Donald “Don” Hayden has more than enjoyed his fair share of success. The longtime litigator and well-respected international arbitrator spent the majority of his career working at Baker McKenzie and Berger Singerman, traveled around the world and back again, and has represented big-name clients like AT&T and Google.
Yet Hayden has not been immune from the regressive thinking that can crop up in big law.
“I remember sitting in a boardroom around a table, and it was all folks from the major law firms,” Hayden recounted. It was 2003, and Hayden had already spent a number of years proving himself in Miami’s legal community after a decade spent with Baker McKenzie’s headquarters in Chicago. “An individual from one of the larger accounting firms came in and said how he had just been appointed to be their diversity chairman, had to go to ‘some gay event’ and made a derogatory comment.”
Having worked his way to the top of his field and as a gay man himself, Hayden is not particularly proud of how he reacted that day.
“I’m ashamed to say I just sat there and smiled,” he confessed. “But in the back of my head I thought ‘Well, that that’s one of the big four accounting firms that will never get our forensic work.”
Many significant changes have taken place since, both in the philosophies pervading law offices as well as Hayden’s own circumstances and conduct.
In 2017 he was joined by his then-Berger Singerman colleague Etan Mark and former Stolzenberg Gelles Flynn & Arango partner Josh Migdal in the endeavor of starting a new firm: the appropriately named Mark Migdal & Hayden.
“We saw an opportunity to realign things because of the way people were looking at resolving disputes and trying to address some of the concerns that clients were having,” Hayden said of he and his partner’s reasoning for breaking off to found a firm of their own. Citing the exorbitant billing rates of big law, Hayden and co. have aimed to offer hourly rates that aren’t upwards of $850 dollars an hour.
“At a small firm we can offer a more reasonable rate given the overhead. We’re also much more nimble,” he chimed.
Even as Hayden has kept busy ensuring the success of his new boutique firm and squaring off against the likes of David Boies in federal court over Venezuelan oil, he’s made it his priority to advocate on behalf of the LGBTQ community. As chairman of the LGBTQ Fund Grants Committee for the Miami Foundation, he’s helped to direct funds and support towards distressed demographics within the larger group.
“We’ve given over $3 million in recent years to not for profits that provide services to different vulnerable populations like homeless youth and aging seniors that don’t have the traditional family structures,” he said, citing that an estimated 40 percent of homeless young people identify as LGBTQ.
Aging LGBTQ individuals have dealt with a lack of support as well. ”The [LGBTQ] baby boomers that are now aging don’t have the same traditional family structures because back in the day their families rejected them,” Hayden explained. Yet for all the progress he’s witnessed, Hayden is realistic about the challenges of making the United States a safer and more inclusive place for LGBTQ people.
“Florida still doesn’t have an equal employment statute [for LGBTQ employees] in place that has never even gotten out of committee,” he noted. “I mean LGBT people don’t have any rights to equal housing, in an employment context … so we’ve got a lot of work to do.”
To that end, he’s put his skills as a litigator to good use. Perhaps most notably, Hayden served on the legal team for Janice Langbehn, who filed suit against Jackson Memorial Hospital after the Miami health center refused to allow her to visit Lisa Marie Pond, her ailing partner. The hospital claimed it was abiding by its policy which only allowed for immediate family and legally wed partners to visit patients in emergency care. As longtime partners in a state that did not recognize same-sex marriage, the hospital’s protocol kept Langbehn from seeing Pond again before she passed.
Despite assembling a compelling case on grounds of tortious interference and emotional distress, Langbehn’s complaint never went to trial.
“Judge Adalberto Jordan gave us a long hearing and wrote a very long opinion and indicated that if what was alleged is true, this is terrible; this should not have happened,” Hayden said. Jordan’s decision to dismiss was based in part on the lack of legal protections for same-sex couples in Florida.
Although Langbehn never had her day in court, her story and Hayden’s work caught the attention of those in a position to make a change.
“Based on our case, President [Barack] Obama entered an executive order that forced all medical institutions that receive federal funds to provide equal visitation policies for same sex families as all others,” Hayden said. “It dramatically changed the landscape there.”
Reflecting on the boardroom incident and representing Langbehn, Hayden was adamant that progress can peek out from the most unexpected of places.
“Last year I was at the Pride Parade on Ocean Drive and Jackson Memorial’s affinity group was one of the leading groups out there,” he said. “Sometimes it takes those types of cases that tug on people’s heartstrings to make changes.”
Donald “Don” Hayden
Born: June 1960, La Salle, Illinois
Spouse: Brian Thompson
Education: Loyola University of Chicago Law School, J.D., 1985; University of Notre Dame, B. A., 1982
Experience: Partner, Mark Migdal & Hayden, 2017-present; Chair, Miami Foundation LGBTQ Community Fund Grants Committee 2014-present; Partner, Berger Singerman, 2014-2017; Principal, Baker McKenzie, 1985-2014.