Washington Lawyer

Legal Beat

From Washington Lawyer, December 2010

By Kathryn Alfisi and Thai Phi Le

News and Notes on the D.C. Bar Legal Community

D.C. Bar Seeks Nominations for 2011 Rosenberg, Brennan Awards
The D.C. Bar is calling for nominations for its 2011 Beatrice Rosenberg Award for Excellence in Government Service and 2011 William J. Brennan Jr. Award. Both awards will be presented at the Bar’s Annual Business Meeting and Awards Dinner on June 30.

The Rosenberg Award is presented annually to a D.C. Bar member whose career exemplifies the highest order of public service. The Bar established the award in honor of Beatrice “Bea” Rosenberg, who dedicated 35 years of her career to government service and performed with distinction at the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission. She also served as a member of the Board on Professional Responsibility.

In keeping with the exceptional accomplishments of Ms. Rosenberg, nominees should have demonstrated outstanding professional judgment throughout long-term government careers, worked intentionally to share their expertise as mentors to younger government lawyers, and devoted significant personal energies to public or community service. Nominees must be current or former employees of any local, state, or federal government agency. For more information on the Beatrice Rosenberg award criteria, visit www.dcbar.org/rosenbergaward/rosenberg_info.cfm.

The Bar established the William J. Brennan Jr. and Thurgood Marshall awards in 1993, both of which are presented bi-annually in alternating years. Award recipients are recognized for their excellence, achievement, and commitment to civil rights and individual liberties. Candidates for the Brennan award must be members of the Bar who have demonstrated excellence, dedication, and commitment to public interest law.

Nominations for both the 2011 Rosenberg and Brennan awards should be submitted to Katherine A. Mazzaferri, Chief Executive Officer, District of Columbia Bar, 1101 K Street NW, Suite 200, Washington, DC 20005-4210. The last day of submission is February 11, 2011.

For more information about the Brennan Award, e-mail brennanaward@dcbar.org; for information on the Rosenberg Award, e–mail rosenbergaward@dcbar.org. Information for both awards can be found at www.dcbar.org/awards. To learn more about the 2011 Annual Business Meeting and Awards Dinner, which will be held at the Renaissance Mayflower Hotel, 1127 Connecticut Avenue NW, visit www.dcbar.org/annual_meeting/index.cfm.

D.C. Bar Pro Bono Program Garners Community Partner Award
probonoBread for the City dedicated the morning of October 7 to recognize the tremendous efforts of its volunteers—numbering more than 1,500 each year—to meet the organization’s mission of providing essential services to vulnerable Washington, D.C., residents.

Held at the National Press Club, the Fifth Annual Good Hope Awards breakfast honored Bread for the City’s top volunteers, from those who helped with its food program to its leading corporate partner. The D.C. Bar Pro Bono Program received the Community Partner Award.

“As I was looking over the list of all the program staff to give these awards to, I realized that so many of them give us services that, without them, entire aspects of the programs wouldn’t exist,” said Kristin Valentine, Bread for the City’s development director.

“We’ve given this award to law firms and other partners, and they all deserved it richly, but frankly, none of those partnerships would probably have even existed without the help of the D.C. Bar Pro Bono Program,” said Vytas Vergeer, legal clinic director at Bread for the City. “They have helped literally thousands and thousands of people.”

The Pro Bono Program began working with Bread for the City more than 15 years ago when the nonprofit group only had a few lawyers in the office. Through this partnership, the Pro Bono Program started running its Advice & Referral Clinic on Saturdays at Bread for the City’s northwest and southeast centers.

“I don’t think we could be anything near what we are without their help,” Vergeer continued. “It truly has been a partnership.”

In accepting the award, D.C. Bar Pro Bono Program executive director Maureen Syracuse said, “We are really proud to be recognized by a group that conducts itself with such dignity and compassion and delivers such high quality work. I hope we can continue this partnership and do much more for our community in the coming years.”—T.L.

Council for Court Excellence Celebrates Horsky’s 100th Birthday
On October 19, before a crowded room in the U.S. Supreme Court, the Council for Court Excellence paid tribute to the life and career of its founder, Charles A. Horsky, who died in 1997. This year would have marked his 100th birthday.

Hosted by Justice Ruth Bader Ginsburg, the event featured distinguished speakers from organizations important to Horsky, a video that captured the essence of his contributions to society, and a reception.  

After helping create the Council for Court Excellence, Horsky led the organization as it enacted more than 40 separate major judicial reform and education initiatives, as well as published literature to educate the public about the judicial system.

“Charlie’s vision was to create a champion of the justice system, an ally of the courts, an independent, and not a lap dog,” D.C. Court of Appeals Senior Judge James Belson said.

In addition to his role with the council, Horsky was a partner at Covington, Burling, Rublee, Acheson & Shorb (now Covington & Burling LLP). For 40 years, he argued landmark cases, including more than a dozen before the Supreme Court. He retired from Covington in 1980.

To honor his professional legacy, Charles Miller, a senior counsel at Covington, quoted the firm’s former managing partner Daniel Gribbon: “Charlie was in all likelihood the ‘goodest’ person ever associated with Covington & Burling. He saw no evil, heard no evil and spoke no evil. He was quiet-spoken and everything about him—voice, demeanor, gestures—spoke reasonably. He was literally loved by members of his staff, as well as his fellow lawyers.”

Kenneth Sparks of the Federal City Council spoke about Horsky’s accomplishments as a civic leader, pointing out the latter’s work to restore Union Station. As President John F. Kennedy’s presidential advisor on national capital affairs, Horsky was instrumental in improving the conditions of the city. He worked with the government on projects, including the establishment of the Metro system, the John F. Kennedy Center for the Performing Arts, and the University of the District of Columbia, as well as the renovation of the Old Post Office.

“In Washington, you need persistence. Getting knocked around for four years may have slowed down Charlie, but it never stopped him,” Sparks said.

While Horsky was a busy career man, he never failed to devote countless hours of his life to important philanthropic efforts, noted Julie Rogers of the Eugene and Agnes E. Meyer Foundation. Horsky helped open the local chapter of the American Civil Liberties Union, founded the Visitors’ Services Center out of the D.C. Jail, and sat on the board of numerous organizations dedicated to serving the local community.

“Charlie taught me to love justice, to value nonprofit action, and to work quietly and deeply,” said Rogers. She also spoke about Horsky’s love for his family and the time they spent together in Montana—the place he loved to go to get away from the hubbub of the city.

Following the remarks, the council presented a tribute video highlighting Horsky’s life, with people calling him one of the “leading appellate advocates of his time” and “always a force for good.”—T.L.

Help for the Homeless
homelessOn October 14 the National Law Center on Homelessness and Poverty (NLCHP) held its 12th Annual McKinney–Vento Awards, where it recognized homeless advocates for their contributions to battle homelessness in the past year. Pictured are (from left) Nancy Hubley, managing attorney at the Education Law Center of Pennsylvania, which received the Bruce F. Vento Award; Shaun Donovan, U.S. Secretary of Housing and Urban Development; Christi and William Elzer and their two children, a formerly homeless family which received the Personal Achievement Award; NLCHP executive director Maria Foscarinis; Suzanne Turner, pro bono chair at Dechert LLP, which received the Pro Bono Counsel Award; and Barbara Ehrenreich, author and recipient of the Stewart B. McKinney Award.—K.A.

Bar to Conduct Judicial Evaluations
The D.C. Bar Judicial Evaluation Committee has launched its 2010–2011 judicial evaluation program. This year, more than 4,800 attorneys are invited to evaluate the performance of 28 judges who preside over the District of Columbia Court of Appeals and Superior Court of the District of Columbia.

The selected attorneys have appeared before the judges in the 24–month period prior to the evaluation. Invited attorneys can submit a hard copy or online response. All participants will remain anonymous. The deadline for responses is January 28.

This year, the following D.C. Court of Appeals judges will be evaluated: James A. Belson, John W. Kern III, Frank Q. Nebeker, and John M. Steadman.

The following D.C. Superior Court judges will be evaluated: John M. Campbell, Russell F. Canan, Harold L. Cushenberry Jr., Carol Ann Dalton, Herbert B. Dixon Jr., Anthony C. Epstein, Henry F. Greene, John R. Hess, Alfred S. Irving Jr., Gregory Jackson, John Ramsey Johnson, Anita Josey-Herring, Richard A. Levie, Bruce S. Mencher, Zinora M. Mitchell-Rankin, Truman A. Morrison III, Thomas J. Motley, John M. Mott, Heidi M. Pasichow, Michael L. Rankin, Nan R. Shuker, Robert S. Tignor, Fred B. Ugast, and Curtis Von Kann.

Active judges are evaluated in their 2nd, 6th, 10th, and 13th year of service. Additionally, senior judges are evaluated during the second year of their four-year terms and once during their two-year terms.

Each evaluated judge, along with the chief judge of each court, will receive a copy of the survey results. Evaluation results of all senior judges and active judges in their 6th, 10th, and 13th year of service also will be sent to the D.C. Commission on Judicial Disabilities and Tenure.—K.A.

Help Me, Help You’ Forum Explores Substance Abuse Issues Amid Lawyers
While being a lawyer comes with perks, it also has its pitfalls—and the statistics are startling. Nationally, 40 percent to 70 percent of all disciplinary actions taken against lawyers are due to substance abuse or mental health problems.

One survey in Washington state reveals that 17 percent to 19 percent of lawyers suffer from alcoholism or drug addiction. To help firms battle this growing problem, the D.C. Bar hosted the forum “Help Me, Help You: Dealing With Substance Abuse of Partners and Associates” on October 13.

The session aimed to help firms and legal departments explore their options—be it rehabilitation or termination—when dealing with these issues. Denise Perme, manager of the D.C. Bar Lawyer Assistance Program (LAP), and Jeffrey Berger of The Berger Law Firm, P.C. led the discussion, which covered everything from the basics of addiction to establishing personnel policies that provide guidance on working with attorneys with substance abuse problems.

Perme noted that anyone can get addicted, although lawyers in particular tend to believe they can handle it and that drinking is part of the job. “Addiction or alcoholism doesn’t happen at once. It’s a slow, steady progression, which makes it harder to see,” she said. “When someone is an alcoholic and is a lawyer, generally you and your firm may not see the effects of that for a longer period of time because they started out so high-functioning. It takes longer for them to deteriorate.”

To help firms identify a colleague with a potential problem, Berger and Perme reviewed typical warning signs, including hostility, weight loss, and habitual absenteeism. Perme urged forum participants to call LAP at the onset of these signs and not when the situation becomes a crisis.

The program offers free and confidential consultations, as well as assessment, evaluation, referrals, or short-term counseling. LAP staff also monitor the treatments and after-treatments once a lawyer enters a rehabilitation program.

In addition to getting attorneys help, firms must learn to navigate the legal issues of working with an alcoholic or substance abuser. Berger reviewed the applicable aspects of the American with Disabilities Act (ADA), Family Medical Leave Act (FMLA), and the D.C. Rules of Professional Conduct. He reminded firms that when confronting someone, they should focus on the attorney’s performance and not the drug or alcohol abuse to stay on the “right side of FMLA and ADA.”

Berger also spoke about establishing personnel policies and crafting “last chance agreements.” The agreements can, for instance, prohibit the use of alcohol and state that further misconduct would lead to termination.

“The attorney is an asset, but can become the adversary,” Berger said. The key is to get leverage to protect the firm and its clients, while trying to get the attorney the help he or she needs.—T.L.

Pro Bono Partnership Program Holds Annual Luncheon
On October 28 the D.C. Bar Pro Bono Program held its annual Pro Bono Partnership (PART) Fall Kickoff Luncheon at Arnold & Porter LLP, where U.S. Department of State legal adviser Harold Koh, D.C. Bar President Ronald S. Flagg, and D.C. Bar Pro Bono Committee vice chair James Sandman discussed the importance of pro bono work.

PART is an initiative linking more than 110 law firms and government agencies with organized pro bono programs with local legal services organizations so that interested attorneys can be identified for future pro bono projects. In 2010 two new firms signed up for PART: Groom Law Group Chartered and Thompson Hine LLP.

Koh offered a list of top 10 reasons for attorneys to do pro bono work, from “It’s the right thing to do” to pro bono being “the very symbol of what it means to be a public servant” and “Because you’ll meet great people.”

Sandman, who is a former D.C. Bar president and D.C. Public Schools general counsel, said “Washington, D.C., beats the country in pro bono commitment.”

“The breadth and depth of pro bono participation by lawyers here is second to none. We set the standard for collaborations across firms, government agencies, and our magnificent legal services providers. Of course, we have so much more to do … we have to redouble our efforts to close the gap between pro bono assistance and the demand for it…. The PART program is an example of why D.C. is preeminent in pro bono,” Sandman added.

Flagg echoed Sandman’s remarks, saying, “While we are celebrating Pro Bono Week here in D.C. and nationally, I really think every week in D.C. is pro bono week. As a chair of a national law firm that has offices across the country, I can testify to this personally; we really do have the most robust pro bono culture in the country.”

Flagg also talked about two programs the D.C. Bar Pro Bono Program is working on—the Senior Lawyers Project and the Family Law Task Force.

“While both of them are ambitious, I’m confident of their success, one because we’ve done this sort of thing before and we’ve done it by cooperating with you, the legal services providers, the law firms, the courts, and relying on our great culture [of pro bono]. And I know that by relying on that great culture, we can continue to make progress in the areas that we’re working on this year,” he said.

The luncheon began with a pro bono fair in which representatives from local legal services providers talked and provided information to lawyers from PART member firms about the types of available pro bono work.—K.A.

Bar Members Must Complete Practice Course
New members of the District of Columbia Bar are reminded that they have 12 months from the date of admission to complete the required course on District of Columbia practice offered by the D.C. Bar Continuing Legal Education Program.

D.C. Bar members who have been inactive, retired, or voluntarily resigned for five years or more also are required to complete the course if they are seeking to switch or be reinstated to active member status. In addition, members who have been suspended for five years or more for nonpayment of dues or late fees are required to take the course to be reinstated.

New members who do not complete the mandatory course requirement within 12 months of admission receive a noncompliance notice and a final 60-day window in which to comply. After that date, the Bar administratively suspends individuals who have not completed the course and forwards their names to the clerks of the District of Columbia Court of Appeals and the Superior Court of the District of Columbia, and to the Office of Bar Counsel.

Suspensions become a permanent part of members’ records. To be reinstated, one must complete the course and pay a $50 fee.

The preregistration fee is $219; the on-site fee is $279. December 7 is the last course date for 2010. Dates for 2011 are January 8, February 8, March 19, April 12, May 14, June 7, July 9, August 9, September 10, and October 4. Advanced registration is encouraged.

For more information or to register online, visit www.dcbar.org/mandatorycourse.

Courts Wrap Up Hispanic Heritage Month With CORO Awards
The District of Columbia Courts ended its National Hispanic Heritage Month celebration on October 15 with the Community Outreach Recognition Opportunity Awards at the H. Carl Moultrie Courthouse.

The month–long observance began on September 15 to mark the anniversary of the independence of five Latin American countries—Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua.

“This year has been a special year; we have so much to celebrate,” said D.C. Court of Appeals Chief Judge Eric T. Washington, referring to the appointment of U.S. Supreme Court Justice Sonia Sotomayor as well as of new D.C. Court of Appeals clerk Julio Castillo.

“We [also] want to celebrate others today, people who we have the pleasure of recognizing through their good works. These awards celebrate the work of our neighbors throughout the city who have done so much to enhance the lives of the District’s Latino residents as well as our community as a whole,” Washington said.

Eliana Labarca, clinical social worker and substance abuse counselor at Andromeda Transcultural Health, received the Allan Klein Award; the Latino Student Fund received the Community Agency Award; and Kathryn Doan, executive director of Capital Area Immigrants’ Rights Coalition, received the Legal Community Award.

The ceremony also featured a salsa dance performance by DC Casineros and closing remarks by D.C. Superior Court Judge Laura Cordero.

“Today, Latinos are leaders in all aspects of our national life, from the Supreme Court to the halls of Congress, from boardrooms across the country to the halls of the D.C. courts. Latinos protect our neighborhoods, teach our children, and thrive as business owners,” Cordero said.

“Thank you for celebrating with us this rich cultural tradition, with integrity and honor, of the Latino community that has helped shape the strength and diversity of our country.”—K.A.

Children’s Law Center Creates Advisory Board
The Children’s Law Center (CLC) has created an advisory board in an effort to raise awareness within the legal community about CLC, the largest legal services organization in the District of Columbia, and the work that it does to help at-risk families and children in the District.

Board members will act as CLC ambassadors and host networking events and forum discussions, among other things.

“I see it as an investment in the future… . These are the people who are going to be the partners with the firms,” CLC development director Joan Geiger Wood said.

The first focus of the board, which began meeting in September, was the six-week-long Lawyers for Children Campaign that sought to expose more associates, counsel, and others to opportunities to get involved with CLC.

“One of the goals [of the campaign] is to expand [CLC’s] reach and to recognize that not everybody has the time to serve as a pro bono attorney. There is a way for everybody to participate according to their own comfort level,” said advisory board chair Carmen McLean, who attended the campaign kickoff held on October 26 at the CLC offices.

McLean also is a member of CLC’s governing board and an associate at Jones Day, which, as of October, had taken on its 20th CLC case on a pro bono basis.

The board had 18 members as of the end of October, but that number is likely to grow over time. Most board members are senior associates at firms; one exception is Jessica Waters, who previously worked as an associate at WilmerHale LLP and now teaches at American University Washington College of Law.

“It’s been great,” said Waters, who also attended the Lawyers for Children kickoff. “[This] is a very easy cause to get behind, and there’s no better organization in the city that does this type of work.”

For more information about CLC, visit www.childrenslawcenter.org.—K.A.

Pitching In
pitching_inThe team from Bierman Geesing Ward & Wood, LLC was crowned champions of the 2010 Lawyers Pitch In fundraiser presented by the Washington Legal Clinic for the Homeless. The event, which raised $35,000 for the clinic, also featured former National Football League players John Brutty, Kenny Jenkins, and Mike Nelms as guest umpires.—K.A.

Judges Hail Local Legal Services Providers as Pro Bono Heroes
On October 27 the D.C. Circuit Judicial Conference’s Standing Committee on Pro Bono Legal Services hosted a reception to honor the work of the city’s legal services providers. The event, held at the E. Barrett Prettyman United States Courthouse, drew judges from the D.C. Superior Court and Federal District Court.

In another difficult year for legal services providers suffering from slashed resources, combined with the growing need for access to justice, approximately 170 legal service attorneys provided full representation for 3,500 District-area residents. This comes in addition to the tens of thousands of people who received free advice through various pro bono clinics.

“The judges would be remiss if we did not recognize the most unsung heroes of pro bono services—that is the legal services providers,” said Chief Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit. “Thank you for your outstanding commitment to justice, for helping to fight to foster the vibrant pro bono culture in the D.C. area. Your leadership is necessary and greatly appreciated.”

Sentelle also spoke about the critical need for private firms to meet the demand for pro bono legal services in the community and recognized managing partners of the qualifying 2009 “Forty at Fifty” firms in the audience. At least 40 percent of attorneys at these firms have individually provided 50 or more hours of pro bono service throughout the year.

Judge Royce Lamberth of the U.S. District Court for the District of Columbia reiterated Sentelle’s gratitude and affirmed the judiciary’s commitment to partnering with legal services providers in their pro bono efforts.

Even in dark and difficult times, however, there is good news, according to Katia Garrett, executive director of the D.C. Bar Foundation. “Legal services organizations took a beating last year and they are facing deeper funding cuts now. Some are struggling to stay open, but at the same time advocates are coming together and they are launching new projects to meet the new and changing needs their clients are facing.”

Garrett talked about the Pro Bono Program’s Senior Attorney Initiative for Legal Services Project, which aims to engage veteran attorneys in pro bono efforts as the Foundation’s prime partners in banking. Prime partners are banks that have agreed to pay higher interest rates on D.C. Interest on Lawyers’ Trust Accounts to generate revenue for civil legal services.

In closing, Garrett said, “Access to justice takes a combination of talent, of hard work, of time, and of money. Take time this week [during the D.C. Pro Bono Celebration Week] to recommit to access to justice.”—T.L.

Cruz Reynoso Film Highlights Life, Work of Latino Legal Pioneer
On October 20 the American Constitution Society for Law and Policy and the Hispanic National Bar Foundation hosted a viewing of the film Cruz Reynoso: Sowing the Seeds of Justice, which chronicles Reynoso’s rise from being one of 11 children born to Spanish-speaking farm worker parents to becoming a member of the California Supreme Court.

The film showing featured a discussion with director Abby Ginzberg and D.C. Court of Appeals Judge Vanessa Ruiz on the life of legal pioneer Reynoso.

“I wanted to say something about the importance of continuing the fight for legal services for the poor, I wanted to say something about the independence of the judiciary, and I wanted to say something about the importance of people getting to exercise their right to vote, and because Cruz’s life intersected with those moments in American history, for me he was a perfect person to tell this story about,” Ginzberg said.

Reynoso attended Pomona College in Claremont, California, and received his law degree from the University of California Berkley School of Law. He went on to become the first Latino director of the California Rural Legal Assistance, Inc.; one of the first Latino law school professors in the country; and the first Latino member of the California Supreme Court. As vice chair of the U.S. Commission on Civil Rights, Reynoso was involved in the investigation of voter rights abuses in Florida during the 2000 presidential election.

Although she does not know Reynoso personally, Ruiz said “his reputation and the work that he has done and continues to do were always beacons in my life as a young lawyer when I thought about what I would do with my legal career.”

Ruiz said she took away several things from the movie, one of which was “how important the messenger is in addition to the message.” Another was how similar the issues, events, and controversies portrayed in the movie were to those of today.

“Look at the things he was dealing with—the whole issue of legal services for the poor. Well, it is still very much with us.”

For more information about the film, visit www.reynosofilm.org.—K.A.

Lawyers ‘Go Casual’ to Raise Money for Legal Services
shaveMost participants of the annual “Go Casual for Justice” fundraiser slipped on their favorite pair of jeans. Instead of losing the typical business professional attire, however, D.C. Bar President Ronald S. Flagg took it one step further and lost his 20–year–old mustache all in an effort to raise money for pro bono legal services.

As part of the D.C. Pro Bono Week Celebration, attorneys and staff at law firms and businesses’ legal departments were asked to donate at least $5 to set aside their typical suits and dress comfortably for work. This year, 61 firms and organizations participated.

To encourage more people to join the effort, Flagg issued a challenge to his firm Sidley Austin LLP: get 85 percent participation and he would shave his mustache. Two weeks before the fundraiser, the firm began its publicity campaign. E-mails were sent to every member of Sidley’s D.C. office. Posters of Flagg with an “X” over his mustache and tagged “Pay for the Shave” were plastered throughout the office.

By October 29, the official “Go Casual for Justice” day, Sidley Austin had surpassed its goal and raised $5,400. Was Flagg expecting to be sitting in a chair at the Art of Shaving a few days later without his trademark mustache? Laughing, he responded, “I had no doubt about the outcome.” As an added bonus, the Art of Shaving donated the cost of the shave to the D.C. Pro Bono Week fundraiser.

All funds raised benefit the D.C. Bar Foundation to support grants to local nonprofit legal services providers, as well as the Foundation’s Loan Repayment Assistance Program awards given to poverty lawyers working on behalf of the District’s poor.—T.L.

Leventhal Lecture Explores Nondelegation Doctrine
On October 28 Judge Brett Kavanaugh of the United States Court of Appeals for the District of Columbia Circuit gave the 2010 Harold Leventhal Lecture on how administrative law has developed since the days of President Franklin D. Roosevelt and the New Deal.

Kavanaugh focused specifically on the nondelegation doctrine, the principle that restricts Congress from delegating its legislative power to the executive branch or independent agencies. He examined the U.S. Supreme Court decision in Schechter Poultry Corp. v. United States in 1935, which invalidated federal regulations of the poultry industry. The Court’s decision demonstrated its opposition to federal interference in states’ economies.

In Humphrey’s Executor v. United States, the Supreme Court ruled that the president did not have the constitutional right to remove the executives of independent agencies for political reasons, thus limiting the executive branch’s power. Kavanaugh said the ruling raised the issue of accountability among these agencies, an issue President Roosevelt tried to end by proposing to Congress that the president oversee independent agencies.

As the recent case of Federal Communications Commission v. Fox Television Stations illustrates, the issue remains up for debate today. The Supreme Court upheld regulations by the FCC that ban “fleeting” expletive language, but left the First Amendment issues of censorship by a federal agency for the Second Circuit Court of Appeals. The Second Circuit Court ruled in July 2010 that the FCC’s policy “fails constitutional scrutiny.”

“What the Fox decision shows, I submit, is a deep appreciation of all of the justices of the risk and the uneasy place of unaccountable independent agencies in our constitutional structure, as articulated by President Roosevelt some 75 years ago,” Kavanaugh said.

“President Roosevelt lost some battles with the Supreme Court in the mid-1930s, but he largely won the war with respect to economic substantive due process, the scope of the commerce clause, and the nondelegation doctrine. He has not won the war with respect to the constitutional status of independent agencies,” Kavanaugh continued. “But even so, President Roosevelt started an important conversation about the wisdom of such unaccountable agencies. As the Supreme Court has demonstrated in the last two terms, President Roosevelt’s concerns about such agencies are still reverberating today.”—T.L.

Commission Seeks Nominees for D.C. Court of Appeals Vacancy
The District of Columbia Judicial Nomination Commission is looking to fill a vacancy on the D.C. Court of Appeals following the retirement of Judge Inez Smith Reid on April 7, 2011.

The commission must send three nominations for the position to President Barack Obama within 60 days of the vacancy. To qualify for the judgeship, a candidate must be a U.S. citizen; an active member of the D.C. Bar and engaged in the practice of law, a faculty of a law school in the District, or employed as a lawyer by the U.S. or D.C. government for five years prior to the nomination; a resident of the District; recommended to the president by the commission; and has not served as a member of the D.C. Tenure Commission of the Judicial Nomination Commission within two years prior to being nominated.

Instructions and application materials are available on the commission’s Web site at www.jnc.dc.gov. All applications are due by close of business on December 17, 2010. Applications should be sent to Kim M. Whatley, Executive Director, Judicial Nomination Commission, 515 Fifth Street NW, Suite 235, Washington, DC 20001.

In addition to sending paper copies, all applicants should e-mail their letters of interest, résumés, and application questionnaires in separate PDF format files to the executive director and each commission member.

The commission will accept letters of recommendation, letters of support, and endorsements, but does not require them. These letters must be received by the commission by January 16, 2011.

All questions concerning the judicial vacancy application process should be directed to the Judicial Nomination Commission’s executive director at 202-879-0478 or dc.jnc@dc.gov. —T.L.

New Health Benefit Offers Members Competitive Insurance Rates
Forrest T. Jones & Company has reached an agreement with the Association Health Programs (AHP) to offer insurance coverage to D.C. Bar members and their families at very competitive rates.

AHP is a national company that specializes in providing health and other insurance policies to associations. Currently, AHP administers the health insurance of more than 180 national associations, representing 2.5 million people. This huge block of buyers allows AHP to negotiate the lowest premiums available.

D.C. Bar members and their families will be joining AHP’s large clientele base—members of other associations it represents—in each state. AHP uses only A-rated insurers such as Aetna, Assurant, Blue Cross Blue Shield, Health Net, Humana, and United Healthcare. Policy rates will be based on age and not on future medical conditions; once a policy is issued, it cannot be canceled due to a change in medical condition.

Members can generally expect $5 to $8 million in individual lifetime maximum benefits; comprehensive, full-coverage major medical insurance; routine care; prescription coverage; Preferred Provider Organization options, or the ability to see any doctor or hospital of your choice; and nationwide coverage.

AHP also offers group policies for any business with three or more employees or officers, and policies such as Health Savings Accounts, Medicare Supplements, Part D coverage, and life, dental, disability income, critical illness, and international travel insurance. In addition, AHP can provide the lowest premium rates for term, whole life, second-to-die, key person, or universal life insurance.

For long–term care insurance policies, AHP offers Bar members a substantial discount on premiums that provide for home care, assisted living care, adult living care, and nursing home care. AHP also offers policies that provide for 100 percent coverage for any services Bar members may need in any care. Insurance companies providing this coverage include Genworth, Guardian, John Hancock, Medical Mutual, MetLife, Mutual of Omaha, Principal, and Physicians Mutual.

For more information, contact AHP at 1-888-450-3040 or visit www.associationpros.com/assoc/dcbar.—K.A.

Attorney Initiative Matches Senior Lawyers With Pro Bono Projects
The D.C. Bar Pro Bono Program and the D.C. Access to Justice Commission have joined forces in launching a Senior Attorney Initiative for Legal Services (SAILS) Project where leading law firms will establish programs encouraging senior lawyers to become involved with substantial pro bono projects.

The recession has created a funding crisis throughout the legal services community in the District. Through the SAILS Project, various law firms will provide senior lawyers to undertake pro bono projects in an effort to assist in alleviating this predicament.

“SAILS will ensure that senior lawyers can use their considerable talents and experience to address the urgent needs of our most vulnerable community members while still remaining connected with and supported by their firms,” D.C. Bar President Ronald S. Flagg said. “This project does more than connect individual senior lawyers with pro bono opportunities. The firms themselves are partners in this vital initiative, allowing the project to make a lasting change in the way firms manage this extraordinary volunteer resource.” 

To date, 11 firms have become involved in the project: Arent Fox LLP; Arnold & Porter LLP; Covington & Burling LLP; Crowell & Moring LLP; Dickstein Shapiro LLP; DLA Piper; Hogan Lovells; McDermott Will & Emery LLP; Skadden, Arps, Slate, Meagher & Flom LLP; Steptoe & Johnson LLP; and Zuckerman Spaeder LLP.

D.C. Bar Pro Bono Committee chair James Sandman said the SAILS Project is a groundbreaking initiative that could become a national model.

“Law firms in the District of Columbia have long led the nation in their commitment to pro bono work,” Sandman said. “We are hoping that this initiative, which is informed by the efforts of others around the country, will help us develop best practices for marshaling this extraordinary resource on a long-term basis.”   

For more information on the SAILS Project, contact Maureen Thornton Syracuse, Executive Director of the D.C. Bar Pro Bono Program, at msyracuse@dcbar.org or Jess Rosenbaum of the D.C. Access to Justice Commission at jess.rosenbaum@dcaccesstojustice.org.—K.A.

D.C. Practice Manual 19th Edition Now Available
The D.C. Bar Communications and Sections Offices recently have released the 19th edition of the District of Columbia Practice Manual at the lowest price in three years.

This two–volume manual is an important resource that, in an easy–to–use format, provides information on the basics of practicing law in the District of Columbia in 33 chapters and includes citation to key statutes, regulations, court rules, and cases, as well as relevant forms.

The newest edition, written and reviewed by D.C. Bar members, revises 23 chapters from the previous edition covering a range of topics: administrative procedures, alternative dispute resolution, antitrust, appellate practice in the District of Columbia Court of appeals, art, child abuse and neglect, consumer protection, corporate practice, criminal law and practice, domestic relations, employment law, environmental law, finding the law in the District of Columbia, intervention proceedings, juvenile law and practice, legal ethics and attorney discipline, partnerships, small claims, Superior Court civil practice, taxation, United States District Court practice, wills and estates, and zoning and historic preservation.

The 19th edition is available from the Bar at $225, the lowest price since 2007. For more information or to place an order, contact the D.C. Bar Communications Office by mail at 1101 K Street NW, Suite 200, Washington, DC 20005-4210; secure fax at 877-508-2606, or e-mail at communications@dcbar.org. Please see page 7 for Practice Manual advertisement and order form.

Giving Back
giving_backDistrict of Columbia Court of Appeals Chief Judge Eric T. Washington, D.C. Court of Appeals Associate Judge Inez Smith Reid, and Sidley Austin LLP pro bono counsel Rebecca K. Troth took part in a pro bono reception and fair on October 25 at Sidley Austin. Judge Washington spoke at the event, which was part of a larger Pro Bono Week celebration. —K.A.

trendsPro Bono Lawyers Give Helping Hand to Disability Claimants
For Denise Smith, 57, playing with the babies at the daycare where she worked made her happy. But even as they lifted her spirit, she felt weighed down. By 2008, after more than three decades of living with ulcerative colitis and hepatitis C, her symptoms were getting worse.

“As I got older, my mood swings really started changing, my stomach started aching, my pain started getting a little crampier, and my fatigue [set in],” Smith said. And then there was the depression. She withdrew from her friends and family, which includes three sons. “A lot of my relationships were broken up between my health.”

Her only income came from jobs that she couldn’t seem to keep because of her conditions. “I knew I was getting sicker and sicker,” she said. Her ability to earn any wages, however, came to an abrupt end in 2008. While employed at the daycare, Smith’s doctor ordered her to stop working. She now had to rely solely on her mother and children for financial support.

A Common Story
Smith’s story is a common one that plays out throughout the District of Columbia as residents struggle to keep their jobs while battling serious health issues. They often are forced to rely on public benefits such as Supplemental Security Income (SSI) to keep their homes and pay for food. According to statistics released by the Social Security Administration (SSA), the number of social security disability applications jumped by 21 percent in 2009.

“People want to work, but sometimes they just can’t or can’t for any sustained period,” said Mark Herzog, associate director of the D.C. Bar Pro Bono Program. During the past year, the program has witnessed—and responded to—a huge increase in demand for representation by claimants denied SSI, which often occurs during a down economy.

“It’s one of the components that makes our organization unique—our ability to quickly respond to the ever-changing needs of the client community by mobilizing our D.C. Bar volunteers,” Herzog said. 

Despite the need for disability benefits, many people are turned away year after year. Smith had been denied at least five times since 1999. “Every time I lost my job, I went back and applied,” she recalled. “Nobody could understand my case. They kept calling me crazy.”

When her diseases forced her to quit working altogether, Smith searched for ways to win her disability case. After years of applying on her own, she found the D.C. Bar Pro Bono Program. With the spike in demand for SSI disability benefits, the Pro Bono Program had been conducting special outreach to get law firms to take on these cases.

Akin Gump Strauss Hauer & Feld LLP, a regular at the Pro Bono Program’s Advocacy & Justice Clinic, stepped up. After interviewing and screening the clients, the Pro Bono Program sent Smith’s case, along with 20 others, to the firm, which immediately went to work.

To divide the caseload, the firm created an SSI SWAT team, which was made up of seven groups that included one partner to oversee the process and two associates. Each group was assigned three cases. The idea behind Akin Gump’s program was to allow partners to mentor associates, as well as develop a channel of communication to brainstorm and strategize. The team approach also helped the firm take on a large volume of cases and allowed attorneys to jump in on a moment’s notice if needed.

Working with Smith was Akin Gump partner Larry Tanenbaum and associates Anne Lee and Connor Mullin. Beginning in February, Lee and Mullin spent hours calling doctors to gather Smith’s medical records, often the most daunting yet vital part of an SSI case.

According to Scott McNeilly, a staff attorney for The Washington Legal Clinic for the Homeless, it can take up to 12 months to schedule a hearing and as long as 30 months for the SSA Appeals Council to make a decision. With the help of her lawyers, Smith received a decision in her favor in August 2010, less than seven months after she first met with her Akin Gump SSI SWAT team.

“It’s just bringing me back up. I’m like starting all over again, financially, bills collected, family members, children, grandkids,” Smith said. “I’m still taking it one day at a time.”

Power of Attorney
As Smith’s case illustrates, having a pro bono attorney is invaluable for clients in need of SSI disability. The rate of success in the appeals process goes from about 58 percent to more than 95 percent in cases with a lawyer through the D.C. Bar Pro Bono Program’s clinic, McNeilly said.

“Denise is a great example of the program. She lost before. She hasn’t changed. She still has the same symptoms, but she needed somebody to put her case in the right package to show to the SSA to get the benefits she needed,” Tanenbaum said.

Mullin added, “When you think of someone who is disabled, you don’t think of Denise Smith. You have to dig deep.” This is particularly true in cases like Smith’s that involve depression.

“The importance of a lawyer is even greater. If you’re depressed, it’s hard to articulate exactly what your circumstances are. That’s where a lawyer can be invaluable in developing that type of documentary evidence that Social Security relies on,” McNeilly noted.

Win–Win Situation
For pro bono attorneys and their clients, these cases are a win–win situation. “Someone who needs legal services who can’t afford them gets that assistance. At the same time, it’s great for us. You get the chance to have your own client. You get a chance to talk strategy and to write and to go to a hearing,” said Lee. “Everybody wins.”

Smith couldn’t agree more. After years of denial after denial, she is finally receivingnm the benefits she needs to rebuild her life. “I don’t know how I could have done it if I were alone,” she said. “I used to be afraid to approach people … but [the Akin Gump team] gave me that strength.”—T.L.

Reach D.C. Bar staff writers Kathryn Alfisi and Thai Phi Le at kalfisi@dcbar.org and tle@dcbar.org, respectively.