PRESENTATION TO NCBA SENIOR LAWYERS DIVISION
October 7, 2017
Blowing Rock, NC
Gerald Kirksey
Pro Bono Attorney
Pisgah Legal Services
Thank you, NCBA, for making it possible for this Tennessee lawyer to volunteer at Pisgah Legal Services. I am authorized by the NC Bar to work as an Out-of-State Attorney at Pisgah and Jim Barrett is my supervising attorney. The Pro Bono Emeritus Attorney and Out-of-State Attorney program is an excellent way to allow experienced senior attorneys to provide pro bono legal work for non-profits and, at the same time, give senior attorneys, like me, an opportunity to give-back to a profession we love.
My road to Pisgah began in 2016, when I assisted a New York law firm liquidate my Brentwood, Tennessee law firm’s oldest and largest client. The liquidation also meant the end of a substantial income stream for my firm when, shortly after the last property closing at the end of October, I received an email informing me that the client’s lenders would not pay for any further work. No “thank you” or “good job” although the large wire transfer for our previous work assuaged any hurt that I felt. With the loss of a large portion of my firm’s income and having turned 70 in September, I began to seriously consider retirement. I planned on doing more hiking in the Smokies, finishing a stack of unread books, and beginning to whittle down a list of unfinished projects. There were other plans for me, however.
In early January, I was offering unrequested advice to my wife on non-profits at which she might volunteer – bad idea – when she turned the tables by asking me what I was going to do! Having been married 47 years, I took Susan’s question as an instruction and that I had better begin looking for something to keep me busy and out of the house during my retirement years. I was certain that “giving back” must be part of my future!
I am the first member of my immediate family to graduate from high school – my father and mother, who were children of the Great Depression, left school after the 10th grade and 8th grade. I grew up poor in a rural farming town in West Tennessee where the primary industry was a shirt factory. I figured out that we might be poorer than most of my friends’ families, however, when repo guys took our 55 Chevrolet and, later, our television.
During my senior year in high school, I took a Greyhound to Nashville to visit Vanderbilt University where a distant cousin was Provost – he came from an overachieving side of my mother’s family. I ended up getting a Rockefeller Scholarship which made it possible for me to attend Vanderbilt although keeping me in clothes and other necessities was a stretch for my parents who had three younger children at home.
A rags-to-riches feel-good story – right? Not so fast – I squandered the Rockefeller Scholarship and, after three semesters, ended up out of school on academic probation. But I have been the beneficiary of second, third, and even more chances throughout my life and Vanderbilt’s engineering school registrar, Mr. Webb, who wouldn’t let his “boys” fail – we only had one or two girls in our engineering school classes – repeatedly readmitted me, and Mr. Smith, a financial aid officer, cobbled together loan packages that enabled me to pay my tuition. Susan – by then she and I had gotten married – made sure that I attended classes while she worked to support us.
I finally got my Bachelor of Engineering degree (on the seven-year plan) and, later, a professional engineer’s license, while I worked in the construction industry for ten years. In Nashville on business, I made a spur of the moment decision to go to law school and took the LSAT the same weekend. I only applied to Vanderbilt – bad decision – because the short-sighted faculty application readers rejected my application! But Anne Brandt, Dean of Admissions, somehow got me on the waiting list and she kept me on it until an opening was available the following year. I began law school in 1986 just before my 37th birthday – once again, because of a second chance from someone that went the extra mile for me even though I probably didn’t deserve the chance.
I have had a rich a rewarding legal career – initially as a construction lawyer, and later doing transactional, real estate, and acquisition work for large business entities. I rapidly climbed the leadership ladder at the ABA Forum on the Construction Industry and I was honored to be selected a fellow in the American College of Construction Lawyers. In both organizations, Susan and I have made life-long friends.
You see, I have received many wonderful opportunities, many of which I wasn’t a good steward and most of which I was not entitled to; consequently, I am a creation of the second and third chances given to me by Mr. Webb, Mr. Smith, Dean Brandt, Susan, and many other persons that believed in me and would not let me fail, even when I tried. I am also fortunate to have good physical and mental health. I am keenly aware, however, that many other persons have not received similar opportunities and, often, no second or third chances; others may also have debilitating health or addiction issues. My faith demands that I help those less fortunate than me – I give back because I must!!
My giving back has primarily been in the form of contributions to Vanderbilt and other non-profits as well as our church. But I had never done significant pro bono legal work because I was “too old” or “too busy.” Now, perhaps, I should see what pro bono work was like!
My first lunch with a nonprofit executive director and her staff attorney was enjoyable but I didn’t receive a follow up call offering me pro bono work. Calls to other nonprofits were not even returned which leads to my first practice tip: getting a job at a nonprofit sometimes takes persistence.
Many of you may have had times in your practice when you really needed help – a big lawsuit hits a critical discovery phase, or a client asks you to work on a much larger than normal transaction – and you need to hire an extra associate or an experienced lawyer desiring to make a lateral move. But you are so busy – “in the weeds” – that you don’t have time to train an associate or bring a lateral lawyer up-to-speed. You may even be too busy to return the call of an aspiring candidate.
That seems to be the perpetual state of nonprofits since the fall elections and recent budget cuts by many state legislatures including the North Carolina General Assembly. Managers and staff are so busy trying to plug holes in the dike that they have no time to return calls or have lunch with aspiring pro bono lawyers. So, you must understand their plight, understand why your call may not be returned, be persistent, and, perhaps, manage your pro bono work if you come onboard – more about that later.
After the first attempt didn’t work, Susan and I went to a presentation at the Vanderbilt Divinity School on the effect of recent Presidential orders on the immigrant communities and those seeking asylum in the United States. We picked up some handouts and I was invited to write an op/ed on my experiences with undocumented immigrant workers in the construction industry – a subject with which I had some familiarity since, in the 1990s, I would often have clients ask if there was a problem with several workers having the same Social Security number. The clients warned me, however, that terminating the workers was not an option.
For the past seventeen years, Susan and I have had a mountain house in Waynesville, NC, and, as my practice has become mostly virtual, I have spent an increasing amount of time at my mountain house where my fireside office is two Walmart TV trays in front of a window overlooking the mountains. About the same time that we went to the Vanderbilt presentation, I was asked by a Waynesville friend to make a presentation to a small Hispanic church in Waynesville. There were perceived problems, however – I don’t speak Spanish, my knowledge of immigration law was very limited, and I wasn’t licensed to practice law in North Carolina. The pastor’s daughter volunteered to interpret for me and I copied some of the Spanish language “Know Your Rights” and Family Planning brochures that I had gotten at Vanderbilt. I prepared some safety tips particularly regarding travel and got a friend who grew up in Mexico to translate them, and off I went. My presentation, which I carefully designed to avoid giving legal advice, was so-so; I’ve often wished for a redo but, as I was leaving, the pastor’s daughter handed me an envelope. Tears filled my eyes when I found a $150 love offering in the envelope and I felt a strong urging to do more to help immigrant families. A presentation before a much larger Hispanic church followed – another needed redo – and I knew that I was in over my head; it was time for this “lone ranger” to find help.
I called Shoshana Fried, immigration attorney at Pisgah Legal Services that very week; she returned my call and suggested that I get in touch with Jim Barrett, Executive Director of Pisgah. Jim and I had lunch and we began the NCBAR Out-of-State Attorney application process. A very helpful NCBAR staff person shepherded the process and, a few weeks later, I was authorized by the NCBAR to practice pro bono law at Pisgah Legal Services.
Pisgah is an amazing place where staff attorneys and volunteers provide free legal services to persons that can’t afford to pay for needed legal assistance. Pisgah assists children and seniors in crisis situations, victims of domestic violence, victims of consumer fraud, and Pisgah attorneys address situations that create homelessness including evictions and prior criminal records. Pisgah volunteers assist clients in navigating the Affordable Care Act and in receiving other essential healthcare. Pisgah also provides immigration services to immigrants living in seventeen Western North Carolina counties.
What do I do at Pisgah? Pisgah is not in a construction or acquisition mode, particularly with current budget cuts, and no one has shown any interest in my Jamaican real estate expertise. I, like all real estate and transactional lawyers, know how to do powers of attorney, however, and, notwithstanding the facts that I had never had a family law client before Pisgah and that I can’t speak Spanish, I have found a practice that I am competent in, that I love, and that is very rewarding.
With the aid of an interpreter, I prepare various powers of attorney (“POA”) documents for immigrant families in which either the mother and father or both are undocumented and in danger of detention and deportation. If the parents are detained or otherwise absent, the POA documents allow a trusted relative or friend, hopefully with legal status in the US, to authorize healthcare for minor children that are often US citizens, to make educational decisions on behalf of the children, and to sell the family’s assets, including motor vehicles. In addition to the preparation of POA documents, I also recommend that minor children born in the U.S. have passports and Pisgah assists in getting passports for children when one parent has been deported or is otherwise absent. I also counsel the parents on their rights and general safety concerns. Pisgah volunteers also assisted with DACA renewals until the renewals were recently stopped.
I understand that immigration is a highly charged political issue and little common ground exists between extreme factions. But making sure that children, particularly U.S. citizens, are fed, can receive emergency medical care, and can continue to receive an education should not be a political issue. There’s no categories of U.S. citizens; everyone is equal, no matter who our parents are or what legal hurdles they may face.
I also know that our new homes and commercial buildings continue to be built with undocumented immigrant labor; since E Verify was instituted, contractors and subcontractors simply use labor contractors to skirt the issue. I’ve spent many nights in hotel rooms during my career and I know that undocumented immigrants clean those rooms, just as they mow our yards and clean our houses. Susan and I are confirmed foodies and we know that our foods are raised and harvested by immigrants. For example, 60% of the agricultural workers in Henderson County are reportedly undocumented immigrants. A commercial greenhouse owner put it succinctly: “Foreign hands will pick the fruits and vegetables that you eat – either in the U.S. or outside the U.S.” I am proud that Pisgah has given me the opportunity to help approximately forty immigrant families that are less fortunate than me, who have not received the opportunities that I have received, and who don’t get second and third chances.
What’s it like to work for Pisgah? If you are used to having a secretary get your coffee, greet your clients, and prepare your documents, Pisgah will be a big change. Pisgah has limited staff persons and you’ll need to do your own word processing and copying and probably make your own coffee or go next door to Starbucks. And you’ll need to be able to adapt. I’ve worked at several work stations at Pisgah and the computers all seem to have different versions of WORD because Pisgah doesn’t have the resources to keep the computers updated. Since all the documents created by staff attorneys, volunteer attorneys and staff dump into central printer/copier rooms, you’ll spend time there separating your documents from other documents while getting to know other attorneys, volunteers and staff persons also looking for their documents.
The staff attorneys and support staff are typically young – two of the staff persons that I work closely with are applying to law school. Most are very dedicated and work long hours to serve Pisgah’s clients. You will likely be supervised by an attorney that is half your age and may have much less experience on a topic on which you’re working. But they are team oriented and eager to learn from their pro bono attorneys. Not long after I began to volunteer, we discovered a potential problem with some forms; a supervising attorney and I worked together to analyze the problem and then reached a good solution – not mine or hers – ours. I love having the opportunity to mentor both the staff attorneys and other staff and I’ve found that having young friends and professional associates keeps me mentally young and alert.
Because Pisgah provides a full range of services in five Western North Carolina counties and limited services in an additional eleven counties, some of the work must occur in satellite offices and even donated space. After the initial family planning workshops in Asheville, we determined that we must go to the immigrants instead of asking them to drive to Asheville or other Pisgah office locations; consequently much of my work is done at churches in surrounding communities. I’m a self-service shop – I secure a volunteer interpreter, set up my printer/scanner, and meet the clients at the church.
For thirty plus years of law practice, I always had staff persons to notarize my documents. But notary publics are not always available, particularly at churches, and I quickly determined that I must get my notary public seal so that I could notarize the POAs. A very helpful staff person at the Secretary of State’s office helped me with the process when I didn’t exactly fit the check boxes on the application and I notarize the documents that I prepare. I also provide electronic versions of completed documents to Pisgah for client files and try to minimize the staff burden as much as possible when I submit documents for filing.
While I have found a niche practice in which I am very comfortable, I would not be able to work in other areas of Pisgah’s practice. I learned early in my practice that I was a mediocre litigator so, even thought my limited license allows me to appear in NC courts, I would never do so. The same is true of appellate practice and some technical research projects. You will need to find an area of pro bono law in which you have experience or a passion that makes you take the time to learn a new area of practice.
Emeritus and out-of-state pro bono attorneys are excused from meeting North Carolina CLE requirements but independent study or attending CLE workshops is a must for pro bono attorneys, particularly those coming from another jurisdiction. Even though my immigrant family planning practice is more oriented towards family and transactional law than immigration law, I still needed to learn immigration law basics so that I could respond to client questions and determine if additional options might be available under immigration laws. I also did a detailed review of North Carolina statutes affecting powers of attorney, particularly safe harbor forms, and I studied the notary public rule book even though I wasn’t required to take the examination. I learned in my prior practice that little things, like using the wrong acknowledgement in a document or leaving off the notary seal, can have malpractice consequences.
While legal aid clients typically don’t make malpractice claims, we have an ethical obligation to give our clients the best legal advice that we can possibly give. Pisgah and other legal aid providers must do quality control reviews to ensure that their clients do receive good legal advice from pro bono attorneys. Not all attorneys are equally skilled and not all attorneys will do the self-study necessary to become competent in a new area of the law or a new jurisdiction. The backstop must be the supervising attorney and his/her staff and organization. Once the supervising and staff attorneys are comfortable with the skill level of a pro bono attorney, she or he can also do quality control reviews as senior attorneys are often accustomed to doing in their private practices.
Pro bono attorneys can also manage files but managing files will likely require a commitment over and beyond a few hours per week. We can also assist with training sessions for other pro bono attorneys. Many of us are used to making “cold calls” and “meet and greet” lunches – some of you might have been the “rainmaker” for your firms – consequently, we can also do outreach and get out the message about the great work that Pisgah Legal Services and other nonprofit law firms are doing.
Where do you fit in? Perhaps you simply want to volunteer a few hours a week and do research or work on simple files. Perhaps you’re not ready to retire and you desire to be involved with case management or quality control review. Maybe you’re tired of practicing law but you have the financial means to help Pisgah and other nonprofits do their work. Whatever your choice, there’s a place for you – even if you’re a Tennessee lawyer that’s initially more comfortable with Jamaican real estate law than North Carolina family law.
When you do begin your pro bono career, you’ll be rewarded far beyond the monetary compensation that you will forego. During my virtual law practice on Walmart TV tray years, I had forgotten how much I missed the comradery of practicing in a firm with other people. Chatting in the breakroom or the copier room or discussing the latest restaurant find or recipe with Pisgah’s resident foodie are new found delights. Sitting face-to-face with a colleague to analyze a legal problem was missing from my virtual law practice. And then there’s the smiles and thanks that I receive from Pisgah staff members every day that I work in the office.
But the thanks don’t stop with Pisgah’s staff. Transactional and acquisition lawyers don’t get a lot of thanks from our clients; in fact, we’re lucky if a client doesn’t complain about the bill even when the client has gotten a great result. So, I was unprepared for the thanks that I get from friends and others in the community. My family and I were in Maine recently and we visited a farm owned by a burly bearded fisherman. When I told him about my Pisgah work, tears welled in his eyes and he gave me a bear hug goodbye when we left.
Most important are Pisgah’s clients. I was entering Pisgah’s Asheville office when an elderly lady was speaking with the receptionist. The lady didn’t have an appointment because she didn’t have a cell phone. So, she caught a ride with a neighbor to Pisgah to seek help. I left the reception area so I don’t know the outcome, but I know that someone met with her and tried to help her. Pisgah pro bono and staff attorneys see clients that have been beaten down by a spouse or other family member, a human trafficker, or an unscrupulous landlord, by the pervasive poverty in which they live, or simply a system that they can’t function in. We are their second or third chance.
Lucio and Elvira – I have changed their names – were my first clients at Pisgah. They are both in their late fifties; Lucio works for a landscaping company and Elvira washes dishes at a chain restaurant; both are undocumented immigrants. They have lived in the United States for a generation – a rented house trailer in a poor part of town is their current home. Lucio and Elvira have three adult children, all of whom currently have DACA status. They came to a Pisgah clinic because they needed health care and educational powers of attorney documents for Ana, a ten-year-old girl, that lives with them.
Lucio and Elvira have sole legal custody of Ana; she is of Honduran descent; they are Mexican. Ana’s mother died at Mission Hospital during childbirth and her father abandoned her, so Lucio and Elvira took her in and care for her. During the interview, I learned that Octavio, their oldest son, is profoundly autistic and cannot speak; he is also a hemophiliac and Lucio and Elvira care for him, as well as Ana, in their little trailer. After I prepared powers of attorney for both Ana and Octavio, Lucio and Elvira profusely thanked me. I recently saw them to update their forms; they are still safe, and Ana and Octavio are well. Once again, they left me with smiles and many expressions of thanks.
In a small way, I was able, through my pro bono service at Pisgah, to take away so of their anxiety. They still live in fear every day but they know that someone can get healthcare for Ana and Octavio if they are unavailable. Helping others that cannot help themselves – that’s what pro bono work at Pisgah Legal Services is all about.