Wiley Rein & Fielding's Ted Howard On Pro Bono: It's The Personal Connection

Sunday, August 1, 2004 - 01:00

Editor: Mr. Howard, please tell us how you came to Wiley Rein &
Fielding.

Howard: I joined Wiley Rein as a partner in February of 2001, moving
over laterally from the DC office of a New York firm. Over the years I had
worked with members of the firm's insurance practice group, and I knew the
firm's reputation for high quality work.

Editor: Would you tell us about your insurance practice?

Howard: I represent large property/casualty insurers in complex
disputes with corporate policyholders. They are generally Fortune 100 or
Fortune 500 companies that have had some sort of catastrophic property
loss or toxic tort or product liability problem. I advise carriers with respect
to their rights and obligations under their policies when they are presented
with coverage requests for these types of liabilities by corporate
policyholders, and I go on to represent the insurers in litigation when the
coverage issues cannot be otherwise resolved.

Editor: How did you get started on pro bono activities?

Howard: I've been practicing in Washington since 1981, and I realized
early in my career that pro bono activities offered a new lawyer professional
experiences that otherwise might not come until much later - briefing and
arguing motions, taking depositions, even taking the role of lead counsel in a
jury trial. Getting involved in pro bono work seemed to be a very good idea from
the standpoint of career development. In addition, I very much wanted to make a
positive contribution to society, and using my legal skills to help people who
were not in a position to pay for them seemed to be just such a contribution.

Editor: Can you tell us something about the attitude of Wiley Rein toward
pro bono and community service?

Howard: Since the time of my arrival at Wiley Rein, I have been
extremely impressed with the level of commitment to pro bono service at all
levels of the firm, as well as the extent to which it is an ingrained part of
the firm's culture.

Editor: Can you describe the Law Firm Pro Bono Challenge? What is the
firm's role here?

Howard: At some point in the mid- to late-1980s, the ABA established
what was called the Law Firm Pro Bono Challenge as a way to stimulate large and
profitable law firms into making more of a commitment to pro bono work. This
involved signing up to meet the goal of having at least 5% of the firm's annual
hours be devoted to legal services in a variety of pro bono categories. I
understand that Wiley Rein was one of the original signatories to the challenge.

Editor: Please tell us about the program.

Howard: The firm's pro bono practice is very diverse. The firm
maintains affiliations with a variety of organizations - the Whitman-Walker
Legal Clinic, the Leukemia and Lymphoma Society, the Lawyers Committee for Civil
Rights, the DC Prisoners Legal Services Project (on whose governing board I
serve), and so on - that look to the law firms to provide free legal services to
their clientele. We also work closely with the District of Columbia Bar
Association to provide such services. I should add, however, that the program
does not have any particular focus or orientation. If one of our lawyers has an
interest in a matter which does not appear, at first glance, to fit into one of
the traditional pro bono categories, he or she is nevertheless free to take it
on, provided, of course, that the Pro Bono Committee has signed off. The
committee does review whether the matter conflicts with the interests of the
firm's clients or is otherwise likely to embroil the firm in some controversy in
which, as a matter of firm policy, it chooses not to be involved. Such
situations are very unusual and limited in number, however, and the firm has
taken on advocacy with respect to issues on both ends of the political spectrum
and in between. Once the project has passed muster, the firm commits to making
its resources available in the same way that it does in taking on compensated
work.

The Pro Bono Committee, which is a standing committee appointed by the firm's
Executive Committee, is made up of people who have demonstrated their own
commitment to, and interest in, pro bono work. The committee has a number of
functions. One, as I have indicated, is to serve as a kind of clearing house for
the projects that are going to be taken on in the firm's name. Another is to
serve as liaison to the outside organizations with which we have established
relationships. When a project or proposal comes to the firm from one of these
groups, the committee circulates the information among those departments or
practice groups likely to have an interest and recruits the appropriate lawyers
to staff it. The committee also has a supervisory role, particularly with
respect to associates who are handling quite sophisticated matters and who might
be in need of guidance from supervising partners or counsel.

Editor: How does the firm handle the situation where an exorbitant amount
of time is being spent on a pro bono matter?

Howard: Once a pro bono matter has been accepted for representation,
the firm considers it a professional responsibility to the same extent as a
compensated matter. Of course, all of our attorneys are expected to "juggle"
their caseloads as necessary to meet multiple demands, but occasionally,
commitment to and involvement in a pro bono matter does mean that a particular
associate or partner is going to be unavailable, and colleagues are expected to
understand and to work around such a circumstance.

Editor: How does pro bono work resonate with the firm's clients? Is this a
plus?

Howard: It is definitely a plus. Particularly those clients which have
a community orientation in terms of their own business are glad to see that
their lawyers are similarly involved in and supportive of the community. The
relationship is strengthened when a client perceives common values in its law
firm.

Editor: Can you tell us about the connection between pro bono work and the
firm's morale?

Howard: There is a significant connection. Most younger lawyers look
at pro bono work as an exercise in professional development and as an
opportunity to give something back to the community. The knowledge that you are
helping someone in a very personal way - which may or may not be present in your
billable work - is extremely rewarding. The firm, of course, benefits from the
presence of lawyers who are committed to developing their professional skills
and have a great deal of job satisfaction, to say nothing of the fact that their
efforts reflect very well on the firm and its reputation in the community. This
is one of those rare junctures in the law where everyone wins.

Editor: Would you tell us about some of the firm's pro bono success
stories?

Howard: We recently challenged a Virginia statute that prohibited
commercial Internet communications to the extent they were "harmful to
juveniles" on the ground that the statute had been drafted in such an overly
broad manner as to prohibit all sorts of legitimate Internet communications in
contravention of the First Amendment. We won summary judgment at the federal
district court level and went on to prevail in the Fourth Circuit.

Alysa B. Wakin, who is of counsel to the firm and a fellow
insurance lawyer, was recently featured in The Washington Lawyer, which
is the official publication of the DC Bar Association, for her very successful
pro bono representation of a client in a contested child custody case. Along the
same lines, Wiley Rein was recently recognized by the DC Bar Association for a
presentation to grade school students on civil rights and the internment of
Japanese-Americans during World War II.

The firm is acting as co-counsel with the Lawyers Committee for Civil Rights
and the Disability Rights Council of Washington in a recently-filed class action
on behalf of disabled persons who rely on Metro Access, which is the specialty
service provided by the public transportation authority for those unable to
utilize bus or train service. The lawsuit challenges the quality of service
being provided as deficient under the Americans with Disabilities Act.

Editor: And your own pro bono cases?

Howard: I have been involved in the representation of a death row
inmate in Alabama since 1991. Although I cannot claim victory, I think we have
achieved some significant results. In 1993, we filed a federal habeas corpus
petition on his behalf. It ended up pending for the better part of five years in
federal district court before being decided adversely. That decision went up on
appeal to the 11th Circuit, unsuccessfully, and a petition for certiorari to the
United States Supreme Court was unsuccessful. During the pendency of the federal
habeas action, however, we were negotiating with the Alabama Attorney General's
Office to secure the production of certain evidence from our client's case for
DNA testing. Following the denial of cert. by the Supreme Court, however, the
Alabama Attorney General decided not to take a cooperative line on the
production of this evidence. We then, along with the Innocence Project of the
Benjamin Cardozo Law School in New York, filed a civil rights action under 42
USC § 1983. This was dismissed by the federal district court on the basis of a
1996 statute prohibiting repetitive habeas corpus petitions on the part of death
row inmates, but on appeal the 11th Circuit issued a unanimous ruling in our
favor. The stay of execution we obtained from the Alabama Supreme Court pending
resolution of the federal action, which most of the local experts doubted we
could obtain, remains in effect, and we are now back in district court
proceeding with the case to obtain evidence that, upon testing, may exculpate
our client. I can only add that he was originally convicted in 1983.

Editor: What do you personally get out of doing this work?

Howard: This work keeps me grounded. Most of the cases I deal with for
paying clients involve large corporations and a great deal of money. There is
great reward in obtaining a successful outcome or posturing a case for a
favorable settlement on behalf of such clients. However, the personal
connection, the emotional connection, is simply not the same as it is when
your efforts are crucial to the health, the freedom, perhaps the life of
another person, particularly when that person is indigent.

I handled a case involving a prisoner who had contracted the HIV virus. By
the time I got involved, he had AIDS and not very long to live. In the District
of Columbia there is legislation providing for compassionate release in
circumstances like these, but he did not belong to the class of persons to which
the legislation applied. We developed a rather creative argument and, in time,
the U.S. Attorney's Office agreed not to oppose us in court. The argument was
that the judge had discretion to reduce his sentence - notwithstanding the fact
that this was not a sentencing issue - and we prevailed. When our client was
being released to the custody of his parents, so that he could die at home, his
mother came up to me, hugged me and said, "God bless you, Mr. Howard." I can
only say that, while I am very gratified when I am able to win a big case for a
corporate client, I have never had the kind of feeling that I experienced at
that moment.

Please email the interviewee at thoward@wrf.com with
questions about this
interview.