Greg McConnell
In November, a team led by the firm's Dallas co-managing partner Tom Melsheimer won an injunction from a federal judge annulling Texas Gov. Greg Abbott's ban on mask mandates. The injunction — the first of its kind, according to the firm — is currently in limbo pending an appeal, but is a potentially precedential move, with a U.S. district judge ruling that bans on mask mandates in schools wrongfully impact children with disabilities and violate their civil rights under the Americans with Disabilities Act.
Also in Winston & Strawn attorneys' caseload for the past year was Valentine v. Collier, a case brought by people incarcerated in a Texas prison dedicated to elderly and infirm prisoners who demanded preventative measures against COVID-19. The suit — which ultimately lost at the appellate stage, but helped spur reforms — also relied on a disability rights framework.
Senior pro bono counsel Greg McConnell spoke to Law360 about Winston & Strawn's pro bono work in Texas and across the U.S. and what may lie ahead for the team in 2022. This conversation has been edited for length and clarity.
Winston & Strawn reported it contributed 80,000 pro bono hours in 2020, with more or less 800 attorneys, averaging 100 hours per attorney. What's the story behind that number? And how has the firm's pro bono practice evolved with time?
Our fundamental precept in terms of how we approach pro bono is that it is one of the very few things that we do as a firm that has this collective energy about it. For the last five years, we've had almost 100% participation.
And then it is the role and the function of our pro bono department to identify particular matters of interest, issues that are of societal concern that we can step into and have an impact. If you go back to 2017, a lot of that was immigration-related, because there was a lot happening with changes in policy by the Trump administration. Last year, COVID was a huge issue, not just because it was an issue of prominence, but it was a public safety issue. We're reactive to what's happening in the world around us. We try to go out and find the right matters that are pressing in society and get our lawyers engaged.
How did the firm become aware of the Texas mask mandate case, and how did the litigation unfold?
Tom Melsheimer, the co-head of our Dallas office, found people were approaching him about their concerns for their kids who are in school and the risks that they were facing. At the same time we were approached by partner organizations. Disability Rights Texas came to us with the same issue. It was a great collaboration and a great opportunity. They're on the ground, working very closely with those clients on a regular basis, so it was extremely helpful to have them involved. Disability Rights Texas had a clear focus on what school districts were facing in terms of how bans on mask mandates were playing out, how it was impacting the clients. They were instrumental in helping us pull together the facts and in the client relationships: here's our class representatives, here's what their disabilities are, here's how this ban on mask mandates is affecting them.
So we filed the lawsuit and brought it forward from there.
Moving on to Valentine v. Collier, what was surprising about that case?
It had maybe one of the most extraordinary procedural paths that we've ever taken on a pro bono case. So we first got an injunction; the Fifth Circuit stayed the injunction, we then took it up to the Supreme Court, who didn't accept it. We then went to trial and won the trial. Again, the Fifth Circuit stayed, and ultimately, the Supreme Court refused to take up the case again, and then we lost on appeal at the Fifth Circuit. But in the interim, from the time that we filed the lawsuit until the Fifth Circuit ruled on it, virtually all the demands that we had made in the complaint — things like providing vaccines, issuing soap and hand sanitizer, practicing social distancing — the Texas Department of Criminal Justice had implemented as a result of the lawsuit.
We know that the prison has implemented these changes, a significant benefit to the very vulnerable and very [immuno-]compromised individuals who are at that facility; Texas has concentrated all the geriatric prisoners and the elderly and infirm in the Pack Unit. That was a particularly compromised population.
We like to win, and we like to win an enforcement mechanism. But the ultimate goal here is the endgame, and the endgame is a safer prison setting. And so if the prison wants to then voluntarily make the changes to improve the environment, terrific. In our mind, that's it, that's a win, because that's the objective that we're trying to achieve.
It's giving the people who are traditionally powerless a voice and giving them Tom Melsheimer to be their advocate, when that's something that they would otherwise not expect, and certainly the state of Texas didn't expect that. And I'm sure they're not anxious to go 10 more rounds with Tom and the team.
Looking to the future, what are the pro bono priorities for 2022?
I think that prison facilities will be ripe for additional lawsuits like this. Institutional settings, such as nursing homes or prisons, are most dangerous for the people that are living there because of the insulated nature in which they live, so once the virus is introduced, it spreads very quickly. So that will continue to be a potential source of lawsuits and options for us to get involved. That's going to remain a concern as long as the virus remains with us, which isn't going away anytime soon.
More generally, it's a mystery because we are in this reactive position. No one expected a worldwide pandemic; if you'd asked me in February 2020, would I have expected to have two major lawsuits against Texas dealing with a worldwide pandemic, the answer would be no. But you have to then be ready to step up when the opportunity comes.
The firm reported 25,000 pro bono hours were devoted to racial justice and equity matters across the past two years. While racial justice is not separate from the previous lawsuits we've discussed, is there any other interesting ongoing work in that area?
In addition to litigation, we have been able to work with a number of organizations that have corporate needs. For example, we've been helping a group out of Chicago called the Fifth Star Funds. They've been working with a number of larger foundations like the McCormick Foundation here in Chicago, identifying Black entrepreneurs to give them that first level of financing so that they can get off the ground.
We're also working with a group in Detroit called Black Homes Matter. They are trying to create what might be one of the first reparations for homeowners based in Detroit, as redress for what we would now call a discriminatory property tax code, which resulted in many people being foreclosed upon. The Black Homes Matter organization is trying to raise funds to provide reparations to upward of 100,000 homeowners in the Detroit area.
It's exciting to not only think about major litigation issues, but also having a proactive, forward-facing way of addressing some of these societal disparities, and make something much better: not to litigate to correct a wrong, but to build a better system.
--Editing by Emily Kokoll.
All Access is a series of discussions with leaders in the access to justice field. Questions and answers have been edited for length and clarity.
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