Nonprofits

Wendy Clarke, Partner at Kelley Drye, was not always a corporate attorney. Prior to attending law school, she had extensive experience in city government where she built long-lasting relationships with leaders of nonprofit organizations. When she joined Kelley Drye, it was important to Wendy that she use her legal skills to give back to those nonprofits.

Wendy’s non-profit clients focus on issues such as affordable housing, education, sustainable farming and food security, and preservation of arts and culture. Her pro bono initiatives have been primarily focused on the formation or reorganization of nonprofit entities and helping them obtain tax-exempt status with the Internal Revenue Service. Over the years, Wendy has also helped boards navigate challenges and opportunities that may arise, though not always legal issues, but issues that young board members may not be able to navigate without the benefit of board or executive experience.

Wendy also mentors the firm’s junior attorneys on entity formation and best practices on how to advise nonprofit entities, so organizations that turn to Kelley Drye for pro bono legal support can deliver their social and community initiatives.

Teams of Kelley Drye attorneys from various practices joined together to provide legal support to non-profits as part of the initiatives of the firm’s Task Force on Racial Equality. Wendy Clarke served on the Task Force working group on advocacy and legal support for racial justice—including criminal justice reform.

One such organization is HomeBridge Ventures, a non-profit based in Fairfield County, Connecticut, which has the ambitious goal of breaking the cycle of poverty, violence, and incarceration by providing healing, employment opportunities, and hope to previously incarcerated and gang-involved men and women. They hope to do this through (i) providing case managers to develop and deliver counseling and job training services over an 18-month period, (ii) creating income earning enterprises where clients can be employed, and (iii) placing clients in skilled positions following their tenure with HomeBridge. In addition to the personally gratifying benefits that come with their clients’ successful re-entry into their communities, HomeBridge hopes that their efforts will contribute to safer communities and a long term reduction in recidivism rates for that population.

“Oftentimes, the would-be beneficiaries of HomeBridge’s programs find themselves in a cycle of incarceration, release, unemployment or underemployment due to the stigma of a criminal record or lack of skills, then re-incarceration. Without adequate skills, a support system, the structure of daily life, the statistics are clear that these men and women are highly likely to revert to a community of similarly situated peers and reoffend,” said Wendy.

Kelley Drye has assisted HomeBridge with its incorporation and preparation of constitutive documents and provided advice on obtaining its tax exempt status and will continue to assist with building organizational capacity. HomeBridge, like many new non-profits, requires a wide range of legal services, including corporate governance, tax and employment advice —an expense that would otherwise reduce dollars available for programming.

Notes Wendy, ​“It is wonderful that Kelley Drye has a bench of willing and able lawyers who can be called upon to help with getting what could be a truly transformational effort off the ground.”

Ted Herod, associate at Kelley Drye, partnered with Seton Hall University School of Law’s Center for Social Justice (the ​“CSJ”) to represent a client who was denied disability benefits for nearly two decades. Our client was severely injured on a job site in 2003. His injuries caused severe impairments to his back, neck, left shoulder, left hand, and left wrist. He applied for disability benefits with the Social Security Administration (the ​“SSA”) in 2004. While his case slowly churned through the system, our client relied on minimal worker’s compensation and the support of his daughter for nearly two decades.

By the time the Second Circuit appointed Professor Jon Romberg of the CSJ to the case, our client’s journey included four hearings with administrative law judges, two reversals from the SSA Commissioner, and a reversal from the Southern District of New York. Nevertheless, each ensuing ALJ decision would—through different and, at times, contradictory rationales—reach the same conclusion: finding at least one job in the national economy wherein the client could allegedly work despite his severe impairments.

The most recent—and now vacated—ALJ decision disregarded the opinion of the client’s treating physician. The ALJ assigned little weight to the opinion of the treating physician—a board certified orthopedic surgeon specializing in the hands, wrists, and upper extremities—due, in part, to an allegedly conflicting report from the client’s hip specialist who was reviewing him for possible hip replacement surgery. The client was not seeing the hip surgeon for his back, neck, shoulder, hand, or wrist injuries.

In oral argument before the Second Circuit, Ted and Jon argued that the ALJ failed to properly apply the treating physician rule—a rule that requires the ALJ to attribute weight to a treating physician over that of a consultative examiner or justify failing to do so through a multifactor test. They further argued that a cursory system review by a hip specialist for the express purpose of diagnosing acute, aggravated hip pain, did not constitute substantial evidence contradicting the opinion of the established, treating physician of the client’s back, neck, shoulder, hand, and wrist.

The Second Circuit vacated the SSA’s denial of benefits. The court ​“express[ed] uncertainty as to the ALJ’s relatively cursory conclusion,” given that the two doctors’ ​“findings appear to have addressed different areas of concern.” Ultimately, the Second Circuit found that the ALJ failed to apply the appropriate legal standard in analyzing our client’s treating physician’s opinions, and thus, improperly assigned ​“little weight” to the treating physician’s assessment. The Second Circuit vacated the District Court’s judgment and remanded the case to the SSA.