Editor: Please tell us about your professional backgrounds.
Grayer: I graduated from Middlebury College and Boston University School of Law. I spent my first few years practicing here at Kramer Levin, then sojourned to the south and practiced in Atlanta, Georgia, for two years at Sutherland Asbill & Brennan. I then spent a year working for the Atlanta Legal Aid Society helping low-income people living with HIV and returned to Kramer Levin’s corporate department in 1997, becoming a partner in 2001. For the last few years, Eric and I have co-chaired the Pro Bono Committee, with which I have been involved for many years. I also run the firm’s relationship with CeDAR, the Center for Disability Advocacy Rights, in New York City.
Tirschwell: I graduated from Amherst College and Harvard Law School. I clerked for a federal district court judge in Los Angeles for two years, and came back to New York to work for Kramer Levin for about three years. I then went to the U.S. Attorney’s Office in the Eastern District of New York, where I was a criminal prosecutor for five and a half years, after which I returned to Kramer Levin and became a partner in the litigation department. I focus on white-collar criminal defense, and I represent corporations and individuals in connection with all sorts of regulatory inquiries and government investigations. Since the beginning of my career, I have been involved in doing and supervising pro bono work, and, more recently, encouraging young lawyers to do pro bono.
Editor: James, please describe your firm’s pro bono infrastructure.
Grayer: Kramer Levin has an impressive pro bono history – Judge Marvin Frankel, now deceased, was involved in setting up some of the first pro bono organizations in New York City. Doing pro bono work is deeply embedded in our core culture. Our pro bono committee pulls together representatives from each department, with the larger departments, such as litigation and corporate, having more than one representative. The pro bono committee has partner and associate members. The committee generally sets the guidelines and approves any major new pro bono initiative that the firm is undertaking.
Our pro bono representation tends toward larger-impact civil rights cases as well as individual representation, both of which are highly motivating to associates. While we do not have a suggested number of pro bono hours, we are signatories to most of the major pledges, including the Pro Bono Challenge and various bar challenges, and we have met those pledges each and every year.
Furthermore, at Kramer Levin, supervised pro bono hours count the same as billable hours for bonus purposes. We also have a pro bono team program, in which we encourage new laterals and incoming first years to partner with a more senior lawyer, who serves as a mentor and pro bono resource.
Editor: Are there particular strong suits among the kinds of causes that Kramer Levin takes on?
Grayer: We have special expertise in LGBT and marriage equality issues, having filed amici briefs with the Supreme Court on Prop 8 and DOMA. We’ve also filed several amicus briefs relating to the Padilla case, which centers around the claim of ineffective assistance of counsel if a party is not advised how a criminal plea might affect his or her immigration status.
We have smaller-scope programs, including assisting transgender individuals with name changes, and we work with an organization that, among other representations, helps people with past criminal convictions get security guard licenses when they have been denied such licenses because of their prior conviction. We partner with Brooklyn Family Defense Project to help on family law cases, and for the last 15 years we have sent an extern to South Brooklyn Legal Services in the housing unit. Finally, we have a program with the Legal Aid Society where associates can volunteer to spend, for a six-month period, a certain number of hours each week doing indigent criminal defense work.
We’ve always taken the position that pro bono should be done, but that the incentive should come from within. Our goal is to make pro bono easy and accessible and to credit it because we think it’s important, but we do not require it. We sometimes take on cases or work with new pro bono organizations if someone at Kramer Levin has an interest. For example, one of our senior associates had a relationship with Brooklyn Family Defense Project that eventually led us to partner with them.
Editor: When did you begin your pro bono career?
Tirschwell: I started at law school, where I was a member of the student-run Harvard Legal Aid Bureau. When I came to Kramer Levin as an associate, I was involved in a wide range of pro bono work, including a false arrest Section 1983 case in federal court in the Southern District, which landed me my first federal court oral argument. I handled some cases for an organization now known as InMotion, for which we continue to represent women who are victims of domestic violence in child support, custody and divorce proceedings.
One of the reasons I came to Kramer Levin was the late Marvin Frankel, and I had the great privilege to do pro bono work with him on a number of challenging separation-of-church-and-state issues, filing briefs in the Supreme Court and in circuit courts.
Editor: Eric, would you tell us about your work on the Florida law that shut down voter registration efforts?
Tirschwell: Sadly, the U.S. has a long history of enacting laws that, intentionally or not, interfere with voting rights. In 2006, in anticipation of the midterm federal elections, Florida’s legislature passed and the governor signed into law a series of rules that imposed massive penalties on voter registration groups – including nonpartisan groups such as the League of Women Voters – if they didn’t submit signed voter registration forms to the voter registration authorities within an extremely short time frame. As a result, all these nonprofit, non-partisan voter registration groups stopped registering voters altogether because they couldn’t afford to make a mistake – say, a volunteer leaving a box of voter registration forms in his trunk for two weeks.
So, we partnered with the Democracy Project at the Brennan Center at NYU and took the lead in challenging this legislation in federal court in Florida. I supervised the case, and two mid-level associates did the preliminary injunction hearing. We got the law blocked before the election that year, and the state basically dropped the appeal – we even got attorneys’ fees. Six years later, in 2012, the Florida legislature passed another very similar law, only to have it enjoined, thanks to the Brennan Center again and another law firm. I’ve also worked on voting-rights protection outside the firm with other Kramer Levin lawyers in connection with the last two presidential elections.
Editor: I also understand you led a team that litigated for the release of a group of Uighurs who had been wrongly imprisoned at Guantanamo Bay.
Tirschwell: We represented six Uighurs – a persecuted Muslim and ethnic minority in western China – part of a group that had fled in the late 1990s and 2000 and ended up in Afghanistan, that country being one of the few in the region that wouldn’t send them back to China. In 2002 they fled to Pakistan, where they were turned in by bounty hunters, and then brought to Guantanamo Bay. Fairly quickly, the military determined they were not enemy combatants; the allegation had been that they were members of an organization allegedly affiliated with Al-Qaeda, and ultimately there was no evidence to back that up.
For several years the federal courts had no jurisdiction over the Guantanamo detainees, but once the Supreme Court ruled that the detainees had the right to bring habeas corpus challenges, we – along with several other law firms representing other Uighurs – did so, in federal court in Washington, DC. Finding no basis to hold them, the district court judge ordered the Uighurs released, and because they couldn’t be sent back to China where they would be jailed or even killed, he ordered that they be released into the United States – but that ruling was stayed by the DC Circuit within 48 hours.
The pressure of the litigation began driving diplomatic efforts to find homes for the wrongfully imprisoned Uighurs; however, because the Chinese government claims they are separatists or even terrorists, most countries were afraid of retaliation if they accepted them, so it’s been a long and very difficult road for them. Eventually two of our clients were released to Albania, three to Palau, and one to El Salvador. All of our clients are peacefully rebuilding their lives and have reunited with or started families. We continue to work with the State Department to find more suitable permanent homes for our two clients who are still in Palau.
Editor: James, what kinds of counsel do you give to nonprofit entities and foundations?
Grayer: For foundations and not-for-profit entities that receive public funding, the strength of their governance is especially important. We want to make sure the audit committee is robust and that the governance structure reflects the organization’s understanding that they must safeguard the public trust by using monies in the way they were intended to be used. Likewise, any private funders of these organizations want to know that the appropriate controls, polices and procedures are in place. And, various state attorneys general have come out more strongly in favor of best practices and requirements regarding these policies and procedures.
Obviously, frauds and embezzlements do occur in the foundation/nonprofit world, but inadvertent trouble is more common, and so the preponderance of our counsel revolves around ensuring that policies and procedures are in place to head off such errors. Problems frequently arise when directors and other members of foundations and nonprofits fail to understand or address conflicts of interest – for example, as a director, you hire your husband’s firm to do the group’s PR. A conflict of interest question around such a hiring doesn’t mean it’s not permissible – after all, your husband’s firm may be the best choice. But you want to make sure you have sound policies and procedures in place that would require you, in this case, to send out RFPs to several vendors, not to be among those making the selection, and to delegate someone else to supervise the contract.
Editor: What has been most meaningful for you personally about working on these matters?
Tirschwell: Two things. When representing individuals, it’s been incredibly rewarding to help people in very difficult situations maneuver through a very complicated legal system and to help them put the pieces of their lives back together. Second, working on fascinating constitutional questions involving civil rights or liberties allows me to fight for things I really believe in and that matter on a far-reaching level. I also enjoy the intellectual challenge of these cases.
Grayer: I would echo that sentiment. I spend most of my paid time representing corporate entities, and so I probably dedicate more of my pro bono hours to individual representations. It’s gratifying to use those skills to help an individual achieve what may seem like a modest goal to you or me, but that actually translates to that individual’s ability to stay in his house, or have food on the table, or receive life-saving healthcare benefits. Helping someone along these lines is meaningful to me in a way that closing a corporate transaction is not. Furthermore, enabling a junior lawyer to unlock his or her own potential – knowing you’ve enabled a person to develop skills that could change another person’s life down the road – is extremely rewarding.