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ORAL HISTORY OF THE HONORABLE JOHN FERREN
Third Interview
January 8, 2002
This interview is being conducted on behalf of the Oral History Project of the District of
Columbia Circuit Court. The interviewee is John M. Ferren. The interviewer is Robert H. Kapp.
The interview took place at the offices of Hogan & Hartson L.L.P. on the 8th day of January
2002, shortly after noon. This is the third interview.
Mr. Kapp: John, the last time we were together we discussed the period in which you
attended Harvard University, and we stopped at the point where you indicated to
me that you had met Ann, whom you subsequently married, and we thought we
would pick up at that point. So I wonder if we could start with your talking about
that period and with your meeting Ann and your subsequent marriage.
Judge Ferren: At the beginning of my junior year at college, one of my college friends, Joe
Speidel, introduced me to his younger sister, Ann, who had just come to Radcliffe
as a freshman, and we began to date fairly soon. To fast forward, we were married
after my second year at Harvard Law School in the fall of 1961 after she had
graduated from college. We eventually had two sons, Andy (Andrew John), born
in 1964, and Peter (Peter Maxwell), born in 1969. We were together for 21 years,
separating in 1982.
Mr. Kapp: I think you had indicated to me at one point that you had at least been considering
entering the ministry and that at this point in time you had a change of heart about
that, and I wonder whether you might tell us about that.
Judge Ferren: Well, yes, I guess I was increasingly having an interest in my field, History, and
Ann happened to be Roman Catholic, I was Presbyterian. As we continued to go
together, it seemed infeasible, to say the least, that I would pursue the ministry if
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we were to pursue that relationship. And so the marriage trumped any desire to do
that, and, of course, as you know, I went on to law school two years before we
were married in 1961.
Mr. Kapp: Can you tell me when it was, if you can recall, that you decided that you wanted
to pursue law as a career and wanted to enter law school?
Judge Ferren: I was very much interested in political affairs, public affairs, I suppose I should
say, public service even. But I wasn’t at all sure, once I had realized that the
ministry was not a calling I was to follow, exactly what I should do. I went back
and forth between going to the Graduate School of History, American History, to
become a professor of history, or to go to law school, which almost by default
seemed to be the only other way to hedge your bets when you don’t know what
you want to do. As it happened, I had a number of friends a year ahead of me in
college. We were together on the debate team, all of whom, it seemed, went to
Harvard Law School. Maybe I was something of a lemming, just following along,
but that’s what I did. I did not apply anywhere else. I was not excited about the
first year at law school. I probably should have taken a couple of years off to
really get motivated to continue after four years of college. (In fact, I advised my
son, Andy, not to go on to graduate school for a couple of years when he
graduated from college.) But I went right on to law school, and after that first year
I decided that I really belonged in the Graduate School of History. In fact, I had
decided that by April of my first year and enrolled with Dr. May’s help at Harvard.
I even started to study Spanish in the summer in my spare time, because you
needed some languages for a Ph.D. But I came back to Cambridge early. I was
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going to room with a friend of mine, a couple of friends of mine that I had been
with before in law school. And not having withdrawn, I went to see what classes I
would miss in switching out of the law school. To make a short story of it, I never
left my seat.
Mr. Kapp: Can you give me some indication of what your reactions to law school were and
your impressions of the law school experience?
Judge Ferren: In the first place, I really wasn’t sure what the practice of law was about. I looked
at the listing of courses and some of them were self-evident, I guess – property,
contracts. There was a course called “agency.” I didn’t have a clue what agency
was when I started. So I went to school rather skeptical about whether I wanted to
be there, ignorant of what the study really was. And I discovered, although I had
been told by my friends to anticipate this, that the professors were not warm and
fuzzy. It was quite a brutal experience, the Socratic interrogation that we all went
through. I don’t know if I was shy, but I didn’t particularly enjoy the day-to- day
preparation and berating that we all went through in class. (I should say that my
friends who had been math majors and had to be prepared for class all the time are
quite used to this. But those of us who had majored in history and then took
weeks off at a time to go on a debate circuit and could cram at the end were not
used to this kind of daily grind, and I guess I just didn’t take to it right away.) I’m
glad to say that when I went back for the second year (as I say, I never left my
seat perhaps because I was stubborn and didn’t want to be a quitter more than a
feeling that I really wanted to continue) I relaxed, enjoyed the school very much,
and am certainly glad I did stick with it.
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Mr. Kapp: When you look back at the law school experience, how would you regard it from
the standpoint of professional preparation?
Judge Ferren: I think I went through school wrongly in one sense. Rather than take the best
professors I could find, I did actually try to take courses that I thought would be
most useful in practice, some of which I undoubtedly would not have taken if I
were looking for the best education at the school. Nonetheless, I certainly felt I
got a good grounding in the various principles of law, or some of the transactions,
but it really wasn’t until I had a summer clerkship at a law firm in Chicago, and
then went to work for a law firm the next year, that I had any real inkling of what
the practice of law was about. I didn’t do any clinical work. There was virtually
none available at the time, and the courses, as you know, weren’t structured with
problem solving and legal documents and what have you. I think the only
practical experience I had that gave me any real insight was a competition in
contract drafting. I was on a team of three fellows, with Mo Ford and Ron
Heinlen, and we actually won the contract drafting competition, so I felt I’d
accomplished something there and understood a little bit. I guess I was a pretty
reluctant law student for much of it, but, as I said, it did grow on me and must
have given me sufficient grounding, because I didn’t find making the transition to
a law firm particularly difficult.
Mr. Kapp: What about life preparation? Do you think your law school experience had much
of a positive impact on life preparation?
Judge Ferren: That’s a hard question. It certainly helped me learn to analyze problems. Whether
it’s a public issue you are reading about in the newspaper, or a problem you’re
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dealing with in practice, there is some kind of rigorous analytic ability that the
law school helps develop. In that sense, it gives you a lot for life preparation,
largely in terms of your career as well as your role as a citizen. Beyond that I don’t
know. Certainly, there were a lot of people there that I enjoyed and kept up with,
but law school didn’t massage your more sensitive and more feeling side in those
days, at least the legal education I had did not. So I think it’s a fairly narrow
experience and thus helps prepare you on one narrow side of life.
Mr. Kapp: Do you think, or would you say, there was any encouragement there for public
service?
Judge Ferren: Not at all when I was at the law school. It was strictly an education for private
practice with large law firms. Remember, I was in school and graduating in 1962,
before the Civil Rights Movement had begun to command major attention- at
least mine- in the North. Just as in college, the major issues of public importance
seemed to be – or at least were to my narrow mind — nuclear testing, foreign aid,
the union shop versus right-to-work laws, and recognition of Red China. I can’t
remember anything outside of Sputnik when I was in law school that really
tweaked my so-called “public interest” nerve.
Mr. Kapp: The Civil Rights Movement was then in its infancy. Did that have an impact on
you during the period when you were in law school?
Judge Ferren: Not at law school, but as we were about to leave Cambridge, I went down to
Woolworths in Harvard Square to get some rope and some packing materials to
ship books and other things back to Illinois. There were a couple of bearded
divinity students picketing outside of Woolworths. I had no idea what they were
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doing. I soon learned that they were picketing in sympathy for the lunch counter
sit-ins at Woolworths and elsewhere in the South as part of the Civil Rights
Movement. So I think, literally, as I was leaving Cambridge, the Civil Rights
Movement was manifesting itself in the North. Immediately after that, I went to
work for the largest law firm in Chicago and had to come to terms with that
vocation as the Civil Rights Movement was taking off. I was certainly very, very
much aware of a conflict within myself at that point.
Mr. Kapp: Well, before we get into that, I wonder if when you look back, there were any
professors at law school whom you would now view as mentors or role models?
Judge Ferren: That’s a little hard to sort out because, as you know, I went back to Harvard in
1966 to direct the Legal Services Program and eventually join the faculty. I got to
know the professors then personally in ways that I did not get to know them when
I was a student. I frankly cannot think of anyone at the time when I was a student
whom I particularly considered a mentor or whom I particularly looked up to.
Mr. Kapp: Anybody at that time who encouraged any kind of public interest lawyering?
Judge Ferren: Not that I was aware of. This is not to say it didn’t go on, I just was not within the
orbit of whatever influence there was. Professor Frank Sander, who taught me
tax, became one of the leading spirits of public interest law at Harvard. And
Livingston Hall, who taught me agency, similarly did. David Cavers became very
much interested. So there were people there whom I got to know not long
thereafter that I certainly to this day look up to. But when I was a student, I guess
I had my blinders on. And then when I was married for my third year in law
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school, I was attentive to that far more than to my studies. I was looking for a job
and really didn’t tune in to any person who would motivate me to higher lights.
Mr. Kapp: Any classmates who have remained particularly close friends?
Judge Ferren: Well, yes, Byron Johnson, who eventually was on the Supreme Court of Idaho,
was a roommate and has remained a close friend. He and I were friends in college
as well. I’ve been close over the years as well with John Morrison, a classmate I
did not know until we arrived together at Kirkland, Ellis in Chicago. And there are
David Birenbaum, John Christie, Mo Ford, Greg Harvey. I really can’t say that I
have stayed close to other law school classmates.
Mr. Kapp: Any of your classmates that you can recall who have had particularly
distinguished legal careers?
Judge Ferren: Although I have never met him, Richard Posner. He was first in our class most of
the years we were there and became a very distinguished law professor at the
University of Chicago and later Chief Judge of the Seventh Circuit. Lloyd
Weinraub is a professor of law at Harvard, criminal law, whom I have enormous
respect for. Three of my classmates became United States Senators: John Culver
from Iowa and Bob Graham from Florida. And Jim Jeffords is a classmate-
Senator from Vermont. Greg Harvey has had a distinguished career as a lawyer in
Philadelphia. So we have had a number of illustrious classmates, and if I thought
about it, I’m sure I could come up with others. Certainly, many leading lawyers
throughout the country. As I said, my roommate, Byron Johnson, was on the
Supreme Court of Idaho.
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Mr. Kapp: How about your academic performance at law school? Do you have a recollection
of how that all came out?
Judge Ferren: Well, I surely do. The first year was very disappointing. I would call it a personal
disaster. There are reasons for that that I won’t go into, but it probably shakes
down just to lack of commitment and motivation. But the second two years were
much better, and I guess the fact that I was asked not long thereafter to join the
faculty indicates that the school felt I had an academic career there that did not
embarrass them.
Mr. Kapp: Would you briefly describe the importance of Harvard and your Harvard contacts
on your subsequent legal career?
Judge Ferren: Well, I think Harvard certainly set the standards of excellence that I have always
tried to achieve. I don’t know if that’s more me or more Harvard, but at least the
standards of excellence were there. And that means being careful, being ethical.
We didn’t have a legal ethics course as such, or at least none that I took, but I did
get very strong messages from the faculty in various ways about the importance
of honesty and integrity in the profession. Also, there can be no doubt that when
you graduate from a school that large and a school that well known, you know
people around the country. But I honestly cannot say that I’m aware of any
instance when, in any sense, I traded on that relationship. I mean, there probably
were all kinds of instances where I dealt with lawyers from Harvard, either in
private practice or socially, but I just don’t have a sense of it as a network that has
been particularly important to me. Again, it’s a little hard to talk about, because
when I went back to direct the Legal Services Program and got involved at the
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faculty level and met a lot of people and a lot of students from many other classes,
I certainly developed scores and scores of Harvard acquaintances and many new
friends, and I’ve kept up with a lot of those. But that’s Harvard as a fortuitous
broker of relationships. I don’t know that the institution as such had any particular
impact in the way you are raising the question.
Mr. Kapp: What about extracurricular activities during the period at which you attended law
school? Were you engaged in anything outside of the law school, or anything
within the law school other than basically pursuing your studies?
Judge Ferren: There was the mandatory moot court program, conducted through law clubs,
during each semester of the first year, but the only thing I pursued after that was
the contract drafting contest, the Williston Competition, and unless I’m forgetting,
I pursued no other law school activity of any kind.
Mr. Kapp: Were you doing any outside reading at that time? Either magazines or books?
Judge Ferren: Not that I can recall. I probably would read a book or two that I received for
Christmas, but other than that, it was strictly trying to get through those
casebooks.
Mr. Kapp: Well, that would be difficult enough.
Mr. Kapp: Following graduation, you went to work with a large law firm in Chicago. Can
you tell us how that came about?
Judge Ferren: Yes, I had worked for a very fine firm the previous summer, Chapman & Cutler,
in Chicago, and I then broadened my looking. We were pretty sure we wanted to
relocate in Chicago. My wife, Ann, was from Minneapolis and had no desire to
return there, and so we decided on Chicago. I interviewed at a number of firms,
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and Hammond Chaffetz, a distinguished antitrust lawyer, was head of recruiting
for the Kirkland, Ellis firm. He and I hit it off very well, and I felt fortunate to
receive an offer and accepted it.
Mr. Kapp: And what would you say the firm was like at that time? How would you describe
the firm?
Judge Ferren: I would describe it as the Chicago Tribune’s law firm. It seemed to have lawyers
about 75% of whom were either from Harvard or the University of Chicago.
There were a few from Michigan, maybe one or two from Yale, a school that the
firm for whatever reason frowned on at the time. The rest were from a variety of
other schools. I guess this reflected the alumni allegiances of the principal
partners at the time.
Mr. Kapp: And how large was the law firm? Do you remember that?
Judge Ferren: Kirkland was the largest firm in Chicago in 1962, and I think there were around
85 or 90 lawyers, clearly not as many as 100. They had an office in Washington
that I am not including in those numbers. It was interesting to note that on the
28th floor of the Prudential Building there were “trial” lawyers, including a
number from local law schools, who handled cases in the state courts, and on the
29th floor there were “litigators,” mostly from the more prestigious schools, who
handled cases in federal court.
Mr. Kapp: And what do you recall about the nature of the work that you did while you were
there?
Judge Ferren: Those were the years when the electrical price-fixing cases against Westinghouse
and General Electric were big business for the law firms, and Kirkland
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represented Westinghouse. They represented other major corporations in the
antitrust field. Instantly, after working on one or two antitrust cases, I decided I
was not interested in antitrust or any large litigation. There were no such things
as paralegals then, and young associates in law firms basically went into dusty
back rooms pouring through documents in cases that were going to last forever,
and if that was the practice of law, I thought I had made a dreadful mistake.
Through a stroke of good fortune, I began working with two younger partners,
Elmer Johnson and Bill Jentes, and with Bill I worked on some smaller litigation,
industrial espionage, that was fascinating. With Elmer I did some corporate work.
Kirkland was very loosely organized, and you tended to get to work on all kinds
of things, rather than strictly department by department. I also learned quite
quickly that Illinois had just adopted the Uniform Commercial Code, and my
class coming out of law school was the only group who knew much about the
Uniform Commercial Code. So I did some banking work. All things considered, I
gravitated to the corporate transactional side and thoroughly enjoyed working
with it in direct proportion to how small the client was. Elmer Johnson and others
had smaller clients that couldn’t afford their rates, so they would just turn them
over to me, and I had quite a few clients that I worked with and enjoyed very,
very much.
Mr. Kapp: And what was your impression of the overall law firm environment?
Judge Ferren: Well. Let me think. Very conservative politically, which wasn’t me. And very, very
able. I mean, I can’t tell you how highly I regarded every lawyer for whom I
worked there. And it was very hard working; at the time I joined there, you were
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expected to work a half-day on Saturdays and, of course, we worked many nights.
So it was a very hard- working firm. I felt in the short run I was glad I was there,
because I was learning to practice law at the hands of some very talented, able
lawyers.
Mr. Kapp: You said earlier that at some point a conflict developed in your own mind about
the nature of the work you were doing. I think you mentioned it in the context of
the emerging Civil Rights Movement. Could you elaborate on that a bit?
Judge Ferren: Yes. I was, of course, aware of the developing Civil Rights Movement, and as a
would-be minister at one time I guess I had the kind of conscience that was
concerned about what kind of legal services people in the low-income community,
racial minorities, and others for that matter had. I had lunch with a fellow from
high school, a friend of mine who was several years my senior, Coleman Brown,
who was an inner- city Presbyterian minister in Chicago at the time. He told me
flat out that there was no such thing as legal services for the poor in Chicago, or
anywhere else. I had one friend at another firm from my class who I understood
was going to take a brief leave, or perhaps a longer leave, to go south to work in
the civil rights struggle. My friend Coleman said there’s no reason to go South.
“Why don’t you do something about the lack of legal services to low-income folks
in Chicago?” That sounded like a challenge and a charge, and it sounded right. So
a friend of mine from the firm, Bill Theiss, and I approached the Church
Federation of Greater Chicago, which was an ecumenical organization, to find out
if there was a way that we might provide volunteer legal services through
churches, because my friend Coleman had pointed out that the churches were
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probably the only trusted institutions in a city that was at that time dominated by
the first Richard Daley. This was in 1963, late 1963. Sometime in 1963, Bill and I
put together a group of 16 lawyers from around Chicago. We had lawyers serve
once a week in two neighborhood churches – one on the south side of Chicago and
one on the north side – to give legal advice to people who would come in. We
called them the Church Federation Legal Advice Clinics, and that was the
beginning of some interesting interaction, interchange, within our law firm.
Mr. Kapp: How would you describe the nature of the legal services that the clientele required
here?
Judge Ferren: There were mostly problems of landlord-tenant, consumer, welfare, some family
problems.
Mr. Kapp: And how much of your own personal time did you devote to that?
Judge Ferren: Well, I have no idea. It was a lot. I spent a lot of time organizing this, and over a
two-year period, up until mid-1966, we had organized 200 lawyers and expanded
the number of clinics to four or five at that time. So I spent a lot of time at it.
Mr. Kapp: And was your role primarily organizational or were you actually providing
services?
Judge Ferren: It was both. I was in charge of the organization, and I also took my turn. You
would go out there once a month in teams of two. So I did it once a month. I’ll
tell you a story that is embarrassing. I came across a client early on whose
husband had died, and she discovered that his insurance policy had lapsed. As I
mentioned a few minutes ago, we never had a legal ethics course in law school. I
happened to notice that the policy was from an insurance company that Kirkland,
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Ellis represented. My reaction was: that’s great. I’ll just call up, and I’m sure
there’s been a mistake. Well I did that, and within about an hour after my call, a
very senior partner whom I had never met before arrived in my office, saying,
“What the hell are you doing?”– explaining to me, as I should have known, of
course, that I had walked into a direct conflict of interest. I was mortified. I still
thought the woman should get some sort of hearing, but I managed to refer her to
someone else to take it over.
Mr. Kapp: How would you describe the overall attitude of your law firm to the efforts that
you were engaged in?
Judge Ferren: Although we did get several members of the firm to participate, including Elmer
Johnson, John Morrison, and Chuck Shepard, as well as Bill Theiss and me, the
overall attitude at the top was quite negative. But it was negative in an interesting
way. I learned that the Legal Aid Bureau of Chicago, a community chest, redfeather
agency, had negotiated a deal with all of the big law firms. If the firms
would pay a tariff to Legal Aid every year based on the number of partners and
associates – there was actually a formula, a dollar formula for this – then Legal Aid
would agree that they would not call on the firm for the time of its lawyers. So by
our starting a volunteer program, Legal Aid was ticked off because they thought it
would undermine their deal with the law firms, and they would lose money; and
the law firms generally were ticked off because they felt that they had made a deal
for Legal Aid, and now we were forcing them to give more than they had
bargained for. I can tell you that nobody at my firm spoke to me directly about it,
I think in part because Elmer Johnson was very, very close to the movers and
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shakers of the firm, and he basically stood up for it and participated in it himself.
So I had a blocking back, as it were, to help me go through the line. But lawyers
at other firms were not as fortunate.
I don’t know where the initiative came from, but eventually there was a
meeting of several of us younger lawyers who organized this program with a
group of senior partners from the major law firms of Chicago. I think they
extended us an invitation to meet at the University Club or someplace like that.
And we politely suggested the YWCA cafeteria, where we normally met; they
would be welcome to meet us there. We had a very cordial meeting. We explained
that we believed each lawyer had a responsibility to devote a portion of time to
this kind of service, and that was what we were going to do. We never heard a
negative thing since, and the program today, I think, has as many as 1,500 lawyers
on its rolls. It’s stuck all these years and they never looked back.
Mr. Kapp: Was there at the time anything like a pro bono culture that was developing within
these law firms?
Judge Ferren: This was the beginning of one. I’m not aware that there was any pro bono culture
otherwise. I assume, although I did not know, that there were individuals who
were affiliated with the ACLU, for example. The Lawyers’ Committee for Civil
Rights was just beginning. I don’t recall that there was a chapter yet in Chicago at
that time.
Mr. Kapp: Not until 1968.
Judge Ferren: Well, so, we started this a year, 1n 1964 – late 1963 – before there was even a War
on Poverty or the Office of Economic Opportunity Legal Services Program. So, as
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far as I’m aware, this was the first major volunteer legal services program in the
country.
Mr. Kapp: Did you draw lawyers pretty much across the spectrum of the bar in Chicago?
Judge Ferren: Yes. Most were from the large law firms. By that I mean in those days 35 to, in
our case, 85 or 90. But we did have a handful of neighborhood practitioners that
my friend Coleman Brown helped us recruit so that we could include minority
lawyers. Heaven knows they were not members of these large law firms at the
time. They were people of the community who could give some guidance. So
there was a mix, but it did tend to be dominated, of course, by the larger law firm
lawyers.
Mr. Kapp: And were they the younger lawyers or were there more senior people as well?
Judge Ferren: At that time they were all younger lawyers. And by younger we’re talking 25-30.
There may have been some as old as 35, but I’d be surprised if that there were any
older than that.
Mr. Kapp: Other than the meeting that you described earlier with managing partners, senior
partners, at other law firms, did you have any sense that there was significant
resistance within these large law firms to this effort?
Judge Ferren: Well, no. I’ll tell you. We were so aware of the likelihood of strong resistance, and
were so unsure about how much time we could actually bring matters into the
firm, that we held ourselves out as a legal advice clinic as opposed to a full legal
aid clinic- by which I mean we didn’t feel obliged to actually take court cases. If
we got something that was beyond the advice level, we would work with the
Legal Aid Bureau or try to find other resources or bring it to the firm on an ad hoc
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basis. But within a year or so, it became quite unrealistic to just give advice, and,
as a consequence, slowly but surely people brought cases into the firm. I know I
certainly did. And I must say at that time I don’t think that any of us, including the
major people at the firm, really took seriously the fact that these were firm clients.
I think people just did these cases out of their bottom drawer or on their spare
time. They didn’t docket them with the firms but did manage eventually to do
some litigation as well.
Mr. Kapp: And what would you say was motivating the younger lawyers that you were
bringing into the fold?
Judge Ferren: I think it was very much the same motivation that I had. I think there was a
feeling, a need to involve oneself on behalf of less fortunate folks, that was fueled
by civil rights developments. I suspect, too -although this wasn’t true for me
because I had some smaller clients — that there were some lawyers who were
working on nothing but the big antitrust cases and wanted to have some sense of
practicing law that this gave them. But I truly believe, in part because of the
church sponsorship, that most people were motivated out of a pretty altruistic
frame of mind.
Mr. Kapp: And do you have any sense of what happened to those younger lawyers? Did they
stay with their law firms? Did they move out into other public interest areas?
Judge Ferren: I have no real knowledge of that. I do know, though, that some of those that were
present at the creation, so to speak, and continued to practice in Chicago in the
firms, stuck with its program for years and years. It eventually incorporated and
sought financial assistance from foundations. From such contributions, they
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finally got some staff support. And some of the lawyers may have continued their
service more as board of directors’ members than actual lawyers out in the clinics.
But I think a number of them did stay as regular volunteers.
Mr. Kapp: And the program flourishes today?
Judge Ferren: It’s now called “Chicago Volunteer Legal Services” (CVLS), and it no longer has
the Church Federation sponsorship, which I suspect some felt was limiting on
attracting lawyers into the program.
Mr. Kapp: And at some point, I am aware, you came to the attention of the Harvard Law
School again for their plans for a clinical program. And can you tell me how all
that came about?
Judge Ferren: Yes. The City Club of Chicago, which was a civic organization that sponsored
public debates, asked me if I would debate the head of the Legal Aid Bureau,
Arthur Young I believe his name was, on the delivery of legal services in Chicago.
Legal Aid was very skeptical about what we were doing for the reasons I
mentioned. And we were very skeptical of the Legal Aid Bureau, because it had a
single office in the bowels of Chicago that nobody could find. We anticipated the
legal services theory that you needed to be out in the neighborhoods in order to
have a credible program. So, in any event, I gave a speech at the City Club, and
Arthur Young answered it. And we had a little give and take. Not long thereafter,
at Christmastime, I was having dinner with a group of award winners from my
high school, the Oliver Baty Cunningham Award Winners. These were men who
had received awards at the high school- they gave one every year to the senior
boy voted most outstanding- and it was a tradition that the winners got together
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for dinner each year. I happened to sit next to a young fellow whom I barely
knew, but he was at that time at Harvard Law School. We were just talking, and I
was telling him about this program, and he said, “That interests me. Do you have
a copy of your remarks?” I said sure, and I mailed my speech to him in
Cambridge. The next thing I knew I got a call from Frank Sander, my tax
professor, who said, “I read your speech and was really quite taken by it, and I’d
like to get it published in the alumni magazine. I think this idea ought to be
replicated around the country.” I said, “Great.” So it was published in the Harvard
Law Bulletin in 1964, maybe it was in 1965.
That’s how our program came to the attention of Frank Sander at Harvard. In
1965, the OEO Legal Services Program began. There was pressure on the Harvard law
faculty to get students involved in clinical work in the War on Poverty. The law school
had no resources for this, so Frank Sander and others at the school, with the support of
Dean Erwin Griswold, applied to OEO for a demonstration grant to set up a clinic at the
law school to involve students in the War on Poverty. And then the question came, well,
whom do we get to direct this? And I guess they looked at each other, and Frank Sander
probably said, “Well, there’s this recent graduate who wrote this article,” and people
began to ask around. “Oh, we know Ferren.” They called me up and asked if I would
come out and give a talk at the law school about our program. So I flew out in January
1966 and gave a talk about it. I guess this was one of those “look over” events. I had no
idea. In late April or early May, I got a call about midnight from Dean Griswold asking if
I could be at the law school within six weeks to start a program. They just had received
some money from OEO. I was quite flattered, and almost simultaneously I got a call from
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Clinton Bamberger, the new head of OEO Legal Services, whom I’d actually talked with
a year earlier on the phone about our program. He was a very active Catholic layman in
Baltimore with Piper & Marbury, and he wanted to start a volunteer program like ours.
He’d read the Harvard Law Bulletin article. Sarge Shriver had then hired him to head the
Legal Services Program. He’d heard that Harvard was interested in starting a clinical
program, and he told me that the University of Chicago also had my name on an
application for legal services money. There’s only going to be one grant, and there’s only
one John Ferren, he said- where do you want to go? I just was overwhelmed. And it was
true. Dean Phil Neal and Professors Phil Kurland, Wally Blum, and Bernard Meltzer had
asked me to come down to the law school to talk to them about what they might do for
legal services. I hadn’t even focused on the possibility that they also were interested in
having me come on board. So I told Bamberger that I thought I would rather go back to
Cambridge. I’m sure at some level I wanted to go back and reform the whole place.
Mr. Kapp: So you arrived in Cambridge when, John?
Judge Ferren: I would say about the first of June 1966.
Mr. Kapp: And you started the program in the fall of 1966?
Judge Ferren: Yes, I used the summer with the help of three law students to plan the program.
There was a faculty committee that Dean Griswold appointed to oversee the effort
composed of Professor Michelman as chair and Professors Sander, Hall, and
Cavers .
Mr. Kapp: Can you describe for me the program itself? What is it that you had in mind?
Judge Ferren: Well, we wanted to open a neighborhood law office in Cambridge so that Harvard
law students could provide legal services to the low-income community there. But
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unlike the Harvard Legal Aid Bureau, which was an honor society and was purely
student operated, we wanted to have a staff attorney who would supervise the
students and would also help us take on more complex matters than one could if
students alone were representing individuals. There was also a very serious
political issue here.
( Harvard University, which didn’t always have the most wonderful
relations with the City fathers and mothers of Cambridge, was, through its law
students, going to sue the City of Cambridge or its housing authority, as we did,
from time to time. There was also the problem that the OEO poverty program,
the Community Action Program (CAP), had a neighborhood office located in
Cambridge, and its leaders were concerned that another poverty program was
coming into their territory. In fact, CAP had a legal services program in
Cambridge, funded not by the OEO demonstration people but by the OEO legal
services people. There also were private settlement houses that had their own
needs and concerns, so it was a very complex political environment, and we were
going to go right out into the neighborhood.
I spent hours and hours at neighborhood meetings with church groups,
settlement house gatherings, interviews with the Cambridge city manager and
council members, local lawyers, and the university’s own community relations
office explaining the program, gaining their acceptance, and hoping they would
refer eligible clients. We also, of course, with community guidance, had to find
the right office location and negotiate the lease. Soon after we moved in and
furnished the office we were burglarized – typewriters and copier stolen. When the
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culprits had been caught, they asked the judge to appoint us as their counsel! They
knew even less about conflicts than I had a few years earlier when I began the
Church Federation program. (In the ensuing summers, some of us on the CLAO
staff, as well as other Harvard Law faculty, played softball in a Cambridge
summer league and regularly came up against teams with our clients on their
rosters.)
I needed to get some credible staff assistance to help politically, as well as
to help supervise the students. I went to Father Robert Drinan, who then was Dean
of Boston College Law School. I had not met him, but he agreed to see me, and I
told him what I was up to. Of course, he’s a wonderful man, and I said, “Father, I
need to find a good lawyer from around here who can help us connect with the
local judges.” At the time I wasn’t even a member of the Bar; I had to take the
exam because I didn’t have enough years in to get reciprocity. Father Drinan
referred me to a contemporary of mine who was working at the Legal Aid Society
in Charlestown, Massachusetts, Paul Garrity, and Paul was excited to join the
program. He was a graduate of Boston College, and he was terrific. The students
loved him. So between the two of us, we had a pretty good tandem.
Mr. Kapp: Did he ultimately become a judge? Is he the Garrity who became a judge?
Judge Ferren: Well, there were two Garritys who became judges. He was not the Arthur Garrity
who handled the Boston desegregation case, but Paul became a Superior Court
Judge or Circuit Judge in Boston in the state system and was their first housing
court judge. Paul is still in Boston.
Mr. Kapp: And what was the magnitude of the clinical program?
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Judge Ferren: Well, initially, we took as many as 75 law students, and in the ensuing four years,
when we got increased funds for more staff attorneys, we got the program up to as
many as 125 students. To help with supervision after the first year we added a
young lawyer, a VISTA volunteer, Paul Newman, and the following year when
Garrity left, we added two more attorneys, John Cratsley, a graduate of the
Prettyman criminal law program at Georgetown who had helped me with our
volunteer program when he was a student at the University of Chicago Law
School, and Van Lanckton, a recent graduate from our CLAO program. So the
supervision ratio improved, although we could have used more lawyers. In any
event, CLAO was a very large program and we took both civil and criminal cases.
And there were some test cases. It was quite a comprehensive legal services
effort. We not only sent students into court but also involved them, for example,
in drafting the “Cambridge Model Cities” program as counsel to citizens elected
to head that effort under the guidance of HUD representatives. We even counseled
a local chicken cooperative and drafted a prospectus for a private offering of
securities in the venture, under the watchful eye of Professor Louis Loss. In fact,
the faculty became increasing interested and involved. During the holiday and
spring vacations, faculty members took the student slots as counsel at the CLAO
office. I could spend a good deal of time relating anecdotes about how certain
faculty members conducted those sessions!
Mr. Kapp: Was there a classroom component to this?
Judge Ferren: Not at the beginning, but various professors would invite me to come to class to
present problems that we generated in the clinic. For example, Professor Andrew
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Kaufman, who taught professional responsibility, invited me in to present cases,
and, in fact, one of them ended up in a casebook that he wrote on professional
responsibility for Little Brown & Company. Criminal cases and landlord-tenant
cases came in to other classrooms, and in due course I participated as a co-teacher
of a class given by Professor Frank Sander and Dr. Allan Stone, a psychiatrist on
the faculty, on the human relations problems in legal practice. There were also
colloquia in the evening when we brought in social workers and others to deal
with these cases; they were written up on an anonymous basis so that no client
confidence was revealed. Eventually, I taught a course on the provision of legal
services, which was a course built entirely around cases developed from the
clinic. I also co-taught with Professor Adam Yarmolinsky a workshop on urban
problems.
While I directed the Legal Services Program, I also served on Harvard’s
committee on the university and the city, meaning Cambridge, chaired by James
Q. Wilson. And, in 1969 I think it was, I taught a seminar for freshmen at Harvard
College on the issues of providing legal services for the poor. I put together
materials with the help of Mitch Polinsky, a college student who volunteered in
various ways at CLAO for two years and is now a professor of economics on the
Stanford law faculty. Mitch helped me select the students, and we put together a
wonderful mix. Among them, one had been in prison, another was the son of a
small-town lawyer in Tennessee, another’s father was head of a major public
housing authority, and a young woman was related to the president of Howard
University. Unfortunately, events in the Vietnam war – was it the bombing of
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Cambodia? – brought mass demonstrations on campus during the spring of 1969,
including a student takeover of University Hall. The college was shut down, and
our seminar canceled, before we could complete it. I guess I’ve strayed pretty far
from clinical-legal education!
Mr. Kapp: And had Harvard at this time had any prior experience in clinical programs?
Judge Ferren: Its only experiences had been the student voluntary defenders and the student
legal aid bureau, and, as far as I was aware, they had no staff attorneys attached to
them. They probably had faculty advisors. Yes, Livingston Hall was advisor to the
voluntary defenders. There were court rules that permitted student participation in
court in a limited number of situations. But the school had never had had a
comprehensive program like ours, which we called the Community Legal
Assistance Office, or CLAO.
Mr. Kapp: Were there programs like this in other law schools?
Judge Ferren: The only one like this at the time had been started a few months before at the
University of Detroit Law School. Dean Paul Harbrecht, who was a former
colleague or classmate of Clint Bamberger and Father Drinan at Georgetown, had
received an OEO demonstration grant and started a clinic. During the summer
before I opened ours, I flew out there with my student colleagues to see how they
were doing and learn what we could. But that was it.
Mr. Kapp: How would you describe the students’ response to the program?
Judge Ferren: It was absolutely overwhelming. I gave an opening presentation to the students at
the Harkness Commons, and it was standing room only. You had the feeling – it
wasn’t true – the feeling that the whole school was there. I mean, it was just
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absolutely overwhelming. I stood in the middle of the room and gave a theater-inthe-
round talk explaining the program. I almost got mobbed when I started to
hand out applications. People came thundering toward the center of the room to
pick them up, and I’m not sure but that I fell over. We had something like 300
applicants for 75 slots. There was a tremendous interest and that continued the
four years that I was there.
Mr. Kapp: And is the program still active?
Judge Ferren: Yes, but in a much different form. When I left in 1970 to come to Hogan &
Hartson, the program continued, and a year later- I gather, sometime in 1971 or
1972- Professor Gary Bellow carne to develop the clinical program further. We
had done enough to show the faculty that there was real promise for integration of
a clinical component into the law school curriculum. Gary was a real star, and he
put together a program that began to include courses, and eventually they opened
an office in Jamaica Plain, Boston, rather than continuing the Cambridge office.
Hale & Dorr and other law firms, I think, endowed the program. It’s a marvelous
program right now. Gary’s wife, Jeanne Charn, had been a student in our program,
and I think she’s still involved with it after his death. So yes, it’s alive and well.
Mr. Kapp: And what would be your assessment of clinical legal education generally? I mean
does it continue to have a very large role in many law schools and do you regard it
as an important component today?
Judge Ferren: Well I do. Let me back up, Bob. A lot was happening all at once, and during this
same period in the late 1960s, the Ford Foundation established a satellite
foundation called the “Council on Legal Education for Professional
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Responsibility, Inc.” (CLEPR) headed by William Pincus, who had been a
program officer at Ford. Bill had a personal commitment, and Ford supported it,
to get a clinical program in every law school in the United States. Bill had a viewunlike
the OEO Legal Services Program that the real future of legal services lay in
one-to-one relationships with clients, and he wanted every law student to have a
client, not a class action, but a client. To Bill’s credit, CLEPR achieved a clinical
program in virtually every law school in the United States, and he had some very
tough criteria about local match so that it wasn’t just foundation money. He
required a commitment to continue the program once the foundation pulled out
after, maybe, two to three years for each grant. I was on the board of CLEPR after
I left Harvard, and I think it was very, very successful. I should say, too, that Bill
gave us a grant toward the end of my tenure at Harvard to train clinical law
professors, and we started a master’s – an L.L.M. program – to that end. I directed
that and taught a seminar where we sat around trying to figure out what the best
form of clinical education would be. That’s background to say that I think clinical
education has several very important aspects to it.
First, not every law student is going to go work for a large law firm, and
there’s an appalling lack of training to practice law in the law schools, without a
clinical option. So although this isn’t particularly an altruistic reason for it, I think
skills training has a role for a lot of students in many law schools and clinical
work helps that. Second, and most important, for every student, is the opportunity
to learn about yourself. You really never know what you’re like as a person, I
think, until you are put in a position where you are asked to help someone else. I
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saw a lot of students who thought that they were going to help save the world, and
they would get in and start dealing with some low-income clients, and they
realized they didn’t have the temperament for it. Others tried it out thinking that
they were going to be corporate lawyers, and they got intrigued by and attracted
to working with individuals and found themselves more with a “helping”
motivation than they even knew they had in themselves. So you learn a lot about
yourself. But beyond that? Well, I guess the third thing is that clinical work starts
integrating other disciplines into legal education- social work, insights of that kind
are merged with the practice – so that’s another value. You can answer better than I
– because I’ve been away from law practice for many, many years- whether it has
any value to a large law firm these days.
Mr. Kapp: What do you think happened to the students that you had in this program? Where
did they go? Did they go into public interest lawyering? Did they go into large
law firms? If they went into large law firms, did they carry anything with them?
What do you think?
Judge Ferren: All the above. I have seen former students that I worked with in this program
become managing partners of major law firms, and I’ll bet you that they are
encouraging their firms to sink money into pro bono programs in their firm and
the Lawyers’ Committee for Civil Rights and elsewhere. I have seen students
leave law firms and join legal services and stick with it since the late 1960s in one
form of public service program or another. And I have seen some who have gone
into legal services for a half dozen or a dozen years and then moved into private
practice, perhaps when they were looking at college tuitions for their children. But
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I think those who went through this program have ended up in every kind of legal
practice. I remember that Pam Minzner, who’s on the Supreme Court of New
Mexico, was in our program. So I think they have gone all over.
In looking back I don’t want to forget to say how important Dean Griswold
was to our effort. In the first place, he worked hard to make sure that the
university would accept our OEO grant, which the law school itself did not have
authority to do. The grants office had unrealistic overhead and other requirements
that OEO would not honor, and the Dean had to help us get over that. He gave me
encouragement all during the first year and then left to become Solicitor General.
To my amazement, he wrote me by hand a long letter of thanks from his room at
the Cosmos Club soon after he arrived in Washington; I was astonished and, of
course, most grateful. Later I learned that Dean Griswold commonly wrote such
letters of encouragement or appreciation to his faculty. To me, he was a man of
real character and class. Several years later, when we moved to Washington, he
and his wife, Harriet, were among the first to invite us to dinner. After Dean
Griswold left Harvard, Jim Casner, as acting dean, supported our program,
including an increase in our budget, and then when Derek Bok became Dean he,
too, was a fan of CLAO. He took me along with him, or sent me alone, to speak to
alumni groups about our growing clinical program. Al Sacks succeeded Derek
Bok as dean when Derek became president of Harvard. Like Derek, Al saw great
promise for clinical-legal education. When I told him about my plan to leave for
Hogan & Hartson, he offered me an additional five-year appointment and urged
me to stay. But the clinical program was well under way, and I had decided that
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the opportunity to begin a community services department at a major law firm,
particularly H & H in Washington, was too good to pass up.
Mr. Kapp: During the period in which you were at Harvard and in the clinical program, I first
met you in connection with the assessment of the Piper & Marbury storefront
office in Baltimore?
Judge Ferren: Yes.
Mr. Kapp: And I wonder if you could tell us a little bit about that program and your role in
the assessment and what Piper & Marbury was about?
Judge Ferren: I’ve mentioned Clint Bamberger, who headed the OEO Legal Services program.
He’d been a partner at Piper & Marbury. He had another partner, Frank Gray, who
was very public spirited. William Marbury himself, a Harvard law graduate, had
followed our Chicago program and was very supportive of Piper & Marbury’s
trying to do something different to make the resources of the firm available to the
lower income community. I don’t recall how they came up with the neighborhood
law office model that they selected. Allan Ashman wrote a book that incorporated
the study that you and I and others constructed. In any event, Piper & Marbury set
up a neighborhood office in Baltimore to serve low-income clients. Peter Smith,
who had been with Neighborhood Legal Services in Washington, was brought
into the firm as an associate to head that office. And as you know, you and I and
others were part of a team that evaluated the office for Piper & Marbury. The
National Legal Aid Defender Association was part of that evaluation, too. There
were some pluses and minuses, but the motivation of the firm was exemplary.
Mr. Kapp: But the program no longer exists?
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Judge Ferren: I don’t believe it does. We could come up with all kinds of reasons for that, but I
don’t think it goes to the question of the commitment of Piper & Marbury. I think
that, to this day, they are a very strongly committed pro bono law firm. I think that
that particular model, and that particular community, and the particular leadership
eventually led to other things.
Mr. Kapp: Do you have any idea of what happened to Peter Smith?
Judge Ferren: I think Peter’s in New Hampshire, and I think I heard that his wife may be in the
legislature up there.
Mr. Kapp: I think for a while he’d gone to the University of Maryland.
Judge Ferren: That’s right. This discussion reminds me that, as a legal services program director,
I was invited from time to time to join a team that would evaluate other OEOfunded
legal services programs. Then an unusual request came along. The Legal
Aid Agency in Washington, D. C.- a program limited to providing representation
for indigent defendants in criminal cases – was in some turmoil because many of
the federal district judges had been complaining that the agency’s lawyers were
filing too many motions on behalf of their clients, and as a result the Legal Aid
Agency had begun to back off. I believe it was Sidney Sachs, one of the agency’s
board members, who asked OEO if it would put together an evaluation team to
check into the agency’s work even though the agency was not an OEO program.
OEO agreed, and I was asked to do the job along with Charles Rogovin, then (I
believe) an assistant attorney general in Massachusetts, and Joseph Vining, then
an associate at Covington & Burling (and later a professor at the University of
Michigan Law School). None of us knew what we would be getting into.
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We learned that the board in charge of the program was pretty evenly
divided between those who supported an aggressive defense effort and those who
thought the lawyers were pushing too hard. The latter, conservative group -led by
local attorneys Roger Robb and John Pratt (both later federal judges) ·- had
prevailed by replacing the aggressive agency leaders, in particular Addison
Bowman and Gary Bellow, with others whom the judges found more acceptable.
The liberal board members, including L Sidney Sachs – a group called by some
the “Bazelon faction” after Chief Judge David Bazelon of the U. S. Court of
Appeals for the District of Columbia Circuit – hoped that we would find that the
agency had begun to pull its punches too much and would recommend that the
agency return to the Bowman-Bellow philosophy. It didn’t take us very long to
discover that the judges, as well as the board members, were split over the
agency’s work. And so Charlie, Joe, and I felt that we had to interview quite a few
lawyers and virtually every federal judge, as well as a number of judges on the D.
C. Court of General Sessions (the Superior Court’s predecessor), to get a real feel
for what was going on and, perhaps of equal importance, to be sure that every
judge felt that he or she had been heard on a very touchy subject.
All three of us became convinced- the issue wasn’t even close — that the
agency had taken a turn for the worse, that the lawyers had begun to pull their
punches for fear of upsetting judges who didn’t want to think, for example, about
having to rule on motions to suppress unlawful searches and seizures. We were
appalled at Chief Judge Curran’s going on and on about how Bowman and Bellow
were overzealous in representing their clients; and we were impressed by Judge
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William Bryant’s concern that the agency’s forceful, effective defense
representation had begun to go downhill. After three days of interviews, we got
together to outline our conclusions and then left it to Joe Vining to take our
written summaries of the interviews and draft our report. He did a wonderful job.
After we all had signed off on the report and sent it to the board, the board
apparently took our recommendations seriously, for not long thereafter the board
marked a new direction by renaming the agency the Public Defender Service
(“PDS”) and appointing a new director, Barbara Babcock, who brilliantly
redirected the program back toward aggressive advocacy for its clients. It became,
again, one of the nation’s leading public defenders.
One of our recommendations was to reaffirm the importance of limiting
the agency’s caseload to numbers that its staff could handle well while, at the
same time, taking a look at areas that needed reform. In other words, the agency
was to have a criminal law reform mission in addition to its representation
mission. That meant that the private bar was to take the balance of the cases – to
act as the “elastic” in the system, as it were – with payment under the Criminal
Justice Act. As a result, I think that the District of Columbia’s “mixed” system of
criminal representation came to be, and has remained, perhaps the finest criminal
defense system in any jurisdiction of the country.