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Unsavory clients and controversial issues are nothing new to pro bono work. But people thought to be complicit in the events of Sept. 11? Even those who believe that Attorney General John Ashcroft is trampling on civil rights in his zeal to combat terrorism aren’t rushing to defend them. It’s not hard to figure out why. People suspected of being linked to terrorism become pariahs, and firms that represent them aren’t likely to win any popularity contests, either. Perception was no doubt a factor in the decision by Akin, Gump, Strauss, Hauer & Feld not to represent the Holy Land Foundation for Relief and Development, a longtime client, when its assets were seized by the U.S. Department of Justice last year. The group had been accused of funneling money to the terrorist group Hamas. Said Akin Gump chairman R. Bruce McLean at the time: “We are not in the business of representing entities or individuals accused of terrorism.” Am Law 200 firms say they haven’t been flooded with requests to represent those caught up in the dragnet, but neither have they gone looking for detention cases. “For most [pro bono] cases, there’s an established referral network,” says Steven Schneebaum, a partner and pro bono coordinator at Washington, D.C.’s Patton Boggs. “Firms usually don’t initiate calls. For me to [take on a detention case], I’d need to know that the firm was behind me on principle and that I had the warm bodies to do the work. I’m not sure I’d have either one.” A terrorism case, he adds, would be “a tough sell to any partnership. There’s no upside to being associated with someone like that.” If the big firms did initiate calls, there’d be enough work to go around. More than 1,000 people have been picked up since 9/11, almost all on immigration charges. The Justice Department isn’t saying how many are still in custody. But Kareem Shora, legal adviser for the American Arab Anti-Discrimination Committee, which provides referrals to detainees, says it’s likely that most have been deported and that it’s impossible to know whether those who remain have lawyers. He’s referred 100-150 people to immigration lawyers in solo or small shops, immigrants rights groups, and other referral networks. Shora says he hasn’t asked big firms to handle any of the cases, and none have volunteered. William Goodman, legal director of the New York-based Center for Constitutional Rights, says he had a hard time finding help for a class action against Ashcroft on behalf of detainees held on immigration charges. “It took us a long time to find somebody, which is rare for such a prominent case,” he says. “We took it to a bunch of places. They told us it was too controversial, that some of the partners didn’t like it.” Eventually William Phillips, a partner at the New York office of Washington, D.C.’s Covington & Burling, answered the CCR’s call. (He had previously worked with the group on a successful civil suit against former Bosnian Serb leader Radovan Karadzic for war crimes.) Phillips points out that in the detainees’ class action, no public accusation was ever made. “It’s not like we’re defending terrorists,” he says. “These guys were never alleged to have done anything.” The plaintiffs in that case have all been deported; the case seeks damages and a declaration that the policy under which they were held is unlawful. Phillips and three associates are working on it; he reports no resistance from Covington’s partnership. Two other firms that have ventured into these turbulent pro bono waters are New York’s Shearman & Sterling and Newark, N.J.’s Gibbons, Del Deo, Dolan, Griffinger & Vecchione. At Shearman, Thomas Wilner of the firm’s Washington, D.C., office, was retained by the families of 12 Kuwaitis who were captured in Afghanistan and are now being held at Guantanamo Bay, Cuba. He’s pressing due process issues such as access to family and counsel. Gibbons Del Deo, meanwhile, has represented a few detainees picked up and held on immigration charges. That work is being done by associates participating in a pro bono fellowship program overseen by partner Lawrence Lustberg. The detainee proceedings have been marked by extreme secrecy. Not only are the hearings closed, the Justice Department won’t even release the names of those being detained or allow the proceedings to be listed on court dockets. For those who want to demonstrate their disagreement with current policies, opposing that secrecy is another, more politically palatable, path. Two cases arguing that more information should be made public have reached the federal circuit court level, producing conflicting results. Jonathan Martel of Washington, D.C.’s Arnold & Porter worked on the case of Rabih Haddad, a Lebanese who was the subject of deportation proceedings after being accused of running a charity that supported terrorism. Martel got involved in the case at the request of David Cole, a professor at Georgetown Law Center who is an outspoken critic of the Ashcroft policies. Martel worked on the case with the CCR and one associate (and drafted a couple of other associates from time to time). In April the 6th U.S. Circuit Court of Appeals ruled that the deportation proceedings should be opened unless the government could make a specific showing that national security would be compromised if that were to happen. It also ruled that Martel’s client was entitled to a new, open hearing on bail. It was the first significant setback for the Ashcroft policies. In October the 3rd U.S. Circuit Court of Appeals reached the opposite result on similar issues in a case brought by a consortium of media groups. (One member of the group, The New Jersey Law Journal, is an affiliate of The American Lawyer and law.com.) Martel predicts that the U.S. Supreme Court will tackle the conflict this term. Lee Gelernt, who heads the immigration project at the American Civil Liberties Union, led the case. Also joining the fight on a pro bono basis was Gibbons Del Deo’s Lustberg, who briefed the case and argued it before the district court, and David Schultz of Clifford Chance’s New York office, who wrote an amicus brief for the 3rd Circuit court on behalf of a group of media organizations. Of course, lawyers aren’t the only people who are concerned with appearances. Normally it takes very little coaxing to get reporters shouting about the First Amendment. But Schultz reports that his clients have been unusually circumspect. “The media has been very sensitive to appearances,” he says. “They don’t want to be seen as threatening national security.” Neither, it appears, does the legal profession.

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