Pro Bono Work by Major Law Firms Provides Voice to the Voiceless
A Big Law partner reflects on her role in United States v. Texas, and how large law firms can greatly impact public policy through pro bono work.
The Supreme Court’s recent grant of certiorari in United States v. Texas (No. 15-674) was the culmination of a battle by three mothers living in this country illegally, known only as the “Jane Does,” for a seat at the table in a landmark case that directly affects their lives and the lives of their children, who are U.S. citizens.
But without pro bono counsel from top-tier law firms who treated this lawsuit like any other major case—with the full complement of staffing, resources and time brought to bear—the Jane Does would have never had a voice.
The Jane Does and their counsel—the Mexican American Legal Defense and Educational Fund, O’Melveny & Myers, and DLA Piper—are thrilled at the U.S. Supreme Court’s grant of certiorari. It allows the Jane Does, whose lives and families hang in the balance, to tell the Supreme Court that the harm caused by an injunction, brought about when more than two dozen states moved to enjoin new federal guidance in 2014, are irreparable and should not be allowed to persist.
But even if the Court determines that the injunction was improperly issued and must be dissolved, it cannot undo the lost months in which the states prevented the executive branch from implementing its discretionary enforcement power to prioritize candidates for removal, and in which the Jane Does and millions of others have been forced to remain in the shadows, unable to legally support their families. Every day that the injunction remains in place is another in which the federal government cannot fully execute its immigration policy, that the U.S. economy cannot maximize its productivity, and that millions of parents of U.S. citizens, like the Jane Does, remain in fear of the unceasing threat of removal, unable to seek lawful employment.
The case started in December 2014, shortly after President Obama issued the Deferred Action Guidance, which contained initiatives commonly known as DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents). DAPA permits low-priority illegal immigrants, the parents of U.S. citizen children who meet specific criteria, to remain in the country for three years without fear of deportation (“deferred action”). Deferred action is a type of prosecutorial discretion where the party tasked with enforcement does not seek enforcement of a violation for a limited period of time. But deferred action does not confer any substantive right, immigration status or pathway to citizenship and may be terminated at any time.
The purpose of DAPA is to ensure that the Department of Homeland Security’s limited resources are most effectively used to eliminate threats to national security and public safety by prioritizing removal of undocumented immigrants with criminal backgrounds, rather than those who have lived in the United States for years and contribute to their communities. DHS estimates that while there are approximately 11.3 million undocumented immigrants eligible for removal, the agency has the resources to remove fewer than 400,000. In light of these limited resources, DAPA is a consequence of Congress’s directive to DHS to prioritize “the identification and removal of [immigrants] … by the severity of the crime.” DHA Appropriations Act, Pub. L. No. 111-83, 123 Stat 214, 2149 (2009). Eligibility for deferred action under DAPA reflects that qualifying individuals are the lowest priority for enforcement.
Twenty-seven states, led by Texas, moved to enjoin the DHS’s Deferred Action Guidance and the Department of Justice was tasked to defend DAPA. However, the DOJ cannot adequately represent the Jane Does’ interests because the federal government is responsible for representing a broad range of public interests and is not subject to the consequences of the implementation of DAPA or the consequences of enjoining the implementation of DAPA. The Jane Doe are the only ones directly affected by the DAPA initiative in this case.
Each of the three Jane Does is a DAPA-eligible immigrant, a longtime South Texas resident, a productive member of her community, a low priority for removal, and the primary caregiver for her children, who are citizens. If DAPA continues to be enjoined, the Jane Does will remain subject to arrest, detention, and removal proceedings at any time. Put simply, their lives could be upended and their families split apart.
The case presented a unique challenge. How could the Jane Does be heard when even disclosing their names could subject them to deportation? Who would speak for them in this high-profile case with multiple rounds of briefing over the course of more than a year in the District Court (see 86 F.Supp.3d 91 (S.D. Tex. 2015)(granting injunction) and 2015 WL 1540022 (denying stay)), the Fifth Circuit Court of Appeals (787 F.3d 733 (5th Cir. 2015)(denying stay) and 809 F.3d 135 (affirming injunction)), and now the Supreme Court, as they faced the twenty-seven plaintiff states. In addition, over 100 senators, congressmen, state legislators, mayors, sheriffs, states and organizations weighed in by filing amici curiae briefs.
With this imposing backdrop, the only way the Jane Does could have a say was through representation by a major law firm (or, in this case, one public interest law firm and two top law firms) willing to invest in their defense. To be sure, it is a monumental task, when you consider the partner, associate, paralegal and secretarial time, the “lost” fees and the expenses incurred. But major firms can and should jump into these kinds of cases with the same level of excellence as they do for paying clients. And not just because “it is the right thing to do”—although that is reason enough.
There is a unique sense of pride and camaraderie among a team of attorneys fighting for people who otherwise would not have a voice. This in turn fosters pride in the law firm and in relationships among the firm’s attorneys and increases the law firm’s stature. There is also an opportunity for attorneys to gain experience and hone skills they would not necessarily have at their level of seniority.
This is my second high-profile pro bono case; the other was Kobach v. United States Election Assistance Comm’n, 772 F.3d 1183 (10th Cir. 2014), which also went to the Supreme Court (cert. denied, 135 S.Ct. 2891 (2015)). In both of these cases, members of our pro bono litigation team had the opportunity to write briefs and help craft oral arguments and impromptu rebuttals in federal district courts, in U.S. Courts of Appeals and before the U.S. Supreme Court. In the present immigration dispute, this effort hopefully will carry through to a decision on the merits.
These are lofty places for associates, junior partners and even senior partners—all of whom get to practice law while also impacting national public policy.
Linda Smith is a partner at DLA Piper in Los Angeles. She represents Fortune 500 and other companies, advising general counsels and boards on how to protect themselves from ligation exposure and, when litigation is unavoidable, representing these companies in high-stakes and complex lawsuits.