Want to Argue in 9th Cir.? There's a Program for That!

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By Kimberly Robinson

Feb. 3 — Junior associates slogging through document review, staffed on cases stacked with other attorneys, often dream of arguing in federal appellate courts. For associates who work on cases in the Ninth Circuit, there's an app … uh, program for that!

The U.S. Court of Appeals for the Ninth Circuit's Pro Bono Program gives attorneys an opportunity to argue at the court in exchange for pro bono assistance in civil cases.

While the program is primarily intended to assist the court in handling complex appeals, there's a sort of “pay-off” for attorneys undertaking an appeal without compensation: The circuit has agreed to hear oral argument in every case submitted through the Pro Bono Program, Leonard J. Feldman of Peterson Wampold Rosato Luna Knopp, Seattle, told Bloomberg BNA.

Big firms have taken note.

They see the program as an incredible opportunity for young associates, Peter R. Afrasiabi of the firm One LLP, Newport Beach, Calif., told Bloomberg BNA.

Half of Docket Pro Se

When the program started, there was a massive number of pro se appeals—cases where the litigants represented themselves without the help of a lawyer—Afrasiabi said.

According to the Ninth Circuit's Pro Bono Program Handbook, currently about “fifty percent of all new appeals filed in the Ninth Circuit have at least one party who is proceeding pro se.”

While some of those are weeded out at various stages—for jurisdictional defects or on the papers—others present meritorious or complex issues.

When the court feels like the appointment of counsel would assist it in “processing pro se civil appeals more equitably and efficiently,” a case will be referred to the program, the handbook says.

Long Line

That's where district coordinators like Afrasiabi and Feldman come in.

Both are private attorneys who have volunteered to help facilitate the program. They are two of five district coordinators who contact attorneys for potential pro bono representations.

Afrasiabi said when he started as a district coordinator many years ago, he had a difficult time placing all the cases with pro bono attorneys. Now, he said he has a list of more than 500 attorneys willing to accept a case.

That means getting a case from the Pro Bono Program can be difficult.

“Since its inception in 1993, the Ninth Circuit's Pro Bono Program has grown from 12 cases per year to approximately 160,” the Ninth Circuit's website says. But that's for all five districts.

Who & What

The kinds of cases that get referred to the program run the gamut of civil topics, both Afrasiabi and Feldman said.

Even so, Feldman said that immigration and prisoners' rights cases are the most frequently referred type of case.

The program has even posted information about immigration law on its website and set up “mentor assistance” through the Immigrant Legal Resource Center in San Francisco.

But while immigration cases dominated the program in the past, half to three-quarters of the cases he refers now are prisoners' rights cases, Feldman said.

The handbook acknowledges that “a significant percentage of the cases are prisoner civil rights appeals or immigration petitions.” But it says that “many other civil cases are included, such as labor and employment cases, discrimination, bankruptcy, social security, Indian law, mining law, contract and civil forfeiture appeals.”

‘Incredible Opportunity.'

The attorneys waiting for a case run the gamut too, from junior associates at large law firms looking for new experience to solo practitioners looking for more experience.

But one aspect of the court's program is especially alluring for young associates: The court hears oral argument in every case referred through the Pro Bono Program.

The majority of cases in the Ninth Circuit are decided without oral argument, the court's Appellate Practice Guide says.

But under 9th Cir. Gen. Order 3.7, if “an appeal has been selected for inclusion in the Court's Pro Bono Representation Project and pro bono counsel has been appointed, the panel shall not submit the case on the briefs, but shall hear oral argument unless pro bono counsel withdraws or consents in writing to submission on the briefs.”

It's kind of an incentive payment for attorneys, Feldman said.

Taking on a Ninth Circuit appeal is a big undertaking, he said. The briefing alone can take 100 hours or more, Feldman said.

As “payment” the court provides an opportunity that's hard to come by otherwise, he said.

It's an incredible opportunity to get real experience, especially for young lawyers, Afrasiabi said.

Junior Associates

Afrasiabi and Feldman know firsthand.

Both took their first cases through the pro bono program when they were junior associates at large law firms.

Feldman recalled that experience from 1995.

He said he was a very junior lawyer at a big firm. Most of the cases he worked on were stacked with multiple layers of attorneys. But he got to prepare and argue his pro bono case with very little supervision.

“It was the first time I ever argued at the Ninth Circuit,” Feldman said.

Arguing in front of the Ninth Circuit is something some law firm partners haven't even done, Afrasiabi said.

By Kimberly Robinson

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com