Remarks by U.S. Attorney William M. McSwain at The Philadelphia Inquirer Influencers of Law Event

PHILADELPHIA – U.S. Attorney William M. McSwain was honored to be the keynote speaker today at The Philadelphia Inquirer Influencers of Law celebration. The event honored some of Philadelphia’s leading lawyers, recognizing their accomplishments in specialized practice as well as civic engagement and community service. U.S. Attorney McSwain’s remarks are below.

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Thank you very much for inviting me to speak here today. It is an honor to be with you. Thank you to the organizers of this event: The Philadelphia Inquirer, The Philadelphia Daily News, and Philly.com; Terrence C.Z. Egger, the Publisher & CEO of The Philadelphia Inquirer; and Jennifer Wolf, Director of Special Events. And thank you to reporter Jeremy Roebuck for that kind introduction. 

The title of today’s event is: “Inquirer Influencers of Law: Celebrating Lawyers Who Set the Bar High.” In reviewing the list of honorees today, there is no doubt that these words are true. Whether in the fields of litigation or corporate law, real estate or bankruptcy, civil rights or government, each of you has left a significant mark, both on the profession of law and on the City of Philadelphia. You all have made a meaningful impact in your field of practice, as well as in the business community and as part of the civic fabric of our society. Philadelphia is a thriving business and legal community because of the people in this room. So please join me in giving all of the honorees a round of applause.

The City of Philadelphia has long been known for the civic engagement of its citizens. There are countless examples, but let me focus here on a few. First, this country was founded right here in our backyard by people who were committed to public discourse and using their resources and ideas to improve their community. As one of the Founding Fathers of the United States, Ben Franklin (1706-1790) was not only a politician, but an author, scientist, inventor, diplomat, philosopher, and printer. And that is not an exhaustive list of the many hats that he wore throughout his life. Today, he may be best known for signing both the Declaration of Independence and the Constitution, and perhaps his placement on the $100 bill. But Franklin was also responsible for laying much of the groundwork of what we think of as philanthropy and civic engagement today, founding numerous societies and public institutions, including the University of Pennsylvania, Franklin and Marshall College, the American Philosophical Society, and Pennsylvania Hospital, among others.

This tradition of giving back to the Philadelphia community has been carried throughout the past centuries. We celebrate today in a building named for John Wanamaker (1838-1922), who started what is considered to be the first department store in Philadelphia. But Wanamaker was not simply a successful businessman. He also served as the U.S. Postmaster General under President Benjamin Harrison, he was active in the arts, and he co-founded the Sunday Breakfast Rescue Mission, a homeless shelter and soup kitchen. The Sunday Breakfast Rescue Mission still stands today and has since expanded in the last century to include more services for the homeless. It is the third oldest running rescue mission in the United States and currently the largest emergency homeless shelter in Philadelphia.

And in a more modern day example, there is Kenneth Frazier, a former partner at Drinker Biddle & Reath, my old law firm, who is now the chairman and CEO of Merck. But Frazier has not limited his focus to the success of his law firm and later his company. Throughout his career, he has given considerable time, energy, and resources to representing and working for individuals all over the world. For example, he has taken four summer sabbaticals to teach trial advocacy in South Africa. He also represented, pro bono, an inmate on death row, James Willie “Bo” Cochran. Based on this representation, Cochran’s conviction was overturned after he spent 19 years on death row; he was then retried and found not guilty. There is no greater civic engagement than work such as this.

Recently, however, I worry that civic engagement has started to fundamentally change. Perhaps it is because we have so many options in our lives, or perhaps it is due to the rise in the dependence on technology, but civic engagement is sometimes not what it used to be. At times, it seems that people are more inclined to “like” a photo of an event on Facebook from the comfort of their own living room than they are to actually attend the event. There is simply no substitute for showing up and donating our time and energy to the causes and the people who need us, especially those who may feel powerless.

On that topic, I want to share a story with you about a case that helped to shape me as a lawyer and a person. During law school, I heard a news report about a case involving an Iranian man who was a former Intel employee who was being sued by Intel for sending six mass email messages to Intel’s employees at their place of work. In these emails, the individual, Kourosh Kenneth Hamidi, noted what he considered to be some of Intel’s abusive employment practices and invited Intel employees to visit his website. Intel sued Mr. Hamidi under a novel theory – arguing that the emails had “trespassed” on Intel’s servers and therefore Intel had an absolute right to censor his speech as soon as the electrons from his emails touched Intel’s private computers. It doesn’t take much imagination to see how dangerous that sort of precedent could be, given that the Internet is largely a collection of private computers.

I became interested in the lawsuit and wrote an article about it for a law journal while I was a second year law student. By the time the article was published, however, California’s Superior Court had already sided with Intel.

By the time of Mr. Hamidi’s appeal, I was interning for a nonprofit civil liberties group as a third year law student, and I wrote the substance of a brief filed by the nonprofit on behalf of Mr. Hamidi. Nevertheless, the California Court of Appeals did not agree with us, and Mr. Hamidi lost again.

After clerking for a year, I went into private practice here in Philadelphia. Mr. Hamidi needed a lawyer for a possible appeal to the California Supreme Court. I volunteered to work on the case, pro bono, and I poured myself into it. We successfully petitioned the California Supreme Court to take the case and, as a very junior lawyer, I had the privilege of arguing it. Fortunately, Mr. Hamidi finally won. The case established a national precedent for the rules for electronic trespass on the Internet. In my opinion, it was a victory for free speech and, even more importantly, a victory for the continued development of the Internet.

And it really did feel like a David v. Goliath battle. On the one side, there was Intel, a massive corporation, represented by an army of lawyers at Morrison & Foerster in San Francisco. On the other side, there was Mr. Hamidi, the fired and broke Iranian immigrant, represented pro bono by two baby lawyers, myself and my good friend, the late Greg Lastowka. Intel had already won two rounds of the fight and had every reason to believe that it would continue to steamroll through the courts. 

When we first met with Mr. Hamidi, we found him to be a man who was standing up for his principles. But to Intel, he was just some weirdo loser from a far-off country. I certainly did not think that was true, and I still do not think it is true to this day. But even if it were true, so-called weirdos and losers need representation, too. And sometimes, with some help, they can accomplish incredible things that benefit us all in the long run. Even if, at the time, they aren’t very popular – and they certainly aren’t powerful. But as Albert Einstein once remarked, “What is right is not always popular and what is popular is not always right.”

As leaders of the legal community, hopefully we can leave a project, or a case, an office or a community, or anything we encounter, better off than we found it. As U.S. Attorney, I am blessed to lead an office of extraordinary individuals; prosecutors who are investigating complex cases and holding individuals and companies accountable for their conduct. Our Office pursues justice on a daily basis for everyone in our society, and particularly for victims who are often the most powerless and vulnerable among us.

But I am also challenging myself to aim higher and make improvements in the Office as best that I can. For example, I am committed to hiring more prosecutors. I am committed to bringing a greater number of cases in all areas that we prosecute. I am committed to strengthening the Office’s partnerships with law enforcement agencies throughout the Eastern District of Pennsylvania. I am committed to greater involvement and greater transparency with the community. I am committed to upholding the rule of law. 

This kind of engagement with the community has a personal benefit as well. Yes, civic engagement should be expected, and it is what is best for our society. But it also benefits us as individuals. When interviewed earlier this year by The New York Times, Kenny Frazier spoke about his legal career. When asked about his representation of Cochran, the inmate on death row, Frazier said this: that his first impression of the case was that he was “much too busy to take on another piece of pro bono litigation.” But younger colleagues convinced him to take it on. And Frazier – the Harvard Law School graduate, the successful Drinker partner, and the current chairman and CEO of one of the world’s largest pharmaceutical companies – noted that winning Cochran’s freedom has been the high point of his entire professional career. The Cochran case is a cornerstone in Frazier’s life, just as the Hamidi case is in mine. 

There is no doubt that you have all set the bar high – and you should be commended for that. But I also hope that you will not rest on your laurels. Who better to begin writing the next chapter of our City’s history than the people here today? You are the best of our profession and the City is counting on you.

To those of you who are honored here today, especially those who are receiving Lifetime Achievement Awards, I congratulate you. The recognition here today is based on outstanding work and is richly deserved. But later today, or perhaps later this week, when you go back to your firm, or back to your office, or back to your family, I encourage you to ask yourself: What more can I do? Is there a project, a cause, a case, that could use my help?

I say that knowing that everyone here is very busy. But I sincerely hope that you ask yourself that question and that you act on it. We are all depending on each other to accept that challenge and create a better tomorrow.

God Bless you, and God Bless the City of Philadelphia. Thank you.