Judge challenges 'pro bono' at first Federalist Society event in

Daily Record (Rochester, NY), Oct 8, 2008 by Elizabeth Stull

The Federalist Society is sprouting a branch in Rochester.

The nonprofit organization of conservatives and libertarians has member groups in nearly 65 cities and every accredited law school, according to its Web site, but never had a presence locally -- until this year.

Attorney Jeff Wadsworth, previously an active member of the Federalist Society in Washington, D.C., decided to change that.

"I thought that this was an area that would be supportive of a chapter. [The society] advocates and provides a forum for a balanced debate on important issues," said Wadsworth, 35, who joined Harter Secrest & Emery LLP in 2007.

"I promise the Federalist Society will continue to be lively, relevant and productive and, thus, unlike the ABA," Wadsworth said Monday at the Rochester chapter's inaugural reception, taking a shot at the national American Bar Association.

Wadsworth quoted U.S. Supreme Court Justice Antonin Scalia, the former Chicago University Law professor who served as the first faculty adviser of the Federalist Society in 1982: "'We thought we had planted a wildflower in the weeds of academic liberalism. Instead, it was an oak.'"

About 40 people attended Monday night's reception at the Hyatt Regency Rochester. Several came to hear Chief Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit; his topic,"Pro Bono for Fun and Profit."

Pro bono work primarily is an "antisocial" and self-serving activity lawyers use to develop their skills, firms use to recruit and "give solace" to associates, and nonprofits use to further a political agenda, Judge Jacobs argued.

In particular, litigation against the government and government officials and impact litigation are attempts to improperly expand the courts' reach in legislative matters, the judge said.

"No public good is good for everybody," Jacobs said.

He cited a 1975 case in which the Louisiana Wildlife Federation challenged a government levy project on Sicily Island. The project was stalled for 30 years, after which Hurricane Katrina struck and severely damaged the area.

"Unlike government lawyers, [pro bono attorneys] don't have to take responsibility for their wins and losses," Jacobs said. "Many of the public interest groups and pro bono [attorneys] honor each other, sometimes over and over again."

The judge's former law firm, Simpson Thacher & Bartlett, was not immune. The judge recalled a gala dinner at which former New York City Mayor Ed Koch criticized the white-shoe firm's pro bono representation of a holdout tenant who became known as "the bird lady" thanks to her large and unhealthy collection of fowl.

Impact litigation often represents "a reciprocating motor of legal activism," Jacobs charged, citing Velasquez v. Legal Services Corp., which challenged a statute restricting federal grants to legal services groups.

Judges rarely criticize impact litigation because judges enjoy exerting power and influence, Judge Jacobs said.

"Courts love having large and important issues presented to them. ... We should show some self-restraint."

Part of the Federalist Society's mission is to provide a forum for debate among "legal experts of opposing views," according to the group's Web site, www.fed-soc.org.

U.S. Attorney Terrance P. Flynn, Western District of New York, and Western District Judge David G. Larimer both said they attended Monday night's program to hear what Judge Jacobs had to say, but they noted they would not join the society because of their professional positions.

"I find it very pleasing to talk about the importance of pro bono work," Flynn said after the presentation, adding that he supports pro bono help for people in need.

Rochester attorney Bill Smith of Harris Beach PLLC, former majority leader of the Monroe County Legislature, co-founded a student chapter of the Federalist Society at the University of Virginia Law School in 1982.

"It was a wonderful opportunity to get to talk to some of the leading lights of the American bar," Smith said. "It's an opportunity for like-minded lawyers to discuss topics that are important to them."

Smith, 53, said he plans to join the Rochester chapter and hopes it will address the role of the courts in civic life.

Wayne County attorney Bill Chellis, of the law firm Mike Sypniewski LLP, said he also plans to join.

"The bar -- not only in Rochester, but anywhere -- is notoriously liberal, and it's good to have a balancing mechanism," said Chellis, 33. He said he hopes the group will host debates about "whatever's on tap. Constitutional issues, of course, always draw the greatest interest."