Spread of AIDS Generates New Legal Specialty : Virginia Lawyer One of a Handful of Attorneys Focusing on Victims’ Needs

Kenneth Labowitz was conducting what he calls “the closing interview.” He looked through all the papers one last time, handed his client the settlement check and launched into his routine speech: thanking his client for the opportunity to work for him, urging the man to get in touch if he could be of help in the future.

“Yeah,” the man said, bitter, flat. “I’ll give you a call the next time I get a terminal illness.”

As Labowitz tells the story, two years later, he still recoils from the words. “I thought, ‘Ooh! I didn’t deserve that! But on the other hand, I understand where he’s coming from. And there’s nothing to be said.’ ” Three months later, his client was dead.

The man was Labowitz’s second client with AIDS. Since then, he has represented more than 75 clients on AIDS-related issues, including last year’s much-publicized case on behalf of a young girl with AIDS temporarily removed from the Fairfax County, Va., school system. (She is now back in school.)

‘Mr. AIDS in Virginia’

People who have been fired from their jobs, who can’t get into school, who are denied medical treatment and who then see his name in the paper call from all over: Virginia, Maryland, West Virginia, North Carolina. By virtue of temperament, experience and chance, Labowitz can laughingly say, “I’ve sort of defined myself as Mr. AIDS in Virginia.”

That he could do that is not surprising, given that the field is so small. Ask one AIDS lawyer who else around the country is doing similar work, and you hear six, seven, eight names, no more.

Some, like Mauro Montoya, legal director at Washington’s Whitman-Walker Clinic, spend their days writing wills, explaining the intricacies of bestowing power of attorney, rushing to hospitals to resolve conflicts between parents and lovers--work that Labowitz calls “Mother Teresa stuff.”

Others, like Labowitz, specialize in litigation, sometimes teaming up with groups like the American Civil Liberties Union and Lambda Legal Defense and Education Fund on what they call “high-impact cases,” the ones that leap up the rungs of the court system, make precedent and affect thousands.

Few Legal Precedents

With few obvious precedents to rely on, they are essentially writing new law on questions of privacy, breach of contract, civil rights, child custody. Should doctors be required to inform the likely sex partners of someone who has tested positive that they may have been exposed to the virus? Can people be fired merely because their employers think they might have AIDS? Does management have a duty to bargain over the establishment of an AIDS policy? What are the legal rights of a sick person to be included in experimental drug trials? Does a hospital being sued for malpractice over the death of a patient from AIDS contracted after receiving blood transfusions have the right to keep the names of blood donors confidential? (The U.S. Supreme Court recently let stand a lower-court ruling that donors’ rights to privacy do not override a Texas woman’s need to find their identities in a malpractice case over her daughter’s death. The Texas hospital must release the names.)

“The astonishing thing is there’s nothing, nothing, paralleling this stuff,” Labowitz says. “We’re doing stuff no one’s ever seen before. We’re out past Mars. Unexplored territory.

AIDS Clause in Contracts

“There are people writing contracts that include the clause ‘If you get AIDS, you don’t get paid,’ ” he says. “Now, that’s an interesting concept, isn’t it? But I don’t know if it’s illegal.”

He laughs at the intellectual gymnastics involved in resolving such quandaries. “It’s fascinating work, leaving aside that you’re dealing with the greatest human tragedy.”

In the years to come, the field will inevitably grow more crowded. Already, more than 100 Washington-area lawyers volunteer their counsel through the Whitman-Walker Clinic, and two law firms donate time to staff a weekly legal clinic.

Across the country, companies attempting to deal with employees who have AIDS--or with concerns about future employees with the disease--are turning to their own law firms for advice. The American Bar Assn. recently appointed a committee to coordinate AIDS-related activities and make recommendations for AIDS policy.

“I think it’s hard to to come up with any other phenomenon, whether it be an epidemic or a political phenomenon, that will touch as many lawyers in as many communities around the country,” says Harlon L. Dalton, an associate professor at Yale Law School and co-editor of “AIDS and the Law: A Guide for the Public.”

Emotionally Demanding Work

And so more and more lawyers will, like Labowitz, discover what comes along with the legal adventures: Men, women and children who most likely will die. It is work that makes emotional demands unlike anything that most lawyers--or most anyone--would ever expect to confront, and that hardly anyone is trained to handle.

On the window sill of Ken Labowitz’s Oakton, Va., office sits a playfully painted carving of two rams, locked head to head.

“They’re sort of butting up against each other,” he says and smiles, as if he realizes this is all a little too ideally metaphoric. “Perfect for me.”

Perfect for the man who says, with a certain degree of pleasure, that he went to law school “to make trouble. Criminal defense, discrimination, is sort of the way you do that. A lot of this is sticking it to the powers that be--in a nice way.”

Or if not nice, at least in a socially acceptable fashion. Labowitz speaks with relish of the time he defended the rights of a musician to perform on the streets of Alexandria, Va., and his attempt to get the Fairfax County Police Department to allow a Sikh officer to wear his turban on the job (“Great case. Great case. Didn’t work, but I liked that case”).

The delight that Labowitz finds in his work bubbles up in those moments when he can express outrage, indignation, the horror of a rational man offended by dangerous acts of folly. “Excuuuse me?” he explodes in rhetorical disbelief after he conveys information he finds particularly shocking.

Much of His Work Is Free

While much of his practice at the firm of Fagelson, Schonberger, Payne & Arthur, which he joined less than a year ago, consists of commercial law, as much as 20% of his time goes to AIDS-related cases, almost all of which is pro bono (meaning “for the public good”--and, in most cases, provided at no charge to the client).”I didn’t intend it to be (pro bono), but it is,” Labowitz says.

A Galvanizing Cause

For someone given to crusades, AIDS law is a galvanizing cause. “AIDS is as clear-cut as any discrimination case you see,” Labowitz says. “It’s sort of like 1954 in terms of race, and 1964 in terms of gender. People say, ‘We fired him because he had AIDS? Of course we did!’ They don’t realize what they’re saying.”

What they don’t realize is that people with AIDS are gaining protection from federal and local laws prohibiting discrimination against people with handicaps. “We’re going to go through a much faster version of what happened after Brown vs. Board of Education and what happened with gender discrimination. Now, there are still stupid things done, but you won’t hear people saying, ‘We fired that boy because he’s a Negro.’ We’re sensitized.”

Approached in 1985

Labowitz, who is not homosexual, came to his latest subject in 1985, when the director of the Alexandria, Va., Office of Human Rights, who knew of Labowitz’s interest in discrimination cases, gave his name to Whitman-Walker Clinic Director Jim Graham, a lawyer who was looking for a volunteer attorney to take on the case of Richard Goodfellow. Goodfellow had worked for 12 years as a draftsman for an Alexandria firm and was fired after he told his boss he had AIDS.

“Ken came to us not as a member of our own community, but as someone interested in civil rights,” Graham says. “I had to get comfortable that this was someone who would give compassionate as well as competent representation. That dedication was at once apparent to me.”

Labowitz was immediately faced with the realities of AIDS. Sitting in Graham’s office on Christmas Eve, 1985, he overheard a phone conversation: The companion and family of a man who had died were at the hospital fighting over the body. “I said, ‘I can do the discrimination cases, but I can’t do that!’ ” he remembers.

Need for Medical Knowledge

But there has been no avoiding the singular demands of the work. To argue that a child with AIDS should be allowed to attend school, one must stay on top of the latest medical research on transmission of the virus. “It’s very complicated epidemiologically, and there aren’t four lawyers who can spell epidemiology,” says Labowitz. “The last formal science education I had was in 1968--Bio 101. I tried and failed to pass organic chemistry--lawyers are doctors who couldn’t pass organic chemistry.”

And there are other hurdles. “The kind of people who have selected to practice law may not be the best kinds of people for dealing with issues that are emotionally wrenching,” says Yale’s Dalton. “The system would collapse if lawyers were free to make judgments about their clients or feel what they feel. So it’s a good profession for people who like to keep a sort of tight rein on their own emotions, and not such a good profession in terms of giving us much practice in figuring out how to feel and do at the same time, without having either activity undermine the other.”

Confronting the Horror

“Most of my clients are dying,” Labowitz says, “and that’s nothing my training prepared me for. Richard Goodfellow died two years ago. The relationship between client and lawyer is bizarre. I make a point to distance myself emotionally from the horror of this.”

But ask how he does that, and the generally ebullient lawyer, whose words usually shoot forth as if under pressure, is silent and remains that way for a long time.

“I guess I tend to make clear what my role is in the professional relationship,” he says at last. “I am trying to achieve a set goal in a set time frame with certain limitations. Period. I am not here to be a friend.”

It sounds harsh and perhaps he knows it, for he continues, telling the story of his second client and the bitter parting statement.

“What can I say? There’s nothing abstract about all this. We’re talking about people who have limited options, with a great many problems, some of which are legal. And you do what you can. On the other hand, what I can’t do, I won’t do. And I can’t make it better. I can’t fix it. Sometimes I can’t even fix the legal problems.”

Mauro Montoya, like many others who got involved in AIDS law early on, is homosexual and chose his job out of emotion as much as logic. “It was affecting a lot of friends, and I knew what was going on--people being denied jobs and kicked out of homes. I had a former roommate die of AIDS. I didn’t know what I wanted to do with my law degree--I was working for an environmental law institute. I still am a very strong environmentalist, but that will kill me slowly. This will kill me quickly.”

In the two years he has been at the Whitman-Walker Clinic, Montoya and his corps of volunteers have drafted hundreds of wills and powers of attorney.

One night, he was called to the hospital by the lover of a dying client. The family, which hadn’t known the man was homosexual before he got sick, was trying to bar the lover, who had power of attorney, from the hospital. “I went down and had a meeting with everyone involved,” says Montoya, “and talked it through, and it resulted in the family gradually getting to accept it and not make waves for the lover.

“What I try to do with clients is make sure they can keep as much control over their lives as possible. They lose, in many cases, their jobs, their homes, their families. There is a very negative attitude: ‘Why should I bother to live? There’s nothing left.’ What I try to do is help them take control: ‘Yes, I am going to continue with my job, take some action that will help me feel better.’ ”

Meeting Crucial Needs

“The most important thing is to make sure the person gets what he needs,” says ACLU staff lawyer William Rubenstein. That can mean being reinstated in a lost job or re-enrolled in a health insurance program or, as in one case the ACLU pursued, finding a doctor to perform a heart operation on a man who tested positive to the virus and had been refused treatment.

“To the extent to which you can avoid litigation by educating people, you’ve really achieved a victory beforehand,” says Abby Rubenfeld, legal director at the Lambda Legal Defense and Education Fund.

If many potential litigants are wary of the legal process, there are also some eager to launch a crusade. “They want to sue somebody,” says Labowitz. “They want some answers.”

One of his clients is attempting to provide for his children’s future after he and his wife have died of the AIDS they both have and has spoken of suing his employer on grounds that Labowitz doesn’t think will hold.

Philosophical Questions

The questions some want answered are often more philosophical than legal, the injustices they face medical rather than constitutional, and lawyers are placed in the delicate position of helping clients recognize the object of their anger.

William Bradford, a partner at Hogan & Hartson, which is staffing the legal clinic at Whitman-Walker, says that often when there is no legal case or pursuing one appears too difficult, clients will be satisfied with a behind-the-scenes solution. “If someone says they think they’ve been treated unfairly by a hospital, we’ll say, ‘We at Whitman-Walker Clinic will make a stink. We’ll call up the hospital,’ ” says Bradford. “And they often say, ‘That’s just what I want. I want them to realize that we in the AIDS community can’t be treated this way.’ ”

Over the past few years there have been major changes in the legal aspects of AIDS.

“We’ve seen some real successes in the schoolchildren and teachers’ cases, the employment cases, the handicapped cases,” says the ACLU’s William Rubenstein. “I don’t know of any we’ve lost. Legally, at least, it’s clear there are no reasons to exclude people from employment settings, the classrooms.”

New Battlegrounds

In the cities where many have the disease, some issues are largely settled--children are in school, employers know what they can and cannot do--but as the disease spreads to more remote areas the legal dilemmas follow.

As the debate over antibody testing continues, confidentiality and mandatory testing are among the new legal battlegrounds; experts also expect the number of insurance-related cases to rise.

Responding to the developments, the ACLU is planning to shift its strategy a bit. “A lot of what we’ve been doing is fairly defensive,” says Rubenstein. “It’s trying to stop the hysteria. I think one of the things we’re looking at is going more on the offensive.”

Nan D. Hunter, the ACLU’s AIDS and Civil Rights Project director, explains: “The access-to-care issues are going to become more and more significant and more difficult, especially as the population of people with AIDS shifts. With the shift to low-income urban population, more and more of the people who have never had effective access to health care in their lives are going to be even more critically ill.”

A Shift to Prevention

Labowitz can imagine his work becoming more preventive as well.

“I’m now doing more positive kinds of things,” he says. “I’ve now been hired by one company that has an employee with AIDS which decided that instead of having me sue them, they should hire me to tell them how to avoid being sued, which I think is a wonderful idea. I’d obviously like to do more of that. In a way, it is a co-option by the system, but that’s OK, that’s the nature of things. The little tiny victories where you get a fairly token amount of money for a person whose health may be precarious is less important in the cosmic sense than getting people to realize this kind of thing is counterproductive.”

Montoya sees fewer office workers fired because of AIDS, a result, he believes, of education, although more people in the service sector of the economy are having trouble. For him there has also been a more personal change. On April 1 he will leave Whitman-Walker.

“It’s just too much,” he says. He has no full-time secretary and only one assistant, a law student who works part-time. His job has expanded and calls for a skillful administrator, which Montoya readily admits he is not.

And last October during the gay march on Washington, standing before the massive quilt bearing the names of people who had died of AIDS, he began to realize he couldn’t continue.

“I have never been the same since then. It was seeing the names of friends and all those people. I cried for 45 minutes. I had thought at one point that I’d get used to people dying. You don’t. It’s impossible. I have seen 900 people die now and it just gets to be too difficult.”