Robert Kapp Third Interview: March 27, 2017

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ORAL HISTORY OF ROBERT KAPP
This is the third interview session of Robert Kapp on behalf of the Oral History Project of
the U.S. Circuit Court of the District of Columbia. The interviewer is Irv Nathan. The interview
is being conducted at Mr. Kapp’s office at Hogan Lovells in Washington, DC on Monday, March
27, 2017 at 3:15 p.m.
MR. NATHAN: So Bob picking up today I wanted to go back to when you first
arrived at Hogan & Hartson. How many women were there when
you arrived in the firm in the late 50’s?
MR. KAPP: When I arrived at the firm there were no women lawyers at all. There
were women assistants and secretarial but there were no women
lawyers.
MR. NATHAN: When was the first woman lawyer hired at Hogan?
MR. KAPP: The first woman lawyer was Sally Determan. Sally must have come I
would say around 1965 or 66. She had been a graduate of GW Law
School and she had interviewed at a number of firms around town
and fortunately she chose Hogan, what was then Hogan & Hartson.
MR. NATHAN: And was she assigned to you?
MR. KAPP: She was assigned to the tax group. But she and I over the years
worked on a number of problems — a number of tax issues; we
worked together for a number of different clients. She ultimately
gravitated into an estate planning practice which I never did but there
were still some aspects of the work that she was doing that
overlapped with things that I was doing and we did work together
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throughout our entire careers.
MR. NATHAN: She identified you as a superb mentor. How would you describe your
role as a mentor, how did you see it and how did you carry it out?
MR. KAPP: I think I basically carried it out by giving as much responsibility as I
could to the people that I worked with — the younger people that I
worked with. And, I think we also discussed in great detail the work
that we were doing together. And there were three or four people
over the years that I’ve felt that I had a significant mentoring
relationship with. Sally, of course, and then Deborah Ashford, who
was in the tax group, and Siobhan Rausch, who was also part of the
tax group.
MR. NATHAN: Do you have the same view with respect to male associates?
MR. KAPP: I worked with a number of male associates over the years. I think
Todd Miller, for example, is somebody who would feel that I had
been helpful too and then later Howard Silver. But I’d have to say
that the three women whom I mentioned represented the closest
mentoring relationships that I had.
MR. NATHAN: Sally said that you constantly stressed integrity. How did you see
integrity as part of the training for young associates?
MR. KAPP: I did feel that as lawyers we had a particular responsibility to do the
right thing and I think that I tended to be pretty keenly aware of
ethical responsibilities and I paid considerable attention to that.
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MR. NATHAN: Did you have any problems with clients in regard to adhering to
ethics; without mentioning any names, of course?
MR. KAPP: I did not.
MR. NATHAN: Ok. And when you arrived what was Hogan’s view of pro bono?
MR. KAPP: When I arrived, I think the only lawyer in the firm who had done any
pro bono work at all, at least that I was aware of, was Barrett
Prettyman. But it was certainly not in any way a significant part of
the culture. And I think I mentioned this before but when I wanted to
take on some cases for the ACLU I was quite unsure as to how the
firm would react. I made a specific request to take on these cases
and, much to my pleasure, I received quite a bit of encouragement
from firm management; people who probably would not have
necessarily supported the causes that I was trying to advance.
MR. NATHAN: When did Hogan’s view of pro bono change?
MR. KAPP: It changed in the very late ‘60s, or early ‘70s. There was, as I’m sure
you know, quite a bit of social unrest at that time, and also quite a bit
of competition among the law firms to attract the highest quality and
most promising law students. Among the younger lawyers in the
firm, and among many of the students who we were interviewing for
positions, there was a desire to spend some time on socially relevant
types of representation. And, in about 1970 or 1971, given the
pressure coming up from the younger lawyers in the firm, the
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executive committee of the firm established a study group or
committee to decide what, if anything, the firm should do in this area
and to make recommendations to the firm. And I was asked to chair
that committee. There were four associates on the committee. By
that time I was a partner in the firm. The four associates were Sally
Determan, Tony Harrington, Peter Rousselot and Carl Taylor. We
met over a period of several months. We interviewed people in
public interest organizations, deans of law schools, government
officials and others and came forward with a recommendation that we
should establish a pro bono department in the firm which would be
on the same footing as the existing practice groups in the firm. That
it would be headed by a partner, that it would have a full-time
associate assigned to it as well as short-term rotating associates and
that other lawyers in the firm would work with the department on a
case-by-case basis. We presented that recommendation to the
executive committee of the firm. Interestingly enough, Nelson
Hartson, the most senior partner in the firm, had discussed with me
beforehand what our recommendation was going to be. And he
indicated that he had a strong preference for an approach that was
similar to that Covington & Burling had adopted. They assigned
lawyers to the Legal Aid Society or the public defender’s office on a
full-time basis for a specified period of time. Nevertheless, the
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executive committee decided to accept our recommendation. There is
a letter that Nelson Hartson sent to Seymour Mintz which indicated
that he would have much preferred the Covington & Burling
approach but that he was willing to accept our recommendation. And
the firm then did establish the pro bono department.
MR. NATHAN: What was it called?
MR. KAPP: It was called the Community Service Department. The first step that
we took was to try to identify someone to become the partner in
charge of the new department. We were strongly of the view that it
should be someone who had a strong public interest profile.
MR. NATHAN: Did you give any thought to having someone who was already in the
firm, a partner in the firm take over that department?
MR. KAPP: We did not. At that time we were looking for someone who was
already actively involved in public interest representation. Several
years before that I participated in a Ford Foundation funded project of
the National Legal Aid and Defender Association to do an assessment
of a neighborhood poverty law office that the Baltimore firm of Piper
& Marbury had established. On that assessment team I met John
Ferren. We worked together in Baltimore once a month for 18
months. So when the time came to seek a partner to head the
department, I suggested John Ferren. Seymour Mintz sent him a
letter asking him whether he would be willing to be interviewed
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about the job. He subsequently told me that when he received the
letter he was at Harvard running the clinical program there and was
getting ready to throw the letter into the wastebasket when his wife
said oh why don’t you see these people and see what they have in
mind. He came down to Washington and was quite impressed with
the firm’s plan; he took the job and moved to Washington and his
career from then is pretty well known.
MR. NATHAN: Did you participate in trying to convince him to take this position?
MR. KAPP: I did.
MR. NATHAN: And what were the arguments that were most successful?
MR. KAPP: I think mostly that he had to be convinced that we were serious about
this and that we were going to substantially expand the public interest
work that the firm would undertake. He did become convinced and
he did come.
MR. NATHAN: And was it staffed with associates who were already at the firm or did
you recruit associates as well?
MR. KAPP: It was first staffed with Allen Snyder who had been a Supreme Court
clerk. At that point the firm had not attracted many former clerks.
Barrett Prettyman had clerked for three Supreme Court justices and
Stuart Ross had also clerked. We used the promise he would be
assigned to the Community Service Department as an inducement for
Allen to join the firm.
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MR. NATHAN: So Allen came in and worked in the Community Service department.
He wasn’t there before?
MR. KAPP: No. He came to the firm with that inducement.
MR. NATHAN: What were the early accomplishments of the Community Service
department?
MR. KAPP: We took on a broad range of projects. John represented an effective
social welfare organization – I can’t even remember the name of it —
and became the general counsel for that organization. We took on
several significant environmental matters and a number of civil rights
cases.
MR. NATHAN: This obviously was just after a few years after the riots in ’68 in the
District. Was that part of the impetus for this? And you say
community service, was the focus to serve the DC community in
some way?
MR. KAPP: I don’t think the focus was specifically to serve the DC community.
And, in fact, that has never been the principal role. The emphasis
was on service, I suppose, and not community. At the time of the ’68
riots a number of people at the firm, and a number of lawyers all over
town, were recruited to take on the representations of people who had
been incarcerated after the riots.
MR. NATHAN: What was David Tatel’s role in the Community Service department?
Did he succeed John Ferren?
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MR. KAPP: After Allen completed his term with the new department, John began
looking for a deputy to work with him. David had been the head of
the Chicago Lawyers Committee for Civil Rights, and Executive
Director of the National Lawyers’ Committee for Civil Rights. John
and others in the firm encouraged David to join the firm; and later
when John left to become Corporation Counsel for the District, David
took on the role of the head of the Community Service Department.
Later, after a period of government service, David returned to the
firm to head its education practice.
MR. NATHAN: At Hogan & Hartson?
MR. KAPP: At Hogan. And then a group of other partners, all drawn from the
firm, headed the department, one of whom was Sally Determan.
MR. NATHAN: In the same vein, let’s talk a little bit about civil rights. How did you
get involved originally in civil rights?
MR. KAPP: I was, like I suppose just about everybody else in America, quite
affected by what was going on in the south in the early efforts of the
civil rights movement. I had not paid particular attention to the civil
rights struggle until the ferment started in the ‘60s, in the early ‘60s.
The first thing that I remember happening was during the March on
Washington, which is described in my American Lawyer profile. I
was standing on the curb . . .
MR. NATHAN: This was in 1963?
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MR. KAPP: 1963, I never had done anything like that before, but I stepped off the
curb and joined the March. And that was kind of the beginning of it.
And then I did a number of things on civil rights type matters. In the
early 1970s, consideration was being given in Montgomery County to
creating clusters of elementary schools in order to integrate the public
schools. They were by reason of geography quite segregated. There
was a ten person group or committee that was appointed to develop
our community’s position with respect to any clustering of
elementary schools. I was appointed to that committee. I joined with
two other people, one of whom was Rachel Kennedy, who was the
mother of Harvard Law School professor Randall Kennedy and was a
kindergarten teacher at Chevy Chase elementary school and an
African American, and with a psychologist by the name of Joseph
Slavin. We took the minority position that the clustering should go
forward and that there ought to be busing from Chevy Chase
Elementary School to Rosemary Hills School and back in turn from
Rosemary Hills School to our school in Chevy Chase. We issued a
minority report. The majority report in the community was to not
proceed with the clustering. And I testified before the Montgomery
County School Board in favor of the clustering plan and the Board
did adopt the cluster of the Chevy Chase Elementary School and
Rosemary Hills; which cluster still exists and I think has been quite
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successful. At some point shortly after that, David Tatel became
aware of the work that I had done and David, who had a long time
involvement in the Lawyers Committee for Civil Rights urged me to
join the board of the Committee. I was delighted to do that and I did
do that.
MR. NATHAN: Was that the national board or the local board?
MR. KAPP: That was the national board. Before that time I had been on the local
board which I had chaired. I might mention the background of the
Committee. The Lawyers’ Committee was established in 1963 at the
time of an effort to desegregate the schools in the South and
particularly the University of Alabama. President Kennedy called
together and invited to meet at the White House 250 prominent
lawyers, bar leaders and what have you to urge the lawyers to become
involved in and intervene in various ways in the civil rights effort. I
was not among those invited. Following the conference at the White
House a group of the lawyers who had been invited to attend the
meeting established what became the Lawyers Committee for Civil
Rights and began working on providing representation to civil rights
workers in Mississippi. So that was a big commitment of mine for a
long time.
MR. NATHAN: Who were other Washington lawyers who were on the National
Lawyers’ Committee around that time?
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MR. KAPP: There was at that time John Douglas from Covington & Burling,
Steve Pollak, from Shea & Gardner, John Nolan from Steptoe &
Johnson, David Tatel and Peter Connell, who was the general counsel
of Aetna. Those were the principal people that I knew at that point.
MR. NATHAN: And then how did you get involved with the ACLU?
MR. KAPP: I became involved in the early ‘60s.
MR. NATHAN: Before you joined the National board of the lawyer’s committee?
MR. KAPP: Yes. The ACLU was very early. It was in the early ‘60s.
MR. NATHAN: Even before you stepped off the curb?
MR. KAPP: It was about the time that I stepped off the curb. I had taken on a
number of cases for the ACLU. I think we talked about this last time
around and then I went on the board of the local ACLU which I
eventually chaired and later went on the national board of the ACLU.
I still feel very committed to the ACLU.
MR. NATHAN: At some point you got involved in apartheid in South Africa and in
observing elections. How did that come about?
MR. KAPP: That was a direct result of my involvement in the National Lawyers’
Committee. The National Lawyers’ Committee is basically a
domestic civil rights organization with programs on voting rights,
education, housing, employment discrimination and the like but they
felt an affinity to what was going on in South Africa — apartheid in
South Africa. They established a committee of the board to focus on
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South Africa related matters. What we did principally was to fund
lawyers in South Africa who were representing people who were
protesting against apartheid in one form or another. And then, during
that same period, a series of protests developed in Washington and, of
course, all over the United States. But the one that I was aware of
occurred in Washington. There were a number of demonstrations in
front of the South African Embassy and the Lawyers’ Committee
participated in that effort. And after that, the first break in the
apartheid regime in Southern Africa occurred in Namibia. Namibia
had been under German mandate. In fact, it was once known as
German Southwest Africa. Thereafter, South Africa was given the
mandate to govern Namibia. After that — I think around 1966 — the
international community became concerned and the UN mandated
that South Africa leave Namibia and work commenced toward
Namibian independence. That went on for quite a long time. By
1989, the transition to Namibian independence had accelerated under
United Nations oversight. And as part of the transition, elections
were held in Namibia and I went with a group of fellow members of
the Lawyers’ Committee on an election assessment project in
Namibia. In 1989, we went to Namibia on three different occasions
for two week assessment periods.
MR. NATHAN: These were in advance of the elections?
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MR. KAPP: These were in advance of the election. We were trying to assess
whether the environment was congenial to the conduct of free and
fair elections. We looked at the electoral laws in Namibia. There
was a great deal of intimidation of Namibians who were to participate
in the electoral process. We made comments on the electoral laws
and the electoral process. Ultimately, they did move to independence
toward the end of 1989 and they held their election and they’ve been
independent ever since.
MR. NATHAN: Were you there for the elections?
MR. KAPP: I was not there for the election.
MR. NATHAN: Were there international observers at the election?
MR. KAPP: There were international observers other than the Lawyers’
Committee group. I think the National Democratic Institute was
there and National Republican Institute and a few others. There were
nowhere near the number of international observers as in the ultimate
South African elections. But there were others.
MR. NATHAN: And then, I guess the elections in South Africa were in 1994?
MR. KAPP: Yes.
MR. NATHAN: And did you go in advance of that or did you attend simply for the
election?
MR. KAPP: I went as an election observer at the time of the election. I was there
for two weeks. I went again with a group of people from Lawyers’
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Committee. We first spent three days in a training in Johannesburg
and then were sent out to various different locations. I was sent out
to an area called Bophuthatswana and was there for 10 or 11 days,
first observing the electoral conditions, talking to people in the major
political parties, journalists, churches, the unions, about the
conditions; and then ultimately on the day of the election to observe
the voting.
MR. NATHAN: What did you observe? What was your impression?
MR. KAPP: I’d have to say it was, for me, the most moving experience of my
lifetime. I remember coming to the polling place on the day of the
election itself and there were these enormous lines of people patiently
waiting to vote. For black South Africans who had been treated so
brutally over the years I observed an incredible amount of forgiveness
and a great deal of enthusiasm about being able to participate in the
electoral process for the first time. These people were entirely
inexperienced with voting. I can remember one time we went into a
polling place where the voting booths were to have been set up so
that the voters could stand behind them to preserve the privacy of the
ballot. We saw that all the booths were setup in the wrong direction
so that the ballot could be seen by everybody in the room. So we
showed them how they should turn around the little booth, which
they did and went forward. It was the enthusiasm for participation in
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the voting process that was in my mind incredible.
MR. NATHAN: You described it as a triumph for the human spirit. What did you
mean by that?
MR. KAPP: I think I really had in mind the forgiveness component. The
combination of the forgiveness of the former government and the
enthusiasm which they demonstrated in participation in the electoral
process. There were lines of 5, 6, 7 hours; these people waited and
waited peacefully and patiently.
MR. NATHAN: Did you see any intimidation or any indication of problems?
MR. KAPP: No. Not at that time. There was no evidence of intimidation on the
election day itself, but there were many complications along the way.
This was true in Namibia as well. Many of the black South Africans
were farm laborers; they worked on farms which were white-owned.
There was a lot of intimidation. The owners intimidated these
people; they tried to keep observers out; many of them were armed at
various times. It was very difficult. Then there was just a great deal
of violence in South Africa on the days leading up to of the election.
But by the time the voting actually started things really had calmed
down.
MR. NATHAN: Was it a one day vote?
MR. KAPP: It was a one day vote.
MR. NATHAN: And that day you didn’t see any violence or threats?
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MR. KAPP: There wasn’t, no.
MR. NATHAN: When you say they were intimidating, the white owners of the farms,
were they seeking to preclude the voters from voting or were they
trying to get them to vote for a white candidate?
MR. KAPP: There was a combination of things. There was some effort to
preclude them from voting; and in other cases they were attempting
to persuade the employees on their farms to vote in a particular way.
MR. NATHAN: I want to turn the same time period to the Bork nomination in the US
to the Supreme Court. Did you play a role in the opposition to Judge
Bork being confirmed for a Supreme Court nomination?
MR. KAPP: I did play a modest role.
MR. NATHAN: What was your role?
MR. KAPP: There were a lot of other people who had roles. There was a pretty
strong feeling, particularly in the civil rights community and among
many of the progressive organizations, that Judge Bork’s judicial
views were outside of the mainstream. He had said at one point that
Brown vs. Board of Education was wrongly decided, that he was
opposed to affirmative action, that he was opposed to antidiscrimination laws and so forth.
MR. NATHAN: Antidiscrimination laws?
MR. KAPP: Pardon me
MR. NATHAN: He was opposed to antidiscrimination laws?
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MR. KAPP: Opposed to antidiscrimination laws. So there was an effort among
what I’d call the liberal community to oppose his nomination. It was
an important nomination since he was to succeed Justice Lewis
Powell who had been very much a swing vote on the Court. And if
Judge Bork would have been confirmed it would have moved the
court in an extremely conservative direction. So there were a number
of organizations — a coalition of organizations — that included the
Alliance for Justice, the NAACP Legal Defense Fund, the Lawyers’
Committee, the ACLU, which had come together to oppose the
nomination. And I was asked, along with four other lawyers —
former Judge Marvin Frankel, David Isbell, Former President of the
D.C. Bar, Jay Topkis, a New York constitutional lawyer, and the head
of the City Bar of New York — to try to mobilize prominent lawyers
in major law firms to join in opposing the nomination. We prepared a
letter opposing the nomination and then sought lawyers to subscribe
to the letter to oppose the nomination. And we did obtain a great deal
of support; and presented that to the Senate Judiciary Committee. As
we all know, Judge Bork was denied confirmation. The
administration then turned to Justice Anthony Kennedy who was
confirmed and has played an extremely significant role on the Court.
I’ve always had somewhat ambivalent feelings about all of this. I’m
clear in my own mind that if Judge Bork had been confirmed the
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direction in which the Supreme Court would have gone would have
been undesirable. On the other hand, I’m quite aware of the fact that
all of the present controversy over Supreme Court nominees and
efforts to stop nominations on both sides was provoked in many ways
by the Bork nomination process. And I’ve wondered at many times
whether this was a desirable result. On the other hand, on balance,
because I think that Judge Bork would have been such a disaster for
the Court and for the country, I’ve come to terms with it. But not
without some reservations.
MR. NATHAN: Do you think that there were tactics or approaches used in the
opposition to the Bork nomination that were inadvisable?
MR. KAPP: No, not particularly. It was the intensity of the attack.
MR. NATHAN: Have you see Judge Robertson’s recent op-ed piece on this?
MR. KAPP: I have seen his and for our readers sake you may want to describe it.
MR. NATHAN: He’s essentially calling for a truce here and suggesting that that kind
of opposition not be repeated with respect to the current nomination.
How do you come out on this?
MR. KAPP: I must say I, in some respects tend to agree, with Judge Robertson, as
an abstract proposition. It would be much better if these nominations
were handled in a different way. But, on the other hand, Judge
Robertson is prepared to now call a truce here without the other side
laying down their arms. This is a two-way street. Elections have
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consequences. People who are highly qualified in most cases should
be confirmed.
MR. NATHAN: But it’s a curious time to call a truce following what happened to the
chief judge of the DC Circuit Merrick Garland.
MR. KAPP: I agree entirely with that.
MR. NATHAN: In 2012 you received the lifetime achievement award from the
American Lawyer and you were in some pretty heavy company. I
take it that was a great honor for you?
MR. KAPP: I was in some really distinguished company. Senator George
Mitchell, Judge Margaret Marshall, of the Massachusetts Supreme
Court and several other distinguished people. I felt quite honored and
privileged.
MR. NATHAN: Did you make a speech at that time?
MR. KAPP: I did.
MR. NATHAN: What was the essence of your remarks?
MR. KAPP: The essence of my remarks, recognizing that I received this award by
reason of my efforts to mobilize lawyers for pro bono work and for
professional responsibility and for both the work I had done in
establishing the firm’s Community Service Department and
subsequently in establishing the International Senior Lawyers Project
was basically a call for greater professional responsibility and greater
pro bono participation on the part of lawyers.
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MR. NATHAN: You said at the time that your highest professional achievement was
co-founding and developing the International Senior Lawyers Project.
How did that project come about?
MR. KAPP: I still feel that way. I was getting ready to retire from the practice of
law; I was 66 or 67 years old and I was beginning to think about what
it was I would like to do on my retirement. I had lunch one day at
Dean and DeLuca in Washington with Tony Essaye who is my age
and who was getting ready to retire from his law firm. And we
started talking about what it is we might do on our retirement. He
and I had worked together on several projects for the Democratic
National Committee — legal projects for the Democratic National
Committee — and we knew one another socially. We were friendly.
MR. NATHAN: When was that work with the Democratic National Committee?
MR. KAPP: It would have been at about the time of the Clinton administration.
MR. NATHAN: So back in the early ‘90s.
MR. KAPP: The early ‘90s. In any event, we started talking and we developed the
notion of trying to establish a not-for-profit organization which would
send lawyers overseas on a pro bono basis to do human rights and
economic development, primarily in developing countries. We
started out by pulling together a group of lawyers in Washington — a
working group of lawyers in Washington — who were interested in
those particular matters and had pretty strong international interests.
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Tony had been the Deputy General Counsel of the Peace Corps and
his practice had been primarily in the international commercial area
and so he was very interested in the economic development piece of
this. I had been involved in some human rights activity and that was
my particular interest. So we began to meet with a working group of
seven or eight lawyers and began to develop this idea. Ultimately, we
established a not-for-profit organization which we called the
International Senior Lawyers Project to mobilize volunteer lawyers to
work on human rights and economic development overseas. Our
model was Doctors Without Borders.
MR. NATHAN: Were the lawyers from a lot of different countries or mostly U.S.
lawyers?
MR. KAPP: When we started out it was almost entirely U.S. lawyers. The
originating group consisted entirely of Washington lawyers who
Tony and I knew. But when we established our Board we added
some lawyers from New York City, lawyers from Cleveland and
Boston, one from Poland and another lawyer from South Africa. And
then, about five years into the organization, we organized a group of
continental European lawyers to establish an affiliated organization.
Subsequently, we merged with a group called the International
Lawyers Project, a United Kingdom organization. They still exist
today as an affiliated organization.
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MR. NATHAN: And was it a problem for American lawyers to handle problems in
these developing countries?
MR. KAPP: Many people have asked me that and many people have expected that
the answer would be yes it’s a problem; the legal systems are
different, but the truth of the matter is that when we work in a
particular country on a particular project we ordinarily associate with
a lawyer from that particular country. Then, many of the projects
have involved negotiating transactions. These are not affected by
differences in the law. The laws are learnable and so it never really
has turned out to be much of a problem.
MR. NATHAN: And where did the funding come from for this?
MR. KAPP: The funding has come from three different sources. A group of law
firms, a number of private foundations — the largest support has been
from the Open Society Foundation — and from individual lawyers.
The way things started out on the funding front was quite remarkable.
Early on the idea of the organization was a gleam in Tony’s and my
eyes. Someone gave us an introduction to the Open Society
Foundation in New York and we were invited to go up there and meet
with them. We walked into their building in New York and there was
this big sign – “Welcome International Senior Lawyers Project” —
which as I have said was only a gleam in our eyes. We met with
them and they began to fund us. They have since been our principal
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funder; our largest single funder.
MR. NATHAN: And what would you say are the major accomplishments of the
International Senior Lawyers Project?
MR. KAPP: Well, one major accomplishment is our commercial law training
program. We have trained over 1,000 young black lawyers in South
Africa in commercial law matters in an effort to mainstream them
into the profession. Most of them have come from third tier law
schools and continue to find their practice limited to criminal matters,
torts and a number of matters which from an economic standpoint are
not particularly attractive. We’ve done a great deal of this training in
South Africa and we’ve expanded the program into other countries in
southern Africa including Zimbabwe, Botswana, and Gambia. That
was one of our earliest programs and continues today, It has been
terrific. Another major accomplishment has been the work that
we’ve done in negotiating natural resource concession agreements
between African countries and major multi-national corporations.
The countries in southern Africa are rich in natural resources and they
continually find themselves having to face up to the massive legal
resources of large multi-national corporations. They were just
outplayed from a legal standpoint. In recent years, we have
negotiated a number of these transactions. I think we’ve done a lot
toward leveling the playing field and to ensure that the countries get a
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fair shake economically. That finds its way to the benefit of the
people of these countries. There is then the case of an Angolan
journalist who had uncovered and publicized corruption in the
Angolan government. The government then turned around and tried
to prosecute him criminally. We found lawyers in Portugal to
represent him. They turned the prosecution around; the case was
dismissed. Our program of promoting press freedom, the protection
of journalists and access to information has been particularly
effective and is widely recognized as a premier international media
law organization. Overall, we have now worked in 60 or 70
countries.
MR. NATHAN: Have you worked on some matters personally for the project?
MR. KAPP: With a few minor exceptions, I have not.
MR. NATHAN: That’s surprising.
MR. KAPP: For the most part, neither Tony nor I worked, to any extent on any of
the organization’s projects. Our work in building the organization
and administering it was pretty much a full time job for just about 15
years. There have been constant challenges in developing projects,
raising money, recruiting volunteers and the like. We pretty much
confined ourselves to that. From an oversight standpoint, I would
note that we have a staff of 12, plus several interns, with offices in
New York and London.
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MR. NATHAN: You were doing some work with Mary Robinson.
MR. KAPP I did. That was a separate project.
MR. NATHAN: What was that?
Mr. KAPP Mary Robinson had been the President of Ireland and then the UN
High Commissioner for Human Rights. When she left the UN she
established an organization in the United States to carry forward a
human rights program worldwide. I was introduced to her by my
partner, Joe Hassett. She needed someone to help her organize and
setup the organization. I did that for her and we became friendly in
the course of that. I was interested in the program she was carrying
forward. I then worked with her part-time for 6 or 7 years. This
included trips to Tanzania, Mali and other parts of the world.
MR. NATHAN: While working full-time on the International Senior Lawyers Project?
MR. KAPP Yes, exactly.
MR. NATHAN: Well as we wrap up I wonder if you have some thoughts on major
changes in the practice of law for close to 60 years that you have been
practicing in the District of Columbia
MR. KAPP Yes it so happens that one of the partners at Hogan Lovells, Bob
Duncan, teaches a course at the University of Virginia which is called
Big Law. He covers various issues confronted by major law firms.
He invited me down there last September to talk about what had
happened over the course of my career in terms of changes in the
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profession.
MR. NATHAN: So you just happened to have a 60 minute lecture on this topic.
MR. KAPP Not quite, but I did talk about what had happened in my lifetime,
focusing mainly on Hogan. I came there as the 43rd lawyer; there
were no women lawyers at the time; and no lawyers of color. There
was very limited involvement in pro bono work. The firm now has
2400 lawyers. They are hiring more women these days than men.
There are few lawyers of color but some progress has been made in
this area. This is still a major issue for the firm and more generally
for the profession. Overall, I think it is a much more difficult
environment than it was when I joined the firm.
MR. NATHAN: In what way?
MR. KAPP I’m not saying the practice was entirely relaxed but there was not the
intensity, not the continual demand on billing of hours and collections
as today. There is no security even for people promoted to
partnership anymore.
MR. NATHAN: Basically what accounts for the difference?
MR. KAPP I think that what happened was that the investment banks, which were
in many cases the clients of these law firms, were paying enormous
amounts of compensation. The lawyers working with those same
people saw that there was an opportunity to do much better
financially. That was one factor. There are probably a number of
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other factors but that certainly was a major one that led to the kind of
competition that goes on within the firms. The practice in these firms
is probably much more interesting, and much more challenging, than
it was when I was at Hogan with 42 or 43 lawyers. Much of it is
pretty exciting work. International work — you fly to London –; you
have women in the profession which is a great improvement; and the
effort to diversify racially is a great thing. These firms when I started
were made up of all white males and tended to be very conservative.
I think there is a greater sense of professional responsibility but it is
harder to carry it out because of the incredible time demands.
MR. NATHAN: You want to comment on the difference in technology over the last 60
years in the practice world?
MR. KAPP Well I must say being a bit of a dinosaur my comments are probably
not particularly helpful. But when I started, if you wanted copies of
your work the only way was through the use of carbon paper. One
great difference is in the information that is available through the
internet. When I would go into the library here at the firm everyone
would be sitting there reading their books. Now you go into the
library, to the extent it exists at all, there is nobody there.
MR. NATHAN: Everybody is on the computer
MR. KAPP They are all working on their computers. It used to be that everyone
had a personal secretary. Now all the lawyers do their own word
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processing. So the assistants cover many people. It’s different, it’s
not necessarily better. It has its good features but I think some
weaknesses in terms of the life that one has to lead.
MR. NATHAN: And finally what advice would you give to lawyers who are starting
out today? Would you encourage bright college graduates to go into
law?
MR. KAPP I think if you look at the alternatives the law is still a pretty good way
to go. It opens up multiple possible avenues. So I wouldn’t
necessarily discourage people. I think it is a much harder road to hoe.
I would continue to promote the idea of lawyers taking professional
responsibility seriously; doing pro bono work; doing public service. I
think all those opportunities are still available to lawyers. It’s harder
to do.
MR. NATHAN: Okay. Is there anything that I didn’t ask that I should ask?
MR. KAPP I don’t. Let me just see here.
MR. NATHAN: Any additional thoughts?
MR. KAPP No, I think we have pretty well covered it and I thank you for that.
MR. NATHAN: Thank you very much for allowing me to interview you.
MR. KAPP You’re welcome.