Pro Bono Innovators 2023 Honoree Covington & Burling

In our 2023 issue of Pro Bono Innovators, Bloomberg Law honors Covington & Burling for its work representing Ukraine against the Russian Federation in the International Court of Justice. The court issued provisional measures ordering the Russian Federation to “immediately suspend the military operations that it commenced” in February 2022 in Ukraine. The firm, with the ACLU, also secured a federal court settlement with the 36th District Court in Detroit ensuring that people are not jailed in violation of the Constitution because they cannot afford bail.

Covington’s pro bono work included a victory for Ukraine at the International Court of Justice after Russia’s 2022 invasion. The firm’s settlement over cash bail matter in Detroit also influenced other cities. How did your firm strategize on how to approach these matters?

Given the extraordinary circumstances in which Ukraine’s recent case before the ICJ arose, Covington’s strategy was born of necessity. The Covington team has had to move quickly and efficiently at every stage, and it has been more important than ever to work closely with our client, the Ministry of Foreign Affairs of Ukraine.

For example, on Ukraine’s behalf, Covington filed proceedings before the ICJ just two days after Russia’s full-scale invasion of Ukraine began, seeking emergency relief at the same time. The court held hearings on Ukraine’s requested emergency relief less than two weeks later. And Ukraine’s opening merits brief was filed three months earlier than the court’s proposed deadline.

The ACLU/Covington bail reform team has been guided throughout by our obligation to seek justice for our clients. We also hoped to reform a practice that has disrupted the lives of far too many people who had not been convicted of any crime. We were encouraged, but not surprised, that the 36th District Court recognized the potential benefits of reform and the opportunity to craft a model approach that other jurisdictions might adopt in the future.

What were the most innovative aspects of your two client matters in your view? And who took the lead on driving innovation with the work?

Both the ICJ matter and Detroit bail reform settlement transformed the legal landscape and had a profound impact on two disparate populations; those devastated in Ukraine and those who could not afford cash bail.

The ICJ application took Russian President Vladimir Putin’s allegations that Ukraine was committing genocide in its eastern regions and turned those allegations against him. Russia, as a party to the Genocide Convention, agreed that the ICJ is the forum at which disputed allegations of genocide may be resolved. A leading law professor called it “a brilliant act of lawyering” that allowed Ukraine to bring a case within the jurisdiction of the ICJ and secure a landmark order directing that Russia immediately cease its invasion.

Covington’s approach helped Ukraine create as many legal avenues as possible to adjudicate the legal responsibility of Russia and its officials, and the order that Covington secured for Ukraine has been relied upon by the United Nations, the Group of 7, and others as part of broader efforts to hold Russia accountable. Ukraine has been resisting Russian aggression on many fronts – on the battlefield, in courtrooms, in the court of public opinion, and more.

Covington and co-counsel also worked to negotiate a historic agreement with the leadership of the 36th District Court in Detroit to ensure that people are not jailed in violation of the Constitution because they cannot afford bail. The reforms outlined in the settlement are seen as a model for other cities that wish to create a usable framework. As Eric Holder, [former US attorney general and] lead lawyer on the matter stated, “Criminal justice reforms like the groundbreaking agreement announced today are vital to ensuring equal justice and maintaining public safety.

Cash bail causes the unwarranted incarceration of hundreds of thousands of people across the country, many from communities of color, before they have been found guilty of any crime. This practice is fundamentally inconsistent with the presumption that all defendants are innocent until proven guilty, and it does little either to ensure that defendants appear for trial or to protect the public.”

Tell us more about the impact of these matters on the local, national, and/or global level.

Covington’s pro bono work is anchored in meeting local needs, serving economically disadvantaged individuals and families in our surrounding communities, but the firm also has a long history of serving vulnerable clients and important causes throughout the US and the world. This is reflected in both the ICJ matter and the Detroit cash bail settlement.

The ICJ decision played an important role, as well as other legal and policy interventions, in unprecedented significant and widespread economic sanctions against Russia which has been one of the most expansive in history outside of Security Council-ordered sanctions. In addition, there is an opportunity to strengthen and improve international criminal justice. The ICJ’s investigation, the largest in its history, has the potential to reduce impunity not only in this war but in wars in the future.

The Detroit cash bail settlement marks progress in a years-long fight for bail reform. The Detroit settlement was not only a historic win but marks progress in the fight to change bail practices across the country that disproportionately impact poor people of color.

Advocates say cash bail only fuels structural racism in the criminal justice system because Black and Hispanic people are jailed at higher rates and are more likely than their white counterparts to be unable to pay bail. Now cash bail reform supporters are hoping Detroit can be an example for other courts that impose unaffordable bail on people who cannot afford to pay it.

Why do you think your team ultimately achieved successful results in these two matters?

As David Zionts, a Covington team member on the ICJ matter, said, “We were constantly worrying for the people we’ve worked with for years—people we’ve developed close relationships with—not knowing what was happening on the ground. We worked around the clock. And anytime you felt tempted—even for a second—to feel sorry for yourself staying up all night working, you suddenly remembered your friends are over there.”

This sentiment could apply for both the ICJ matter and for the lawyers working on the Detroit Bail reform case. In the bail reform matter, it is also notable that the Covington/ACLU team developed a constructive relationship with the leaders of the 36th District Court and their counsel.

Ultimately, this relationship set a foundation of trust and collaboration that allowed the parties to frame the historic settlement reached in this case. Both parties recognized the need for reform, and both parties worked to achieve it. That success reflected the approach taken in the early stages of the case by the Covington/ACLU team.

What did you do to celebrate when these matters were resolved?

The ICJ issued its order granting Ukraine’s request for emergency measures less than a month after Russia’s full-scale invasion of Ukraine. At the time of the order, Ukraine was facing relentless attacks on its territory and the Ukrainian people were suffering gravely.

The ICJ’s order was also just the start of Ukraine’s case before the court, which is ongoing. Nonetheless, as described in answer to earlier questions, the ICJ’s order is hugely significant, most of all for Ukraine. It was therefore important for Covington to take a moment to acknowledge this victory with our client, which President Zelenskiy announced in a tweet.

The Covington team did all we could to ensure that the client knew that they had—and will always have—our full commitment and support. Today, Russia continues its brutal assault on Ukraine in flagrant violation of the Court’s order, and we continue to fight for justice and accountability.

Work to implement the settlement agreement continues between the lawyers at ACLU, Covington, and our partners at the 36th District Court. We were pleased to announce the settlement publicly and mark that important milestone with our colleagues at the court. All agreed that celebration should wait until we’ve accomplished our objectives under the agreement.

Responses provided by Covington partner Marney Cheek, who helped lead the team representing Ukraine at the International Court of Justice; and Covington partner Aaron Lewis, who helped lead the team working on the Detroit bail reform case.