a "fast start" to associates, giving them handson experience, reducing the learning curve, and not restricting their first years to research and writing on large cases where they don't have the opportunity to shape the litigation. The case CookSeales v. D.C. — a major employment discrimination and retaliation case last year — was handled entirely (and won) by two MBP associates, Miriam Nemetz and Ed Lee.

The appellate practice offers associates direct experience not only in learning trial strategy but also in shaping law. Associates are given latitude to enrich their experience and work as they do best, whether in junior teams or under senior supervision. They are responsible for the range of case management duties, including issuespotting, fashioning arguments, and editing the finished product, as well as serving as counsel of record and conducting their own oral arguments.

Last year, associate Eileen Penner argued a pro bono habeas case, Hohn v. United States, before the U.S. Supreme Court. The practice has a number of other appellate cases also under way:

Washington's CERT Monitoring Project. Litigation associates Rob Bronston and Mike Lackey, under the direction of partner Alan Untereiner, have been heading the Circuit Monitoring Project in which D.C. associates read opinions coming out of the Courts of Appeals looking for "CERTworthy" cases bound for the Supreme Court. When a case that had lost on appeal came to Rob Bronston's attention, through Marc Kadish and paralegal Alison Katon, he recognized that the matter held a number of interesting issues and that a Cert Petition would be worthwhile. Bronston decided to take the pro bono case. On November 1 the Government requested an extension to respond. Their new due date is December 6.

Seventh Circuit Project. In the spring of 1999, MBP partner Tom Durkin, head of the pro bono activities at that time, arranged for the firm to take five appeals from the Seventh Circuit Court. When Marc Kadish took his place last summer, Tom began introducing Marc to people at the Seventh Circuit in an attempt to formalize the program. We have now taken on another eight appeals from the Circuit, and have created a program so successful that we'd like to expand the program to some of our other offices.

Lee Robin – Richard Bulger, Kevin Desharnais (environmental), and Marc Kadish represented a former physician in a conditional discharge hearing from the Elgin Mental Health Center. The man had been acquitted of murder by reason of insanity in 1988 and has been confined at the mental hospital since that time. The case was referred to Marc by Mark Heyrman, a Clinical Legal Professor at the University of Chicago. The hospital petitioned the Court after the mental health professionals treating the patient agreed that he was no longer a danger to himself and others. After a week long trial, which was covered extensively by the media, the Judge ruled that the State had not sustained its burden. The State has appealed the verdict. Professor Heyrman and his clinical students are preparing an amicus brief in support of our client. Kevin, Richard and Marc will write the appellate brief on behalf of our client.

Cody Dekens – On September 7, Kyle Waldinger (environmental) and Nerissa Coyle McGinn (litigation) argued before Illinois' Third Appellate District in a felony murder and drug conspiracy conviction. The appellate court has not ruled yet. Kyle and Nerissa are in the process of writing an article for the Illinois State Bar Journal regarding the law of felony murder in Illinois.

Last year, partner Tim Higginson (Information Technology) embarked upon a pro bono project in which he formatted and wrote the Handbook of Model Rules of Procedure for Meetings for Chicago Local School Councils. The Handbook is the first set of model rules to be tailored to the Chicago local school council setting.

Higginson became interested in creating the Handbook while serving on the Highland Park Cultural Arts Commission. In researching materials to make his own committee meetings for the Arts Commission run smoothly, Tim found that many organizations, particularly the Chicago Local School Council (LSC), were lacking efficient tools to guide them through their agendas. While the existing model (Robert's Rules of Order) is operative, its length and complexity are not suitable in the LSC context, nor does it conform to the laws that govern LSCs.

At a meeting with the Chicago Law Association last summer, Higginson's text gained the approval of the Chicago School Advisory Committee. From there it was distributed to a local school council focus group that also responded with positive feedback. Many advisory group and school council members agree that the manual's flexibility is superior to that of other models. Organizations can choose to "keep the Handbook nearby as a helpful tool in running meetings," or they can "formally adopt it as LSC rules of procedure."

Coedited by the Rev. Zarina Suarez O'Hagin, the Handbook is scheduled to be published by the Chicago Lawyers' Committee for Civil Rights Under Law this year and will also be placed on their website. Higginson said of his experience, "Most attorneys are unaware of the numerous transactional pro bono activities available to them, but by taking them on they are able to directly help their own communities."

By now, MBP partner Mark Ter Molen's work in freeing Verneal Jimerson from death row is well known. One of the so-called "Ford Heights Four," Mr. Jimerson spent 12 years on death row for a murder he did not commit. Mark had Mr. Jimerson's charges dismissed, had him formally exonerated, and helped him win a large financial settlement for his wrongful incarceration. But this is not the only death penalty work we are doing:

• Last spring, associate Ken Merlino (litigation) and Marc Kadish tried a first degree murder case in the Cook County Circuit Court. Although convicted after a weeklong trial, the defendant avoided the death penalty.
• Marc Kadish has also joined partner Michael Gill and litigation associates Ashish Prasad and Jim Barz in a pending death penalty case which was forwarded to MBP by North-western Law School's clinic. The team is heading toward a motion to suppress the defendant's confession and other evidence. A trial should take place in early 2000.

Diane Smith (litigation) has taken over a Georgia state habeas corpus case that was scheduled to be heard last September but was put on hold due to the former counsel's withholding of records. A subpoena has been issued; the hearing will not get under way until next year. This is the second pro bono death penalty case Diane has conducted upon request from the Georgia State Resource Centre.

Two decades of civil war and a brutal reign of terror inflicted on the nation by the late Pol Pot have left the countryside of Cambodia riddled with landmines. The estimated 10 million mines that now lurk in Cambodian soil have isolated whole sections of the country and have produced thousands of victims, many of them children. Over 35,000 amputees await treatment, while more than 200 more Cambodians lose limbs to landmines each month.

To help these victims, the Cambodian Trust was established in 1989 to produce artificial limbs and operate three clinics in Cambodia to rehabilitate amputees. For the last five years Mayer, Brown & Platt has been assisting The American Friends of the Cambodian Trust, a U.S. not for profit corporation established to raise funds in support of the activities of the Trust.

At the suggestion of Cambodian Prime Minister Hun Sen, the Trust was established in England by Peter Carey, an Oxford don and former classmate of MBP partner Peter Darrow at Trinity College, Oxford, and Stan Windass, an English consultant, Oxford graduate, and friend of Peter Carey. Carey and Windass persuaded a UK prosthetics manufacturer to donate its prosthetics machinery to the Trust, and then had it shipped to Phnom Penh, where newer, lighter prosthetics are now manufactured by Cambodians trained by the Trust.

In England the Trust's celebrity-heavy membership has been very successful in generating support. Carey approached Peter Darrow three years ago about assisting in reviving the dormant U.S. entity. Peter accepted and now serves as special counsel, along with Rob Cordell in the New York Office.

The Trust's board of directors includes Dith Pran, subject of the movie The Killing Fields, as well as its director, Roland Joffé. Working with Trust executive director Christine Ho, Peter has organised several successful fundraising events in New York — most recently, an art auction at the showroom of New York fashion designer Moschino that raised nearly $27,000. Your help is welcome, of course.

M ayer, Brown & Platt has encouraged the goals of the Public Interest Law Initiative (PILI) since its founding in 1977. PILI is a cooperative venture among the Chicago Bar Association, the Donors Forum of Chicago, the Chicago Bar Foundation, law schools and public interest agencies aimed at providing "law students and new lawyers with experience and training in the legal institutions serving the public interest."

Ty Fahner, our Co-Chair, was one of the five conveners of a special PILI luncheon held to renew commitment by the city's major firms and corporate legal departments to pro bono work. Ty spoke at a press conference on October 25 to publicise the luncheon and Jason Kravitt, CoChair of the firm, spoke on behalf of the firm at the November 3 luncheon. On both occasions, Ty and Jason pledged to continue the firm's involvement with PILI, increasing pro bono support in both civil and criminal law projects.

They noted the important roles MBP partners and former partners have played in PILI's development. John Clay was president of PILI from 198688 and retired from MBP to become PILI's Executive Director from 198897. Tom Nicholson succeeded John as president from 198891. Marc Kadish, our Director of Pro Bono Activities, served as PILI's Educational Director from 198586. Pat O'Brien, Senior Counsel at the firm, currently serves as a member of the Board of Directors.

They specifically stressed MBP's dedication to developing innovative community services such as the PILI Fellowship Program. Any graduating law student who accepts a position with MBP is eligible for a PILI Fellowship. MBP furloughs, at the firm's expense incoming associates to work at a public interest agency throughout the summer they study for the bar exam. A PILI Fellowship at the start of a new lawyer's career provides an unparalleled opportunity to practice a range of advanced lawyering skills in public interest law, while providing much needed additional resources for the agencies.

Last summer, associates Andrew Gruber, Nicole MartinezMartin and John Schomberg were awarded PILI Fellowships. All three associates agree that their PILI experiences were of immense value. Andrew worked with The Community Economic Development Law Project, an organisation that provides transactional legal assistance to low income individuals starting small businesses. Andrew commented, "I was fortunate to be involved with a PILI entity that focused on community revitalisation and education. I can apply the things I learned in the Fellowship to my transactional practice as well as to a diversity of pro bono undertakings."

For reinforcement, Joe enlisted Hans Goebel, a Mexican transactional attorney working at MBP as a foreign intern. Hans was able to provide translation for much more than just dialogue. Hans explains, "I served as a link between Medina, his family, and his attorneys. I knew how to formulate the questions Ken and Nerissa were asking, but I was also sensitive to the cultural circumstances that moved Mr. Medina to participate in the crime — so I began asking my own questions."

With Hans as their guide, the team learned that Medina had no criminal history in Mexico or in the States, nor was he involved in the drug business: he simply saw an opportunity to make some money for his family and took it by lending his leased warehouse space to a stranger who sought a place to store marijuana. "It is fair that Medina pay for his foolishness," said Goebel, "but not by spending 10 years in prison. That kind of sentence would be suitable for the people who planned the drug deal only."

After getting to the bottom of the story, the four attorneys explained to Mr. Medina why his best option was to plead guilty. Together they negotiated his sentence with the U.S. Attorney's Office. After these negotiations, and because of Medina's agreement to co-operate with the federal government, his penalty was dropped from 10 years to approximately 48 months.

Marc had high praise for the attorneys' work. "Nerissa and Ken basically took over for me, handling the negotiations on their own. Joe Brown and Hans Goebel are two transaction lawyers who, before this, had not worked on any litigation matters. As a team, the four of them did a great job of communicating with Mr. Medina and reaching a plea agreement with the U.S. Attorney's Office."