Lawyer Who Helped Save Death Row Inmate Didn’t Make Partner

Dec. 1, 2016, 2:01 PM

Brian Stolarz was picking up signs everywhere that his time as a lawyer at K&L Gates was limited.

A chance encounter in the Baltimore airport with a partner who had recently departed the firm left Stolarz convinced about the nature of the problem: He was spending too much time working on pro bono, when he could be billing hours, Stolarz recalled. Associates in his class had told him the same thing — when they received bonuses that he didn’t, and when he was passed over for partner, he said.

As Stolarz tells it, in 2007, the firm assigned him to work on its pro bono representation of Alfred Dewayne Brown, who already was on death row in Houston for a 2005 conviction of shooting and killing a police officer. Stolarz was only a mid- to senior-level associate but had previously worked as a public defender in Brooklyn. During the next several years, he devoted thousands of hours to working on Brown’s writ of habeas corpus, convinced of the client’s innocence, he said.

“This was something that nobody expected to be this involved,” Stolarz said. “It wasn’t just writing a few briefs and appearances in court, it was a full-on innocence investigation.”

Ultimately, in a rare storybook ending, a judge found prosecutors had withheld potentially exculpatory evidence, prosecutors dropped the charges and released Brown in 2015 — by which point Stolarz already had left the firm and passed responsibility for the case to other lawyers.

[Image “Grace and Justice on Death Row” (src=https://bol.bna.com/wp-content/uploads/2016/11/Grace-and-Justice-on-Death-Row.jpg)]The quest to clear Brown’s name and his critique of the death penalty is the main subject of Stolarz’ book,Grace and Justice on Death Row,” released Oct. 25 by Skyhorse Publishing.

But the book also probes a different question: As global firms pick up pro bono work, to what do they owe the associates who do most of the labor? Stolarz claims he felt immense stress in trying to balance his pro bono work for Brown with his other work for paying clients. The latter counted much more for his career track, he claims, arguing his pro bono hours largely were unrecognized under the one metric that counted most — a billable hour requirement.

“Looking back, I sort of should have said, ‘I’m not going to take on this case unless the firm protects me,’” he told Big Law Business. “I should have gotten a guarantee that the firm wouldn’t marginalize me for doing the work.”

Instead of joining the partnership, he was made of counsel, and Stolarz said in an interview that outgoing chairman Peter Kalis had said in a town hall style meeting that of counsel was a disfavored title at the firm — an incident that is also mentioned in the book.

“People would walk around and call me Mr. Disfavored, and those were my friends so I didn’t mind, but the joke was on me,” he said. “There’s absolutely no doubt that the perception of me at that firm was that I was spending too much time on the case.”

Through a spokesman, K&L Gates, Kalis, and the partner David Case, who brought the Brown matter into the firm, declined repeated requests for comment.

The firm has, however, changed some of the policies that Stolarz criticized: For instance, while Stolarz was at K&L Gates, only 50 hours of pro bono work counted toward his billable hour requirement of around 1950 hours, which meant hundreds of hours of work per year were not recognized, he said. K&L Gates subsequently changed its policy, Stolarz said. Today, it “treats all hours reasonably recorded on approved pro bono matters as the equivalent of billable hours in determining associate bonus eligibility,” according to its website .

“Of course they have to give you the same amount of credit [for pro bono cases],” said Eric Freedman, a law professor at Hofstra University, who worked on a capital case pro bono as a Paul Weiss associate earlier in his career.

Freedman said that part of managing a pro bono program includes taking steps to ensure the work is being performed at an optimal level, that commercial work isn’t taking priority and that individual attorneys’ careers aren’t being hurt by working on pro bono cases.

According to the National Association for Law Placement report on pro bono at law firms, the most recent of which was from 2010, 83 percent of law firms with at least 700 lawyers said pro bono hours were equivalent to billable hours for bonus purposes. But another statistic in the report showed that nearly every firm has a maximum number of pro bono hours, between 25 and 100, that count for bonus purposes.

Other attorneys interviewed for this article also said that whatever official policies were at their firms, their careers were often judged based on the hours billed.

Stolarz is not the first associate from a large firm to write a book about his pro bono experience. In 2014, Ian Graham, published “Unbillable Hours,” a reflection on his time as an associate at Latham & Watkins in Los Angeles where he represented pro bono, Mario Rocha, a man serving a 35-year sentence for murder. Rocha’s conviction was overturned and ignited a passion in Graham for such work.

In an interview, he had largely positive things to say about Latham but also said that the time he devoted to Rocha’s case did not always help him advance his career at the firm. The committee that reviewed his progress as an associate wasn’t always as grateful for the hours he put in on the case as the supervising partner was, he said. But making partner wasn’t his goal at the firm.

“I realized pretty quickly that I didn’t want to spend the next 40 years working there,” said Graham, who now has his own law firm.

In a statement, the firm said it is proud of its pro bono program, which it called a “hallmark of our culture” and also noted that it treats pro bono hours the same as billable hours.

Most attorneys interviewed for this article who were associates that worked on major pro bono programs said they were not bitter toward their former firms and were proud of the pro bono matters they worked on.

Despite his criticisms, Stolarz said that he is grateful to K&L for giving him the Brown case, which will mark a high point of his career. He said doing pro bono work is an important part of his career, and he has won a number of awards for his continued efforts in this area.

Much of his book serves as his critique of the death penalty, told through what happened to his client Alfred Dewayne Brown, who spent more than 12 years behind bars, including a decade on death row, before his conviction was vacated and prosecutors dropped charges. His story was also the subject of a Pulitzer Prize-winning series by the Houston Chronicle and Stolarz and Brown remain close friends.

But he also pointed at ways in which he believes law firms fall down or mismanage their pro bono programs. In an interview, Stolarz credited Dave Case, the partner who brought the case into the firm, with trying to protect him from negative repercussions from working on the case, but said it became difficult.

“Instead of billing 2,000 hours billable, I was probably billing 1,400, and [around] 500 pro bono,” he said. “I was still every day focused on billing hours, it was just the other case was taking a lot of time.”

From the book:

It was a difficult experience, personally and professionally. I was working on other cases, but I kept thinking about Dewayne and how we needed more and more. I was stricken with self-doubt and wondered whether I would be sitting at his execution, kicking myself for not finding something new we hadn’t found before, and being mocked by some of the attorneys in my office who didn’t want to take the case in the first place and who thought it was a waste of precious resources and time.

He also wrote about how, following a trend in the legal industry of the last decade, the firm vastly expanded. His time at K&L Gates, between 2004 and 2011, roughly coincided with the firm’s transformation through a series of mergers from a Pittsburgh-based regional heavyweight to its present iteration as a 2,000-plus lawyer firm with offices on five continents.

About the global growth, and the cost-saving measures and pressure to bill that followed, he wrote in his book: “It breeds a corporate mindset, a cold business, a place where the five minutes by the water cooler talking about your kids with a colleague cost the firm five minutes of billable time. Towards the end of my time there, a lot of people spent their whole day working with their doors closed.”

He also said in an interview that the paradox of such large global law firms is that they have more resources, which has opened new opportunities for associates to work on pro bono cases.

Such programs serve many purposes at law firms, including as a recruiting tool to law school graduates, he writes in his book. Pro bono also provides associates with opportunities to take the lead on a client-relationship, set strategy, make court appearances and operate with greater autonomy, according to Stolarz and a number of lawyers interviewed for this article.

Kathryn Kase, executive director of the Texas Defender Service, who referred Brown’s case to K&L Gates, praised large firms and the associates who work there for playing a key role in the legal system. Few defendants on death row can afford a lawyer, let alone a legal team that can match prosecutors’ resources, she said.

“It’s critically important that these big firms take on capital cases,” said Kase. “These cases tend to be sprawling and have many issues, and [big] firms are uniquely suited to handling them. They have a lot more resources.”

There are countless examples of large firms using their resources to help indigent clients. Earlier this year, Debevoise & Plimpton announced that it helped secure clemency for a man serving a life sentence in prison for distributing around 50 grams of crack cocaine. Jones Day, meanwhile, recently announced that it is investing money and attorney-time to help set up a network to help military veterans obtain legal services.

Freedman, the Hofstra professor, said many smaller firms may be more likely to make donations to a legal non-profit than to take on pro bono capital or extremely complex cases because, unlike larger firms, they often lack the resources, including lawyers with expertise, to take on such matters.

In practice, policies at law firms can vary considerably, with some firms giving only partial credit for pro bono hours when reviewing the billable hour requirement, which is often a key factor in whether a bonus is awarded and whether someone’s career advances. But some firms give 1:1 credit for hours worked on approved pro bono matters, according to lawyers interviewed for this story. Indeed, some law firms make a certain amount of pro bono work mandatory.

Kase credited the lawyers at K&L Gates with “a real dedication” to the Brown case.

In promotional materials for its pro bono work, the firm says its partner Dave Case led the charge on the case with assistance from an unspecified group of attorneys, paralegals and staff. And Stolarz notes in his book that other associates took a laboring oar on the case after he left the firm. The litigation to vacate Brown’s conviction continued for years after Stolarz departed.

[caption id="attachment_35347" align="aligncenter” width="520"][Image “Alfred Dewayne Brown (Courtesy Skyhorse Publishing)” (src=https://bol.bna.com/wp-content/uploads/2016/11/Brown.jpg)]Alfred Dewayne Brown. (Courtesy Skyhorse Publishing)[/caption]

Leaving aside the question of who deserves the most credit for Brown’s liberty, Stolarz takes us inside a pro bono capital case and offers a critique of the U.S. death penalty and its reliance on giant law firms to represent the defendants in these cases.

In his book, he wrote:

The profitmaking law firm will almost inevitably treat pro bono death penalty cases as a form of charity, high-minded and worthy perhaps, but not central to the institutional mission. In a pinch, providing justice for someone like Dewayne was not a priority, and anyone who acted like it was would pay a price for his convictions. Such a conflicted profession cannot be counted on to fix the dysfunctional death penalty system.

Stolarz, who departed K&L Gates and is now a partner at LeClairRyan, said he feels conflicted criticizing K&L Gates because it gave him “the case of my life” and allowed him to help save a man’s life. Even as a public defender in Brooklyn — he was a staff attorney in the criminal division of the Legal Aid Society — he never handled cases with such importance,he said.

But his emphasis is on firms paying better attention to how they manage pro bono programs. “I wish we would have done it better, and firms need to do it better because guys like this, his life was on the line,” said Stolarz.

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