Washington Lawyer

Legends in the Law: John M. Ferren

(Appeared in Bar Report, April/May 2000)

Judge John M. Ferren has had a 30-year legal career in Washington that began as a partner at Hogan & Hartson in 1970. A graduate of the Harvard Law School, Ferren was appointed by President Carter to the District of Columbia Court of Appeals in 1977, and he has served as corporation counsel. He is currently a senior judge.

Additionally, Ferren has served as chair of the American Bar Association Consortium on Legal Services and the Public, chair of the ABA Special Committee on Public Interest Practice, and as a member of the ABA Commission on a National Institute of Justice. Other board and committee memberships have included the Center for Law and Education, the Council on Legal Education for Professional Responsibility Inc., the Washington Lawyers’ Committee for Civil Rights Under Law, the National Resource Center for Consumers of Legal Services, the National Committee Against Discrimination in Housing, and the National Prison Project of the ACLU Foundation.

Ferren has two sons, Andy-a lawyer who is the father of Ferren’s two grandchildren, Matt and Megan-and Peter, a physician with whom Ferren wrote the musical, We the People, about the Constitutional Convention, which had several performances in 1991. Since 1994 Ferren has been married to Linda Ferren, formerly circuit executive for the D.C. Circuit and executive director of the Commodity Futures Trading Commission.

Bar Report: Where did you grow up?
John M. Ferren: I was born in 1937 in Kansas City, Missouri, but my family moved across the river into Kansas City, Kansas when I was three.

BR: Did you attend public school in Kansas?
JMF: Yes, but after the third grade my father took a job outside of Chicago and we moved to Evanston, Illinois. I have always felt the Chicago area-Evanston in particular-was my home.

BR: Where did you go to high school and what were some of your activities then?
JMF: I graduated in 1955 from Evanston Township High School. I was president of the student council, and involved in youth group activities at my church. I also was a member of the swim team, which is ironic because when we moved to Evanston, I didn’t know how to swim. We didn’t have places to swim in Kansas—we’d run a garden hose in the back yard on hot days. When we moved to Evanston in 1946 it was a whole new world. I was excited because there were two major league ball teams-the Cubs and the White Sox—which I immediately began to follow. I always felt that I had the best of both worlds growing up: the rural feel of Kansas and then living right next to the big city where there were resources available that I’d never had before.

BR: What kind of work did your mother and father do?
JMF: Father was in the field of personnel and industrial relations as a vice president of Zenith Radio Corporation. My mother called herself a homemaker, but she was extraordinarily active in civic affairs. She was elected to the Evanston High School Board, active in the PTA, and very involved in church activities.

BR: When did law first come into the picture?
JMF: Not until I was at least halfway through college. I had always thought that I would go into the ministry. I really can’t recall what stimulated my interest in law.

BR: Where did you go to college?
JMF: Harvard College. At that time, I was interested very much in the study of American history, and I came to believe I would pursue a doctorate and teach. Also, in some undefined way, I knew that I wanted to get involved in public service or public activities. I didn’t necessarily want to run for office, but wanted some sort of public involvement. I finally concluded the law seemed like the best way to do that because for some reason in those days I didn’t perceive that professors were particularly active in public affairs. After my first year at Harvard Law School, I wasn’t sure I wanted to continue, and I actually enrolled in the graduate school of history to switch careers. When I returned to Cambridge after the summer, the graduate school started two weeks later than the law school. I decided to sit in on some of the law classes to see what I’d be missing. And I never left that seat. I enjoyed the second-year classes, and decided I hadn’t given law a fair shot. I graduated from law school in 1962, and four years later I was back at Harvard starting a clinical program. But a lot happened in those four years.

BR: What do you mean?
JMF: It was the beginning of the civil rights movement. I remember in the spring of 1962 I was packing boxes that I wanted to mail to Illinois. I had accepted a job with the Chicago law firm of Kirkland, Ellis, Hodson, Chaffetz & Masters (now Kirkland & Ellis). I needed twine to tie the boxes, and when I went to Woolworth’s in Harvard Square, divinity students with big placards were standing by the entrance. They were talking about racial segregation in the South. I had been so involved in getting through my last year of law school that I had not paid much attention to what was going on. Only later did I realize that I had experienced the beginning of the civil rights movement. Yet I was on my way to a large law firm, where I would be working on banking law, securities law, and corporate law. Within a year’s time it was apparent that the country was in the throes of one of the most important developments of my lifetime, and I wanted to participate.

BR: So what did you do?
JMF: I had lunch with a high school friend, an inner-city minister in Chicago, Rev. Coleman Brown, who later became the pastor at Colgate University. He told me that the need to address issues of race and poverty was great in Chicago. I was quite moved, and motivated as a church person to ask, "What did my own convictions require?" So in 1964 I helped the Church Federation of Greater Chicago. I began organizing volunteer lawyers to provide legal assistance to the poor through the only trusted community organizations I could think of, local churches. We started with 16 lawyers, and in two years we had 200. I think it was the first volunteer lawyer program anywhere in the country. I’m proud to say that it still exists today as Chicago Volunteer Legal Services, with more than 1,000 lawyers involved. Particularly interesting at that time was the fact that the Legal Aid Society, which was financed through the community chest, had arranged a deal with the larger law firms that if they contributed money, Legal Aid would not ask for volunteer time. When we started volunteering and got associates involved from many large firms, Legal Aid was very upset. Its board believed Legal Aid’s financial base was threatened. Many senior partners in the major law firms asked to meet with us to discuss what we were doing. As a result they became supportive. In the meantime, I gave a speech at the City Club of Chicago criticizing Legal Aid for not being accessible enough. That speech found its way to the Harvard Law School bulletin. In 1966 when Harvard Law School decided to apply to the U.S. Office of Economic Opportunity (OEO) for money to set up an office staffed by students to provide legal services to the low-income community in Cambridge, Dean Griswold asked me to direct it. So in 1966, that’s what I went back to Harvard to do. It was very exciting to bring the resources of Harvard University to the anti-poverty effort in Cambridge.

BR: Do you remember some of your cases from those days?
JMF: In Chicago I recall helping an elderly woman whose insurance policy on her husband’s life had lapsed, and she wanted to get it reinstated after his death. And I remember representing a woman whose child had died in a fire in public housing and she was accused of homicide. In Cambridge, we supervised students handling family cases, landlord/tenant disputes, misdemeanors, and consumer-credit issues. We also represented the group of residents that designed the Cambridge Model Cities Program. We challenged the Massachusetts civil commitment laws, and we even tried to put the Cambridge Housing Authority in receivership.

BR: What exactly was your position upon returning to Harvard?
JMF: At the beginning, I was called the director of the Neighborhood Law Office program. Then I was named a teaching fellow, and eventually a lecturer on law. During that time, I began to teach by bringing cases from our neighborhood clinic into the classroom for discussion. Eventually, I gave a course on the provision of legal services and initiated a graduate program to train clinical law professors. I also cotaught a course on urban legal problems and a seminar on human relations problems in legal practice. All of this reflected the beginning of a national movement toward clinical education in law schools.

BR: It sounds as if pro bono work is something you’ve always felt passionate about.
JMF: Yes, it is. When I got into law practice in the 1960s I saw how much success in litigation, or in any other area of law, depended on the money required for good counsel. This imbalance seemed profoundly wrong to me. I believed everyone who needed a lawyer should be able to have a lawyer. And by 1964 that had become my principal professional motivation. It is still the strongest professional concern I have today.

BR: How did you end up at Hogan & Hartson?
JMF: After a few years at Harvard I received a letter from Seymour Mintz, a senior partner at Hogan & Hartson. He said the firm wanted to begin a full-time pro bono practice with a partner in charge. The partner, and two full-time associates, would bring the resources of the firm to the community. The firm was looking for someone to head up that effort. At first, I threw the letter away. I was spending time helping students find alternatives to law firms. In those days, there were rare opportunities to practice pro bono in law firms, and my own values did not feel consistent with a large law firm practice. But after I retrieved Mr. Mintz’s letter from the wastebasket and reread it, I wondered whether I was selling the firm short. So I called Mr. Mintz and said I would like to meet with him. I did so and was immediately impressed by the people I met, people like Seymour Mintz himself, Ed Mc Dermott, Bob Kapp, Sally Determan, and Barrett Prettyman. They made a believer out of me.

BR: So you moved to Washington?
JMF: Yes, that was in 1970. I came down as a partner charged with developing the firm’s community services department. I remember the first or second day on the job, Ralph Temple, who was then legal director of the local ACLU chapter, asked me to represent individual members of the Black Panther Party who had civil complaints against the D.C. police department. They were alleging assaults by the police during an altercation at panther party headquarters at 17th and U streets. The firm took the case, and we prevailed. One of the most exciting cases occurred a few years later when Hogan represented the OEO Community Action Agencies in a class action against the Nixon administration, which was trying to use administrative orders to dismantle the federal poverty program. We filed an action here in federal district court, and Judge William B. Jones ruled in our favor issuing an injunction against the administration’s efforts. That was the most satisfying court argument I ever had.

BR: How long were you in that position at the firm?
JMF: Seven years. In 1973 the firm asked me to become its first administrative partner, which I did, but I also was still in charge of the community services department. At that time we were fortunate in persuading David Tatel, now a judge on the U.S. Court of Appeals here, to join Hogan and work full-time in the CSD, which we called the department for short. By the time I was appointed to the D.C. Court of Appeals in 1977, we had five full-time CSD lawyers. But we did only a small portion of the firm’s total pro bono work. We found cases for scores of other lawyers.

BR: How did you happen to join the court?
JMF: It came entirely out of the blue. I had never thought about being a judge. But early in 1977 Fred Abramson, who was then chair of the Judicial Nomination Commission, called me about a vacancy on the court caused by the death of Judge Fickling. Fred asked me to interview for the position. I can’t remember all of my reactions, but I called Fred back and said I’d feel privileged to come for an interview. So I did, and I ended up on the court, appointed by President Carter. This has been an extraordinary experience.

BR: What was the transition like from lawyer to judge?
JMF: [laughter] Life was quieter. It was not a difficult change, it was exciting, and I could continue to deal with the day-to-day problems people face: crime, housing, family issues, agency actions such as zoning and unemployment compensation, as well as personal injuries and business problems. It was very important for me to stay in touch with these down-to-earth concerns and to help resolve them fairly. A part of me always has been strongly inclined toward the academic. And, of course, an appellate judgeship requires much legal research and writing, which I’ve always enjoyed. I loved writing briefs, and writing opinions was very similar. But unlike writing briefs or law review articles, judicial opinions have consequences. The appellate court for me, given my interest and my temperament, has been a perfect combination of academic work and practical consequence. An appellate judge has to be detached enough to be objective, but also must be immersed enough to be sure feelings, as well as one’s head, are engaged. What I have tried to do is find the right balance between feeling the sense of justice there must be in every case, and keeping sufficiently detached to assure fairness and consistency to everyone involved. I’ve tried very hard to do that well.

BR: What was your most significant decision?
JMF: Oh, that’s not for me to say, but I do remember feeling very strongly about a dissent I wrote when our en banc court found no violation of the Sixth Amendment right to a speedy trial, even when more than three years had elapsed between arrest and trial.

BR: What else do you recall from the beginning of your career as a judge?
JMF: I remember most the early Reagan years, beginning a little more than three years after I joined the court. The Reagan administration was trying to cut back on federal funding for legal services to the poor. The ABA took a very strong stand against that, and the ABA Consortium on Legal Services and the Public, which I chaired, was heavily involved in advocating the availability of legal services for all. Locally, there was a Bar referendum in which the members voted to limit the use of mandatory dues to four specified areas, which excluded funding of the D.C. Bar Pro Bono Program with Bar dues. A majority of the court sustained the referendum. I dissented. In any event, because the Bar was no longer in a position to fund legal services for the poor, I organized and, for three years, chaired a Judicial Conference Committee on Civil Legal Services, which took the lead in encouraging law firms to increase their donations of pro bono services, and in urging lawyers to volunteer funds for the D.C. Bar Pro Bono Program.

BR: When did you become corporation counsel?
JMF: Then mayor Marion Barry and Michael Rogers, the city administrator, approached me in the late spring of 1997. I immediately said no, but my wife Linda urged me to reconsider, and eventually I agreed to do it. I was especially pleased that my good friend, Walter Smith, a partner at Hogan & Hartson, was willing to join me as special deputy. I began as corporation counsel on September 24, 1997. Relatively speaking, it was like leaving a monastery and going into the coliseum. It was very exciting. I thoroughly enjoyed being corporation counsel and wish I could have stayed longer. I miss the people there very much. Two things attracted me to the job: first, the opportunity to work with District leaders at a very difficult time. I was working with the mayor, the council, the control board, District agencies, the U.S. attorney’s office, Congress, and members of the community. Then there were the people in the office where there was a certain spirit I liked very much despite all of the problems. When I arrived, the office was almost like a third world legal environment without adequate equipment, salaries, or other resources. My principal satisfaction, in addition to initiating the D.C. voting rights lawsuit, was in helping to obtain the resources necessary for a first-rate law office.

BR: How long were you corporation counsel?
JMF: My last day was April 19, 1999, the day we argued the voting rights case. Walter Smith and I had asked Charles Miller of Covington & Burling to join with our office, and with Professor Jamin Raskin of American University, who had written an important article on the subject, in filing a lawsuit seeking voting rights for District residents in the House and the Senate. Covington represents pro bono 55 or so individual clients; the corporation counsel represents the District as a government and as a people. That case recently was decided against the District by a 2-1 vote of a three-judge federal district court panel. The decision, I understand, will be appealed to the Supreme Court.

BR: Earlier you mentioned your wife, Linda?
JMF: Yes. Linda had been a friend for years. I got acquainted with her when she was director of research for Chief Judge Moultrie. I was trying to find out for the Committee on Civil Legal Services how much pro se representation there was in Superior Court. For years, Linda prepared the report for us. Eventually, we started to look at each other a little differently, and kept doing so, and we were married in 1994. It is really special when two persons who are already very good friends fall in love.

BR: You also recently received the Justice Brennan Award for outstanding efforts in public service?
JMF: Yes. I received the award at the Bar’s annual meeting last year. I was surprised and thrilled because Justice Brennan is a hero to me. He came to speak at the banquet we had during the first year of our neighborhood law office program at Harvard Law School. I became acquainted with him then, and Justice Brennan was the kind of man who never forgot anyone. When I was appointed to this court, he invited me to lunch. He ended up being a real inspiration to me; he’s my ideal of what a judge should be.

BR: Who else has inspired you during your career?
JMF: Definitely the Rev. Coleman Brown, my minister-friend who encouraged me in the early 1960s to begin the volunteer lawyer program. Also Dean Erwin N. Griswold, my dean at law school, who was very supportive of my legal services efforts at Harvard, and who continued to support me in various ways thereafter. I also have looked up to Judge William Bryant of the federal district court here, and to my colleague, Judge Julia Cooper Mack, for their inspiration and wisdom.

BR: What changes have you seen in the practice of law from when you began?
JMF: The first change has been the technological revolution. When I got out of law school our firm’s duplicating equipment was a mimeograph machine and a Thermofax machine that used wet, pink paper. We would take prospectuses and other documents to hot-lead printers. Our secretaries used electric typewriters. Court reporters used shorthand and fountain pens. Unfortunately, I think the practice has become less civilized. It seems more mean spirited. I think there is plenty of room for strong, aggressive advocacy without being mean, without lawyers behaving badly toward one another or using unconscionable delaying tactics. It’s been discouraging to see these developments. I think I became a judge just as some of these negative aspects of law practice were becoming evident. From the bench, I haven’t seen much change. I’m very impressed overall by the level of the bar in the District. There’s a strong criminal defense bar, including an outstanding Public Defender’s Office, and an exceptionally strong U.S. attorney’s office. I also have been very impressed by the integrity of the bar overall. I was on the first Board on Professional Responsibility (then called the Disciplinary Board). The disciplinary system is a strong, vigorous system, and I’m very proud of it. The lawyers who commit their time to the disciplinary process perform an important service to the profession and the community. My hat goes off to them.

BR: Is there something you feel you haven’t done yet?
JMF: In addition to completing a book, a biography of Supreme Court Justice Wiley Rutledge, I would like someday to get back to helping individuals more directly, the way I did in the early 1960s. I’ve been privileged to be given creative leadership roles, but someday I would like to be one of the troops again. People are hurting right where they live, and I think the ultimate commitment is a willingness to get into the trenches and slug it out where the pain really is.

BR: What has been behind your dedication to public interest work?
JMF: I think my motivation, my orientation, my sense of who I am and why I’m doing what I do, is mostly centered in my religious faith. I don’t want to try and describe what that faith is, but it’s there.

BR: Do you have any regrets?
JMF: No, I’ve been most fortunate.