Pro Bono Innovators 2023 Honorees Davis Wright Tremaine and Microsoft

In our 2023 issue of Pro Bono Innovators, Bloomberg Law honors Davis Wright Tremaine and Microsoft Corp. for their work providing free legal services, including assistance with pre-publication review and public records access to independent journalists and newsrooms, especially those in underserved areas. The ProJourn program has grown into a network of law firms and corporate legal departments across six states. Prior to the program’s launch, the firm also delivered a successful outcome at the U.S. Court of Appeals for the Ninth Circuit on behalf of a prominent nonprofit investigative news organization, which faced a libel lawsuit that threatened its existence.

Your firm’s work included partnering with Microsoft to create ProJourn, which provides independent journalists and newsrooms with no-cost assistance with pre-publication review and public records access. You previously secured a win in an anti-SLAPP lawsuit in federal court on behalf of the Center for Investigative Reporting. How did your firm strategize on how to approach these matters?

Reimagining how lawyers provide free legal services is core to our pro bono practice. We constantly work to advance new solutions that make it possible for in-need communities to meaningfully access the justice system. This approach requires an ability to leverage innovation, create scalability, and join forces with strategic stakeholders.

The Protecting Journalists Pro Bono Project (“ProJourn”) is a perfect example of this approach in action. ProJourn was created in direct response to the fact that numerous newsrooms and journalists around the country do not have access to affordable legal services. This means that crucial stories exposing corruption are never published and powerful individuals are never held accountable for their bad acts because the risks of reporting these stories is too high. ProJourn helps to reduce these barriers and fears, empowering journalists to tell stories that might not otherwise come to light.

The idea to create ProJourn was pitched by a Microsoft assistant general counsel and a senior DWT media partner. [Davis Wright Tremaine’s] chief pro bono and social impact officer, Joanna Plichta Boisen, was the architect who then built out the initiative. Given that DWT is a national leader in engaging corporate legal departments on pro bono initiatives, and Microsoft has one of the strongest in-house pro bono programs in the nation, we were uniquely well-positioned to join forces on this first-of-its-kind project.

Another way we consistently serve this constituency is through our libel defense work. The anti-SLAPP matter mentioned above began as a regular paid engagement, led by veteran First Amendment attorney Thomas R. Burke.

But the matter transitioned to pro bono several years in, once it became incredibly cost prohibitive for the client to continue retaining our services. Given the scope and scale of the action, we co-counseled with attorneys at Covington & Burling to continue defending the client in litigation. After seven long years, the case concluded with the complaint being dismissed, and our client victorious.

Creating ProJourn and litigating the Planet Aid anti-SLAPP matter are only two of many examples where we leverage innovation and strategic partnerships to advance justice for journalists. By helping this constituency secure legal support, we help promote government accountability and safeguard important values like transparency and protecting democracy, which is why we’ll never stop developing new and novel ways to provide pro bono to the extraordinary storytellers and newsrooms that so desperately need it.

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?

The idea for ProJourn was sparked when Microsoft assistant general counsel Sima Sarrafan attended one of Tom’s media law CLEs. Together with [Davis Wright Tremaine’s] Boisen and Microsoft Pro Bono Director Beth Henderson, this team has taken the lead on driving the innovation.

The unique “two-in-a-box” model, whereby corporate counsel from Microsoft are paired with experienced media attorneys from DWT, not only serves to forge closer ties between us and our clients, it is also serving to significantly increase the overall availability of skilled lawyers to assist media clients and strengthen local reporting. The program’s national expansion is creating a further, significant multiplier effect.

In an age when new nonprofit and independent journalism models are essential to the information ecosystem, ProJourn is offering a way for these organizations to receive essential legal support that would otherwise be unavailable. In this way, the program is not only a model of innovative legal services delivery, it will also be a key driver of innovation across the media industry, as it supports the evolution and success of important new journalism outlets.

Investigative journalism is an extremely high-stakes matter, and the long-running Planet Aid litigation was the largest, most complicated libel case that Tom has handled in his long career. While the lawsuit was originally filed before the launch of ProJourn, and was handled outside that program, its course fully underscores the risks of high-impact journalism and the critical need for no-cost legal help. The discovery process alone took nearly two years and involved the disclosure of hundreds of thousands of documents, as well as audio recordings based on scores of interviews, conducted in multiple languages, in countries including Denmark and Malawi.

Our client, the nonprofit Center for Investigative Reporting (CIR), was steadfast in affirming the veracity of its stories, which reported that Planet Aid had siphoned off USDA grant money intended for the poorest of poor farmers in eastern Africa. Despite the thousands of hours of CIR staff time that the lawsuit consumed, our client knew that the future of journalism was on the line. [On Dec. 14, 2023 CIR and nonprofit Mother Jones magazine announced that they were merging newsrooms.]

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

Since launching as a pilot, ProJourn has steadily expanded its reach and impact over the last 18 months. The Reporter’s Committee for Freedom of the Press was invited to join ProJourn as a strategic partner to provide a legal services homebase, leverage its incredible connections in the journalism world, and aid with expansion. Thanks to this powerful three-way corporate partnership, ProJourn was awarded a $1.3 million grant from the John S. and James L. Knight Foundation to continue advancing its mission.

This funding enabled ProJourn to hire a full-time Pro Bono Director and Pro Bono Manager to further build out the program from a regional pilot to a national network. ProJourn is now actively expanding into Texas, Georgia, North Carolina, and New York, and has added several new corporate and law firm participants. DWT attorneys themselves have dedicated more than 900 hours to ProJourn matters over the past year and a half.

The most immediate impact of defeating the Planet Aid lawsuit was to save a distinguished and five-decade-old news organization from destruction. In a media landscape that’s been decimated with closures, that’s a crucial win. Our client demonstrated how important it is that we have committed journalists holding global actors to account. The case has also served as a national rallying cry to pass and strengthen anti-SLAPP laws, which provide important protection against lawsuits like this one that seek to shut down protected speech.

We also expect that the result, and the record-setting fee award, will provide a warning to other would-be plaintiffs. After seven years of litigation, Planet Aid ended up with a published 9th Circuit opinion that prominently documented the very misdeeds our client reported. While it’s hard to dissuade an angry plaintiff, especially one with power and money, we believe this outcome should deter unfounded lawsuits in the future.

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

The success of ProJourn can be attributed to a confluence of key strengths. These include DWT’s uncompromising and decades-long dedication to supporting the work of the news media, Microsoft’s multi-faceted, global commitment to helping keep local journalism alive, and the DWT pro bono department’s continuous efforts to reimagine the way legal serves are delivered and execute on high-impact strategic partnerships.

In the Planet Aid case, the keys to success included a sophisticated understanding of anti-SLAPP litigation in California (a subject on which Tom has literally written the book) and an absolutely tireless commitment to client advocacy. Our team worked across continents, languages, and time zones for months, in a race to lock down declarations and eliminate any triable issues of fact.

The bravery of our witnesses, who in some cases risked their lives and their jobs, was also essential. And so was our extraordinary cooperation with the lawyers at Covington, who provided a huge share of the lift and generously shared skills and expertise, with a sole focus on saving the client.

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

We could not be more proud and excited to see how ProJourn has evolved. It’s now housed and overseen at the Reporters Committee on Freedom of the Press in Washington, D.C. and, starting next year, will be able to handle up to 300 legal matters annually, with an estimated annual value of $3.5 million in pro bono services.

ProJourn not only identified a gap in the legal system, but also helped create an entire sophisticated (and now well-funded) pro bono program around it. This is something we celebrate every day as our team continues to help writers, podcasters, documentary filmmakers, and other journalists bring important, compelling stories to light.

For Tom, the Planet Aid win was especially sweet, as he argued (and won) a second anti-SLAPP libel case at the 9th Circuit on the very same day.

Responses provided by Davis Wright Tremaine’s chief pro bono and social impact officer, Joanna Plichta Boisen, and partner Thomas R. Burke.