Pro Bono Innovators 2023 Honoree Fenwick & West

In our 2023 issue of Pro Bono Innovators, Bloomberg Law honors Fenwick for reaching a settlement in partnership with the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, ACLU Foundation of Northern California, and Bay Area Legal Aid, nixing San Mateo [California] Superior Court’s civil assessment program, which imposed a $300 fee for failure to pay traffic fines or respond by court deadline. Fenwick is also noted for adapting its Fenwick Labs legal services software solutions to help track an influx of Afghan refugees in need of assistance with humanitarian parole applications.

Fenwick’s pro bono work includes partnering with Bay Area advocacy groups to secure an end to burdensome penalties for nonpayment in matters such as traffic infractions. The firm also adapted its Fenwick Labs software program used for mass arbitration to assist in processing hundreds of Afghan refugees’ humanitarian parole applications. How did your firm strategize on how to approach these matters?

Eric Ball, trademark litigation practice area lead, on the San Mateo civil assessments matter: Fenwick’s involvement in the suit against San Mateo Superior Court first began when our longstanding pro bono partner, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, approached us to join a group of advocacy organizations in challenging the court’s civil assessment program. Under the program, one of the largest in the state, the court automatically imposed a $300 fine every time an individual failed to pay a traffic infraction or respond by a court deadline (often resulting in fees six to eight times greater than the base traffic fine).

In January 2022, we partnered with the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, the American Civil Liberties Union Foundation of Northern California and Bay Area Legal Aid to jointly file a suit to enjoin and declare the court’s civil assessment practice as unlawful. Our strategy focused on the unconstitutional nature of the fees, highlighting the disproportionate impact on low-income residents due to their inability to pay the imposed court debts and on people of color who are subject to traffic stops and citations at much higher rates than their white peers. As a result of filing the lawsuit, the County of San Mateo permanently ended its role as the Superior Court’s debt collector and the court later agreed to stop imposing burdensome civil assessments.

Hilarie Atkisson, senior director of corporate responsibility and pro bono counsel: Our work assisting Afghan refugees started in late August 2021 following the US military’s exit from Afghanistan, as the Taliban took control of Kabul and shut off avenues of evacuation out of the country for millions of Afghans in peril. The evacuation effort became an immigration one, and nonprofits and immigration law firms quickly became overwhelmed with requests for help. Given the scale and complexity of the evacuation effort, we knew it was of critical importance to have accurate and organized documentation of the Afghan emigrants in need of assistance with their humanitarian parole applications. That was when our Fenwick Labs and Knowledge and Innovation teams stepped in to assist, building a technology system specifically tailored for managing the effort. This has and continues to be a firmwide initiative involving numerous attorneys and staff as we remain committed to helping those in the US and abroad navigate the asylum and humanitarian parole processes.

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

Eric Ball: To reach a successful outcome in our challenge to unfair civil assessments [in the San Mateo matter] we took a creative, multi-pronged approach that was both proactive and collaborative. The team took the unusual step of filing a suit against the courts, raising novel constitutional claims that quickly brought everyone to the negotiating table.

We were then able to work collaboratively with judicial leaders in San Mateo County and the state of California. The effort also had a political element in convincing the governor and legislature to wipe out $500 million in outstanding civil assessment debts, reduce the maximum civil assessment to $100 and secure court funding that does not rely on late fees paid by low-income Californians.

Hilarie Atkisson: Assisting Afghan refugees required an innovative technology solution to be deployed quickly. We were lucky to have our Fenwick Labs and Knowledge & Innovation teams at our disposal. Fenwick Labs is a focused group of IT and legal professionals who develop products that meet our clients’ needs for rapid access to information and improve the efficiency of how we deliver legal services. The Knowledge and Innovation team includes attorneys, MBAs, legal process engineers and researchers.

The technology team took an innovative legal services software solution originally developed to handle mass client arbitration matters and tailored it to the needs of the project and its hundreds of pro bono clients. The software proved to be a crucial tool in managing the hundreds of humanitarian parole applications handled by our pro bono team.

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

Eric Ball: The importance of this case cannot be overstated. Civil assessments disproportionately impact members of our communities who can least afford to pay them, and this suit cemented the path for SB-199, new legislation that eliminated all outstanding civil assessment debts, putting $500 million back into the hands of Californians who needed it most.

We successfully argued that it’s unfair to assess high civil penalties against drivers without taking into consideration individual circumstances. This historic lawsuit victory sets the stage for meaningful change to eliminate these types of civil assessments statewide. As a result of the team’s perseverance on this matter, Fenwick was awarded LCCRSF’s Keta Taylor Colby Award.

Hilarie Atkisson: Our work on behalf of Afghan refugees is not over. We will continue to represent those who remain abroad with humanitarian parole applications and those who have arrived in the US with affirmative asylum applications. The innovative system we developed to help the Afghan refugees stands ready to be deployed in other emergency situations where legal assistance is needed.

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

Eric Ball: Our innovative and collaborative approach to pro bono work positions us for successful results. To achieve victory in our challenge to civil assessments [in the San Mateo case], we credit our close collaboration with our nonprofit partners. We relied on the expertise of the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, the American Civil Liberties Union Foundation of Northern California, and Bay Area Legal Aid.

Hilarie Atkisson: We credit our fast and streamlined response [helping Afghan refugees] to those internally who quickly alerted us to the needs of Afghan refugees as well as our Fenwick Labs, Knowledge and Innovation and Pro Bono teams.

Several of Fenwick’s key traits – a steadfast commitment to serving those less fortunate through the delivery of pro bono legal services, building and nurturing a diverse workforce, and focusing on innovation and new ways of delivering legal services – were brought to bear during a challenging situation, and we are proud of the team’s efforts to support Afghans during a critical time of need.

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

We make sure to acknowledge the attorneys who have spent countless hours working to serve these communities and share their pro bono stories internally to inspire and engage others in our pro bono and community efforts. Every year, we host a firmwide presentation and awards event to specifically showcase our collective pro bono and corporate social responsibility impact, and we were proud to celebrate the meaningful results we have achieved on these two matters.

Responses provided by Fenwick’s Eric Ball, trademark litigation practice area lead, and Hilarie Atkisson, senior director of corporate social responsibility and pro bono counsel.