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May 7, 2010 1:17 PM

New York Pro Bono Report: Foie Gras, Legal Aid, Youth Lock-Ups

Posted by Zach Lowe

This week has seen major movement in a trio of New York-centric public interest cases related to three separate hot button issues: conditions in the state's juvenile detention facilities, the environmental impact of foie gras farming, and the effectiveness of the state's indigent defense system.Turns out that Am Law 200 firms lent a pro bono hand on all three matters. 

Let's start with the last--and probably most significant--of those three: a Thursday ruling by the state's highest court reviving a class-action suit that claims New York's system for providing lawyers to poor criminal defendants is inadequate and has for years denied those defendants their constitutional right to effective counsel.

Schulte Roth & Zabel has been representing the suit's 20 named plaintiffs pro bono along with the New York Civil Liberties Union, according to Am Law Daily sibling publication the New York Law Journal. We checked in with Schulte special counsel Daniel Greenberg, the firm's pro bono coordinator and former president of the Legal Aid Society in New York City. Greenberg says the firm has put in more than 8,500 pro bono hours building the case. Much of that time, Greenberg says, has been racked up by a group of about 30 associates, who, among other things, have traveled to prisons across the state to record the personal stories of criminal defendants who are plaintiffs in the case. Many of those plaintiffs did not have attorneys for their arraignments; others claim their attorneys were ill-prepared and often pressured them to enter guilty pleas, according to the NYLJ and this rundown in The New York Times.

The 4-3 ruling by the state Court of Appeals overturns a 3-2 ruling issued by the Appellate Division of the Third Department last summer. That decision dismissed the case due to lack of standing, the NYLJ reports. Lawyers for the State of New York argued to the Court of Appeals that the plaintiffs were asking the court to take a step that should be reserved for the state's legislative and executive branches--and that could, if the suit proves successful--cost the state hundreds of millions of dollars, the NYT says.

Partner Gary Stein led the Schulte team on the case, Greenberg says.

Elsewhere in New York pro bono news:

• In another Legal Aid-related suit, Orrick, Herrington & Sutcliffe is cocounsel along with the society in a class action that claims juveniles held in New York's youth detention facilities suffer from widespread physical abuse and a lack of adequate mental health care. The plaintiffs won an apparent victory on Wednesday when federal district court judge Paul Crotty in Manhattan indicated he would likely decide to keep the suit in Manhattan at a hearing next month, court records show. 

Such a decision would mark a loss for the state attorney general's office, which represents the defendants--including Gladys Carrion, the commissioner of the New York State Office of Children and Family Services--and wants the case transferred upstate, according to court records. 

The complaint is a brutal read. Here's one sample of the allegations, which are made on behalf of nine juveniles identified only by their initials:

"On or about October 13, 2009, A.D. was in his room reading a book. A male staff member, John Doe #19, entered A.D.'s room and passed gas. A.D. asked the staff member what his problem was and the staff member punched A.D. in the nose resulting in bleeding. The male staff member then signaled for other staff and banged A.D.'s head against the wall. The staff member, along with three or four other staff members, then restrained A.D. on the floor on his stomach and rubbed A.D.'s head on the floor."

That last bit is critical; the plaintiffs charge that staff members at the facilities subdue patients by forcing them onto the floor, climbing on their backs and restraining the juvenile's hands behind their back in a way meant to cause pain. Experts on juvenile behavior have criticized that form of restraint, as have New York officials, who instruct staff members to use it only as a last resort. The suit charges staff members often use the restraint technique without first trying verbal warnings.

•In the third case, Shearman & Sterling represented the Humane Society of the United States in its federal suit against a Hudson Valley producer of foie gras. In the suit, the Humane Society claimed that the company, Hudson Valley Foie Gras, violated the federal Clean Water Act by polluting the Middle Mongaup River. It was the first time the Humane Society, which has a stable of go-to firms, has used Shearman in one of its actions, according to Humane Society and Shearman lawyers. The nonprofit reached out to Shearman because another firm was conflicted out of the case; that firm recommended Shearman, says Jonathan Lovvorn, the Humane Society's top in-house lawyer. 

The Humane Society filed the case in 2006, charging HVFG with failing to regulate the release of manure, chlorine and other chemicals into the river, court records show. The company fought the suit, claiming it became moot once a state environmental agency did its own investigation and recommended fixes the company has since made. But Manhattan federal district court judge Harold Baer, Jr., ruled Thursday that some of the Humane Society's claims remain legitimate, since deposition testimony from HVFG officials revealed that they still have unclear guidelines for how to measure the release of certain materials into the river--and that they don't follow those guidelines consistently in any case. 

The Humane Society brought in Shearman about three months ago to prepare for trial, but Judge Baer ruled on summary judgment motions Thursday, court records show. The judge ordered HVFG to pay $50,000 for a future environmental project and to take various corrective actions, court records show. An appeal is possible. 

Partner Adam Hakki led the Shearman team.

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