September 06, 2019

Niche Appellate Practice: Pro Bono Appellate Representation

By Arleigh P. Helfer III

In vain thy reason finer webs shall draw,
Entangle justice in her net of law,
And right, too rigid, harden into wrong;
Still for the strong too weak, the weak too strong.

–Alexander Pope

Too often people whose civil rights are violated lack the wherewithal to vindicate those rights.  Many important issues never find their way to court—let alone to an appellate court—because of the expenses involved in navigating our legal system with counsel.  In other instances, non-parties may have important insight to offer an appellate court about the practical effects of the court’s decision, but may not have the resources to prepare amicus briefs. 

Appellate practitioners seeking opportunities to hone their skills can provide important public service, assist in developing the law, and help some of the most vulnerable among us by developing an active pro bono component in their practices.  Many may not consider it a niche appellate practice; however, supplementing an existing practice with pro bono appellate work offers practitioners substantial benefits. For example, pro bono work provides additional opportunities for practitioners to polish their brief-writing and oral advocacy skills.  Interesting and novel issues often appear in pro bono cases:  important civil rights issues tend to arise in situations in which agents of the government interact with people who lack the means to engage legal counsel to protect or vindicate their rights.  Accordingly, in addition to the opportunity to present briefs on significant issues, representing a client pro bono on appeal may increase your chances of receiving an opportunity to present oral argument.

In addition to the benefits of representing parties, representing amici on a pro bono basis can provide an appellate practitioner with opportunities to illuminate and explore aspects of cases that counsel might not typically address in a merits brief.  Practitioners representing amici can gain important insight while contributing to the quality of appellate jurisprudence.  While exercising and improving their advocacy skills, practitioners assisting amici give voice to organizations that stand ready to help appellate jurists appreciate the real-world ramifications of their decision making. 

Benefits to Pro Bono Clients

Anatole France famously wrote: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." Similarly, Jonathan Swift observed that “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”  Our laws exist as a tool to obtain justice.  Unfortunately, navigating our legal system is neither easy nor inexpensive.  Many people suffer violations of their rights that go unaddressed because they lack the funds to engage a lawyer to assist them.  Even if a person is lucky enough to have pro bono representation at the trial court level, that does not guarantee that counsel will offer pro bono appellate representation after an adverse ruling.  And appellate review is crucial, especially in cases presenting novel questions about civil rights.  In short, offering pro bono legal services to people who cannot afford those services advances the interests of justice.  It does so by enabling the clients to present their cases to appellate courts for careful, deliberate review. 

I have represented clients from working-class and middle-class families that would not have been able to afford to bring their cases before appellate courts.  In one of those cases, a young woman needed to bring her service animal to her private elementary school.  She suffered from seizures, among other things, and had a specially trained seizure-alert dog.  The school declined her request to bring the dog with her to classes.  She sued the school in federal court, alleging violations of the Americans With Disabilities Act (“ADA”) and the Rehabilitation Act of 1973 (“RA”), among other claims.  The court dismissed her ADA claim at summary judgment but explained that the RA claim could go on.  The court further explained that specific regulations promulgated by the Department of Justice under the ADA would apply to the RA claim.  These regulations create a presumption that a public accommodation must permit a service animal to accompany a person with a disability anywhere a member of the public would be permitted to go unless the animal is out of control or not housebroken.

At trial, however, the court did not give a requested jury instruction about the ADA regulations in connection with the RA claim.  The jury was confused—when deliberations started, the jury sent out a note with a request for clarification about how the RA addresses service animal issues—but the court did not offer any clarifying instruction.  The jury came back with a defense verdict.

I represented the young woman on appeal pro bono.  The key issue was whether the district court erred in not giving the requested instruction (i.e., that the ADA service animal regulations inform the reasonable accommodation analysis under the RA).  This was a novel issue.  Would the regulations promulgated under one act apply to another?  Not only did the Third Circuit request oral argument, but it requested two rounds of supplemental briefing.  Although the rights at stake were important, my client and her parents would not have been able to afford appellate representation.  Following argument, the Third Circuit issued a precedential opinion, found the ADA regulations inform the RA reasonable accommodation analysis, and vacated the judgment, remanding the case for a new trial.

In another matter, I wrote an amicus brief on a pro bono basis for the National Association of Criminal Defense Lawyers (“NACDL”) and the Pennsylvania Association of Criminal Defense Lawyers (“PACDL”) in a case raising significant Sixth Amendment issues in Pennsylvania.  Pennsylvania is the only state in the nation that funds public defender offices at the county level.  The public defender’s office in Luzerne County was overworked, understaffed, and incapable of meeting the Commonwealth’s obligation to indigent criminal defendants.  The public defender’s office brought suit against the county, seeking to force the county to provide sufficient funding to permit public defenders to deliver adequate assistance of counsel to indigent criminal defendants.  The case worked its way to the Supreme Court of Pennsylvania.  The question presented was whether criminal defendants could seek prospective relief and an injunction without needing to wait for conviction and sentencing. 

NACDL and PACDL wanted to present information in support of the indigent defendants, whose claims were disallowed by Pennsylvania’s Commonwealth Court.  Working pro bono, I had the opportunity to draft an amicus brief focusing on the various ways in which indigent criminal defendants suffer when a public defender office cannot supply lawyers at key points in the case prior to trial.  My practice usually involves commercial litigation, so I had to learn a fair bit about the challenges facing public defenders in Pennsylvania to show the court how its decision would affect some of the least favored and most vulnerable persons in the Commonwealth.  Ultimately, the Supreme Court of Pennsylvania ruled that the plaintiffs’ claims for prospective denial of effective assistance of counsel could proceed.

By working pro bono in both instances, and in several other cases, I helped clients to pursue their cases or to offer assistance to the courts.  Helping clients such as these obtain justice and develop the law is incredibly rewarding.

Benefits to the Practitioner

Although the rewards of helping clients navigate the legal system to achieve justice are significant, pro bono work has considerable practical benefits for the practitioner as well.  In the service animal case, I had the opportunity to work with a compelling set of facts and human narrative different from those involved in the typical commercial dispute.  The case let me exercise my writing skills and develop a strong factual narrative to bolster the legal arguments about why the DOJ’s ADA service animal regulations should apply in the context of RA claims for money damages. 

Moreover, the issue was one of first impression in the federal appellate courts.  Not surprisingly, the court requested oral argument.  These days, it is not easy to find opportunities to present appellate oral argument.  For example, the Third, Fourth, and Eleventh Circuits now hear oral argument in fewer than 15% of cases they decide on the merits.  Because pro bono cases are likely to bring important issues before the courts that would not otherwise be adjudicated, it stands to reason that your chances of presenting a novel or important issue warranting oral argument increase in pro bono representations.  In fact, in some courts, such as the Third Circuit, accepting court appointments to act as pro bono counsel to address specific issues on behalf of otherwise pro se litigants may be rewarded with a grant of oral argument in the case.

Offering services on a pro bono basis also may open opportunities to write amicus briefs.  There are untold numbers of organizations that have experience working with vulnerable groups that suffer rights abuses by the government or others.  Amicus briefs provide practitioners with a chance to come at important questions from different avenues.  Rather than arguing the facts and law applicable to the case before the court, amici assist the courts by lending their real-world experience to the judges, showing how the court’s decision will affect society or broader legal issues.  Preparing a compelling amicus brief stretches ordinary appellate advocacy skills by allowing a different tack, permitting an advocate to focus on persuading the court through a showing of how the court’s decision might affect persons other than the parties before it.

I recently had the opportunity to submit an amicus brief in the U.S. Supreme Court on behalf of several civil rights advocacy organizations that do considerable work along the U.S.-Mexico border.  The question on which the Court granted certiorari involves whether to extend a Bivens claim against a U.S. Border Patrol agent to foreign national parents of a teenage boy the agent shot by firing bullets across the border into Mexico.  By working on a pro bono basis, I had an opportunity to update an argument made by colleagues at an earlier stage in the case.  The amici presented the Court with several examples of people harmed or killed by rogue U.S. Border Patrol agents.  The amici further assisted the Court by providing context, explaining the limitrophe nature of the border region (i.e., borderlands form a liminal frontier area with culturally integrated communities that pay no attention to the cartographic border, requiring special considerations).  Marshalling and presenting recent examples of Border Patrol agents’ misconduct allowed me to advocate by establishing context, showing the Court that the victim in the case—and his family’s predicament—are not unique in terms of the abuses and pains they suffered. 

Nice Work If You Can Get It

If you are looking to add pro bono work to your appellate practice (or increase the amount of pro bono work you do), how should you go about doing that?  I have found it helps to assist legal organizations that represent clients who lack the means to pursue claims on their own.  For example, my firm has developed a relationship with the ACLU of Pennsylvania.  That relationship provides my colleagues and me with great opportunities to work as co-counsel on complex and important legal issues alongside skilled civil rights litigators. 

Appellate courts sometimes directly solicit counsel to assist pro se litigants to address challenging legal issues on a pro bono basis, typically asking counsel to prepare briefs addressing specific, court-focused legal issues.  If you are interested in assisting on such a case, you should contact the court to learn what you need to do to receive such appointments.  Similarly, many local and state bar associations have pro bono volunteer offices that will help match you with persons needing pro bono assistance.  In Pennsylvania, the Pennsylvania Bar Association and Philadelphia Bar Association, among others, sponsor a website that matches attorneys with pro bono opportunities.

Finally, if you see an intriguing case on an appellate court’s docket, especially one on the Supreme Court docket in which “blanket consent” has been granted, you can seek out opportunities to prepare amicus briefs on a pro bono basis by finding organizations that may want to submit their views as amici but lack the resources to engage outside appellate counsel to do so.  Depending on how eager you are to find brief-writing opportunities, you might even inquire of counsel of record in such a case whether they know of organizations that would like to participate as amici.  Sometimes organizations that would like to contribute their views can do so if they can find pro bono appellate counsel to help them bring their relevant experience to bear.

Summary

In summary, providing pro bono legal services in appellate courts generates appreciable benefits for practitioners, their clients, and the legal system as a whole.  If you want to broaden and sharpen your appellate advocacy skills while helping people seek justice, you may want to explore the merits of adding a pro bono niche practice alongside your existing appellate practice.

    Entity:
    Topic:

    Arleigh P. Helfer III

    Arleigh P. Helfer III is a litigator with Schnader Harrison Segal & Lewis LLP in Philadelphia, where he is a member of the firm’s Appellate Practice Group.  He was a recipient of the Pennsylvania Association of Criminal Defense Lawyers Alan Jay Josel Advocacy Award in 2017 in recognition of his work on an amicus brief on behalf of PACDL and the National Association of Criminal Defense Lawyers in the Sixth Amendment case Kuren v. Luzerne County, 146 A.3d 715 (Pa. 2016).  He received the 2018 Earl G. Harrison Pro Bono Award in recognition of his distinguished pro bono services and commitment to those in need.