By Mary Pat Gallagher
New Jersey Law Journal
April 30, 2010
The economic downturn took a toll on pro bono work at New Jersey's Top 20 firms in 2009.
For the first time since the survey began in 1991, the state's Top 20 firms failed to set a new record for total pro bono hours. The 93,322 posted in 2009 was below the 95,565 high in 2008, after years of steady annual increases.
Part of the reason was that last year was also the first time the number of lawyers available to generate those hours shrank, due to layoffs and hiring cutbacks that dropped the Top 20 headcount from 2,978 to 2,913.
But the firms' commitments to pro bono remained strong, judged by two key indicators: Average pro bono hours per lawyer were constant at 32, and the percentage of lawyers with 20 or more hours dipped by only one point, to 25.7 percent from 26.5 percent.
The numbers look even more healthy considering that Day Pitney reported no pro bono work at all for 2009, which skewed the averages downward.
One thing stayed the same: the three firms that dominate the pro bono rankings — Lowenstein Sandler, McCarter & English and the Gibbons firm — once again held the top three slots.
McCarter, the state's largest firm, remained the one with the most pro bono hours, 20,662. It cracked the 20,000-hour barrier in 2007, the only firm to have ever done so, though Lowenstein, with 19,500 hours in 2009, is closing in. The only other firm to exceed 10,000 hours is Gibbons, with 11,505 last year.
McCarter racked up a good chunk of its hours, about 13 percent, in the ReLeSe and the Military Legal Assistance programs.
ReLeSe, which stands for ReEntry Legal Services, is an Essex County program run by Volunteer Lawyers for Justice, or VLJ, with the city of Newark and the New Jersey Institute for Social Justice. It helps minor offenders by expunging criminal records that can stand in the way of employment.
In 2009, 19 McCarter lawyers spent nearly 800 hours working on 35 expungement matters. VLJ handles intake, gathers criminal histories and then hands off cases to volunteer lawyers who confirm that the clients meet eligibility criteria, meet with them to explain the process, draft petitions and make sure everyone who might object is served.
Matters typically take about three months and are decided on the papers, says McCarter partner Geoffrey Rosamond, who has been involved with ReLeSe since its 2007 inception. He was familiar with expungements from his time as a prosecutor and had already begun an in-house program at the firm before ReLeSe started.
"These are people who made a mistake, not repeat offenders," he says, emphasizing the "tremendous personal feeling" in enabling them to become productive members of society.
A cadre of McCarter attorneys contributed more than 1,900 hours in 2009 to the State Bar Association's Military Legal Assistance Program, which provides matrimonial, employment, debtor-creditor and other legal assistance to New Jersey reservists called to active duty in Afghanistan and Iraq since Sept. 11, 2001. McCarter partner William Greenberg, who spent 27 years in the Army National Guard and retired in 1994 as a brigadier general, founded the program in 2006.
Many of the reservists return paralyzed, missing limbs, brain damaged and impaired by post-traumatic stress disorder and other disabling problems. The McCarter lawyers, including Michael Pasquale and Andrew Bunn, have focused on helping wounded warriors secure better benefits, preparing their claims and traveling to Washington, D.C., to argue them.
McCarter lawyers are also helping in other contexts.
Arnold Natali and Craig Davis, working with the Seton Hall Center for Social Justice, won asylum for Liberian refugee Abdullai Jabateh on April 16, 2009, when the Board of Immigration Appeals ruled in his favor. At age 4, Jabateh saw his father murdered, his mother raped and his family home confiscated. Before he fled to the United States, he spent years being homeless or in refugee camps, where he faced threats, beatings, torture and attempted conscription as a child soldier.
McCarter's new pro bono director, Emily Goldberg, says Jabateh is now driving a taxi in New York City.
In another case, a team led by Gita Rothschild is trying to overturn the death penalty in a Pennsylvania post-conviction relief matter. Borgala Philistin was convicted in 1995 of killing a Philadelphia police officer and crippling another in 1993, after they pulled over a cab in which he was a passenger and he grabbed the officer's gun in a scuffle.
Philistin, who came from Haiti as a teenager to live with his aunt and uncle, had no criminal record and his trial lawyer failed to present positive evidence about him or the traumatic effect on him of parental beatings and brutality he witnessed living across the street from a prison run by the Tonton Macoutes, the notorious Haitian paramilitary force, Goldberg says.
McCarter, which took the case in 2004, brought big-firm resources to bear, hiring experts and flying in family and friends from Haiti to testify, but a judge denied the petition in 2008. Rothschild, Keith Lynott, Brian Osias, Gary Wilcox and others spent more than 750 hours in 2009 on an appeal that is likely to be heard by the Pennsylvania Supreme Court this year.
Not all pro bono is litigation. Beth Yingling and others aided dozens of nonprofits last year, including the New Jersey Symphony, Women's Fund of New Jersey, Habitat for Humanity, the Ramapo Bergen Animal Shelter and the Partnership for a Drug Free New Jersey, on matters involving taxes, employment, real estate and endowment advice.
Lowenstein's Public Interest Focus
In May 2009, Lowenstein Sandler launched its Center for the Public Interest to focus its pro bono work and develop areas of expertise.
One such area is charter schools. Center director Kenneth Zimmerman says the firm represents several, as well as Newark's charter school fund.
Lawyers who handle employment, corporate, finance and real estate work have been involved in the charter school work. For example, John Stolz and Stuart Yusem worked in 2009 on a real estate closing that took place on Jan. 29, for the North Star Academy College Preparatory High School in Newark.
Another marquee effort is Kids in Need of Defense (KIND), a national program to provide immigration counsel to children from other countries who are in the U.S. without a parent or guardian.
Lowenstein lawyers also remain active in pro bono matters in court.
In a suit challenging the constitutionality of early-morning immigration raids on homes, they defeated a motion to dismiss based on the heightened pleading standard of Ashcroft v. Iqbal , 129 S.Ct. 1937 (2009). U.S. District Judge Peter Sheridan ruled on Jan. 27, in Argueta v. Myers , 08-cv-1652.
There has been increased amicus work, notes Zimmerman, including an Appellate Division argument earlier this year in support of the right of siblings, who are removed from their parents and adopted by different families, to subsequent visitation with each other. The firm represents Foster Care Alumni of America, an amicus in In re N.J.R.
The Gibbons Fellowship
As usual, the Gibbons Fellowship does much of that firm's pro bono work.
Its 2009 victories included a trial court ruling that allowed a New Jersey lesbian couple married in Canada, which allows same-sex marriage, to divorce in New Jersey, which does not, and an appellate decision upholding the constitutionality of the state's domestic violence law, affirmed by the Supreme Court on Feb. 18.
In the criminal context, the firm successfully advocated for an investigation into possible police racism in the Jayson Williams murder case and represented the Innocence Project as amicus in a case remanded to a special master for a new look at when eyewitness identifications should be admitted at trial.
Firms on the Rise
Beyond the top three firms, three others significantly boosted their pro bono rankings, rising five places each.
Greenbaum, Rowe, Smith & Davis went from 12th to seventh place with a 30 percent increase in hours, from 2,636 to 3,432, despite shrinking by two lawyers, and it more than doubled the number of lawyers — from 11 to 23 — who donated at least 20 hours.
Hundreds of those hours were spent by Raymond Brown Jr., who represents more than a dozen victims of the violence in the Darfur region of the Sudan who seek to participate in proceedings before the International Criminal Court in The Hague on charges of war crimes, crimes against humanity and genocide. Other added hours are the fruit of a new referral arrangement with Central Jersey Legal Services.
McElroy, Deutsch, Mulvaney & Carpenter rose from 17th to 12th place. With 5 percent more attorneys, the firm did 21 percent more pro bono and the number of attorneys with 20 or more hours increased from 18 to 30. Nicole Alexander, who runs the program, cites the impact of stepped-up efforts to encourage pro bono in the past few years by giving a 50-hour credit toward billables and increasing emphasis on such work during orientation.
Much of McElroy's work is done through VLJ, Partners for Women in Justice and the Court Appointed Special Advocate (CASA) program. Other attorneys, like Lauren Borrone, have drafted wills for first responders through the national Wills for Heroes program. Grace Bertone has done real estate and leasing work for the Archdiocese of Paterson.
DeCotiis FitzPatrick & Cole moved from 18th to 13th place last year despite no increase in hours because, with four fewer lawyers, 15 lawyers were putting in 20-plus hours of pro bono time, compared with seven in 2008.
Three of them were Benjamin Clarke, Richard Regan and Erik Corlett, who sued the New Jersey State Interscholastic Athletic Association last year on behalf of Lauren Callandrillo, a junior who had just transferred from a Catholic school to Rutherford High School and faced a one-year sports ineligibility rule. The case was about to go to trial with summary judgment motions pending when the NJSIAA announced it would amend the rule. Clarke believes the NJSIAA blinked, and though it was too late to help Callandrillo, the hundreds of students who switch schools every year will benefit as a result.