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March 10, 2009


Just over a year ago, Kaye, Scholer, Fierman, Hays & Handler litigation partner John Howley entered the firm's Friday cocktail party with a request. The American Bar Association's Death Penalty Project had just called, asking if the firm would represent a death row inmate, Calvin Swann, in his final clemency hearing. Howley agreed, and then proceeded to the firm's weekly gathering. "We just got an interesting death penalty case," he announced. Were associates interested in working on it with him?

"The response was amazing," Howley recalls. "In 10 days, we wrote the clemency position, went down to Virginia, and saved a man's life."

Howley's story isn't unique-a number of the nation's largest and most prestigious law firms have been consistently taking on death row inmates as pro bono clients, with associates playing key roles in the litigation. In this article, we explore how law firms get connected with death penalty cases, how associates find time for death penalty cases on top of their billable hour requirements (a hint: all-nighters), and how law firms have managed to save the lives of several death row inmates.

Pairing up law firms with death penalty cases

How do death penalty cases find their way to law firms in the first place? "We get a tremendous quantity of requests for help," says Moses Silverman, the pro bono coordinator at Paul, Weiss, Rifkind, Wharton, & Garrison. Like Howley, Silverman is a litigation partner who coordinates his firm's pro bono work while also handling a large docket of cases for the firm's regular clients. "Associates and partners have contacts who come to them directly" with requests to handle death penalty cases, says Silverman. The Paul Weiss attorneys have full discretion on whether they want to handle the case. If so, they bring the case before the firm's Public Affairs committee for final approval.

~A major source of death penalty referrals is the ABA's Death Penalty Project, founded in 1986 in response to the shortage of counsel for death row inmates. "There used to be capital resource centers around the country," Howley reports. "A couple of years ago, Congress defunded the capital resource centers, so more and more we're relying on the ABA to send cases to us." When the ABA calls, Howley says, "We don't say no"-unless Kaye Scholer is already handling two death penalty cases, that is. "The cases are so time-consuming and expensive," Howley explains. "We can't take on more than two at a time. That's really the biggest criterion. I've never turned a case down because of the issues."

The only other criterion, says Howley, is whether the firm will be able to find enough associates to volunteer for the case. But that hasn't exactly been a problem.

Associates flock to death penalty cases

"I'm just amazed at the support we get from associates" on death penalty cases, Howley tells When he entered the Kaye Scholer cocktail party to ask for volunteers on the Calvin Swann case, for example, "there were associates there who were working on a massive antitrust case. They were just killing themselves. They said 'I don't have a lot of time, but I'll check with you at 9:00 or 10:00 at night, and give you some time then.'"

~Both Paul Weiss and Kaye Scholer regard pro bono work as equivalent to billable work for clients. "When attorneys take on a death penalty case, it is regular work. It's another case," Silverman says. "We're all busy, and we have to balance our dockets, and that's not always an easy thing." Indeed, Howley recalls associates "working well past midnight" on the Swann case.

And yet, associates consistently volunteer for the extra work. "Associates get really psyched up for these cases," Howley says. "They really feel they're making a contribution and acting as lawyers."


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