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Mary Kennedy knows very little about intellectual property law. Her book of business last year generated zero revenue, and she last practiced in the private sector 15 years ago. Yet today, Kennedy is a full-salaried of counsel at one of the country’s largest and most formidable intellectual property shops � Washington, D.C.’s Finnegan, Henderson, Farabow, Garrett & Dunner. A longtime criminal defense lawyer, Kennedy came to Finnegan in January to breathe life into an experimental pro bono program in which young IP lawyers will try criminal cases in D.C. Superior Court. “Some of the partners here got together and decided we needed to make the opportunity to get our lawyers in court,” says Kennedy. “It’ll be trial advocacy training/fulfillment of their pro bono obligation.” She estimates the firm will handle between 10 and 15 cases a year, and is working with the Public Defender Service (PDS) on the details and supervision of the program. While court officials say they welcome the effort, they harbor a few reservations. Judge No�l Kramer, who heads the court’s Criminal Justice Act (CJA) committee and who will most likely play a leading role in the formation of the pro bono panel, expresses some concern about whether associates coming from large corporate firms have the experience and dedication to handle criminal trials. Kramer adds that the court actually has a greater need for volunteers in other areas. “The truth is that Superior Court really needs pro bono work to be done more in other branches of the court, such as the family division, or some of the parts of the civil division, such as landlord-tenant,” she says. Finnegan’s interest in picking up criminal cases comes less than a year after the court whittled the number of attorneys on the CJA panel from 680 to 250, which caused grumbling among defense attorneys who count on court-appointed cases for their livelihood. Nonetheless, the court is codifying standards for pro bono attorneys, similar to those it already has for CJA lawyers. According to Kennedy and court officials, a draft of those regulations is currently under review at the PDS, which would oversee all future pro bono work on criminal cases. The court will still make the final call on the appointment of defense attorneys. PDS Director Cynthia Jones and Deputy Chief of Legal Services Julia Leighton, who are working with Kennedy and the court on the plan, did not return calls for comment. Kennedy herself is an 11-year veteran of the PDS. She worked as a staff attorney on and off from 1987 through 1994. In 1994 she was named training director, a position she held until being named lead attorney for homicide cases. She then left the PDS in 1998 to join the Federal Defender Training Group, where in three years she went from serving as staff attorney to being named training director. Last year, Finnegan contacted Kennedy about bringing her training skills to the private sector. Intellectual property shops like Finnegan’s that deal primarily in transactional work aren’t known for emphasizing pro bono, in part because such work is usually litigation-oriented. But as IP litigation has surged in recent years, so has the demand for attorneys in the field with proven experience in the courtroom. Cultivating in-house attorneys is easier, and certainly cheaper, than bringing in outside counsel when litigation arises. While still untested, Finnegan’s plan revolves around a time-tested concept: Pro bono benefits the community and the court and gives associates valuable face time in court. “As part of our litigation training program, we were looking for ways our attorneys could get some manageable-size cases to work on,” says Finnegan’s Thomas Jenkins, who recently gave up the reins as managing partner. “We were looking for some local cases of fairly short duration that younger attorneys could handle, and that led us to the local courts.” TRAINING FOR A NEW SPECIALTY Finnegan is putting the lawyers through a training regimen. Attorneys are required to complete a trial advocacy course before even being admitted into Kennedy’s classroom sessions, which take place in one of the firm’s conference rooms. They must attend five two-hour lectures on fundamental issues — such as criminal investigations and statutes governing pretrial release — before being assigned to a case. And even then, Kennedy or another partner at the firm will serve as counsel of record to walk first-time attorneys through the unfamiliar process. “I’ll be working one-on-one with each person who’s working on a case,” says Kennedy. “The firm is really placing an emphasis on quality representation, and they’re paying a lot of money for it.” Kennedy says she expects that the court and the PDS will formalize the deal in the coming weeks, and that her Finnegan colleagues will then pick up their first cases. She says Finnegan will begin with criminal cases, but hopes to expand the program into other areas, including landlord-tenant and child welfare matters. Associates can count 50 hours of pro bono work toward billable goals. After that, they are on their own time. The program is not wholly without precedent. Covington & Burling, for example, assigns one attorney and one paralegal to help the Office of the Corporation Counsel handle cases involving child abuse and neglect. But Finnegan’s effort is an unusual, formal foray into the criminal courts, one that is more ambitious than the passing interest that has flared and died down in other firms over the years. For years, judges have tried to rally the private bar for help with all types of cases at the courthouse. But firms’ responses have been “very sporadic and not very successful,” according to Betty Ballester, a criminal defense solo and current president of the Superior Court Trial Lawyers Association for the District of Columbia. “It is really nice for [law firm attorneys] to be down there, especially for young associates that aren’t involved in criminal cases,” says Ballester. “But it can become overwhelming. Sometimes it becomes a little more than they expect.” For associates more suited to practicing law in boardrooms and spacious offices, Superior Court work means putting up with the frustrations of life in the trenches: experiencing long waits at the courthouse and representing clients who don’t always call them back and sometimes even fail to show up for hearings. Few attorneys with full-time practices elsewhere find they can stick with it for long. But for veterans of Superior Court, the main concern is that the lawyers won’t be ready for the highly specialized, if less glamorous, work. “We need to make certain that attorneys without any criminal law training or attorneys with substantial time commitments to paying cases … provide the quality of representation or give the time necessary to the pro bono cases,” says Kramer. Samuel Harahan, executive director of the nonprofit watchdog group Council for Court Excellence, agrees: “The main argument should be, ‘You’re going to throw a patent lawyer up to defend an armed robber? Are we not setting up ineffective assistance of counsel?’ To me that’s the core argument.” But Harahan also expresses support for Finnegan’s efforts, provided that there is oversight. Kennedy says the firm has taken extraordinary precautions to avoid traps such as associate burnout or lack of preparation. “The firm doesn’t want to be in the position of giving bad representation,” says Kennedy. “They’re funding [my] position just for that. This is all I do. I have no requirement to do work that brings in money to this place.” She also says the program should not rattle private attorneys counting on CJA work. “Because we’re not taking that many cases, I don’t think it’s going to be a problem,” she says. “We’ll be such a small slice of the available cases.” Ballester says she is not worried about patent associates usurping the role of experienced litigators. The court, she says, “will always need the attorneys who can do an armed robbery or ones that know how to deal with the system,” says Ballester. “There’s plenty of room for firms to come in and do the work. It’s a great experience. They can see what down-and-dirty law is like.”

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