Tag Archives: pro bono

BIG LAW RESISTS THE ASSAULT ON DEMOCRACY

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Call them unsung heroes.

When attorneys in big law firms get things right, they deserve more attention than they receive. Recently, some of them have won important victories in the profession’s noblest pursuit: protecting our republic. And they’re not getting paid anything to do it.

Start with North Carolina. On July 29, a unanimous court of appeals threw out that state’s voter ID law. In an 83-page opinion, the court wrote that the law had targeted African Americans “with almost surgical precision.”

Behind that monumental win was an enormous investment of money and manpower — all of it pro bono. Daniel Donovan led a team of lawyers from Kirkland & Ellis LLP through two trials over a four-week period. More than fifty witnesses testified. After losing in the trial court — which issued a 479-page opinion denying relief — the plaintiffs appealed. On July 29, they won. Think of it as Kirkland & Ellis’s multi-million dollar contribution to democracy.

On, Wisconsin!

The same day that the court of appeals threw out North Carolina’s unconstitutional voter ID law, a federal judge in Madison invalidated Wisconsin’s effort to disenfranchise African Americans and Latinos. Big law firm partner Bobbie Wilson at Perkins Coie LLP was at the center of that effort. A nine-day trial and more than 45 witnesses (including six experts) culminated in Judge James B. Peterson’s 119-page ruling in favor of the plaintiffs.

On August 22, the seventh circuit court of appeals denied the request of Governor Scott Walker’s administration to stay Judge Peterson’s ruling.

North Dakota

Three days later, Richard de Bodo of Morgan, Lewis & Bockius LLP won a challenge to North Dakota’s voter ID laws. The targets of that legislation were Native Americans.

Like similar statutes enacted throughout the country since 2010, voter ID laws in North Carolina, Wisconsin, and North Dakota were products of a Republican-controlled legislature and governorship. The real motivation behind such restrictions on a fundamental right is as ugly as it is obvious.

Fighting Against the Demographic Tide of History

In 2014, the Brennan Justice Center noted that North Carolina and Wisconsin were in select company: “Of the 11 states with the highest African-American turnout in 2008, 7 have new restrictions in place: Mississippi (73.1 percent), South Carolina (72.5), Wisconsin (70.5), Ohio (70.0), Georgia (68.1), North Carolina (68.1), and Virginia (68.1).”

Of the 12 states with the largest Hispanic population growth between 2000 and 2010, North Carolina was one of nine that made it harder to vote. The others were South Carolina, Alabama, Tennessee, Arkansas, North Carolina, Mississippi, South Dakota, Georgia, and Virginia.

Rigged Elections? Yes, But in Whose Favor?

Now that the Republican nominee for President of the United States is pushing a dangerous and destructive new theme, the battle to vote has now assumed a great significance.

“I’m afraid the election is going to be rigged,” Donald Trump warned at a rally in Columbus, Ohio on August 1, right after the North Carolina federal appeals court ruled.

That evening he told an interviewer: “I’m telling you, November 8, we’d better be careful, because that election is going to be rigged. And I hope the Republicans are watching closely, or it’s going to be taken away from us.”

Dedicated attorneys — especially those in big firms willing to donate enormous resources to the cause — have worked hard to protect the right of every eligible person to vote. If they hadn’t, then the North Carolina legislature might, indeed, have rigged the election in a key swing state that President Obama had won. But that’s not what Trump meant, was it?

No, he sees a different enemy.

“[P]eople are going to walk in, they are going to vote 10 times maybe. Who knows?” he said in an August 2 interview.

He now has a website page: “Help Me Stop Crooked Hillary From Rigging This Election.” Such whining is actually much more than that. It’s a campaign tactic uniting two sinister and pervasive themes: racial division and attacks on the rule of law.

Facts Don’t Matter

Trump began stoking fear and division with a promise to build a wall to keep out Mexicans, whom he called rapists and drug dealers. He then coupled it with a “deportation force” to “round ’em up,” sending 11 million illegal immigrants “back where they came from.”

Then he professed ignorance about David Duke. (“I don’t know anything about David Duke… I know nothing about white supremacists.”) Before long, he unleashed hostility toward “Mexican” Judge Gonzalo Curiel. After scaring people, it was a short step for him to becoming their self-professed “law-and-order” savior.

Now he is wrapping his message in a long-discredited canard. Defenders of unconstitutional voter ID laws persist in fomenting “election fraud” paranoia, even though it lacks any factual basis. Professor Justin Levitt at Loyola Law School, Los Angeles tracked all claims of alleged voter ID fraud and found a grand total of 31 credible allegations – out of more than one billion ballots cast.

In the North Dakota case, Judge Daniel L. Hovland wrote, “There is a total lack of any evidence to show voter fraud has ever been a problem in North Dakota.”

Likewise, in the Wisconsin case, the judge ruled. “The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities. To put it bluntly, Wisconsin’s strict version of voter ID law is a cure worse than the disease.”

And in the North Carolina case, a unanimous court of appeals concluded, “The record thus makes obvious that the ‘problem’ the majority in the General Assembly sought to remedy was emerging support for the minority party.”

Mob Mentality

The cry of phantom election fraud feeds Trump’s narratives, while taking them a perilous step farther: de-legitimizing an election that polls now show Trump is losing “hugely.” As his prospects sag, his vile rhetoric escalates.

Shortly after an August 10 poll showed Trump trailing in Pennsylvania by double digits, he went to that state and told an Altoona crowd, “Go down to certain areas and watch and study and make sure other people don’t come in and vote five times… The only way we can lose, in my opinion – I really mean this, Pennsylvania – is if cheating goes on… ”

Never mind that Pennsylvania hasn’t voted for a Republican Presidential nominee since 1988. Even an incumbent, George H.W. Bush, couldn’t carry it in 1992.

Trump then continued waving his red herring: “Without voter ID there’s no way you’re going to be able to check in properly.”

Scorched Earth

The real danger to democracy isn’t election rigging or cheating. It’s Donald J. Trump. De-legitimization – the ultimate ad hominem attack on a process to undermine its outcome – is a standard tactic from his deal-making playbook. When it appeared that he might not arrive at the Republican convention with enough delegates to secure the nomination, he warned about “riots,” if someone else won.

Never mind the rules; they’re for losers. Anyone fearing that Trump will win should fear more that he won’t.

Trump knows that facts don’t matter because – true or false – the branding sticks. For example, there was never any evidence to support Trump’s wild “birther” claims about President Obama in 2011. But five years later, 20 percent of Americans still believe — today — that he was born outside the United States.

Some people will always believe anything Trump says, even as he contradicts himself from one moment to the next. His infamous line was pretty accurate: “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters.”

Perhaps he is discovering that “any” was an overstatement. But his de-legitimization strategy worked against most Republican politicians, who folded like cheap suits rather than break from the man-baby who would be king. Now the stakes are higher. His targets are the rule of law, the essence of democracy, and the peaceful transfer of Presidential power that occurs every four years.

The Real Losers

The eventual victims of Trump’s scorched earth approach will be the American people. If, as with his false “birther” claims five years ago, 20 percent of voters – about half of his current supporters – believe that Trump’s defeat results from a “rigged” election that “cheaters” won, the collateral damage to the county will be profound.

Donald Trump lives in a simple binary world of winners and losers – and he’s all about winning at any cost. He measures success in dollars. His latest tactic makes democracy itself the loser. Try putting a price on that. And thank some big law firms and their attorneys who are willing to make the investment required to stand in his way.

A FOOL FOR A CLIENT

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Abraham Lincoln often gets credit for the line, but in 1814 clergyman Henry Kett’s collection of proverbs in The Flowers of Wit included, “I hesitate not to pronounce that every man who is his own lawyer has a fool for client.”

More than two centuries later, it’s still true. But don’t tell Stephen DiCarmine, former executive director of the now-defunct Dewey & LeBoeuf. He doesn’t believe it. Recently, he appeared before Acting Justice Robert Stolz and explained that he wants to fire his attorney and represent himself.

Last year, three weeks of deliberation following a three-month trial produced a defense verdict on some counts and a deadlocked jury on the remaining charges against DiCarmine, former firm chairman Steven Davis, and former chief financial officer Joel Sanders. Davis then entered into a deferred prosecution agreement and Justice Stolz dismissed additional counts. Retrial on the remaining charges against DiCarmine and Sanders is set for September.

Judicial Skepticism

“The consequences are very severe in this case,” Justice Stolz told DiCarmine. “You could go to state prison if convicted.”

DiCarmine thinks he knows better. A graduate of California Western School of Law in 1983, he told the judge that he had discussed the issue with several lawyer friends. Their reactions: “Bad idea.”

But DiCarmine heard what he wanted to hear. At least, that’s what he told the judge: “They said if anyone can do it, you can do it.”

The truth is that when incarceration is a potential outcome, no one can do it. And no one should try. Gideon v. Wainwright’s guarantee of a right to counsel in criminal cases exists for a reason. And it doesn’t matter if the defendant is a lawyer.

Justice Stolz warned DiCarmine that he might think he knows what the case is all about because he’s been through it once. “But I assure you,” he urged, “it will be a different jury. It will be a different presentation from the People.”

An Unfortunate Moment

DiCarmine’s current lawyer, Austin Campriello, did a masterful job at the first trial. For good reason, he’s among the most highly respected criminal defense lawyers in New York. Campriello told the court that although his client’s finances were a factor, the motivating reason for DiCarmine’s request related to defense strategy.

DiCarmine then offered an unfortunate comment that unfairly tarred other big firms.

“I’ve run a law firm,” DiCarmine said. “When the client is not paying the bill, the services that are being rendered are not necessarily the same as if he were being paid.”

Nonsense. He displayed a remarkable ignorance of what the lawyers in his firm were actually doing while he was “running” it. Directly, he insulted all former Dewey & LeBoeuf attorneys who worked on pro bono matters. Indirectly, he put a cloud over the noble efforts of big firm lawyers who provide millions of dollars in free legal services to clients every year. Implicit in his remarks are widespread violations of ethical rules to advocate on behalf of all clients with the same seal. Those rules apply to all lawyers.

Natural Consequences

Justice Stolz properly put DiCarmine in his place, saying that Campriello would work to the best of his professional capacity, regardless of DiCarmine’s financial situation. He also told DiCarmine to think long and hard about his pro se request before the next hearing on May 27.

DiCarmine seeks to jettison a great lawyer for someone who, apparently, has been in a courtroom only as a witness or a defendant — that is, himself. It reminds me of the joke that one of my mentors told about the importance of using experienced trial lawyers in important cases.

“A patient goes to a doctor with a serious medical condition for which there is an elaborate surgical cure,” the joke begins. “The doctor describes in great detail how the procedure will go — start to finish. The patient is impressed, but has one more question: ‘How many of these operations have you performed?’ the patient asks. ‘Oh, none,’ says the doctor, ‘But I’ve watch a lot of them.'”

Revise the scenario slightly so that the doctor has observed the procedure only once — and is going to perform it on himself. Now you have a sense of DiCarmine’s plan.