Large Law Pro Bono: US v. Texas

January 28, 2016

REUTERS/Joshua RobertsAttorneys at firms of all sizes engage in pro-bono work.  This helps to provide access to justice for those that would otherwise not be well served by the court system.  Pro-bono work often involves helping under-served individuals with legal issues that are beyond the capacity of a layperson, but can be relatively easily handled by a single attorney.

But what if the case requires more legal muscle than a single attorney or even  most firms could leverage?  What if the person-in-need is up against 27 state attorneys general?  In a case like this, only a large, well-resourced, and experienced team may be able to provide true access to justice.  This is the situation for three Jane Doe intervenors who will face serious consequences based on the decision of the Supreme Court in US v. Texas.

Recently I had an opportunity to interview Linda Smith, a partner at DLA Piper.  Linda generally represents Fortune 500 companies, both in litigating high-stakes lawsuits as well as advising them on how to proactively mitigate their risk.  While Linda has litigated the largest private antitrust suit in U.S. history , and gigantic healthcare class action cases; right now, Linda and her team are bringing their full slate of resources to protecting the interests of three women and their families.

Linda and her team represent three women who are immigrants lacking proper documentation and are subject to deportation.  These women each have at least one child who is a U.S. citizen or lawful permanent resident.    The issue is whether the Administration can formally de-prioritize the deportation of similarly situated parents, and instead focus on deportation of those who are engaged in criminal activity or pose other serious threats.   According to Linda, “Our representation  allows the three mothers — whose lives and families hang in the balance — to tell the Supreme Court that the harm caused by an injunction is irreparable and should not be allowed to persist.”

Linda explained that while there are about 11.3 million undocumented immigrants in the United States, the Immigration and Customs Enforcement (ICE) only has the resources to act on about 400,000.  This means that there has to be some method for prioritization.  Those identified as having the lowest priority for deportation would be classified as deferred action and ICE would not yet actively seek to deport them.  It is established policy that during deferred action, undocumented immigrants are eligible to apply for work authorization, but deferred action is not a path to citizenship or amnesty.

“Each of the three mothers is a DAPA-eligible immigrant, a longtime South Texas resident, a productive member of her community, and the primary caregiver for her children, who are citizens.”

The 27 state attorneys general who oppose Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) argue that it goes beyond prioritization and instead confers lawful status and benefits to the parents.  They claim standing based on additional expenses incurred by Texas when issuing driver’s licenses to those parents for whom action has been deferred.  In general, they believe that the president has overstepped his scope of authority in taking this action.

This case touches on a number of bedrock constitutional issues including the balance of power between federal branches of government as well as issues of federalism and what role states should have in immigration policy.  These important issues are being directly addressed in this case by the state attorneys general and the federal solicitor general.  Missing from the initial case was a voice for any of the parents who would be directly impacted.  Linda successfully represented the three mothers to be named intervenors in this case.

Linda explained that for her team at DLA Piper, a pro-bono case like this receives the expertise and dedication that any other demanding case would.  In this case, to provide viable access to justice for these parents, it will likely require the type of effort that can only be delivered by a large firm.   “Major firms can and should jump into these kinds of cases. And not just because ‘it is the right thing to do’ — although that is reason enough.  There is a unique sense of pride among a team of attorneys fighting for people who otherwise would not have a voice.”

Firms like DLA Piper demonstrate their dedication to pro bono work by taking on these cases and encouraging their top talent to work on them by considering these hours along with regular billable hours.

The Supreme Court will hear oral arguments on this case in April with a decision expected in late June.