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Q&A with New City Bar President John S. Kiernan

On May 17, 2016, following the annual meeting of the New York City Bar Association, John S. Kiernan became the Association’s 67th president. He is a partner at the law firm of Debevoise & Plimpton and has been Co-Chair of the firm’s Litigation Department since 2002 and Chair of its Ethics Committee since 1994. At the City Bar, he has served on the Executive Committee and chaired several committees, and was on the Board of Directors of the City Bar Fund.

How did you become involved with the City Bar? When and why did you join?
My first involvement with the City Bar was appointment to the Communications and Media Law Committee when I was a law firm associate. I was the youngest person on the committee, and felt lucky to be there. My sense of the deal was that I was being given a tremendous opportunity to meet and work with some of the leading media lawyers in New York (Bob Sack, later a Second Circuit judge, was the chair), and all I had to do in return was to raise my hand quickly to volunteer for drafting assignments and other work. It was a fantastic experience.

I next became my firm’s designate to the Enhance Diversity in the Profession Committee (then called the Committee to Enhance Professional Opportunities for Minorities), chaired by Cyrus Vance Sr., which was one of the first formal committees of a major bar association directed to enhancing diversity in the profession. (My recollection is that only the San Francisco Bar Association had such a committee when ours was formed.) Our committee generated New York’s first Statement of Diversity Goals, executed by more than 150 law firms and other legal offices as a formal public commitment to increasing their diversity. While firms were certainly thinking about the importance of enhancing their diversity before then, Cy Vance was a leader in recognizing the capacity of a widely executed and publicly advertised Statement of Goals to move the needle in firms’ collective commitment to diversity. That was the beginning of a process that the firms and the Association have been collaborating on for decades, using the vehicle of gathering multiple organizations to share perspectives, nudge each other forward, and affect each other’s thinking through the City Bar. Participation in that effort was a great lesson in the collective power that can attach to bar association membership.

Later, I became a member of the Pro Bono Committee (just as I was becoming Chair of Pro Bono at my firm), and, after serving three years as a member, Chair of that committee. That was my first significant opportunity for leadership within the City Bar. Again, the committee featured a tremendous collection of leaders from firms and the legal services community. Working with that great collection of lawyers, many of whom remain among my most valued professional friends today, provided strong lessons about why bar association membership was important, how a sense of membership within a larger community could enhance career satisfaction, and how much a motivated collection of volunteers pulling in the same direction could accomplish toward improving the overall process of developing and performing pro bono work.

When did you get the pro bono “bug”?
Didn’t it start for lots of us with To Kill a Mockingbird? Most lawyers who are happy in their careers seem to share the history of having chosen law in part because the ethos of service was appealing, and the lucky experience of having had the opportunity, over their careers, to provide a wide variety of clients the kinds of service they had hoped they would get to provide. Helping people who can’t afford to pay for assistance feels like an important component of that ethos of service.

Fortunately, I ended up at a law firm whose senior leaders repeatedly demonstrated by their own actions that they believed pro bono work could and should be a major ingredient in a fully realized legal career. My firm has generously permitted me and many of my colleagues to follow that sensibility in our own practices. But the sensibility that leads New York’s lawyers to volunteer millions of hours of pro bono time every year extends way beyond individual firms. As much as the economics of law have changed over the last few decades, most people still seem to go to law school primarily for reasons other than wealth maximization. The allure of trying to help clients figure out the right way to organize conduct and resolve messes in the most complex contexts, and the desire to serve, seem as strong in today’s young lawyers as they did when I was starting law school almost 40 years ago. That may be part of why even the transformative commercial effects on the legal profession of the financial crisis and its aftermath have not fundamentally altered the profession’s individual and collective commitment to pro bono, which remains at high levels. It also may be part of why lawyers really can be particularly good company over the course of a career.

You’ve done a lot of different kinds of public service, including serving as mayor of Pelham Manor, New York. What are your thoughts as you step into the role of President of the New York City Bar Association?
So far, at this early point, it feels as though the best way for a City Bar President to be effective is to make good use of the membership’s stupendous energies and human resources. Thousands of our members are churning along as active contributors to the Association’s work, with the common aim of improving and extending the rule of law in a mind-boggling array of contexts. All those human resources have made the City Bar arguably the most talent-filled, comprehensive, broadly diversified rule-of-law think tank on the planet.

While the Bar Association offers lots of tremendously valuable professional and personal resources, opportunities for CLE or pro bono work, networking opportunities and social events for its 24,000 members, its intellectual and productivity core seems to lie most essentially with the 4,700 people who serve on a rotational basis on its 160 committees. These people—among the most talented anywhere in the various disciplines and areas of expertise captured by our committees—are steadily generating a huge smorgasbord of agendas, opinions, and proposals for improving the application of law.

One of the Association’s key roles seems to be to foster that process and, when action items emerge from it, to help effectuate those action items. That role presents a tremendous feast for the President, who gets to witness this enormous generation of ideas and then to help figure out how to communicate the product of all that work externally and try to effectuate recommended improvements.

One of my formative experiences at the City Bar involved an instance when my committee and another committee had different points of view on a piece of proposed legislation, and it became necessary to present our differences to the President. I remember vividly going to see the President, Conrad Harper. He listened intensely to what we said, asked all the right rigorous questions, and then decided what the position of the New York City Bar Association would be—without any sense that the correct answer would necessarily be some midpoint between the two positions presented to him. Then he acted on his decision in pressing for new legislation. Watching this process unfold was a powerful reminder to me that the City Bar was not just a bunch of people talking; it was people engaged in serious policy debate resulting in carefully determined formal positions from an influential institution that was going to seek to change the law based on its conclusions.

Do you have any thoughts on areas or issues that you would like to focus on in the two years ahead?
Everybody has favorite areas, but the most effective programs initiated by City Bar presidents in the past have seemed less to reflect fixed incoming agendas of individual Presidents than their highly effective responses to current sensibilities or needs in public or governmental discourse. For example, Debra Raskin’s focus on mass incarceration during her presidency wisely recognized that we were in a period featuring unprecedented bipartisan consensus in favor of serious reexamination of incarceration in the United States. The timing was perfect. The City Bar’s responses to the emergencies of 9/11 and Hurricane Sandy dealt in immediate and essential ways with needs nobody had anticipated in advance. Its creation of the Lawyers’ Assistance Program and the pro bono Bankruptcy Project responded to growing needs, and the creation of the Court Square Law Project responded in tremendously timely ways to both the unavailability of affordable legal services for people only marginally above the poverty line and the need for training opportunities for people getting out of law school and aspiring to make a living as solo or small firm practitioners.

Looking around and thinking about what projects seem particularly timely right now, it seems as though external forces are elevating the timeliness of a few clearly important subjects for the City Bar. In terms of issues with major local impact, potentially historic levels of attention are being directed to the longstanding fundamental question of whether there are kinds of life-altering civil legal experiences, like the threat of eviction from a home or deportation from this country, for which everyone facing potentially catastrophic consequences as a result of court action should be provided a lawyer if unable to afford to hire one. Partly as a result of a perfect storm of uniquely broad-gauged public decision-makers engaged in novel ways and potentially willing to take seminal steps on this important issue, recent evidence of the positive effects of increased representation, and studies indicating that the costs of eviction or deportation protection are dwarfed by the costs of not providing such protection, these potential forms of “Civil Gideon” are receiving the kinds of serious examination that suggest their time may be now.

Another area that seems currently timely, as a logical corollary to hard questioning about the sources and consequences of mass incarceration already taking place,  is the increasing bipartisan recognition of the need to take a hard look at conditions of confinement for prisoners. Public sentiment and politicians on both sides of the aisle seem to be recognizing the need for more attention to reentry, effective prison discipline, avoidance of excessively harsh treatment or abuse, particular issues regarding treatment of youthful or mentally ill prisoners, mechanics for dealing with the small number of correction officers who should be disciplined and removed from their jobs, and the use of solitary confinement.

More broadly, the City Bar should continue to play a role in supporting the tremendous growth in capacity, effectiveness, and reputation of our Commercial Division—the world’s commercial capital needs to have the world’s best judicial capacity for resolving commercial disputes—and in supporting the further development of New York as a center for domestic and international arbitrations, mediations and other forms of dispute resolution.

Statewide, the City Bar should certainly lend its analyses and voice to the important decision New York’s voters will be asked to make in November 2017 on whether to have a Constitutional Convention, potentially followed by complicated decisions about what the agenda for any such Constitutional Convention should be. Continued work on removing corruption from politics also seems essential.

On the national level, we will want to consider what recommendations the City Bar should make regarding federal law as a new President takes office.

What are your thoughts on how the profession is changing and how the City Bar can change with it?
The Bar Association plays several roles today, and serves different groups within its membership. In different ways. It provides important resources and support to individuals and small firm practitioners. We’re proud of that and we think it’s important for us to keep thinking about how to facilitate their  practices—including with best-in-class research capacity, conference space, CLE and pro bono opportunities, the consultative options provided by the Legal Referral Service,  and the ability to provide “virtual law firm” logistical support. The City Bar also provides, in a profession that has become increasingly focused on economics, a place for people to reenergize their sensibilities about the law as an intellectual, policy-based exercise, to think about law in ways that extend beyond daily practice, to remind themselves of their participation in a service profession, to find vehicles for providing that kind of service, and to enjoy their membership in a professional community filled with interesting, compelling, and fun colleagues. Those are all important values that seem, in some measures, undervalued within individual institutions compared to where they were thirty years ago.

As the profession has gotten more specialized—and it undoubtedly has—that evolution has fostered an emerging additional role for our Bar Association. Participants in specialized disciplines want vehicles for exploring the cutting edge, meeting others engaged in those disciplines, learning from leaders in the field, participating in the debate about how to improve the application of the law in those areas, and networking. Many of our members have made clear that they want to be part of that dynamic, pressing to join committees in their areas of specialty and to rotate regularly among related committees. Committees and individual programs have been the primary vehicles for interactions among participants in specialized disciplines, but the number of people who want to be part of some core specialized groups often exceeds workable committee size limits.

We will be exploring ways of facilitating more participation by those who want to be part of a professional subgroup that thinks of the City Bar as the epicenter for development and sharing of professional expertise and relationships. That will include thinking about mechanisms besides membership on a committee that can permit people to participate in portions of committees’ attention to the latest issues, and in committees’ overall dynamism and vitality. Our enhanced capability to include people electronically in communications creates opportunities to do more with committee alumni, affiliate members, people on waiting lists, and other members who want to be aware of committees’ activities. We will also look for more opportunities to gather members of these specialized groups in our building.  If we can increase the number of our members who are engaging with committees physically or  virtually, that’s a positive thing in a lot of different directions and perhaps a template for future expansion and inclusion.

The City Bar has always been a convener. We want the City Bar to help satisfy some of the urge among lawyers for belonging beginning during and immediately after law school (when many of our members are most open to meeting new colleagues and friends) and extending past lawyers’ first “retirements” (at which point many energetic lawyers are just beginning to think about ways they can use their skills in new and useful ways). The drive to feel like a member of a larger but knowable legal community remains an important component of the professional experience for most of us lawyers.

The City Bar is actively engaged in fresh thinking about how to be an important component of lawyers’ professional and personal lives. The fellow lawyers people meet through the City Bar often become their best professional friends outside their own organizations. Our profession encourages and often rewards membership in a wide range of subgroups. To the extent those clubs need a convener and a clubhouse, the City Bar wants to, and should, happily play that role.