A Conversation With D.C. Bar President John Payton

John A. Payton will begin his term as Bar president on June 27. A graduate of Pomona College and the Harvard Law School, Payton is currently a partner with the law firm of Wilmer, Cutler & Pickering. He was the corporation counsel for the District of Columbia from 1991 to 1994. Payton has served on numerous Bar committees, and he was cochair of the Bar’s Technology Task Force Subcommittee on the Courts. He recently sat down with The Washington Lawyer to discuss his career as a lawyer, and the issues that currently confront the Bar and the profession.

Can you tell us a little bit about your personal background and what your early years were like?
I think everyone remembers childhood as rather idyllic. That’s certainly true for me. I grew up in Los Angeles and had a great time. In the 1950s our family spent two years on the island of Guam, which was an island paradise. Then we moved back to Los Angeles, which is where I went to high school.

As you were growing up, did you have an ambition to become a lawyer?
No. In high school I wanted to be a scientist. It wasn’t until I got to college that I began to think about becoming a lawyer.

What inspired the change?
I went to Pomona College, one of the Claremont Colleges, just outside Los Angeles, in the sixties. Social activism was a big part of my college experience. Everybody was worried about the draft and the Vietnam war. We were all worried about civil rights and issues of equality and justice. I was among the students who were very active. I was one of the founders of the Black Student Association and was one of the leaders of some of the protests. During those years, I became interested in pursuing something that would have the possibility of helping to create social change, and that was how I became interested in becoming a lawyer.

Did you go straight from college to law school?
No, I did not. I spent three years as an admissions officer at the Claremont Colleges in an office that I helped to create, the black admissions office. I also won a Watson fellowship, which was one of those awards where you are basically given money to leave the country for a year. So I went to West Africa and studied West African literature for a year, which was fabulous. The only downside was that I’d applied to law school before I left, and there was no such thing as deferred admissions back then. So I had to reapply to law school from West Africa, which was a logistical nightmare.

But you managed to complete your applications and get accepted.
Right, when I came back from Africa I went to law school.

What was your law school experience like? Did you find Harvard Law to be challenging and difficult?
I went to Harvard expecting it to be very challenging and very difficult, but found that it wasn’t as hard as I thought it would be. I enjoyed it. I liked law school very much.

Why was that?
During my first year I worked with a group of other first-year law students helping to write briefs for a very energetic teaching assistant who was a civil rights lawyer. We worked on briefs in defense of some of the Indians who had been charged with crimes that led up to Wounded Knee. I became aware of the case against the NAACP in Mississippi that arose out of a 1966 boycott, and I was the comments editor for the Harvard Civil Rights and Civil Liberties Law Review. There was always some part of my legal education where I was involved with civil rights, which was something I was interested in.

In working on issues like Wounded Knee and civil rights, did you have the sense that the law worked well and provided an avenue that could create social change?
No. My view was that the law didn’t work well on its own. Therefore, it was important for people who cared about these issues to get involved, to push, to put in time, and to make the law work right.

What did you do after you graduated from law school?
I clerked for Judge Cecil Poole in San Francisco. He was then on the U.S. District Court and later went to the Ninth Circuit.

Did you come to the District of Columbia after your clerkship?
Yes. I think a lot of lawyers who are interested in issues of social justice find Washington an interesting place to be. That was certainly true for me. I mentioned earlier that during law school I became aware of a case that threatened the future of the NAACP. In that case some white merchants in Mississippi claimed they had been harmed by an NAACP boycott, and they sued under the antitrust laws of the state of Mississippi and they won a huge verdict that threatened to bankrupt the NAACP. That verdict came down while I was in law school. Then during my clerkship I learned that the law firm of Hogan & Hartson represented the NAACP in a motion to set aside the bond requirement on appeal, and that the law firm of Wilmer, Cutler & Pickering was challenging the verdict. When I came to Washington, I interviewed with a number of law firms, and Wilmer was one of those law firms. I spoke with Jim Robertson, who is now a federal judge, but at the time was a partner at Wilmer, Cutler & Pickering, and he was working on the NAACP case. I told him of my interest in the case, and said that I’d love to work on it. He said, "Fine." And that’s how I came to Wilmer, Cutler & Pickering.

What kind of practice did you have initially?
I was a general litigator, with all sorts of interesting cases. On a pro bono basis I also worked on a case where we challenged discrimination in the construction industry here in the District as well as on the NAACP case.

What was the final disposition of the NAACP case?
It went on for several years. We challenged the verdict in the Mississippi Supreme Court, where we lost. Eventually, we appealed all the way up to the U.S. Supreme Court, which took the case, and we won eight-zip. The verdict was set aside.

When you see those sorts of results, losing in Mississippi, followed by a unanimous verdict in the U.S. Supreme Court, how do you account for the difference? Is there any explanation other than overt racism in the Mississippi rulings?
I don’t think there’s any question about the fact that our legal system has been affected by race, and that Mississippi in the 1960s and 1970s was affected by its legacy of racism and discrimination. But at the same time, I think there were other factors at play, too. States routinely try to protect their local business interests, their merchants, and the U.S. Supreme Court was not subject to those pressures. So race was a factor, but it wasn’t the only factor.

In 1991 you left the law firm to become the corporation counsel for the District of Columbia. What motivated that decision?
Well, I never actually sat down and said to myself, "Gee, I’d like to be corporation counsel." What happened was I got a telephone call from Vernon Jordan, who was the head of the transition committee for the new mayor, Sharon Pratt Dixon. He called to ask me if I would be interested in being corporation counsel. After meeting with him and the new mayor, I concluded it was an offer I couldn’t turn down.

Why was that?
The city was facing some very difficult circumstances. I didn’t think I could walk away from a mayor who was interested in reform, and who wanted to make things better for the city and all of its residents. She wanted me to be part of that, and I felt an obligation to say yes.

Were you at all daunted by the task in front of you?
It was a daunting task, no doubt about that. Once I was on the job, I realized I had completely underestimated the problems. So it was very, very challenging. And also very rewarding. The first year I was corporation counsel, we had a horrible riot in Mount Pleasant that was fueled by years of mistrust and mistreatment of the Latino community by city officials and the police. I live in Mount Pleasant, so there was a riot in my neighborhood that was threatening to rip our city apart. That was an enormous challenge. Then there was the budget crisis, which was difficult, but had to be dealt with. And there were all of the challenges presented by drugs and youth. All three of those problems took a lot of time, starting from my first day on the job.

Do you feel like you made any progress in addressing those problems?
Yes, I think so. There is still a long way to go, and some of the things that have happened to make those problems easier to deal with are attributable to larger forces. The economy is better and that has made a difference. Unemployment and crime have fallen here in the District quite dramatically. Neighborhoods in the city where 10 years ago people would have been afraid to walk at night now have people walking around at 10 o’clock at night. That’s a sign of enormous health. Relations between Latinos and the police and Latinos and the black community still have some strains, but I think Chief Ramsey is doing a very good job. Things are getting better.

When you left, did you feel that you had any major accomplishments?
When I arrived as corporation counsel, the "office" existed in 11 different physical locations. There was no one place that was the corporation counsel’s office. It was spread out all over the city. When I left, almost all of the lawyers were in one office located at 1 Judiciary Square. We had regular staff meetings, more attorneys, and improved infrastructure. We had a management retreat on a regular basis, and we were able to generate a lot of good ideas. I think that was a good start on creating an office that could operate in a much more professional and engaged way.

After leaving as corporation counsel in 1994, did you return to your general litigation practice?
Yes, but in a roundabout way. When I left as corporation counsel I went to South Africa. My wife, Gay McDougall, had been appointed as a member of the Independent Electoral Commission, which ran the 1994 elections in South Africa when Nelson Mandela was elected president. I joined her there and was part of the international observer team that included a group from the Lawyers’ Committee for Civil Rights Under Law. After the election Gay and I stayed in South Africa for a couple of months. Then that summer I returned to the firm.

Do you enjoy being a litigator?
Yes, very much. If you want a low–stress job, then being a litigator is the wrong way to go. There’s a lot of stress, and to be a good litigator I think you have to enjoy the stress. You have to be quick on your feet and be capable of making decisions pretty much off the top of your head. I enjoy that. I enjoy the pressure-both in purely commercial matters and in civil rights matters.

Do you have any favorite cases that you have handled over the years?
I’ve got a lot of "favorite cases." Right now I’m representing the University of Michigan, which has been sued for the use of race in its admission policies in both the undergraduate college and the law school. I’m the lead counsel in both of those cases. We won the undergraduate case, and lost in the law school case, but a stay has since been issued by the Sixth Circuit. Both cases are on appeal now, and they will be occupying a lot of my time and thought in the coming year.

Why were you interested in running for president of the D.C. Bar?
One of the things the D.C. Bar is best at is drawing on its members to be more than just business people. The Bar looks to its members to take on pro bono responsibilities and to participate in issues of public concern. We have a very special bar, and I want to be a part of that and help to preserve the traditions that make us proud.

Pro bono is part of what defines our bar. We’ve probably been as involved in pro bono as any bar in the country. But we have to work to maintain that identity. We have to do things right now to make sure that in the future we still have a bar that we’re all proud of.

Do you think the Bar’s pro bono commitment is in danger of slipping a bit?
We’re facing a difficult challenge, and we do need more of a commitment. The challenge arises from new and unexpected economic pressures. Two years ago I don’t think anybody saw what was going to happen when the starting salaries for first-year associates were raised on the West Coast to what seem like astronomical levels. The competition for new associates is national. Therefore when the salaries in Silicon Valley were raised, it had a ripple effect that was felt here in Washington. Everybody had to raise their salaries to compete. In order to pay those salaries, law firms also raised their minimum billable-hour requirements. Because there are only 24 hours in the day, something has to get squeezed out. Those financial pressures are very real, and they have had an impact on the ability of young associates to make pro bono commitments.

I’m not sure how all of this is going to play out, but I do think we need to do things that preserve our pro bono identity and our tradition of community service.

What sort of things do you have in mind?
Under John Nields’s leadership the Bar established a task force to look into pro bono. We’ve been focusing on the 26 biggest law firms in the District to see what the effects of these broader economic changes have been, and then to try and identify some best practices that the law firms can implement.

Are you at all concerned about the funding crisis at the local courts?
Yes, very much so. It is very important that our courts be adequately funded. John Nields also established a Court Funding Task Force and made that one of his priorities. This project was designed to require continuity, and I will continue with that project. The Bar membership recently gave the Bar a mandate to lobby on this issue, and we intend to make sure our voice is heard on Capitol Hill.

Earlier you mentioned some concern about the economics of the profession. Are you at all concerned about where the profession is headed?
Yes, very much so. I think there is a broader context to our discussion about pro bono. You hear a lot of loose talk these days that suggests that lawyers have just become business people. That lawyers and law firms are driven by the bottom line. All they want to do is make money.

But I don’t think the prospect of financial reward is the only reason most lawyers choose to go to law school. I think a lot of lawyers and law students are motivated by issues of greater social concern. So I think we ought to engage in a significant discussion that poses very basic questions: Who are we? How do we define our profession? What is our relationship to issues of social justice? What are we proud of in our profession? What role should an organized bar play? What do we need to do to make sure that the things we are proud of continue?

That’s a big subject, but I think we need to take it on. Economic pressures and technological advances have created enormous changes within the profession. We need to think about that and we need to talk about it. We need to be aggressively engaged in contemplating and discussing these big issues because we are facing a defining time for the profession.

That is a big subject.
Yes, it is. But the profession has faced dramatic changes in the past. Not too many years ago there were only trivial, insignificant numbers of minority lawyers in our bar, and there were virtually no women lawyers. That’s not true at all today, and I’m not sure we fully appreciate the significance of that change. The profession has opened up so that women and minorities have come rushing in. Today you rarely see a news story that says, "The judge is a woman." Or, "The prosecutor is a woman." That’s not noteworthy anymore, and it’s a very good thing that it’s not. The fact that we have a much more inclusive profession is good for society and it’s good for our system of justice.

Clients are much more receptive to seeing minority lawyers and women lawyers than they were 15 or 20 years ago. That change might not happen as fast as we would like, but it is changing. You also see minorities who are clients and you see women who are clients.

So the profession has faced dramatic changes in the past and has done quite well. The fact that we’re in an era of rapid change right now shouldn’t scare us-it should stimulate discussion. It should make us take stock, and motivate us to take the steps necessary to ensure that we’ll be proud of our bar well into the future.