Profile: Fighting for freedom

As pro bono counsel to Reed Smith, and head of the firm’s human rights team, Jayne E. Fleming has helped move US law forward in the area of gender-based and domestic violence through her work representing women and children asylum seekers and torture survivors from Sudan to Kazakhstan. She talks to Lucy McNulty about the highs and lows of life as a human rights advocate.

A career in law wasn’t something I considered until I was a college undergraduate studying political science at the University of California, Berkley. I became really interested in international relations and international development issues. Law seemed like a good place to try and make an impact in those areas.
When I graduated from University of California Boalt Hall School of Law in 2000, I began work in the appellate department at Crosby Heafey Roach & May [the firm combined with Reed Smith in 2003] doing general appellate litigation. From the outset, I was also doing regular pro bono work. I realised how critical it is for lawyers to be able do work for people who can’t afford to pay for a lawyer. Over the years, I gradually increased my pro bono caseload, first becoming part-time pro bono counsel and eventually full-time pro bono counsel to Reed Smith.
As pro bono counsel, a lot of my time is spent working on pro bono cases, but I also litigate on human rights proceedings, most commonly asylum cases and occasionally trafficking and domestic violence suits. In addition, I head up the firm’s human rights team – a department made up of over 50 lawyers working on cases that have some human rights dimension to them. I run other free legal programmes for the firm, which focus on housing and domestic violence, as well as sourcing opportunities for our lawyers to do pro bono work.
There are probably only about a dozen women in the US who have positions like mine. The difference is that the women I know in similar positions are doing full-time pro bono counsel positions, which tend to be more managerial and less litigation-based. My position is a little unique – I still carry my own case load while also managing some of our programmes. I think being in the minority has been an enhancement for my career – it distinguishes me from other lawyers at my level in the US. I’ve been successful and the fact that it is relatively unique and also high profile has been good for me as opposed to creating obstacles. It helps set me apart from others.
Having said that, there are many women working in the US human rights arena who are a profound inspiration to me. There’s Karen Musalo, the director of the San Francisco-based Center for Gender and Refugee Studies, who was the first attorney to partner with psychologists in her representation of traumatised asylum seekers; Judy London, who runs Public Counsel in Los Angeles; and, Regina Germain, who runs Rocky Mountain Survivors Center in Denver, to name but a few. These women have each devoted their lives to human rights issues and women’s rights and I find them all to be excellent role models. Indeed, it seems everywhere I work I find inspiration from women working in the field. Most recently, I met a Guatemalan woman named Helda Moralis who has been a women’s rights activist in Central America for over 25 years. She has to deal with horrific violence daily, from murdered women to female victims of assault, and not only is she advocating for these women, but she is putting her life at risk by doing it because all women’s rights activists in Guatemala can expect retaliation of some kind. In contrast, in the US I never have to worry for my safety if I raise my voice on behalf of a woman. My role is a walk in the park compared to what she is going through.
I think the rewards of working as a pro bono and human rights lawyer are probably the greatest that one could ask for as a lawyer. I know that being a lawyer can be both very exciting and very challenging. But it can also become somewhat frustrating and stressful. And I think in my position the stress only relates to a fear for the client, or worrying about a client: it is not stressful in terms of the day-to-day practice of law.
I have worked on a number of cases that have helped move the law forward in the area of gender-based violence. Probably the first, and perhaps the most significant, case was an appellate case I litigated in the Ninth Circuit Court of Appeal on behalf of a woman from Guatemala who had been gang-raped during the Guatemalan civil war. The Immigration Court had denied her asylum, arguing the assault she suffered was essentially just a criminal act. I contended that rape was used as a political weapon during the war and the Court agreed with that, granted her asylum and published an opinion that set a precedent for cases involving rape during times of war to illustrate that it actually has a very political dimension to it. It is an argument that can now be replicated in other cases for countries all over the world.
When working on a traumatic case like this you need to know how to disconnect. Working face-to-face with clients who are incredibly vulnerable can take its toll if you become too involved. I have worked with a lot of child clients, for example. In those cases, it is essential to know how to switch off so that you don’t become overwhelmed. Aside from reading and writing, I really love to travel. When I need to disengage from a particularly intense case I try, if I can, to go to France and just hang out in a café in Paris to regroup and re-energise.
I do a lot of work in Central America and that can be very intense because Central America is a very dangerous and violent place. It is a constant challenge while working in the region to remain as safe as possible. The most challenging case that I have ever handled, and it is not actually concluded yet, has been that of a boy in Central America who was sexually exploited when he was very young by several men. He is extremely traumatised and it has been very difficult doing interviews with him as a result. There are so many risks involved with the interview process – such as re-traumatising him and thereby potentially causing him to become self destructive. I make sure I always interview him with a mental health professional present so that I am sure that there is someone there who can help him and help me understand how to address the legal issues without really harming him. But this is just one of the cases I have handled over the past six months as part of a programme I launched, with Reed Smith’s backing, in 2007 on behalf of Central American children fleeing violence. It is a project that evolved naturally from my work representing Central American adults and it aims to address, and perhaps make an impact on, some of the forces that are pushing the near-constant flow of children migrating from Central America to the US. A lot of these children are fleeing because they are being exposed to violence or extreme poverty. If we can address the underlying issues, we will be able to help these children so that they do not feel they have to run away.
The project is very much a part of the firm, with many of our lawyers handling cases on behalf of Central American children, and members of the human rights team involved at the policy level of the project as well as the litigation level. These are issues impacting the US in a very profound way and so the firm has been very supportive of trying to find resolution for them.
I also represent torture survivors. In my first case involving a torture survivor, and also one of my most compelling cases, I represented a young Sudanese man. He was extremely traumatised and it was very difficult for him to articulate his story in a coherent way. Indeed, this is often the case with torture survivors. They think in a way that is very disconnected and disjointed because remembering torture is so very painful. Trying to help him connect the dots in a coherent way in order to explain to the judge what had happened was a struggle.
Another case that had a profound effect on me involved a woman from the Democratic Republic of Congo who had been subjected to horrific torture and rape in prison, having been imprisoned on a false political charge. It was an extremely difficult and traumatic story to hear, not only because the experience had been so traumatising for her, but also to hear about that level of violence against a woman.
One of the big challenges in the practice of human rights law is finding ways to communicate with clients, to earn their trust and to understand the cultural barriers that sometimes exist. You need to get the client to the point where she/he feels safe enough to tell their story. It takes a huge investment in time. You can’t expect a vulnerable child, woman or torture survivor to come into a client interview and tell their entire life story during the first or second interview. It is a process that requires an enormous amount of patience and time invested in making sure that the client feels that they have an advocate who is not going to abandon their case if they don’t tell their story in the first ten minutes of a meeting. I probably spend about 40 to 50 hours interviewing clients that I represent in court, and it takes that much time for them to be able feel a sense of trust and start to articulate their story and fill in blanks that they have repressed because they were too painful to remember. Helping them to tell their story in court is absolutely critical and it has been challenging to learn how to do that. In fact, I think it is still an area in which I am learning. Part of the challenge is that it is very emotional work. The client population is very vulnerable and underserved and, as a result, it is absolutely vital to learn how to strike a balance. It is critical, I think, to find ways to disconnect. I read a lot, I write a lot and I exercise. I have learnt to take little breaks here and there.
I also make myself remember that I am an advocate for the individual client and that the only way I can help them is if I remain objective. If I become drawn in to the trauma then I am no longer effective as an advocate and it’s quite likely that I wouldn’t win the case because I would become too emotionally involved. In order to be an effective attorney you have to be able to remain objective so as to make the legal and factual arguments as crystallised as possible. Each individual client is so deserving of compassion and so deserving of representation that I owe it to them to try and remain impartial. I am not, however, emotionally disconnected from them: I am very emotionally involved in terms of wanting to win and protect them, but not to a point where I allow myself to become overwhelmed.
It is also very challenging to make arguments in some of these cases because the law is not as evolved as it needs to be to protect some of these groups of people. Women who have suffered domestic violence, for example, will sometimes flee their own country of origin because their own government won’t protect them from such violence, believing it to be a private matter. The law in the area of domestic violence as a basis for asylum is very unsettled, and it is therefore very difficult at times to win such cases. It is the same with violence against children. Children who are fleeing family-based violence, for example, or a daughter who is being abused by her father, often seek asylum in the US to protect themselves. Our government’s response is frequently that family-based violence is not a basis for asylum, primarily because it doesn’t look like your traditional asylum case that would be based on politics, religion, ethnicity or race. These cases are therefore difficult from a legal perspective because our law isn’t where it needs to be to offer protection to these individuals. It should be. If the government in that individual’s country isn’t willing to protect them then they should be able to get asylum in another country. It is something that can be overcome step-by-step, but in terms of gender-based violence cases, it has to be an incremental process.
My children, now aged 19 and 21, have always been very supportive of my role as a human rights lawyer, and, although they have always been very compassionate about my clients, it was still very difficult when they were younger to balance my personal life with my career. I was not only becoming more full time with pro bono and human rights cases, but I was also relatively new in the legal arena – the learning curve was very steep. At the same time my children were teenagers, they wanted to have a mum at home and I certainly don’t blame them for that. There were so many times I would return home late to find my children waiting for me and I would go through the agony of feeling guilty that I was not doing the right things at home. It was very difficult trying to strike that balance. I am not sure we ever did achieve it to be honest. I think we did the best we could, occasionally with some angst, but we managed to get through it.
When it was really difficult, communication was undoubtedly key. When I had disappointed them by coming home late, admitting that that was not fair to them and that it was really important for us to find a happy medium without becoming defensive was vital. I didn’t want to sacrifice what I was doing with my career, but I also didn’t want to put them in a position where they didn’t have what they needed at home. We did a lot of talking to find ways to make the time we had together valuable.
Having a support network on hand was also important to ensure that they had back-up resources, such as family members, close friends or a community group, to rely on if I was stuck at work or away on business. Now that my children are older and much more independent, it has become a lot easier to strike a happy work/life balance.
Going forward, I would like to start working more intensively in other regions, maybe Africa, maybe the Middle East – I am not really sure where as yet. My passion lies in this global human rights arena, so I think it will be something related to that. It helps in that respect that Reed Smith has a big global footprint proffering a lot of opportunity to do work in a lot of different places. I will go wherever the path takes me.”

Jayne E. Fleming is pro bono counsel to Reed Smith. She can be contacted at jfleming@reedsmith.com