Pandemic shakes up pro bono representation
Clients affected from asylum seekers to prisoners
The coronavirus pandemic is upending how attorneys routinely interact with pro bono clients, making it rare or impossible to meet face-to-face in legal clinics, courtrooms, and prisons.
Pro bono organizations and their law firm partners are racing to patch together solutions and implement technology that will help them effectively represent clients including asylum seekers, prisoners, and crime victims.
Restrictions on gatherings and travel make doing this work more cumbersome for lawyers, especially in fraught areas like asylum and immigration. Many courtrooms are closed and hearings are delayed or have been moved to phone or teleconference.
Federal prisons have banned visitors, including lawyers, leaving them scrambling to represent those with parole hearings.
The fast-evolving situation has begun to worry pro bono providers, who are already dealing with a large number of clients and potential clients who suffer from a lack of access to justice.
“There will be a major impact on low-income and marginalized populations, who will have many new legal needs that we will need to address in areas including public benefits, housing instability, and detention conditions,” said Steven Schulman, the pro bono partner at Akin Gump Strauss Hauer & Feld and co-president of the Association of Pro Bono Counsel, which includes some 250 attorneys and pro bono practice managers at the largest firms.
A Difficult Time
Jacqui MacLennan, global head of pro bono for White & Case, said the firm is working with clients by email, teleconference, and videoconference.
“We are guiding some of our pro bono clients to identify and use technology in ways they have never had to think about before to continue to collaborate and represent them through this difficult time,” she said.
White & Case and other firms such as Paul, Weiss, Rifkind, Wharton & Garrison are mobilizing their lawyers to handle legal matters arising specifically from the coronavirus pandemic, such as questions about nonprofit contracts, employment, or fundraising. Paul Weiss recently launched an online portal to connect those financially affected by the virus to resources.
Nonprofits working with law firms to handle client legal matters say that they are moving more to remote work, but that they’re struggling with courts, which lag behind on introducing the broader use of telephonic hearings or videoconferencing.
“With courts being closed, that has shifted the nature of our work,” said Hamra Ahmad, director of law and policy at Her Justice, an organization providing legal help to women living in poverty in New York City. “We’re preparing for cases when the courts do open.”
Ahmad said law firms are still able to send documents and interview clients by video or telephone. Remote notarization is now also possible in some jurisdictions.
Immigration courts are also reviewing new approaches to hearings, said Wendy Young, president of Kids In Need of Defense (KIND), which provides legal services to unaccompanied refugee and migrant children in the United States.
“We’ve seen incremental steps being taken, but frankly at a kind of painfully slow pace,” said Young, who noted that two-thirds, or about 4,000, of the group’s cases, are placed with pro bono law firm partners.
Some of those steps include recent directives to immigration judges to consider using videoconferences and other methods to limit physical appearances in court.
However, she noted the logistics can be cumbersome.
“It’s very difficult to do a hearing that’s grounded in due process while using video and it still would require that our attorney be physically located somewhere with the child and the child transported somewhere in order to appear on video.”
A recent videoconference juvenile hearing where a judge in Atlanta heard the cases of 40 children on the docket in Houston was a “debacle,” she said. “The kids’ faces were so tiny on the judge’s screen that she couldn’t see any facial expressions.”
KIND is one of many advocacy organizations urging immigration authorities to suspend hearings because of the hardships of travel and to safeguard the health of workers and asylum seekers.
Paul Hastings pro bono counsel Renata Parras, who works closely with KIND, said the virus might lead attorneys to use technology that wouldn’t be appropriate “in another time or universe.”
“What’s happening now may cause us to look at things differently, and look for different ways to communicate,” said Christopher Torrente, a corporate partner at Kirkland & Ellis, who also works with KIND. “That could include apps, or communicating via text or Facetime. I think we have the grit and ingenuity to adapt quickly.”
The difficulties faced by pro bono organizations in reaching and helping clients remotely are challenging, but not unprecedented.
For instance, Fordham Law School last year inaugurated a pilot to provide remote legal services to asylum-seeking women and their children detained at the South Texas Family Residential Center in Dilley, Texas.
The idea, said Dora Galacatos, executive director of Fordham Law’s Feerick Center for Social Justice, was to develop a way to “deal with surges in detainees, and also overtime to address the needs of rare language speakers.”
The correctional institution has strict security and does not allow videoconferences, so Fordham worked with the Dilley Pro Bono Project to recruit Spanish-speaking lawyers and legal assistants across the country to interact with detained women via phone. After assessing data on the program’s effectiveness last year, organizers are planning to restart the program in the spring.
As coronavirus looms as a threat to incarcerated people, their lawyers are urging authorities to step up use of technology to hasten the process of release. Some states and counties have taken steps to release inmates who are elderly or low-level offenders. The federal government has also been urged to facilitate some releases.
“We have been advocating that the [U.S.] Parole Commission take all necessary steps to expedite consideration and release of eligible prisoners, including use of videoconferencing and telephonic hearings,” said Jonathan Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, which represents prisoners in the federal prison system.
Some lawyers worry that telephonic or video alternatives do not provide adequate representation for clients.
Dennis Gucciardo, a medical devices lawyer who is a partner at Morgan Lewis & Bockius, for example, had planned to drive five hours this weekend to a New York State prison to represent his pro bono client at a parole hearing Monday.
Gucciardo said he wanted to be with his client in person, believing the chances of parole are higher when the prisoner has his lawyer by his side.
“Parole hearings are emotional and intense, and you have to make sure your client is able to tell his full story,” said Gucciardo, who works with the lawyers’ committee.
But prison officials, trying to curb any contagion, want him to participate by telephone.
“From what I understand, it will be the first time an attorney will participate telephonically for a parole hearing at Federal Correctional Institution, Otisville,” Gucciardo said. The idea is so new that there’s no telephone line in the room where parole hearings are held at the prison.
“We are going to have to figure out logistics,” he said.
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