‘Lawyer for the little guy’

Look closely into almost any major social justice issue facing the Rochester community during the past four decades and one name will pop up again and again — Bryan D. Hetherington.

As he approaches retirement in the fall, the Empire Justice Center’s litigation director can reflect on a list of career accomplishments that attests to his stature as a seasoned litigator and a respected advocate, one who is willing to work outside the courtroom to find an effective, practical solution that can actually be implemented.

Just a sampling of the disputes he’s helped resolve during his career include:

• Winning more than $75.5 million in retroactive food stamp benefits for almost 140,000 families in 2013, while requiring fair treatment for recipients;
• Winning a challenge to a regulation and obtaining more than $100 million in payments and $36 million in annual payments in 2006 for 27,000 families with a member receiving Supplemental Security Income benefits;
• Forcing Rochester Genesee Regional Transit Authority in 2003 to provide much better service to people with disabilities;
• In 1985, changing the way Social Security disability claims are adjudicated, giving greater weight to the treating physician’s opinion, causing more than 10,000 disabled people each year to win claims they would otherwise lose.

Aside from legal work, Hetherington has helped lead the effort to end childhood lead poisoning in the community and has been active in the Rochester and Monroe County Anti-Poverty Initiative.

“I think he’s a guy who’s done a lot of really great work in the community and doesn’t get a lot of accolades,” said Melanie Funchess, a board member for the Rochester City School District who is leading a committee with Hetherington that is in the final stages of hammering out a school district consent decree to address shortcomings in the way special education services are provided.

“He recognizes many of the challenges that are faced by different people in different sectors of society without him personally having to have faced those challenges or having to have lived them,” she said.

When he’s working on a case, Hetherington routinely seeks out others who know more about the issue than he does to make sure that any solution ultimately addresses the problem at hand.

After you win, and the court decides in your favor, “then comes the really important part,” Hetherington said.

“The important thing is actually fixing the system so it works for people, and that requires a lot of knowledge and information and talking to other people,” he said.

The committee working out the school district consent decree, for example, includes former students who received special education services, parents, and parent advocates.

“He knows how to find the people who know what’s going on and take advantage of their knowledge,” Funchess said. “He does that all the time. It’s very routine for him. This is something he does like people do breathing.”

Funchess calls Hetherington “the lawyer for the little guy.”

At any point, Hetherington could have landed a much more financially lucrative position at a private law firm, said Michael T. Harren, an attorney at Trevett Cristo Attorneys.

“He stayed true to the legal services and what he wanted to do,” Harren said.

“There have been cases where something has come across Bryan’s desk and he took the position that that’s simply wrong, or unfair, or discriminatory, and then set about to build a way of challenging that practice,” Harren said.

Hetherington is wrapping up his career in much the same way he started it — working out a consent decree addressing how the school district will improve special education services.

“It’s like it’s coming full circle,” Funchess said.

The first consent decree that settled a lawsuit over massive violations of federal law involving education of kids with disabilities was one of the first cases he handled as a public service lawyer in Rochester in the 1980s.

That consent decree lasted into the early 2000s when the district disengaged by showing that they had substantially complied.

“Then, after they got disengaged, they fell off the wagon,” Hetherington said.

“The first consent decree meant a tremendous amount for lots of kids. When we started, no kids with disabilities, zero, were getting high school diplomas. They were all getting certificates and stuff like that,” Hetherington said.

“The dropout rate was staggering. Parents had no real participation in the system. There were horrible things going on. All that changed to the point that hundreds of kids were getting diplomas,” he said.

Hetherington, 68, originally planned to study political science and pursue an academic career. But while an undergraduate student at LaSalle University in Philadelphia he met some lawyers “doing amazing things.”

He discovered what life was like for poor kids by being a volunteer tutor at a juvenile facility in Philadelphia. At Cornell Law School, Hetherington got involved in the legal aid clinic, and, he said, that work gave meaning to the studying he was doing.

“It was when I saw how the applied law could make people’s lives better that I really got into it and actually became a better student,” Hetherington said.

In 1975, Hetherington’s first job as a lawyer was at Mid-Hudson Legal Services in Kingston and he later became managing attorney of the Poughkeepsie office.

From 1980 to 1996, Hetherington was litigation director of what was then called the Monroe County Legal Assistant Corp. (MCLAC), but is now Legal Assistance of Western New York.

Things changed in 1996 after Congress put restrictions on federally funded civil legal services for low-income people. The most significant restriction was that organizations that received federal funding through the Legal Services Corp. were no longer able to handle some cases, such as welfare reform litigation, class action lawsuits, lobbying and administrative rule making activity, cases that bring in statutory attorney’s fees from the defendants challenging Social Security or Supplemental Security Income denials, or cases brought against government agencies claiming violations of federal law.

So MCLAC was divided into two parts — a new MCLAC office with a more limited scope, and the Public Interest Law Office of Rochester, which Hetherington led.

As the Public Interest Law Office grew, gained recognition and garnered statewide attention, it morphed into the Empire Justice Center in 2003.

The Rochester office handles SSI claims, class action litigation and foreclosure prevention services via contracts with other civil legal service providers.

Today, there are about 70 lawyers in four offices, including roughly 35 in Rochester. Empire Justice also has offices in Albany, Westchester County, and at Touro Law School in Central Islip, Suffolk County.

Now that his career is winding down, Hetherington has recently switched to an “of counsel” role at Empire Justice.

“If we really want to have a fair and just society — a society where everybody can be productive to the full extent of their abilities — then we really do need to deal with some of these root-cause things,” he said.

As he approaches retirement on Oct. 31, Hetherington said he is confident that a new generation of very capable lawyers will maintain the standard he set.

“We have staggeringly talented young women and men coming to us with a passion to do this work. The same kind of passion that brought me and other colleagues who came in in the ’70s,” he said.

“I have great hopes and expectations for what will happen with this next generation, and part of why I feel some degree of comfort in leaving now is that we have these amazing mid-level people who have come into their own,” he said.

[email protected]/(585) 232-2035

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Bryan D. Hetherington

Title: Litigation director, Empire Justice Center

Age: 68

Education: LaSalle University, bachelor of arts degree, 1972; Cornell Law School, juris doctor, 1975.

Home: Rochester

Family: Wife, Susan; two sons, Nathan and Matthew; one daughter, Elizabeth

Hobbies: Cooking, bicycling

Quote: “If we really want to have a fair and just society — a society where everybody can be productive to the full extent of their abilities — then we really do need to deal with some of these root-cause things.”