Editor: Ted, I understand that you were recently named Wiley Rein’s first Pro Bono Partner. Why has the firm decided to concentrate one of their major efforts in one chair?
Howard: We continue to have a pro bono committee, which was previously chaired by Paul Khoury, a partner in our Government Contracts Practice. In addition to his pro bono responsibilities, he maintained a very busy full-time practice. I think the decision at the management level was that while we have a very robust pro bono practice, culture and tradition, in order to take the next step in increasing and enhancing our pro bono commitment and presence in the community, it made sense to concentrate more of the responsibilities in the hands of a single person who would be willing and able to devote full time to this practice. I’m certainly honored and privileged to have that opportunity as the first full-time pro bono partner.
Editor: You have a national reputation as a litigator, not only in insurance law but also in pro bono, and were recognized by the Legal Aid Society of the District of Columbia with the Servant of Justice Award. What are some of the areas where you have served pro bono causes?
Howard: I’ve done a variety of pro bono work over the years – a lot of work involving prisoners’ rights or conditions of confinement-type issues, but also I did an extended death penalty representation and a large and complex class action with respect to landlord-tenant matters. I’ve also done child custody and adoption work on matters taken on from the D.C. Bar Pro Bono Clinic. Those are the primary areas in which I’ve concentrated my activity, which has also included extended terms of service on the Boards of Directors of the D.C. Prisoners’ Legal Services Project and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
Editor: Please tell our readers about your representation of plaintiffs in a constitutional challenge to the medical care provided at the Fluvanna Correctional Center for Women, a Virginia state prison.
Howard: This is a matter that we are co-counseling with the Washington Lawyers’ Committee’s Prisoners’ Rights Project as well as the Legal Aid Justice Center in Charlottesville, Virginia, and their Institutionalized Persons Project. They came to us in late 2009 after receiving a significant number of complaints from women incarcerated at Fluvanna, which is ironically the prison in the Virginia correctional system to which women with the most serious medical problems are sent. The issue is that the Virginia Department of Corrections has contracted out the medical care services to a private, for-profit company, just one of many instances around the country that illustrates that provision of care by for-profit companies is an extremely controversial proposition. Care suffers because prison populations are typically composed of persons with very serious medical problems, such as cancer, diabetes, hepatitis, etc. – diseases that are not properly combatted by the cost-cutting, profit-maximizing approach that these companies take. We are challenging the quality of care as being substandard under the Eighth Amendment to the U.S. Constitution. We hope that at the end of this process, either through a settlement or a judgment entered by the court, the defendants will be required to undertake broad, systemic measures to improve the quality of care. The case is pending in the U.S. District Court for the Western District of Virginia.
Editor: Does Wiley Rein’s pro bono program have a particular focus for the entire firm or do the interests of the lawyers determine the cases undertaken?
Howard: Our work is largely dictated by the established relationships we have with a number of local legal services providers as well as the interests of individual lawyers who have particular concerns and passions to which they would like to devote some of their volunteer time.
Editor: Do you intend to extend pro bono services across all practice groups, not just the litigators?
Howard: Absolutely. In fact, we already have some representative engagements that are not litigation oriented. Our corporate lawyers have done a fairly substantial amount of 501(c)(3) nonprofit organization work, including incorporating those entities. One example of a non-litigation project that drew upon both our corporate and communications expertise was a project with the Mobile Giving Foundation. We were able to help disaster response organizations, such as the Red Cross, to facilitate the ability of donors to pledge donations by way of text messages.
Editor: Does the firm credit associates with billable hours for time spent on pro bono?
Howard: We do. At the associate level we credit up to 50 hours annually as essentially billable hours, which comes into play not only with respect to meeting their targets for compensation and advancement and bonus purposes, but also in terms of qualitative evaluations that play into how a person progresses in the firm. If an associate does really good work on a pro bono project, it is evaluated and taken into account in much the same way as that type of performance would be taken into account on a billable matter.
We do not have a formal requirement that associates commit a certain number of hours to pro bono work. Much like the ABA and the D.C. Bar, it is certainly an aspirational goal and objective that we would like to have all of our lawyers meet, not just associates but everyone, but it is not a requirement.
Editor: Tell us about some of the other pro bono matters the firm has undertaken.
Howard: We have the resources to undertake both large-scale matters along the lines of the Fluvanna Correctional Center for Women matter as well as a number of smaller matters that have great significance for the individual clients involved. A very important recent matter that our lawyers – together with the Maryland ACLU – successfully resolved was the Sharp vs. Baltimore City Police Department matter. The case involved an individual who filmed what appeared to be an excessively forceful arrest of an individual at the Preakness Stakes horse race several years ago. The police confiscated the individual’s phone and deleted not only the film relating to the arrest but also some of that individual’s personal videos and photographs of his family. We felt that a very significant First Amendment issue was involved, and ultimately we were able to persuade the Police Department to that effect. A settlement was reached that was very favorable to the individual, which will also have some precedential impact on the way in which the police conduct themselves in the future and on the rights of citizens to use cell phones in the way that this individual had used his in this instance.
The firm also was co-counsel with the Washington Lawyers’ Committee and the Equal Rights Center in a high-profile matter in representing a class of disabled users of the MetroAccess system, a system geared specifically to provide public transportation for disabled riders. There were very significant problems in terms of the quality, quantity and reliability of those services. We brought an action under the Americans with Disabilities Act to try to rectify some of those abuses. The class action resulted in a multi-million dollar settlement in 2012 as well as systemic changes in the way MetroAccess conducts its business.
We are one of a number of firms that regularly staff the D.C. Bar Pro Bono Clinic. On the night when our name comes up, we send a team of lawyers and legal assistants to the clinic to conduct intake of the matters that come in that evening, subject to a commitment and understanding in advance that we will follow through with those matters, such as child custody, landlord-tenant and Social Security benefits matters. These matters provide great opportunities for our junior lawyers to take on major responsibilities and get some excellent training, subject to partner supervision.
We have been involved in a case brought in the U.S. District Court for the Southern District of New York, followed by an appeal to the Second Circuit, representing a priest in connection with his public blessing of a Cross that was incorporated within the 9/11 Museum. There were Establishment Clause First Amendment issues as to whether there was a church/state problem since the museum is publicly funded. We obtained a dismissal of the case against our client and authored an amicus brief in the ongoing appeal of the case against the other defendants.
We’ve appeared in the U.S. Court of Appeals for the Ninth Circuit, which has a pro se panel that reviews cases brought by individuals who are not represented by counsel. If, at the appellate level, it is decided that the case involves issues that deserve to be presented to the court in a more complete and comprehensive manner, then pro bono counsel is called upon to handle the appeal. We’ve gotten involved in a number of those appeals where the firm pays the travel expenses to send a team to the West Coast to argue the matters on behalf of indigent clients. There’s a broad array of cases we have undertaken that goes far beyond what I’ve just described.
Editor: Would you like to mention some of the agencies that bring cases to you?
Howard: I hope to nurture and enhance the relationships that we have with legal services providers but also develop new ones to the extent that our attorneys’ interests are served. Organizations with which we have longstanding and established relationships include the Washington Lawyers’ Committee for Civil Rights, Legal Aid Society of the District of Columbia, and Whitman-Walker Health, Inc., which is the principal medical/legal services organization for those affected by HIV and AIDS. We have longstanding relationships with Legal Counsel for the Elderly, the Washington Council for the Arts, and the Washington Legal Clinic for the Homeless. We have developing relationships with the Legal Aid Justice Center in Virginia, and the Capital Area Immigrants’ Rights Coalition. We have recently taken some matters on from them for the first time. We also have a developing relationship with the Children’s Law Center in DC. That is a representative sample of the many organizations with which we have worked.
Editor: How does the firm’s pro bono work expand the professional experiences and development of individual attorneys?
Howard: Clients bring their matters to Wiley Rein with the expectation that those who have developed expertise and reputations in the specialized areas of practice in which they have a problem or need are going to be actively involved in their matters. Often, that means partners or other senior attorneys. While we work hard at providing our young associates with good, hands-on experiences in billable matters as early in their careers as we can, pro bono work is invaluable as a way for them to get an exceptional hands-on experience early on, subject to appropriate supervision. We look at pro bono work as part of an integrated approach to training and development.
Editor: What has been the most meaningful pro bono matter for you personally?
Howard: I represented an Alabama death row inmate for 18 years between 1991 and the time of my client’s execution in February 2009. We proceeded through the usual process of post-conviction appellate review both in the State of Alabama courts and the federal courts all the way up to the Supreme Court on the issues fundamental to his conviction. In 2001, after we had exhausted those opportunities, we brought a new action in the federal district court in Birmingham, seeking to compel the State to produce physical evidence that had been used in his trial for purposes of conducting DNA testing that we believed would exonerate our client. An execution date had been set as soon as the Supreme Court denied review of the post-conviction phase. We were able to persuade the Alabama Supreme Court to stay the execution pending resolution of our claim to recover the evidence for DNA testing. After an eight-year battle of trying to get the evidence, we ultimately learned that the critical pieces of evidence we needed for testing were no longer available. Under existing U.S. Supreme Court jurisprudence, we were unable to prove that the State had intentionally destroyed the evidence to prevent it from being tested, and therefore we basically ran out of opportunities to undertake measures that would have established my client’s innocence. During that eight-year period, I had the chance to make the call to his mother to tell her that his execution had been stayed, which local lawyers down there thought we had very little chance to obtain. He was always extremely concerned about how his mother would cope with his execution, but she passed away during that eight-year time period. He was able to reestablish relationships with a number of people he had known when he was young and actually reconnected with a high school sweetheart whom he was able to marry within the context of the prison environment. The time that we were able to preserve for him before he ultimately was executed was so important to him that it was really a very meaningful thing for me as his counsel, even though we ultimately were unable to save his life.