Services to Private Clients
I have had some fun over the years in representing individual clients, beginning with those I represented at the Harvard Legal Aid Bureau. From 1968 to 1977, I was the public schools committee for the Michigan Civil Liberties Union. I have recorded many of my experiences between 1953 and 1978 (when I became a dean) in Experience, the magazine published for the Senior Division of the American Bar Association. I had earlier published the same accounts in Alibi, the Duke Law student literary magazine. Clients I Remember. By far the most important deed I ever performed as a lawyer is recorded (as usual with disguised names) in Two Letters to Judge Eaton (the real recipient) which was published in the Judges’ Journal, a publication of the judges’ division of the ABA. Two Letters to Judge Eaton. The most entertaining case was the representation, along with Ohio State University colleagues, of an immigrant Muslim vendor of used university text books who was indicted for violaiting the Columbus Red Goods Ordinance. Enacted in 1962 at the behest of the John Birch Society, the city law forbade the sale of goods made in any of thirteen enumerated Communist countries. Our client was indicted for selling a used copy of Tolstoi's War and Peace that had been printed in Poland. We made thriteen arguments, five under the federal Constitution an eight under the Ohio constitution. None of them were answerable and no response was filed. We liked to thin that our case was the strongest legal argument in history. But the local judge who ruled in our favor was then voted out of office, again on the initiative of the John Birch folks.
Since being in North Carolina, what little work of this sort I have done has mostly been consulting with lawyers who were representing impecunious clients. Most came to me because of my expressed interest in the problem of standard form contracts. One who paid me was the National Automobile Dealers Association. I wrote a memo to the Senate Judiciary Committee for them and, sure enough, in 2002 they secured enactment of a law exempting them from the Federal Arbitration Act. I repeated that service pro bono to RAFI, an organization representing contract farmers who sell their animals to processors under similarly controlled circumstances. I failed to persuade the Supreme Court of Mississippi that the contracts they were required to sign if they wanted to sell their product included an unconscionable mandatory arbitration clause. But in 2008, Congress at last gave them a break similar to that given to automobile dealers. Who would like to be next?
In the 1980s, I represented Filipino sugar growers on the island of Negros who sought compensation for losses they had experienced at the hands of the government of Ferdinand Marcos, or more specifically his guy Roberto Benedicto. I acquired the mission from a president of the Philippine Bar Association who was from Negros and who came to Duke to visit his friend Roberto Soberano. Benedicto had been buying their sugar harvest for years at a price he was authorized to fix by law. He had tried to organize a price fixing conspiracy similar to that of OPEC, but it had failed, but there were American, British, and Japanese partners in the venture who had profited at the expense of the landowners. The Philippine Sugar Regulatory Commission flew me and Marne Gleason, a Duke Law alumnus, out to Manila for a conference, and then to Bagalod on Negros, where we organized a class action. I succeeded in getting Paul Hastings to represent the class on some of its claims, and Cadwalader Wickersham to represent the class on other matters. Both agreed to serve on contingent fee bases. We hired a detective and located substantial assets of Benedicto. But the Philippine government had a Good Government Commission headed by Senator Salonga, and they were seeking to recover Marcos assets. They would not agree that the landowners could keep any assets we recovered. Under the circumstances, our law firms rightly declined to proceed. Alas, the law school was to receive one percent of the gross that might have reached several billion.
I have also assisted several North Carolina lawyers representing indigent clients contesting mandatory arbitration clauses, and also the Office of the North Carolina Attorney General in a similar matter. And in 2005, with the help of my student, Paul Castle, I filed an amicus brief in the Supreme Court of Mississippi on behalf of poultry growers and numerous other organizations challenging the use of mandatory arbitration clauses to prevent aggregation of their claims in class actions.
In 2005, I was recruited by Jack McGehee of Houston to help him represent 700 Bangladeshi families whose properties were severely damaged or destroyed by gas well blowouts. The wells were the work of diverse firms, all of whom would prefer to litigate outside the United States. But there are connections to Texas and the Bangladesh courts are not, in my view, suitable alternative forums, for numerous reasons. We are in a sense reliving the famous Bhopal disaster of 1984, albeit on a more modest scale. The district judge in Harris County granted a motion to dismiss on the ground that Texas is not a convenient forum. This notwithstanding the reality that the case is unlikely ever to be decided in Bangladesh.
In 2008, I was recruited by the London office of Steptoe & Johnson to serve as an expert witness in an international arbitration proceeding. After considerable study of reports by diverse international organizations and help from a law student, Paulina Orchard, I felt fully justified in certifying that a civil judgment rendered by the court of Equatorial Guinea was undeserving of transnational respect and enforcement. I was surprised to find how much information was available on the subject. There is, alas, very little law in that place.