Sunday, December 9, 2007
An Attorney's Pro Bono Rebuttal
An article appearing in this morning's New York Times decribing the indictment of Richard Scruggs, a Mississippi attorney, in his purported attempt to bribe a judge has motivated me to write this essay. My reason for so doing will hopefully be obvious by the end of my rant. Lawyers take a bad rap. They are viewed by the public as greedy, vicious and dishonest. My experience, with few exceptions, has been quite the opposite. I know hundreds of lawyers who give freely of their time and energies to help others. These people participate willingly and lovingly in all manners of civic and church-related activities. Throughout my life I have been fortunate; as a lawyer I took the concept of helping others who needed my help seriously. Various state bar associations, including Michigan's, have established guidelines for lawyers to follow in the rendering of pro bono help. In Michigan, as an example, if a lawyer does not actually perform pro bono services, he/she may contribute $300 annually to various organizations who do. During the course of my professional career I have rendered pro bono services to a number of clients which greatly enriched my life and I am offering my example, not to blow my own horn, so to speak, but to describe some of the matters in which I have involved myself to the public, other members of my profession and my grandchildren to illustrate how lawyers can and have contributed to what is good about this country. As a back drop to this discussion let me briefly describe my current activities; I am serving as an Florida Supreme Court-approved emeritus attorney in Bradenton, Florida for Manasota Legal Aid which provides free legal services in civil matters for those who cannot afford a lawyer. The Florida Supreme Court has established a program whereby retired attorneys, unlicensed in Florida, but in good standings in their home states, can render pro bono services in Florida if certain conditions are met. I am also serving as a guardian ad litem through a nationally recognized GAL organization in Manatee county which serves as a model for the nation in how to deal with children subjected to the foster care system. My first pro bono case in the mid-1970s was on behalf of John Pilarowski, a health care administrator for the Macomb County (Michigan) Department of Public Health. John, acting as a private citizen and not on behalf of his employer, wrote a series of letters to the editor of a local newspaper that were highly critical of various elected officials. He was fired for his letter writing activities. After reading of his dilemma in the newspaper, I called John and told him I would represent him for nothing. After the case was thrown out of the local court by a judge who was a target of one of the letters, I appealed and obtained a wonderful opinion from the Michigan Court of Appeals which clearly spelled out the constitutionally protected rights of expression of an individual in our society and restored employment to Mr. Pilarowski. The essence of that opinion was that if this was the way this local government did business then the county "needed more letter writers, not less". On behalf of the taxpayers of the Chippewa Valley School system, in the late 1970s I sought injunctive relief against striking teachers by suing the school board and asking the judge to order the board not to negotiate with the teachers. There is a two paragraph Michigan statute in which the first paragraph forbids public employees from striking. The second paragraph forbids public employees from condoning illegal acts. I asked the trial judge to prevent the board from condoning the illegal act of the striking teachers. The teachers went back to work the next day. Then in the early 1980s, there was the Kalamazoo case in which a local judge refused to consider making a decision as to whether or not to allow an abortion to be performed upon a 12 year old girl who was raped and impregnated by her mother's boy friend. The pregnancy was at about its tenth week and time was running. The local appointed attorney in that matter was quoted in the newspaper stories that followed that ruling as saying he didn't know what to do next. I called him on the phone and on his behalf I presented a full blown evidentiary hearing, expert testimony and all, to a federal judge in less than 36 hours of my phone call which resulted in the federal judge ordering the local judge to make a decision. My activity in this matter ended at that point but it noteworthy that the local attorney I represented received the Attorney of the Year award for his efforts from the Kalamazoo County Bar Association. The longest pro bono case was on behalf of Dave Davis who was charged with the murder of his wife. The contention was that he injected her with the drug succinylcholine and made it appear that her death was as a result of a fall off her horse striking her head. I began representing Mr. Davis in January, 1989 and continued to represent him until the early 2000s. My representation was total and included one lengthy pre trial exam, a two day Davis-Frye hearing where I contested the validity of the testing procedure which purportedly demonstrated the presence of the drug in the deceased's body, the trial, and two appellate efforts to both the Michigan Court and Appeals and the Michigan Supreme Court. Finally, after exhausting all state remedies I sought federal court habeas corpus protection for Mr. Davis. All in all, I expended several thousand hours of effort on behalf of Mr. Davis. My final pro bono effort in the State of Michigan was on behalf of all of the taxpayers of the State of Michigan in the mid-90s. My wife and three daughters were the designated named plaintiffs in this class action suit against the State of Michigan, the Governor, the Attorney General and the tobacco industry. Basically, this was a two pronged suit in which I asked the federal court for relief by way of mandamus against the Attorney General to compel him to take over the suit against the tobacco industry. While the federal judge held her ruling on the standing of the Plaintiffs to bring this lawsuit in abeyance, the Attorney General agreed to file the case in state court in Ingham County. It is noteworthy that while I agreed to represent the interests of the State of Michigan pro bono, the Attorney General subsequently negotiated a deal with out of state lawyers, including the recently indicted Richard Scruggs from Mississippi to represent Michigan which netted those out of state lawyers a fee of 450 million dollars! The $450 million award "works out to an hourly rate of $22,500, based on claims by the law firms in South Carolina and Mississippi that they spent an unbelievable 20,000 hours on the Michigan portion of the tobacco case," reported the Detroit Free Press's Dawson Bell. Arbitrators conceded that lawyers had done only a "modest" amount of work specifically on behalf of the Wolverine State, but said their efforts on the litigation on a national level deserved kudos, besides which it had been a coup for them to have recruited then-Michigan Attorney General Frank Kelley, considered influential among his fellow AGs.