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A comment to Kaili Joy Gray's excellent diary about Notre Dame's specious lawsuit against the United States for alleged infringement on religious liberty asked this question:  Why is an AmLaw 100 law firm like Jones Day representing a non-indigent client like the University of Notre Dame pro bono (for free, for those non-lawyers out there) on what seems like a blatantly political lawsuit?

I don't have any special insight or knowledge about Jones Day's decision making, but these are publicly known facts about Jones Day and the legal team representing Notre Dame:

1.  Antonin Scalia's first legal job was at Jones Day, from 1961 to 1967.
2.  Jones Day defends the Catholic Diocese of Cleveland in its child abuse lawsuits.
3.  Notre Dame's lead trial lawyer, Matt Kairis, is a 1988 graduate of Notre Dame, and is coincidentally a Harvard Law School classmate of President Obama (both class of 1991).  Kairis counts among his notable experience his representation of electronic voting manufacturer Diebold Election Systems in an investigation of issues related to voting problems in Cuyahoga County (one of the Democratic strongholds in Ohio).
4.  Another member of the Jones Day legal team for Notre Dame is Leon "Lee" DeJulius.  DeJulius is a 1992 graduate of Notre Dame Law School, clerked for former Chief Justice Rehnquist, and is the Vice President of the Pittsburgh chapter of the Federalist Society.
(more under the fold)

5.  The current managing partner of Jones Day is Steve Brogan, a 1977 Notre Dame Law grad, and a current member of Notre Dame's Board of Trustees.  Brogan was a Deputy Assistant Attorney General during the Reagan Administration (1981-1983), where he worked in the Office of Legal Policy (OLP).  OLP is responsible for developing high level policy initiatives within a presidential administration, is the primary policy advisor to the Attorney General, and advises and assists the President and the Attorney General on the selection and confirmation of federal judges, working closely with White House counsel in this regard.  It is mildly interesting to note that in the public papers associated with John Roberts' confirmation as Chief Justice, there are memos back and forth from Brogan (in his role with OLP) and Roberts (in his role as Associate White House Counsel to the President).

While none of these connections are unusual in Washington DC or law firm circles (I'm not suggesting any grand conspiracy), I don't think that it is difficult to see how Jones Day came to be representing Notre Dame on what seems to me to be a blatantly political attack on the Obama Administration.

Please read Kaili Joy Gray's excellent diary about the Notre Dame lawsuit, which can be found here. Catholic bishops coordinate lawsuits against Obama administration over birth control mandate

10:53 AM PT: Huffington Post has reported that Jones Day is handling not only the Notre Dame case on a pro bono basis, but also all of the companion lawsuits filed on behalf of a number of Catholic dioceses.  HuffPo bases this upon a public statement by Pittsburgh Bishop David Zubik, whose diocese is among those suing the government, and who said the law firm Jones Day was handling the lawsuits pro bono nationally.

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Comment Preferences

  •  According to yesterday's NYT, (3+ / 0-)
    Recommended by:
    liveatleeds, blueoldlady, G2geek

    the bishops latest threat is even bigger than this measly lawsuit.

    The DC Diocese has gone public with a threat to not allow any non-Catholic to use Catholic emergency rooms or be hired by Catholic hospitals.

    Honestly, I have this vision of a four-year-old holding his breath and stomping his feet when I read this stuff:

    Thanks for doing the legwork and connecting the dots on the pro bono assistance.

    •  DC Diocese (1+ / 0-)
      Recommended by:

      It's sad, but not surprising, that the DC Diocese would act in this manner.  Just two years ago, the Diocese and Catholic Charities in DC threatened to stop long standing social services, including foster care, if DC enacted its law legalizing gay marriage. This latest tantrum is just more of the same, I'm afraid.

    •  Progressive Mom - this is not surprising (0+ / 0-)

      One of the tests offered by HHS is does the Catholic institution hire or serve non-Catholics? If all of the participants and employees are Catholic they fall within the religious exemption and are not required to provide contraception services to their employees. The option the DC Diocese is considering is one of the options the Obama administration has provided and I would not be surprised to see this path taken by more Catholic institutions. It certainly puts more pressure on the Obama administration to be more flexible with institutions with a religious affiliation.

      "let's talk about that"

      by VClib on Wed May 23, 2012 at 10:42:48 AM PDT

      [ Parent ]

      •  Except Of Course (2+ / 0-)
        Recommended by:
        blueoldlady, G2geek

        To not hire non-Catholics because they aren't Catholic, is religious discrimination under Federal Law.  I also believe that this would be a violation of the "must serve" medical laws which are also Federal.  Just another threat.  These hospitals make billions for the Catholic Church.  If you think they are going to give up that money, I think you are wrong.  Call their bluff.

        •  MMColo - this would make for interesting (0+ / 0-)

          constitutional issues. I do believe that organizations that are owned by a religion can hire only members of that religion without violating employment laws, but I am not a lawyer. The "must serve" issue is even more interesting. It would make for a great SCOTUS case.

          "let's talk about that"

          by VClib on Wed May 23, 2012 at 01:17:43 PM PDT

          [ Parent ]

    •  If they refuse emergency medical attention (2+ / 0-)
      Recommended by:
      blueoldlady, G2geek

      to anyone on the basis of their religious status, they'll be in clear violation of the law.

      But, more than that, WTF? A guy is bleeding to death from a gunshot wound and you won't treat him because he's not a Catholic? In what universe is that moral, because it's clearly not in the one we inhabit.

    •  emergency rooms by definition are required... (0+ / 0-)

      ..... to see any patient who walks in the door.

      A hospital that wanted to engage in religious discrimination of that kind would have to reclassify its emergency room as something else, and "not have an emergency room", otherwise they will be in deep shit.

      "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

      by G2geek on Wed May 23, 2012 at 02:56:47 PM PDT

      [ Parent ]

  •  Notre Dame Law School (2+ / 0-)
    Recommended by:
    liveatleeds, blueoldlady

    is a long-standing recruiting pipeline for Jones Day. Many of my NDLS classmates went off into the world to do good things, but several of them--right-wing douchebags, all--slithered off to become well-compensated cogs in Jones Day's big-business, conservative, rod-up-the-ass-straight-white-male legal machine.

    Charity is no substitute for justice withheld. -- St. Augustine

    by 3idirish on Wed May 23, 2012 at 09:51:48 AM PDT

    •  Notre Dame (2+ / 0-)
      Recommended by:
      3idirish, blueoldlady

      To be clear, I know and am friends with many Notre Dame grads who are mortified by their alma mater's stance on this issue.  I didn't mean to imply in any way that being associated with or a graduate of Notre Dame is a bad thing -- just that many of the Jones Day lawyers have Notre Dame connections, and thus it isn't surprising that they'd be representing the university in this noxious case.

  •  Kind of out of line to attack (1+ / 0-)
    Recommended by:

    lawyers for representing an unpopular client, I think.  

    We don't attack lawyers for representing criminals, murderers, rapists, etc.  If you don't want Jones Day representing the Catholic Church, who would you suggest instead?  Because, of course, even the Catholic Church is entitled to have lawyers representing them in litigation over whether their constitutional rights are violated.

    Frankly, if you vehemently disagree with a lawsuit, you WANT good lawyers representing the party you don't like.  Lawyers have an ethical obligation not to file lawsuits that are considered legally frivolous and can be sanctioned if they do that.  Good lawyers like Jones Day are keenly aware of that and are far less likely to file pleadings that meet the standard of being legally frivolous.

    As for the "pro bono" part, that's entirely up to Jones Day, I think.  If they are doing it "pro bono," or even for reduced rates, there's no taxpayer or government money involved.

    If any of us thinks our constitutional rights have been violated, we have an absolute right to go to court to make that claim.  I support that right.  And if I support that right, I can't criticize someone for exercising that right -- that would make me a hypocrite.  I can certainly, certainly disagree with the legal position somebody takes in such a challenge.  But I don't criticize them for bringing that challenge to the courts, because -- if they think their rights have been violated -- that's what they are SUPPOSED to do.  And they have every right to have a lawyer represent them.  The pay for that is between them and their lawyer.    

    •  I'm not (0+ / 0-)

      attacking Jones Day for representing an unpopular client, nor am I trying to suggest that Notre Dame or the Catholic Church cannot exercise its right to sue if they feel their constitutional rights have been violated.  I'm simply trying to answer the question posed in a comment to another excellent diary as to why a large profit-making law firm like Jones Day would represent a wealthy client for free on a matter that has obvious political implications.  I believe that question was one worth pondering -- you are, of course, free to disagree.

      •  My point is that I kind of thing it's none (2+ / 0-)
        Recommended by:
        VClib, elmo

        of our business.  The relationship between a lawyer and a client is confidential for a number of reasons.  And if we start trying to figure out why a particular lawyer has decided to represent a particular client, we interfere in that.

        And, frankly, it may well be something that you never mentioned -- the simple that Jones Day has regularly represented Notre Dame in the past (if you look on the Jones Day website you will see that's true) and so has been their lawyers for a while now.  Having a long-term, ongoing attorney-client relationship with Notre Dame may well be the reason that they are representing them now.  

        •  Represented ND pro bono each time? n/t (1+ / 0-)
          Recommended by:

          Charity is no substitute for justice withheld. -- St. Augustine

          by 3idirish on Wed May 23, 2012 at 10:32:01 AM PDT

          [ Parent ]

        •  snicker snicker (1+ / 0-)
          Recommended by:

          Right...Please coffeetalk...the hole is deep enough..stop digging

        •  I respectfully disagree (0+ / 0-)

          and perhaps don't understand your point.  How does my probing, through an examination of public information, the possible motivations of Jones Day in representing Notre Dame on a pro bono basis on a case with political ramifications interfere in any way with the attorney-client relationship between Jones Day and Notre Dame?  I can assure you that the relationship between those two entities will not change one whit because of the public information that I have gathered and republished here.

          Moreover, I disagree with your second point.  Again, I have no actual or constructive knowledge of the billing arrangements between Jones Day and Notre Dame, but I highly doubt that the regular representation of Notre Dame that occurred in the past was done on a pro bono basis.

          •  Three points (1+ / 0-)
            Recommended by:

            1.  Why does it matter why Jones Day is once again representing one of their long-time clients, Notre Dame, in this litigation?  It seemed to me that the purpose for your publishing this information was an attempt to paint the lawyers, Jones Day, in a bad light for representing an unpopular client.  That's why I started my initial post the way I did.  I certainly did not get the impression that you were praising Jones Day, or that you thought it was admirable of them.   It was pretty clear to me that you were being critical of Jones Day.

            2.  Your diary is misleading in that it posits all sorts of reasons why Jones Day might be representing Notre Dame except the most obvious and likely one -- that Jones Day regularly represents Notre Dame.  As a lawyer, I can tell you that we have a group of long time clients that we regularly represent, so there's really no decision to be made when they ask us to represent them in a new matter.   When a long time client asks you to represent them, you (1) check to see if you have any conflict issues (i.e., you make sure you don't represent the other side); and (2) if conflicts are clear, you represent them.  There's no real "decision" to be made.

            3. I have no idea what Notre Dame's regular fee arrangement is with Jones Day, as fee agreements are generally confidential.  But again, why does it matter -- unless you want to make Jones Day look bad for representing Notre Dame (back to point 1).  Sure, it may be that the firm has Notre Dame alumni - Law alumni often represent their own alma mater (many schools like that will look for a lawyer who graduated from their school to be their regular lawyer), and sometimes do it on a pro bono basis.  What's your point -- unless you are being critical of Jones Day for not charging Notre Dame, and trying to make Jones Day look bad for doing that?  

            I'm fine with your disagreeing with a position that Jones Day is taking in the lawsuit. That's why we have courts.  And if the position is legally frivolous, the case will be thrown out and the Catholic Church and/or Jones Day (depending on whether JD signed a legally frivolous pleading)  potentially will have to pay the government's fees to defend the lawsuit.

            Where I disagree with you is that you seem to be criticizing a law firm for representing a client you don't like in a case you disagree with.  

            •  Really? (0+ / 0-)

              You're telling me that at your law firm, there is "really no decision to be made" when a long time firm client asks you to represent him/her/it on a major new matter, one to which you initially assign no less than 4 partners and 3 associates, pro bono?  That if there is no conflict of interest and the case clears your conflicts check, that you will commit significant attorney and support staff time to a piece of national litigation for free, just because it is on behalf of a long-standing client?

              Even if that were true (and a really doubt it is), that long-standing client would have had to have paid your firm huge dollars in the past, to receive that kind of pro bono largesse.

              Also, we are still an American rule jurisdiction, so the idea that the government could get Notre Dame to pay its attorneys fees is laughable.  Jones Day is way too savvy, and the courts way too deferential and loathe to impose "loser pays" sanctions, for that to ever happen.

              Again, I'm not criticizing Jones Day for representing a client in a case with which I strongly disagree.  I'm trying to answer the question as to why they are doing it on a pro bono basis.  You keep repeating that's none of my business, and you've made that position quite clear.  I think it is my business, and thus this diary.  I think that we'll have to agree to disagree on this one.

              •  Ok, I'll add a part 3 (1+ / 0-)
                Recommended by:

                unless we have a long standing fee arrangement that applies in all new matters (typical in long-time client relationships) part 3 is setting the hourly rates/fee.

                And, yes, sometimes we've represented long-standing clients without charging them, or charging for only parts of what we are doing, because we've done a lot of paid work in the past and/or expect to do a lot of paid work in the future.  Sometimes it's because we think the notoriety will help bring us future work.  And sometimes (when we've represented non-profits or charitable organizations) we do it just because we believe in the nonprofit or charitable organization.  

                So here's my question to you:

                I'm trying to answer the question as to why they are doing it on a pro bono basis
                Why does that matter?  Why would you want that question answered?  
                •  Political motivation (0+ / 0-)

                  I am interested in the "why" because the range of options as to "why" includes political motivation.  I wanted to take a look at the facts, to see if there were any facts that would support such a conclusion.

                  Why aren't you interested in the "why?"

                  •  Because, so what? So what if they took it (1+ / 0-)
                    Recommended by:

                    for that reason?  

                    What if they took it because some lawyer at that firm doesn't like the President?    

                    They have 2400 lawyers in that firm, so I'm pretty sure there's somebody there who doesn't like the President.  Just like I'm pretty sure that there are people there who do.

                    And I'll give you another hint, since you don't seem to understand how a huge mega-firm like that is run.  With a big law firm like that, the firm itself seldom does things SOLELY for political reasons.  That's because, when you have 2400 lawyers, including some 800 partners, there's going to be A LOT of divergent political opinion.  And the firm -- which owes a fiduciary duty to all of its partners -- is not going to pick a side in something like this for purely political reasons.  They may get involved in controversial cases for all of the reasons I mentioned.  But it's seldom purely for political reason. Because a couple of hundred partners, who own part of that firm, and who have different political views, are going to be really upset.

                    I can tell you that we're a lot, lot, lot smaller than they are, and we -- as a firm -- stay out of taking political positions because there's no unanimity of political views among our partners.  We have, of course, represented clients who have very overt political views that some of our partners disagree with, but the decision to do that is made on a business, not political, basis and with the knowledge that, as lawyers, representing a client DOES NOT MEAN adopting the political views of that client as your own.  It means advocating the position of your client.

                    Again, if JD is representing ND because some of their 800 partners don't like the President -- so?  What's your point?  

                    •  Interesting ethics (0+ / 0-)

                      You admit the possibility that JD lawyers perhaps took on a case not because the case has any legal merit, but rather even partly for political reasons, and your response is "so what?"

                      If JD is representing ND, which indisputably has the financial wherewithal to pay, on a pro bono basis because some of their 800 partners simply don't like the President, and want to act in concert with clients (ND and the Catholic Church) by filing a patently unmeritorious lawsuit to see that president not get re-elected, I'd call that an abuse of process.  And not only that, this particular abuse of process could have serious implications for the presidential election, where the Catholic Church and its allies are doing everything in their power (including leaflets at services and priests preaching it from the pulpit) to convince their parishioners to vote against Obama.

                      That's my point.

                      If this was a business decision, and JD was doing this simply to get paid, or to generate some goodwill for business in the future, that would be fine.  If this was simply a matter of some concerned ND alums trying to help out their alma mater, that would also be fine.  But using the courts to play politics isn't fine.

                      Also, re:  your fiduciary duty argument above, I think it is you who are not fully conversant with what happens within Big Law.  Firm management can and does come up with plausible rationale for justifying just about any action, ensuring that it can't be deemed a breach of fiduciary duty, and the broader partnership just has to suck it up and take it.  In this instance, JD's management could quite easily make the case that they are taking on this matter because it is high profile and will give JD more notoriety, or that they are taking on the case because of all the past revenue generated by this client, or because of all the future revenue that is guaranteed by taking on this particular matter on a pro bono basis.  Any and/or all of those arguments would quash any claim that a fiduciary duty to partners was being violated.

                      I respect your firm for having the wisdom not to take political positions.  That seems to me to be the correct position.

                      Also, I do respect law firms for taking on unpopular pro bono matters, which is both appropriate and necessary.  However, the ability of the pro bono client to pay has to factor into the analysis.  What if a law firm suddenly decided to represent the Koch Brothers on a pro bono basis on some First Amendment issue, when the Koch Brothers indisputably have the wherewithal to pay?  Suddenly it starts looking a lot less altruistic, and a lot less like a necessary and proper part of a well-functioning judicial system.

                      •  "Abuse of process" has to do ONLY (1+ / 0-)
                        Recommended by:

                        with the merit, or lack thereof, of the pleading filed in court.  

                        It has NOTHING to do with the fee arrangement.  The fee arrangement is solely between (1) the lawyer; and (2) the client.  Unless the client is seeking to have the GOVERNMENT pay his lawyer (as in a public defender) it doesn't matter to anybody else what the lawyer is, or is not, charging his client.  

                        What if a law firm suddenly decided to represent the Koch Brothers on a pro bono basis on some First Amendment issue, when the Koch Brothers indisputably have the wherewithal to pay?
                        And what if they did?  What if the Koch brothers had a First Amendment claim, and Ted Olson decided to represent the Koch Bros without charging them anything?  It's not like that affects the taxpayers in any way, shape, or form. What a lawyer does, or does not, charge a client does not affect the rest of us.  Lawyers don't get some kind of government subsidy for representing people pro bono.  Lawyers don't have some kind of minimum pro bono requirement that they have to meet.  Pro bono work is SOLELY up to the lawyer.  If I want to represent my mother for nothing, regardless of whether she has the ability to pay, what difference does it make to anybody but me and my mother?  If I want to represent a friend for nothing in a car accident case, what difference does that make to you?  If a friend's child gets in criminal trouble, and I represent him for free, what difference does that make to anybody else?  That's totally my decision.  

                        My firm has represented defendants in death penalty appeals on a pro bono basis, without going into some detailed analysis of their finances, or the finances of their families, to see if they could pay us anything or not.  What difference does that make to you?  Should you look into that to see whether those people, or their families, could "afford" to pay us something? or is it our business whether we want to do that?    

                        What difference does it make to you whether Jones Day is charging Notre Dame or not?  It's not like that affects you, or me, or the other taxpayers, at all.  That affects ONLY Jones Day and Notre Dame.  The fee agreement between the two has no effect on anybody else at all.   The only thing that affects you, or other taxpayers, is whether the filings in court are frivolous or not.  And the government's remedy for that remains the same regardless of whether Jones Day is, or is not, charging Notre Dame.  

                        •  It's a lot easier (0+ / 0-)

                          to file an unmeritorious lawsuit when you don't have to pay for it.  And when that unmeritorious lawsuit can affect who becomes the next President of the United States, yes, it does affect me.

                          As for your firm's death penalty clients, did your firm not do the financial analysis because it would have represented these people regardless of their finances, or because there really wasn't any point in wasting time, since there was a presumption of indigency (or close to it) based upon the circumstances of your firm's pro bono clients?

                          Also, there is a difference between frivolous and unmeritorious.  There is little or no remedy for successfully defending against an unmeritorious lawsuit.  As I'm sure you're aware, you get your bill of costs, which is a pittance, and doesn't include attorneys' fees.

                          I believe, and the initial diary which prompted mine points out, that the ND lawsuit is unmeritorious.  JD is complicit in getting this suit filed, by handling this case and the companion cases nationwide on a pro bono basis.  And it sure seems like this is being done not just because the partners handling this matter within JD love ND, but also because they have some overt political motivation, to see President Obama lose in November.

                          You apparently have different beliefs, to which you are entitled.  I hope that whatever those beliefs are, you will work towards getting the President reelected in November.  

                          •  liveatleeds - "the ND lawsuit is unmeritorious" (0+ / 0-)

                            That's your opinion. There are many lawyers who think the matter is a very interesting constitutional issue that should be litigated, which includes some of the partners at Jones Day. I respect their right to have this issue resolved in court, just as I respect your opinion.

                            "let's talk about that"

                            by VClib on Wed May 23, 2012 at 07:07:43 PM PDT

                            [ Parent ]

        •  anywhere the Bigs wield power against the Smalls.. (2+ / 0-)
          Recommended by:
          liveatleeds, 3idirish

          .... is a legitimate target for a spotlight of publicity and a shovel to dig for more information.

          "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

          by G2geek on Wed May 23, 2012 at 02:54:35 PM PDT

          [ Parent ]

      •  They're greasing the skids (0+ / 0-)

        It's business, pure and simple. They have plenty of paying business from Notre Dame and these other entities; they're  keeping a client happy.

        It probably isn't going to take that much time, either, to prepare a case up to the pretrial motion to dismiss that will almost certainly be granted. Then there will be only the appeal. Not that much of an investment of time.

    •  I dont Agree (1+ / 0-)
      Recommended by:

      I think it's perfectly acceptable, and in case you don't know, it's being done by right wing businesses and has been for years.  For instance, I know a law firm here in Denver (one of the big four local firms) that took a pro bono representation of a Guantanamo prisoner.  One of their largest clients threatened to leave them if they didn't stop (of course this client was very well connected to the Bush White House).  When the law firm refused to back down, the big client left.  To it's credit the law firm did the right thing.  Most large corporate law firms won't do that.  But, Jones Day should know that it will hurt them financially.  Frankly, I'm going to refuse to deal with the firm anymore and tell them why.

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