Dykema pro bono case reaches U.S. Supreme Court

June 1, 2012
| By Pete Daly |
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It has often been said, “you get what you pay for,” but in some pro bono legal cases, there is tremendous value in the legal services rendered at no cost — as has been demonstrated at the Dykema law firm in Grand Rapids.

In March, the U.S. Supreme Court ruled in two companion 5-to-4 decisions that criminal defendants have a constitutional right to effective legal representation during plea negotiations.

The rulings are “deemed by many to be the most significant development in criminal defense since 1963’s Gideon v. Wainwright,” said James S. Brady, managing member of the Dykema office at 300 Ottawa Ave. NW.

Gideon v. Wainwright is a landmark case in Supreme Court history that established defendants in criminal cases are entitled to legal representation even if they cannot afford to pay for it, under the Sixth Amendment of the U.S. Constitution.

Brady said the March rulings “came about in large measure because of the pro bono efforts of two Dykema attorneys.”

Mark Magyar, who practices law in the Grand Rapids Dykema office, and Jill M. Wheaton, based in the firm’s Ann Arbor office, assisted the Michigan State Appellate Defenders Office in researching the winning brief and wrote the amicus brief filed with the Supreme Court.

“This was a big one,” said Brady, adding Magyar and Wheaton spent a lot of time on the case.

The two Supreme Court cases, one in southeast Michigan and one in Missouri, both involved “defendants who claimed their Sixth Amendment right to effective legal counsel had been violated,” according to Magyar.

In previous Supreme Court cases involving the Sixth Amendment, the defendants had pled guilty based on faulty information provided to them by their attorneys.

These two cases were different: The defendants decided to turn down a plea bargain deal from the prosecution, based on incomplete or faulty information given to them by their attorneys. Magyar said this type of situation had never before reached the Supreme Court.

In the Michigan case, Anthony Cooper was charged with assault with intent to murder in 2003 after he shot a woman four times.

Cooper was offered a plea deal but his attorney told him not to take it, because the bullets struck the woman below the waist and thus, claimed the attorney, the prosecution would not be able to prove it was intent to murder. He assured Cooper the charge would be reduced at trial, and Cooper would get a lesser sentence.

The defense lawyer’s advice was not true, said Magyar, and Cooper ended up convicted, with a sentence three times longer than the plea deal sentence he had been offered.

Cooper had been willing to plead guilty for an agreed upon sentence; Magyar said Cooper had written to the judge prior to the trial, offering to participate in a plea deal.

Magyar estimates he spent 70 or 80 hours working on the Cooper case — double the annual pro bono work all Dykema attorneys are expected to put in.

Dykema attorneys are urged to contribute 40 pro bono hours a year, or if that is not feasible, make a cash contribution of $300 per year to legal aid organizations such as Legal Aid of Western Michigan in Grand Rapids, according to Mark van der Laan, a Dykema partner. The firm itself also makes an annual contribution to support nonprofit legal aid organizations.

Van der Laan serves on Dykema’s pro bono committee, which determines which types of cases are appropriate for the firm to take on a pro bono basis. He also serves on the board of Legal Aid of West Michigan, which weighs the financial circumstances of individuals who seek legal help but cannot afford it.

Most clients who qualify for pro bono consideration are referred to law firms by nonprofit organizations and human services agencies. Sometimes a court will request the pro bono services of an attorney for a specific case — which just happened at Dykema, according to van der Laan. There are also national organizations working to provide asylum for certain foreign individuals, or to review death row cases, and they often request pro bono services. Brady just became involved, on a pro bono basis, in a case involving an illegal immigrant from Central America who had been physically and sexually abused.

Van der Laan said Dykema attorneys have worked pro bono for individuals in commercial law cases who could not afford legal representation, and have helped nonprofit organizations with legal matters. Van der Laan  also has provided pro bono work in foreclosure litigation.

“Dykema has always believed that the practice of law, especially in a large commercial firm such as ours, carries with it profound societal responsibilities,” said Brady. “We have a long and proud tradition of members and associates contributing to pro bono activities.”

Some legal cases end up taking a great deal of time, according to Brady, so a pro bono attorney cannot necessarily control the amount of time a pro bono case may ultimately entail.

“Even though they’re not paying, you owe it to them to do the same for them as you would for a paying client. We’re proud to say that’s our standard,” he said.

The firm has been recognized for the service many times. A year ago, Dykema received the American Bar Association business law section National Pro Bono Service Award in Boston. The year before that, the firm received a Beacon of Justice Award from the National Public Defender Association. And a few weeks ago, two Chicago-based Dykema associate attorneys received an Award for Excellence in Pro Bono Service from the U.S. District Court and the Chicago Chapter of the Federal Bar Association in recognition of work they performed in an international kidnapping case.

Many firms and many attorneys in private practice routinely take on pro bono cases.

“It’s fair to say we’re not alone, among the number of lawyers and law firms that commit a lot to pro bono work,” said Brady.

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