The Proskauer corporate social responsibility and pro bono blog

Protecting Due Process: Proskauer Files Amicus Brief on Behalf of Mother Seeking to Protect Her Child

Domestic violence survivors and their children who flee a perpetrator to a foreign country often face a unique legal challenge:  a petition to return the children to the country they fled, and back into the perpetrator’s control, under the Hague Convention on Civil Aspects of International Child Abduction.  The Hague Convention provides a cause of action for a parent to petition for the return of “abducted” children to a foreign country, if the children were habitually resident in the foreign country and removal from it allegedly interferes with the petitioner’s custodial rights.  Jewel Lazaro faced precisely that scenario:  fleeing with her child from domestic violence in Spain, she returned to the United States only to face her husband’s lawsuit in Seattle, Washington federal court seeking her child’s return to Spain.

Ms. Lazaro sought to assert a critical defense—namely, that her husband’s domestic violence created a grave risk of harm to her child, justifying her child’s removal to the United States.  When she sought to establish how her husband’s domestic violence created a grave risk of harm to her child, the trial court denied her request. Instead of allowing her to provide expert psychological testimony common in Hague Convention cases, the trial court only permitted testimony from an overseas psychologist who evaluated the child for a different purpose over a year earlier.  The trial court then summarily rejected the only testimony it permitted Ms. Lazaro to provide, found she had not established her child faced a grave risk of harm, and granted her husband’s request to return the child to Spain.  Ms. Lazaro appealed, arguing the trial court abused its discretion by denying her the opportunity to present expert discovery.

Proskauer filed an amicus brief in support of Ms. Lazaro on behalf of Sanctuary for Families, Legal Momentum, the Women’s Legal Defense and Education Fund, Family Violence Appellate Project, Joan S. Meier, Lawyers Committee Against Domestic Violence, Legal Voice, Merle H. Weiner, Sexual Violence Law Center, and the Washington State Coalition Against Domestic Violence. The amici argued expert testimony is critical in evaluating a grave risk defense in Hague Convention cases, denying such testimony is tantamount to a denial of due process, and that the trial court improperly used Ms. Lazaro’s efforts to seek safety in the United States against her.

The Court of Appeals for the Ninth Circuit vacated the trial court’s decision, citing Proskauer’s amicus brief with approval, and drawing a clear line in support of survivors of domestic violence and their children, stating, “courts should not allow haste to overwhelm a respondent’s right to develop the psychological evidence needed to make out a viable Article 13(b) defense where she has alleged with considerable particularity that the petitioner has engaged in domestic violence.”  On remand, Ms. Lazaro will be able to proffer expert testimony to help establish the grave risk of harm her child faces should the child be returned to Spain.  In particular, the Ninth Circuit ordered the trial court to appoint a forensic psychologist to examine the child.

The Proskauer team included Margaret Dale, William Dalsen, Lucy Wolf, and Nicole Sockett.

Demanding More for Our Disabled Veterans

The New York City Bar Justice Center’s Veterans Assistance Project recently presented William Fassuliotis with their 2021 Outstanding Pro Bono Service Award. In this post, Will explains how difficult the disability claims process has become for veterans.

A recent statement by the U.S. Department of Veterans Affairs (VA) announced that it is hiring 2,000 new employees to help with processing disability claims, which is welcome news given that the current backlog of claims pending for more than 125 days now exceeds 200,000 cases. In the past year, I have worked with three different veterans across various stages of the claims process, including submitting the initial claim, higher-level reviews, and appeals to the Board of Veterans Appeals. While it has truly been rewarding work on a personal and professional level, the claims process has been, to say the least, a source of great frustration. Especially as Veterans Day approaches, Americans should demand more for our disabled veterans. The claims process is slow, cumbersome, and prone to errors. Here are just a few examples:

  • Once a claim for disability benefits is first submitted to the VA, it can take anywhere from a few months to a year or more for a decision. Too often the wait is intolerable, especially for those veterans whose service-related injuries prevent them from working, forcing them to rely on benefits as their last line of defense against poverty, hunger, and homelessness. Making matters worse, we sometimes learn of a decision only after contacting the VA. Informing veterans of decisions in a timely fashion is more than a courtesy because it can have ramifications on taking an appeal.
  • It is often difficult for veterans to get information about their cases through the VA Hotline. Before speaking with a person, one has to navigate a labyrinthine call center. It begins with waiting through minutes of disclaimers and announcements. Eventually, it will prompt you to dial one for “this”, two for “that”, and so forth. If you are too slow with the information or misdial a number, the call will disconnect and force you to start over. That being said, once you reach an actual human, I have found the call center is filled with wonderful and compassionate people who do the best they can to help.
  • Too often the first disability decision is simply wrong. We have seen claims denied because of the purported lack of a certain type of evidence when the evidence was in fact clearly included in our initial submission. The high success rate for veterans pursuing an appeal strongly indicates that not enough care by the VA is devoted to the initial application for benefits. That is of great significance because, to the extent a veteran appeals a decision, this added step only compounds the delay.

The claims process is supposed to be non-adversarial, but too often that concept is lost in the slow and difficult system disabled veterans have to endure to receive the benefits they are entitled to under the law. Individuals who have sacrificed so much to serve all of us deserve a better system.

Proskauer Achieves Landmark Special Education Settlement in New Jersey State Prisons

Proskauer recently reached a landmark agreement with the New Jersey Department of Corrections (NJDOC) and Department of Education (NJDOE) to ensure that students entitled to special education services in NJDOC custody will receive those services to which they are legally entitled under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act (ADA). This settlement is consistent with Proskauer’s long-standing commitment to provide legal services to some of the country’s most vulnerable communities. Continue Reading

Proskauer and The American Red Cross: Supporting National and International Relief Through Workplace Giving

Earlier this month, Proskauer launched a new partnership with The American Red Cross creating a workplace giving platform for our personnel to donate to and support disaster and other critical relief services. This partnership and platform, along with the Firm’s current programs supporting schools and non-profit organizations around the globe through charitable donations, pro bono legal services and volunteerism, provides a multitude of opportunities for our employees to engage with the causes that resonate most with them as individuals. We are proud to support the Red Cross’s extraordinary work, especially considering that those most adversely affected by disasters are often the most vulnerable among us. Continue Reading

Top 7 Best Practices for Representing Transgender and Nonbinary Pro Bono Clients

Transgender and nonbinary individuals are often among the most marginalized communities we serve as pro bono lawyers. In the US and abroad, transgender and nonbinary people have faced a history of discrimination in employment and housing, unequal access to healthcare, and violence. Indeed, as the Human Rights Campaign has reported, 2020 was the deadliest year on record for transgender and gender non-conforming people – and especially for transgender women of color, dozens of whom were violently killed. The rates of suicide attempts, particularly among transgender and nonbinary youth, are similarly alarming.

To ensure our lawyers and staff are providing client-centered and trauma-informed representation to our transgender and nonbinary pro bono clients, Proskauer welcomed Dru Levasseur, the Director of Diversity, Equity, and Inclusion at the National LGBTQ+ Bar Association, to speak on a panel alongside Associate Ren Morris and Pro Bono Counsel Erin Meyer. This panel was the third in a series of trainings coordinated by Proskauer’s Diversity & Inclusion team, at which Dru addressed the topic of LGBTQ+ cultural competency in the workplace.

The training program was interactive, with audience members responding to polling questions about how best to handle hypothetical scenarios based on real interactions with transgender and nonbinary pro bono clients seeking immigration relief and legal name changes. Together we identified several best practices that all lawyers and staff can use to provide the highest level of service to transgender and nonbinary pro bono clients:

  1. Avoid deadnaming and assumptions about your client’s sexual orientation, gender identity, or pronouns.

When introducing yourself to your client, share your name and pronouns. Ask your client what name they go by and what pronouns they use  – avoid asking for “preferred” pronouns. Don’t refer to your client by a name they no longer use – a practice called “deadnaming” – even if that name still appears on their legal documents. Deadnaming invalidates a transgender person’s identity and can be very emotionally damaging.

Understand that “sexual orientation” is one’s romantic, physical, and/or sexual attraction, whereas “gender identity” is one’s deeply felt internal sense of being male, female, both, or neither. You cannot infer a client’s sexual orientation from their gender identity or vice versa.

You should not inquire about your client’s sexual orientation or gender identity if it is not relevant to your legal representation, but if you need to know this information to develop the client’s case – for example, where the client’s identity is relevant to their asylum claim – you should ask rather than assume how the client identifies, and you should explain to the client why this information is needed for their case.

  1. Mirror your client’s language in describing their sexual orientation and gender identity, and accept that your client’s self-identification may evolve over time.

Taking a client-centered approach to your work with LGBTQ+ clients requires using the name and pronouns that the client uses to describe themselves and doing your best to mirror the client’s terminology when referring to their sexual orientation and gender identity. There are a wide variety of ways that LGBTQ+ people describe their identities, and these terms can also vary across different countries and languages. The GLAAD Media Reference Guide is a helpful resource that defines key terms used to describe LGBTQ+ identities and also explains which terminology should be avoided as outdated or offensive.

An LGBTQ+ client’s understanding of their sexual orientation or gender identity can evolve over time, as it can for anyone. It is not uncommon for LGBTQ+ clients to change the way they describe and present their identity to others, especially when the client comes from a country of origin or family situation in which they had to closet or repress their authentic selves out of fear that they would be harmed or ostracized. When a client tells you that they have changed their name, pronouns, or the terms they use to describe their identity, you should accept this new information and change how you refer to the client accordingly. A change in identification or gender expression is not an indicator that the client is dishonest, but rather that the client has come to a new understanding of their identity and/or is feeling safer in expressing their authentic self publicly.

  1. Beware of coercive narratives when describing LGBTQ+ identities in asylum applications.

Particularly in the context of asylum cases, there are times when the way your client self-identifies their sexual orientation or gender identity may not fit neatly into the “particular social group” categories that have been recognized in US immigration case law. In these instances, you may feel tension between trying to label your client’s identity in a way that ensures a legally cognizable claim based on existing case law while also trying to mirror your client’s language and understanding of their identity.

It can be very challenging to help your client draft an affidavit that is true to the client’s self-identification and lived experiences while also ensuring the asylum officer or immigration judge will be convinced that the client is a member of a particular social group meriting a grant of asylum. The best approach is to have a candid conversation with the client about the limitations of US immigration law when it comes to recognizing “particular social groups” and to strategize with the client about how they want to describe their identity in their asylum application and how the adjudicator is likely to perceive the client’s narrative. One possible solution is to mirror the client’s terminology while also endeavoring to educate the judge or asylum officer about what those terms mean through analogizing to terms with which the judge or officer likely has greater familiarity. For a deeper dive on this complex topic, I recommend reading Connor Cory’s journal article, The LGBTQ Asylum Seeker: Particular Social Groups and Authentic Queer Identities.

  1. Practice using the client’s pronouns, but if you make a mistake, acknowledge, correct it, and move on.

We all make mistakes, and if your client corrects you or asks you to refer to them differently, you can respond along the lines of, “Thank you for trusting me with that information. I’m sorry for my mistake. I will do my best to get it right going forward, and I always appreciate you telling me how I can better support you.” Don’t dwell on the mistake or try to explain or justify it – your client will appreciate that you’ve made a graceful apology and that you moved on quickly.

It can be challenging to use “they/them” pronouns when you aren’t used to doing so, but the fastest way to become better at it is to practice! Try talking to yourself in the mirror about your client, using they/them pronouns to describe them, and you’ll find that it becomes easier over time.

  1. Ensure your client will be able to access your office building and the bathrooms in accordance with their gender identity.

For any low-income pro bono client, coming to a corporate law office can be an intimidating and unfamiliar experience. This can be all the more true for a transgender or nonbinary client whose government-issued identification document does not match their name in use and gender identity.

You can make the client feel welcomed and safe by ensuring in advance that the security guards and receptionists know the right name and pronouns to use when greeting the client. You should not out the client as transgender if the client has not consented to your disclosing their gender identity – your goal is just to ensure that the client is not turned away or referred to by the wrong name given a potential mismatch between their name in use and the legal name on their photo ID. As a best practice and to build trust with the client, you can meet the client in the lobby, especially on their first visit to your office building, to introduce them to the security guard and ensure the client will have no difficulty accessing the building.

Similarly, you or your office receptionists can make it a practice to inform all clients upon their arrival where the restrooms are located, including the all-gender option, and that the firm’s policy is that everyone can use the restroom consistent with one’s gender identity. Ideally, you would not single out transgender or nonbinary clients when providing bathroom information but rather share this general information with all guests as a standard practice.

  1. Be cautious when working with translators to ensure your client is not being misgendered.

When using a translator to speak with your transgender or nonbinary client, have everyone in the room introduce their names and pronouns to ensure the translator is aware of how each person should be addressed. This practice can help prevent the translator from unintentionally misgendering the client.

After using a translator to interview your client, check with the client to confirm that the client was comfortable with the translator. Using a second translator or over-the-phone translation service, ask the client whether they were satisfied with the translation service and whether the first translator did anything that made the client feel uncomfortable. Your client may not offer this feedback unless you directly solicit it, but this feedback is important because it enables you to intervene if the first translator was not using the correct pronouns or was translating terms such as “gay” or “transgender” into words that are offensive in the client’s language.

Be particularly cautious if your client is an immigrant from a country where persecution based on sexual orientation or gender identity is pervasive. If the translator is also from the same country or region, the translator may have internalized the same cultural stereotypes and prejudices that caused the client to flee to the United States. It is important to ensure that the translator is not using homophobic or transphobic slurs when referring to LGBTQ+ identities.

  1. Interrupt bias and be an ally to your client in court.

In Lambda Legal’s 2012 “Protected and Served?” survey of 2,376 LGBTQ+ people, 19% of the survey respondents who had appeared in a court at any time in the past five years had heard a judge, attorney, or other court employee make negative comments about a person’s sexual orientation, gender identity, or gender expression. Some of the survey respondents also had their sexual orientation or gender identity disclosed improperly, such as for the purpose of embarrassing them or attacking their moral character.

Transgender people who appear in court – whether as attorneys, witnesses, jury members, or parties to a case – often must deal with judges, opposing counsel, and court employees who refuse to acknowledge or respect their gender identity. As but one example of this, the survey cited an instance in which a judge demanded that a transgender woman not come back into the courtroom unless she was dressed as a man.

As a pro bono attorney, confronting overt transphobia in court can be very challenging, especially when the inappropriate remarks have come from a judge. You should prepare your client in advance for the unfortunate reality that transphobic comments can occur in court, and you should strategize with your client about how they want you to handle the situation if it unfortunately arises, including discussing the potential pros and cons of different approaches you could take to interrupt the biased behavior.

If your client is comfortable with taking a direct approach, you should respond immediately to any jokes or disrespectful statements about your client’s gender identity that are made in court, and if the statements were made on the record, your response should also be on the record. You should also oppose the introduction of evidence about your client’s LGBTQ+ identity where it is irrelevant to the case.

If your client is not comfortable with directly confronting biased comments in court, you can try the indirect approach of taking the perpetrator aside privately to explain why their comment was harmful and inappropriate. If the client prefers that you say nothing to the perpetrator, you should respect your client’s wishes as your client knows what is best for their own safety. You can still be an ally to your client by showing empathy – let them know that you recognized the biased behavior for what it was and that you are there to support them.

These best practices are, of course, just the beginning when it comes to being an ally and developing a relationship of trust with your transgender or nonbinary pro bono client, but attorneys who adopt these practices from the outset of the attorney-client relationship will be on the path to a successful representation.

Proskauer Leads Impactful Summer Series For Teens

Last spring, Proskauer launched a partnership with the Chinese-American Planning Council (CPC) – an organization focused on empowering Asian American, immigrant, and low-income communities in New York City. Continuing our partnership, we launched an “Advancing Social Justice Summer Teen Series,” where a select group of students took part in a six-week series where conversations addressed paths to law school and social justice issues.

Continue Reading

Proskauer Helps Reunite Family Separated at the Border

On May 7, 2018, the United States implemented the “zero tolerance” family separation policy, directing immigration authorities to systematically separate children from their parents at the border, a practice that had been ongoing as early as November 2017.  The stated purpose of this policy was to deter future migrants from attempting to cross the border, including migrants seeking asylum in the United States fleeing violence or persecution in their home countries.  Although the government formally ended the policy in June 2018 following widespread public outcry, many hundreds of children remain separated from their parents.  To address this problem, on February 2, 2021, President Biden signed an Executive Order in an effort to reunite children separated from their families at the United States-Mexico border.  Numerous nonprofit agencies and law firms, including Proskauer, have stepped forward to help victims of family separation obtain humanitarian parole and become reunited with their families. Continue Reading

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