One year after Corporation Counsel Michael Cardozo began lobbying the city’s law firms, asking them to assist the city Law Department in handling its caseload, more than two dozen private firms–among them the largest and most successful in New York–have answered the call. “By helping the Law Department, these firms are assisting all people in the city,” Cardozo announced this past December, in a press release describing the success of his pro bono initiative. “Our citizens in New York gain not only from the benefit of the knowledge and expertise of our external pro bono lawyers but also from savings in taxes and resources that we’d normally need to litigate cases.”
But what began as an inspired effort to tap into the pool of civic generosity in the wake of September 11 has begun to morph into a murkier enterprise. It’s one thing, say an increasing number of concerned critics, for the city Law Department to ask for help filing death notices or damage claims for lost property–as Cardozo’s predecessor, Michael Hess, did. It’s also not hard to see why the budget-strapped city is seeking expert legal assistance to help minimize its sizeable payments to people injured tripping on sidewalks.
But now the Bloomberg administration has begun to use the best legal help money can buy to defend itself against lawsuits alleging racial and employment discrimination. And under Cardozo’s pro bono program, it’s getting that help for free.
Late last year, the law firm of Beldock Levine and Hoffman, which represents a group of Parks Department employees who allege they were verbally abused and systematically discriminated against by former Parks Commissioner Henry Stern, learned that attorneys from Clifford Chance USA, one of the nation’s largest law firms, were working on Stern’s defense.
Cynthia Rollings, a partner with Beldock who is overseeing the Parks case, contends that the city, seeking to protect itself from the potentially expensive fallout of discrimination claims, is abusing the institution of pro bono legal work. “There is a big difference between what’s in the public good and representing someone and not charging them,” says Rollings. “It flies in the face of reality to claim that this is pro bono.”
Rollings points out that the Parks discrimination case is serious enough that the U.S. Justice Department filed its own suit against Stern and the city last June. (That suit has since been combined with the one filed by Beldock and its co-counsel, Steel Bellman Ritz & Clark.)
Clifford Chance partner Blair Soyster had no comment. “We’ve been asked not to talk about the case,” says Soyster, adding that her instructions came from Corporation Counsel spokeswoman Kate Ahlers.
Ahlers, previously a spokesperson for Clifford Chance, says that the Law Department has no formal strategy for assigning private lawyers to litigation; her office simply uses the volunteer attorneys for whatever work comes up. “I don’t think there was any one specific process regarding who took what–some took slip and fall, and some took federal cases,” says Ahlers. “The 9/11 tragedy brought forth a desire to do good work. I don’t think it reflects poorly on a firm on having an interest in defending the city.”
At the heart of the critics’ complaints, in Ahlers’ view, is self-interest: Trial attorneys suing the city are going to have a much harder time winning huge awards in cases where the city has top attorneys mounting a vigorous defense. “It’s not surprising that trial lawyers oppose” the pro bono program, observes Ahlers. “That cuts into the fees they earn.”
And the city is sued constantly. According to Corporation Counsel, the city paid out more than half a billion dollars in tort claims in 2001. Of that, about $37.5 million were “slip and fall” payouts; big dollars also went to plaintiffs in police brutality and wrongful arrest cases. This year, the Bloomberg administration has budgeted nearly $600 million for claims against the city. According to Corporation Counsel, more than 14,000 personal injury claims are filed against New York City each year, and 9,000 cases are initiated. Right now, the city has approximately 47,000 lawsuits pending against it.
The Law Department declined to provide a breakdown of the various cases on which attorneys in the pro bono program are working. But comments in Cardozo’s press release offer a clue. “We are currently defending four federal court tort cases on behalf of the city,” said Joel B. Harris, chair of the Litigation Practice Group at Thacher Proffitt & Wood. “These involve substantial damage claims for alleged violations of civil rights, such as police brutality, wrongful arrest, etc…. Not only are we assisting the city in such difficult times, but our associates are getting real training, dealing with real-life people in real-life situations and arguing before federal judges–all of which will make them much better litigators and much more valuable to the firm.”
But among Harris’ peers at major law firms, even some staunch defenders of the Law Department’s pro bono program say they are uncomfortable with offering free assistance to help the city defend itself against class action lawsuits.
Ron Tabak at Skadden, Arps, Slate, Meagher & Flom runs one of the biggest pro bono programs in the city: In 2001, the firm donated 45,000 hours in pro bono work in New York City alone, including political asylum cases and helping women file claims against their batterers. The law firm also funds 25 two-year fellowships for attorneys working for nonprofit legal organizations.
And Tabak thinks that, overall, the city program is a good thing; Last year, an associate at Skadden donated 300 hours to the city’s Law Department. But when the city asked Skadden, Arps to help it defend against a class action lawsuit that alleged mistreatment of homeless people, the firm said no. If the head of the Law Department “is trying to send out the overall positive message that pro bono work is a good thing,” Tabak says, “it gives the appearance of undercutting his own message when he then seeks help in defending against an impact homeless case. I would rather see them deal with being shorthanded by seeking help in affirmative things such as dealing with violations of the city’s human rights law.”
Tabak’s idea is hardly farfetched. More than a decade ago, the Law Department was given specific power to investigate and prosecute violations of human rights law, such as discrimination on the basis of race or sexual orientation. But Craig Gurian, principal author of a December 2001 city Bar Association report on the enforcement of the law, found that the city “had never even once since they got this explicit authority in 1991 commenced a lawsuit based on the antidiscrimination provisions of the city’s human rights law. They have the authority to investigate and prosecute pattern and practice cases, and they haven’t done it.”
Based on Gurian’s report, the Bar Association called for the creation of a civil rights unit at the Law Department.
Instead, the law Department appears to be using all the resources it can command to fight against civil rights cases. Richard Levy, a partner in the labor and employment law firm of Levy, Ratner & Behroozi, will soon be facing off with lawyers from the top firm Proskauer Rose. Levy is representing the Latino Officers Association in its class action lawsuit against the New York Police Department, where more than 40 police officers are alleging discrimination in job assignments, on-the-job harassment and unfair disciplinary charges.
Attorneys from Proskauer have already deposed some of his clients, says Levy, who suspects the firm is behind what he calls a “barrage” of motions filed by Corporation Counsel requesting that a federal judge dismiss the plaintiffs’ claims without a trial. “Law firms like mine who are representing minority plaintiffs in cases like this are working against the City of New York that has enormous resources,” says Levy, “and are engaged in long legal fights. This one is already three years [old], and we are not at trial.”
Attorneys at nonprofit legal advocacy organizations say there’s no question that the city’s use of skilled and highly compensated private legal teams gives it an enormous advantage in litigation. “It really throws the balance of power off,” says Craig Acorn, an attorney with the Urban Justice Center. “If we are filing a class action lawsuit on behalf of people who have been denied food stamps, if we were facing Proskauer Rose, which could bury us in procedural litigation strategy, it would be very difficult for us to go on.” Urban Justice Center is well familiar with the assets pro bono attorneys have to offer: Debevoise & Plimpton–another firm that has offered to donate pro bono services to the city–was part of the Urban Justice Center legal team that recently won a landmark settlement in Brad H. v. the City of New York. Thanks to that settlement, mentally ill prisoners will soon be able to sign up for medical and other public benefits prior to their release from city jails, to help ensure a stable transition back into the community.
But outside the limelight of class-action litigation, pro bono help is extremely difficult to come by. Legal assistance groups report a serious scarcity of free services for individuals who can’t afford their own attorneys. The Queens Volunteer Lawyers Project of the Queens County Bar Association has a budget of $45,000 and fields approximately 3,000 calls a year for legal assistance for low-income residents seeking help with everything from evictions to custody fights to government benefits.
Of them, says project head Mark Weliky, “we can help with full representation in a hundred cases.” The rest are referred out. “There is never enough legal assistance for people. And the concept of attorneys doing any pro bono hours for anything other than representing poor people is just the most horrendous perversion I have ever heard in my life.”
Manuel Vargas, head of the Immigrant Rights Project of the New York State Defenders Association, says he would love to have a champion like Michael Cardozo. “The courts that are inside state prison facilities, we looked at the figures on this, over 85 percent of individuals in those immigration proceedings were unrepresented,” says Vargas.
Since the mass detentions following September 11, the situation has become even more extreme. “What few pro bono resources that are available are nonprofits or the pro bono resources that have been called upon,” says Vargas. “Immigrant access to counsel and efforts to avoid detention is an area of huge unmet needs.”
Ruth Ford is a contributing editor to Habitat magazine.