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In 1997, Alexander Pires Jr., a partner at a small Washington, D.C., litigation firm, began to build a massive civil rights lawsuit against the federal government. Too massive, it turns out. In a remarkable turnabout, a federal judge who had earlier lauded Pires for his advocacy on behalf of African-American farmers has now questioned whether Pires can see the case through to the end. In late April, Federal Judge Paul Friedman of the U.S. District Court for the District of Columbia went so far as to call on some of the city’s top lawyers to step in and bail Pires out. The response has been an unprecedented pro bono mobilization involving nearly all of Washington, D.C.’s largest firms, with more than 100 lawyers and law students now working on the case — and more to come. Pires, Friedman wrote, “benefited tens of thousands of African-American farmers claiming racial discrimination who otherwise would have remained mute and had no opportunity to obtain redress.” But, Friedman continued, “Counsel’s negligent handling of the final stages of this case … runs the risk of jeopardizing counsel’s prior accomplishments.” The case began in 1997, when Pires sued the U.S. Department of Agriculture on behalf of a class of African-American farmers, alleging that for decades the USDA routinely discriminated on racial grounds in its loan and credit programs that aid farmers. Pires and other plaintiffs’ lawyers found evidence of widespread discrimination, forcing the government to agree to a landmark consent order. It was the largest civil rights class action in history — and Pires made the government blink. In 1999, Judge Friedman wrote a 65-page opinion accepting a consent decree settling Pigford v. Glickman (now known as Pigford v. Veneman). Establishing that the USDA was liable was just the beginning, however. The decree set up a complex mechanism for the government to pay damages: Individual farmers seeking funds were required to show they suffered specific economic harm. The government has so far paid about $564 million to more than 11,000 farmers, and thousands more cases and as much as another $500 million in claims may be outstanding. When he endorsed the consent decree, Judge Friedman excoriated the federal government for breaking its historical promises to its black citizens. But in an April 27 order, he blasted Pires for failing to meet court deadlines for processing farmers’ claims. The lawyer’s “negligent handling of the case,” Friedman wrote, “borders on legal malpractice.” Friedman said he would fine Pires for every day after May 15 that Pires’ work remains unfinished. The fines are being assessed at $1,000 a day until June 15. The fines will then increase by approximately $30,000 a month until the work is completed. Pires’ basic problem, lawyers in the case agree, wasn’t his legal skills or his commitment to the case. It was that his firm — and other small firms in the South that are working with him as co-counsel — didn’t have enough people or enough time to handle an unexpected onslaught of farmers’ claims, more than 25,000 in all. Pires, a partner in the 14-lawyer Washington, D.C., firm Conlon, Frantz, Phelan & Pires, declines comment. Jacob Stein of D.C.’s Stein, Mitchell & Mezines, who represents Pires, strongly defends Pires. “The Pigford litigation commenced against insuperable odds,” says Stein. “Eventually the justice of the claim overcame all the obstacles. The lawyers in the case are determined to see the case through to the end, giving the claimants the best that the lawyers have to give and at no charge to the farmers, as the case has been from the beginning.” CALL TO ACTION In April, Friedman did more than put his scathing words on paper. Before he wrote his opinion, he called his friend Robert Weiner of Washington, D.C.’s Arnold & Porter. Weiner, like Friedman, is a former D.C. Bar president. The judge asked Weiner to issue an emergency call to the city’s major law firms to pick up the slack by pursuing a significant number of the claims on a pro bono basis. Nearly all the firms responded to Weiner’s entreaties. E-mails flashed across town. Eventually, 15 law firms were enlisted to help. The pro bono lawyers took on two different types of assignments: the relatively routine claims by farmers seeking a flat sum of $62,500, and contested cases alleging serious economic harm and worth considerably more money. More than 100 lawyers and summer associates are now learning the complexities of agricultural law and federal farm credit programs. They are fanning out through the Southern states, where most of the black farmers live, to press the cases. “The judge asked me whether I would try to recruit pro bono counsel,” says Weiner, who chairs a D.C. Bar committee on pro bono. Weiner says he immediately called Susan Hoffman, partner and pro bono coordinator at Crowell & Moring. “We called on all our contacts,” he adds. Stein says his view of the matter is that “the fact that the class has expanded has required the lawyers to seek the help of pro bono counsel in bringing the case to a conclusion as soon as possible.” Says Hoffman, “I think that Al Pires was truly surprised by the number of claimants that came forward in response to the class notices. He had estimated [that there would be] claimants numbering in the thousands but was overwhelmed with the outpouring.” Pires has also said in court papers and hearings before Friedman that his firm encountered financial difficulties that slowed its work considerably. In January, Friedman ruled favorably on most aspects of Pires’ request for $31 million in fees. But the matter of Pires’ paycheck from the case remains a work in progress: The Justice Department is still contesting aspects of Pires’ fee applications, and Judge Friedman has asked the two sides to continue negotiations on the amount. The pro bono effort is broad and deep. At a meeting at Arnold & Porter in early May, Pires, who remains lead counsel on the case, briefed about 25 major-firm lawyers about the issues. Then, on May 31, about 70 lawyers received case-related training at a conference room at Hogan & Hartson, coordinated by Hogan partner Robert Duncan. Weiner says the pro bono lawyers will probably try to obtain attorneys’ fees for the cases in which they prevail. Often, but not invariably, he adds, large firms that get fees in pro bono cases will donate the fees to charity. SEPTEMBER DEADLINE In a court filing before Friedman, Pires committed himself, with the aid of the pro bono lawyers, to meet Friedman’s latest deadline of Sept. 15 to process all outstanding farmers’ claims. In the final stages of the case, the government is not disputing liability. What is at issue for each farmer in the class is proving that he or she actually suffered discrimination. Under the consent agreement, a farmer can choose to join “Track A,” an option that limits his or her recovery from the government to a flat $50,000, plus $12,500 to allow for taxes. Each such claim goes first to one of 46 “adjudicators,” all of them retired state or federal judges, for a ruling. If an adjudicator finds that the farmer suffered discrimination at the hands of the USDA, the farmer immediately receives a check. If the adjudicator rejects the claim, the farmer can appeal to a court-appointed monitor. The monitor, Randi Roth of the Farmers’ Legal Action Group in St. Paul, Minn., can reverse the adjudicator’s ruling only if she finds that there has been a “fundamental miscarriage of justice.” The adjudicators have rejected about 40 percent of the claims, finding insufficient proof of discrimination. In fact, advocates of the African-American farmers have complained publicly that the adjudicators are applying too narrow a standard and that the consent order is being rendered ineffective. Regardless of the merits of the cases, there are a lot of appeals to handle. The processing of these Track A appeals is where Pires and his firm fell drastically behind schedule. When the pro bono effort began a month ago, there was a backlog of 1,700 petitions. The pro bono lawyers have agreed to complete at least 200 of them, and more cases will be assigned, Hoffman says, as more pro bono lawyers join the team. The reason that Pires’ firm can complete 1,500 appeals between now and September is that the pro bono lawyers have entirely taken from him the much more complicated and burdensome claims known under the consent decree as “Track B” cases. In Track B matters, which involve instances in which the government’s racial bias was so blatant and destructive that it led some farmers to go bankrupt and lose their land, the amount of liability is unlimited. In these cases, the government can cross-examine witnesses and put on evidence in a one-day mini-trial before an arbitrator. Weiner and others estimate that a Track B case can take between 100 and 250 hours of lawyer time. Although far fewer farmers went for Track B than for Track A, the 85-odd remaining Track B cases still represent a major undertaking. Anthony Herman, a partner and chair of the public service committee at Covington & Burling, agreed that his firm would handle 20 of these cases, and would coordinate other firms in taking all the rest of them. This, he says, will help free up Pires’ firm to complete the Track A cases on time. Herman says he recently went to Selma, Ala., to talk to black farmers there who are plaintiffs in Pigford. Herman, 51, says he remembers reading about the 1965 civil rights march in Selma, led by Martin Luther King Jr. “You drive into Selma,” he says, “and you cross that bridge that Dr. King crossed. You see the voting rights museum. It feels as if time has stood still in the rural South. You feel as if you are going back in time.”

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