AM Law Daily

PRO BONO 2008: McDermott Will's Foster Care

by Rachel Breitman
July 30, 2008

Safer, more secure homes are in reach for some 19,000 Michigan foster children thanks in part to the efforts of attorneys from McDermott, Will and Emery.

In an early July settlement of a federal class-action suit, the state of Michigan and its Department of Human Services agreed to overhaul the state's foster-care system by spending more than $200 million on hundreds of new caseworkers, social workers, and parent trainers, and by creating a new agency within DHS dedicated solely to tackling child-welfare issues.

Children's Rights, a New York–based advocacy group, brought the case in response to a damning report from the office of Michigan Auditor General Thomas McTavish, whose investigators found that the woefully understaffed foster-care system was placing scores of children into homes that had not been properly vetted.

Children's Rights accused the state of violating the constitutional rights of foster children by failing to place them in safe, secure, permanent homes. As if to underscore the group's claims, two-year-old Isaac Lethbridge was beaten to death in a Detroit foster home just weeks after the suit was filed in U.S. District Court in Michigan's eastern district in August 2006.

"It was terribly heartbreaking," says Sarah Bartosz, the senior staff attorney at Children's Rights and the lead counsel on the case. "But it made it clear that this suit needed to be pursued. The state was at crisis level."

McDermott attorneys joined the case in August 2007. The firm dedicated 1,515 pro bono hours to the effort; Boston litigation partner Edward Leibensperger spent 618 hours on the case.

"There were deficiencies in the system that allowed the abuse and neglect to occur and continue," says Leibensperger, a former president of the Boston Bar Association who was assisted by McDermott associates Kevin Bolan and Sana Abdullah. In addition to the time spent, the firm donated $250,000 in legal costs and expert fees. To Leibensperger, the end result was worth every hour and every penny.

"It was the first systemic reform case that I have been able to work for," he says.

Early on, Michigan's attorneys moved to dismiss the case because, they argued, it was a state matter and did not belong in federal court. Further, they claimed, because each of the children represented in the class had pending cases in family court, that--not federal court--was the proper venue to decide the matter. District Court Judge Nancy Edmunds, however, rejected those arguments. She decided the family court could not produce the sweeping remedies required of the foster-care system. The case was scheduled to go to trial on July 7.

"We're happy to avoid the litigation and to focus on improving our services for children," says Luttrell Levingston, director of legal affairs for DHS. "Our agency will be adequately funded and adequately staffed." The settlement's terms call for DHS to hire an 700 new employees.

The beefed-up staff will allow the agency to cut its caseload to 15 foster children per caseworker and provide for more in-person visits to foster homes and residential facilities. DHS also agreed to work towards recruiting more adoptive parents as a way to place the 6,000 foster children whose parents have lost all legal guardianship privileges into long-term or permanent homes.

Leibensperger, for one, believes the settlement will bring much-needed help to a group typically unable to fight itself.

"It's real change for a whole class of people," he says.