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Pro Bono Report 2004

July 2005

Volume 1, Number 1, 2004

As part of Jones Day's effort to enhance its pro bono program, the Firm has begun publishing Pro Bono Report. This periodic report will highlight cases being handled by the different offices, identify opportunities for attorneys to become involved in pro bono work, and offer news and other pertinent information about the Firm's program.

Increased Pro Bono Hours

Over the past several years, Jones Day has undertaken a number of steps to enhance the overall profile of the Firm's pro bono practice. The results have been tangible. In the five-year period from 1999-2003, Jones Day's ABA pro bono hours have increased from 9,717 total U.S. office hours in 1999 to 54,296 hours in 2003, a 559 percent increase.

The Firm's Recognition of Pro Bono Work

Time spent on pro bono work is taken into account in the evaluation of non-partners and in advancement within the Firm, a fact evidenced by the Firm Manual, which states:

"In evaluating the professional development and performance of lawyers, the work done by an associate on an approved public service activity consisting of legal services to clients will be given the same weight and consideration as client billable work for purposes of the Firm’s regular evaluations of the overall professional performance and potential of the associate."

Pro Bono Case Study

In 2003, when the highly regarded Legal Aid Foundation of Los Angeles ("Legal Aid") began receiving several complaints per week regarding inferior work being done by the organization, they knew they had a problem because their attorneys were not the ones dispensing the substandard advice. Ultimately, Legal Aid was able to uncover the source of the problem. By speaking with the callers, Legal Aid was able to determine that another entity, the California Law Clinic, had been using Legal Aid's name. Represented by Jones Day, Legal Aid filed a trademark infringement and unfair competition suit against the California Law Clinic "to protect the integrity of its name." EXTRA, Los Angeles Daily Journal, p. 10 (Jan. 12, 2004).

Los Angeles Office attorneys Maria Nelson, Christopher Broderick, John Kim, Reed Aljian, Giam Nguyen, Lisa McCurdy, and Jennifer Scott are actively pursuing the case in Los Angeles Superior Court.

Case Notes from the U.S. Courts of Appeal

Third Circuit

United States v. Albinson, 356 F.3d 278 (3rd Cir. 2004). The government seized hundreds of thousands of dollars worth of property from the home of our client, Mr. Albinson. Mr. Albinson was never charged with any crime as to the property, and it was undisputed that the property was not contraband. In accordance with Federal Rule of Criminal Procedure 41(e), Motion for Return of the Seized Property, Mr. Albinson filed a motion to recover his property that had been seized as the result of "an unlawful search." The government responded by representing, without documentary support, that the property had been lost, destroyed, or acquired by third parties. The district court denied Mr. Albinson's motion, without conducting a hearing on the basis that the government was immune from money damages.

On appeal, Jones Day argued that the district court abused its discretion by: (1) denying the motion without conducting a hearing to resolve disputed issues of fact, including what happened to the property; and (2) denying the motion without giving Mr. Albinson an opportunity to amend his motion to assert viable alternative claims, such as a Bivens action or a claim under the Federal Tort Claims Act. The Third Circuit agreed. In a published opinion, the Court reversed and remanded the case, ordering the district court to determine what happened to the property and to consider whether Mr. Albinson should be permitted to assert viable alternative claims, such as Bivens. Jennifer Saulnier from the Firm's Pittsburgh Office handled this matter.

Gordon v. Gonzalez, 84 Fed. Appx. 171 (3rd Cir. 2003). Juken Gordon, an inmate incarcerated in federal prison, alleged in his complaint that the defendants violated his Eighth Amendment rights by beating him and threatening to kill him after he requested permission to enter the prison mess hall. The district court granted summary judgment against Gordon. Mark Tamburri of the Pittsburgh Office filed a brief with the Third Circuit, seeking to overturn that ruling. The defendants confessed error to the Third Circuit after reviewing Gordon's appellate brief.

Fifth Circuit

Kimbell v. United States, No. 03-10529 (5th Cir. 2003). The American College of Trust and Estate Counsel ("ACTEC"), a prestigious organization of established and experienced trust and estate attorneys, asked Jones Day to serve as lead authors of an amicus curiae brief in an appeal before the Fifth Circuit in which the Internal Revenue Service had taken a cutting-edge estate planning position. ACTEC had to move for leave to file its amicus brief, which IRS opposed. ACTEC’s motion was successful, however, and its amicus brief was filed. Atlanta Office attorney Milford Hatcher was the primary strategist and author of the amicus brief, while Joe Korpics of the Cleveland Office was the principal drafter of the successful motion for leave to file. Joe also provided support and research for Mil on the amicus brief. A decision is pending.

Nixon v. Epps, Nos. 02-60385, 03-60073 (5th Cir. 2003). In a long-running Cleveland Office pro bono matter, a team headed by Brian Toohey has been seeking habeas relief for an indigent death row inmate in his 1985 trial. The Federal District Court in Jackson, Mississippi, granted Mr. Nixon a Certificate of Appeal to the Fifth Circuit on the sole issue of ineffective assistance of trial counsel in this death penalty habeas corpus case. During the fourth quarter of 2003, the team petitioned the Fifth Circuit to grant Certificates of Appeal on a number of additional issues raised in, but rejected by, the District Court. Further briefing on the ineffectiveness issue is stayed pending the Fifth Circuit's decision on the appealability of the other issues.

Ninth Circuit

Clement v. Terhune, No. 03-15006 (9th Cir. 2003). Craig Stewart and Bob Mittelstaedt from Jones Day's San Francisco Office, in conjunction with the ACLU and the Prison Law Office, are representing an inmate in federal court. The suit challenged the constitutionality of a California Department of Corrections policy that prohibited inmates from receiving in the mail anything printed from the Internet. Jones Day and the other attorneys convinced the district court to issue a permanent injunction against the policy on the ground that the policy is irrational and does not serve any legitimate state interest. The Department of Corrections has appealed to the Ninth Circuit, where a decision is pending.

Trademark and Intellectual Property Cases

Angel Flight of Georgia, Inc. v. Angel Flight Southeast, Inc. Attorneys from the Atlanta Office have undertaken a significant trademark lawsuit on behalf of Angel Flight of Georgia, Inc. ("AFGA"). Established in 1982, AFGA is a nonprofit organization that provides free medical transportation, via privately owned general aviation airplanes, to individuals with medical needs that cannot be treated in the patients’ immediate area. The lawsuit, which was filed in United States District Court for the Northern District of Georgia, seeks to protect AFGA's right to the name against several other organizations —including Angel Flight of America and Angel Flight Southeast — that are attempting to use a similar name. Due to the complex nature of the litigation and the diversity of issues involved, Atlanta partner Bill Smith has assembled a broad-based Jones Day litigation team, which includes Atlanta attorneys Sid Brown, Doug Towns, Anne Johnson, Cathy Green, Vanessa Bird, and legal assistant Menzie Campbell.

Save the Children. When Jones Day and Pennie & Edmonds merged in 2004, their pro bono practices merged as well. To that end, the Firm's New York Office now is providing trademark and copyright prosecution, enforcement, and counseling for the Connecticut-based Save the Children. Established in 1932, Save the Children has been a leading international nonprofit children's development and relief organization. The Firm's work for Save the Children focuses on the prosecution and maintenance of U.S. trademark and copyright assets. Attorneys in the New York Office also perform the same basic work for the "parent" organization, The International Save the Children Alliance.

Other Pending Actions

D’Ambrosio v. Bagley. Ed Sebold, John Lewis, and Kerry Renker, Cleveland Office attorneys, are pursuing federal habeas corpus relief for an Ohio death row inmate. Counsel are now preparing for an evidentiary hearing before the United States District Court for the Northern District of Ohio.

A team of Dallas lawyers including Evan Singer, Everett Upshaw, Patrick Carew, Deborah Sloan, and Sally Crawford have undertaken a pro bono matter involving the loss of a family home to a third party who defrauded the family and evicted them from the home they had owned for more than 40 years. The lawyers first investigated the case's complicated factual history. The team then initiated proceedings to probate the will of the deceased homeowner who had left the house to the youngest member of the family, a 16-year-old honors student raised by her great aunt, the original homeowner. Following the probate of the will, the team filed a bill of review in the Justice Court seeing to undo the eviction. Finally, Jones Day filed a lawsuit in District Court seeing to quiet title and reclaim the property.

At a temporary injunction hearing held on January 13, 2004, the Jones Day team succeeded in obtaining a temporary restraining order preventing the defendant from selling or otherwise disposing of or encumbering the property. To make their case, the lawyers presented evidence from four witnesses, including a handwriting expert. In addition, the lawyers secured very favorable findings of fact from the court regarding the validity of the alleged transfer of the property.

Cleveland Foodbank. Jones Day Cleveland lawyers continue in their representation of the Cleveland Foodbank.

Carmelite Monastery. Bill Plesec and Brad Sobolewski have provided legal advice and related services to the Carmel of the Holy Family (commonly known as the Carmelite Monastery) in connection with a construction dispute.

FranciscanFriars. Cleveland attorney Steve Sozio is providing advice and counsel to the Franciscan Friars, a religious order of Catholic priests and brothers, concerning a potential government investigation in Philadelphia.

Legal Clinic Cases and Referral Program

The Firm's San Francisco Office filed a complaint on behalf of a plaintiff whose husband was convicted for intentionally transmitting communicable diseases to others. Our client provided assistance to the police in the course of their investigation. In retaliation, members of her husband's family responded by creating a flier that purported to relate to the plaintiff but that, in fact, contained false assertions about her. The plaintiff's in-laws then widely distributed the flier in the area in which the plaintiff lives (i.e., the fliers were handed out at various locations and posted on bulletin boards at an assortment of establishments she was likely to frequent). Defendants stipulated to the broad injunctive relief we sought on behalf of our client, and the case has been settled. This case came to us through the AIDS Legal Referral Panel and was handled by Matt Vandall, Xuan-Thu Phan, and Caroline Mitchell.

Attorneys in the Cleveland Office are handling two matters that came to the Firm from the Legal Aid Society of Cleveland.
  • Geoff Johnson and Marc Silverstein represent an indigent former tenant in a lawsuit filed by her former landlord on the "lease to own" contract between them. The matter was ordered to arbitration after Johnson and Silverstein filed counterclaims and proceeded with discovery. Although the arbitration result was adverse to the client, the former landlord offered to walk away from his claims and to make payments to the client on her counterclaims in settlement of the case. After communication problems with the client were resolved — and after the landlord’s attempted "withdrawal" of his offer was disapproved by the court — the parties reached a settlement early in 2004.
  • In the second Legal Aid matter, Lisa Roberts-Mamone and Joe Korpics continue with the representation of an elderly Cleveland man as executor of his wife's estate, in the administration of that estate. The estate consists solely of the house, which is his home and is subject to his life estate in it.

Tracy Strong, from the San Francisco Office, has been working to get Jones Day on the attorney panel of the Lawyer Referral Service. Through that service, people or arts organizations are referred for litigation assistance or consultation on arts-related business problems such as copyright and trademark protection, contract review and negotiation, and nonprofit incorporation.

Anti-Domestic Violence Network

Jones Day's Pittsburgh's Office has made the fight against domestic violence one of the cornerstones of its pro bono practice through its participation in the Neighborhood Legal Services Association. As a part of this program, a number of associates in the Pittsburgh Office, along with partner Peter Laun, routinely appear on behalf of abused and battered women in local court and help them to secure orders of Protection From Abuse ("PFA"). To date, the Pittsburgh Office has been able to successfully secure PFAs for all of the women (a total of 30) who have seen the process through to completion.

In Los Angeles, various attorneys, including Kim Cole, Jackie Bird, Josh Benson, and Erica Reilley, are working with the Barristers Pro Bono Domestic Violence Project. The project, like the one in Pittsburgh, helps victims of domestic violence and their children secure temporary and permanent restraining orders against their assailants.

In San Francisco, Caroline Mitchell, Karen Hourigan, and Noel Rodriguez are participating with the Bar Association of San Francisco ("BASF") to implement the Violence Against Women Act ("VAWA"). The VAWA is a program designed to assist women who are not citizens and who are being battered by the people who are their sponsors and therefore control their ability to stay in this country. Through this program, women are allowed to seek permission to stay in the country independent of their current sponsor so that they do not have to be dependent on their abusers.

Atlanta and Chicago Offices Host Employment Seminars for Not-For-Profit Groups

Doug Towns from the Atlanta Office moderated a program entitled "What You Don't Know Can Hurt You — Legal Basics for Nonprofit Organizations," in conjunction with the State Bar of Georgia and the Atlanta Volunteer Lawyers Foundation. The March 24, 2004 seminar was attended by approximately 60 not-for-profit organizations. Atlanta partners Sterling Spainhour, Jim Landon, and Sid Brown spoke on general corporate law and board fiduciary responsibilities, 501(c)(3) status and general tax issues, and copyright, patent, and trademark law, while associate Jennifer Moore spoke on employment law issues of interest to nonprofit groups. This is the second year that the Atlanta Office has hosted this program, which is now being used by other Bar Associations throughout the Southeast to assist nonprofit organizations.

In the Chicago Office, partner Michael Gray, assisted by associates Cassie Boyle, Sabrina Spitznagle, Tammy Travis, and Nikki Palmer, conducted a half-day workshop entitled "Employment Law 101 For Nonprofit and Community Organizations." The workshop was set up with assistance from the Community Economic Development Law Project in an effort to help community organizations with employment law issues. The workshop specifically addressed Hiring and Managing Employees, Disciplining and Discharging Employees, Wage and Hour Compliance, and Responding to Harassment and Discrimination Complaints. Fifteen representatives from 10 local community organizations attended. The attendees gave the program very high marks.

Pro Bono Service to the Legal System and the Law

In addition to the direct provision of legal services to needy persons and not-for-profit entities, Jones Day lawyers are actively engaged in the improvement of the law, the legal system, and the legal profession. Cleveland lawyer David Kutik, along with John Fabian, has been working with the Cleveland Bar Association to prosecute persons and entities charged with the unauthorized practice of law. Kutik also works with the Ohio State Bar Association in the same capacity.

Cleveland attorneys serve as mediators in matters pending in both the United States District Court for the Northern District of Ohio and the Cuyahoga County (Ohio) Court of Common Pleas. Regan Fay, Dick Whitney, and Jim Young are on the Northern District of Ohio ADR panel; each handles two to three mediation matters per year. John Strauch, David Kutik, and Brian Toohey serve as mediators on the Common Pleas panel.

Cleveland attorneys Marc Swartzbaugh and Brian Toohey continue to work on a nationwide project, organized by the Cornell Law School Legal Information Institute, to provide a Web site containing a narrative of the ethics law of all 50 states. See Jones Day’s focus is on the ethics laws in the state of Ohio.

New York City Fire Department Engine 201 Memorial Fund

As a result of the September 11, 2001 disaster, New York City Fire Department Engine 201 in Brooklyn, New York, established a fund in honor of four of its members who died on that day. The purpose of the Fund is to raise money for charities that provide aid to members of the New York City Fire Department and their families. New York associates Geoffrey Brow and Emilio Mena, Jr. assisted the Engine 201 Memorial Fund ("the Fund") in establishing the Fund as a not-for-profit New York corporation, preparing the Fund’s by-laws, its application for federal, state, and city tax exemptions, and the necessary board resolutions related to the foregoing.

Jones Day Europe

At the close of 2003, Jones Day's London Office successfully concluded its representation of the Basilica Pontificia di San Nicola located in Bari, Italy in the recovery of a priceless manuscript. The Basilica, which is the main Catholic church in Bari, was built between 970 and 1071. In 1296, Carlo II D'Angio (the then-current King) donated the Saint Nicholas' Evangelario (a Gospel Lectionary written during the late 13th century) to the church. During the early 1970s, this manuscript was stolen from the Basilica. Approximately 30 years after the theft, the Basilica learned that a major London auction house was offering the manuscript for sale. Following lengthy, delicate negotiations, Jones Day's London team of Lee Coffey, Stefano Giura, and Sherri North Cohen got the consignor to agree to relinquish his property rights to the manuscript, thereby permitting the manuscript to be returned to the Basilica at the end of 2003.

Jones Day Honor Roll

From the end of 2003 through the first quarter of 2004, various Jones Day offices, and attorneys from several Jones Day offices, have been recognized for outstanding pro bono contributions.

Los Angeles associate Michael Morgan received Public Counsel's 2003 Volunteer of the Year Award. Public Counsel, the nation's largest public service law firm, presents this award annually to its most outstanding volunteer lawyer. Morgan was chosen from among more than 3,000 volunteer lawyers for his work on behalf of more than 100 victims of a calling card scam that targeted California's Latino community.

In late 2003, the Pancreatic Cancer Action Network (PanCAN) honored Los Angeles partner-in-charge Rick McKnight with its Emily Couric Public Service Award. This award honors an individual or organization that exemplifies the dedication to others as seen in the life and work of Emily Couric. PanCAN, based in El Segundo, California, is the first national patient-based advocacy organization for the pancreatic cancer community, including patients, families, medical researchers, and physicians. The Jones Day Los Angeles Office took on PanCAN as a pro bono client in the fall of 2002 and is now helping to serve the pancreatic cancer community.

In late 2003, Jones Day's Columbus Office received an award for Outstanding Pro Bono Service by a Law Firm from the Columbus Bar Foundation. The award was presented to Jones Day jointly by the Columbus Bar Foundation and the Columbus Bar Association in recognition of the Firm's ongoing commitment to pro bono service to the Columbus community. Some of the case work for which the Columbus Office was recognized included the successful appeal of a case of first impression involving a civil judgment for Internet stalking. This case was originally referred to Jones Day by the CBA's Lawyers for Justice Program, with Shawn Organ, Jones Day Columbus' Pro Bono Coordinator, handling the case (assisted by Tonya Blosser and Brian Selden). The Tenth District Court of Appeals of Ohio (Stockdale v. Baba, 795 N.E. 2d 727 (Ohio 2003)) affirmed the entire verdict on August 19, 2003.

In addition to this appellate case, Jones Day Columbus serves as legal counsel to several nonprofit Columbus Boards, including, for example, Todd Swatsler's services to Pro Musica. Jones Day, through attorneys such as Chad Readler, Josh Fairfield, Jon Stock, Mary Beth Young, and Alicia Broz, has consistently provided pro bono legal services related to numerous federal Sixth Circuit appeals.

Jones Day Cleveland’s North Point Neighbors program was recognized for its charitable fundraising efforts. The Leukemia & Lymphoma Society, in its annual Salute to Volunteers on December 4, 2003, awarded North Point Neighbors its "Beacon of Hope" award, for fielding the top-donating team at the 2003 Light the Night Walk — a fundraising event seeking a cure for leukemia, lymphoma, and other blood-related cancers.

In March 2004, Laura Talley Geyer of Jones Day's Washington Office was nominated by the Abused Persons Program of Montgomery County to receive an American Bar Association Pro Bono Publico award. Laura was nominated for her successful representation, along with Susan Eastman, of a Cameroonian woman seeking asylum on the basis of her persecution as a woman in a society that fails to protect women from spousal abuse. The ABA presents its Pro Bono Publico awards annually to individual lawyers and institutions in the legal profession that have demonstrated outstanding commitment to volunteer legal services for the poor and disadvantaged.

Pro Bono Report

Executive Editor: Robert H. Klonoff, Pro Bono Practice Chair, Of Counsel

Managing Editor: Janet R. Kent, Pro Bono Coordinator/Legal Assistant