Photo by Hugh Williams.
Lynne Bernabei has always been a passionate advocate for social justice. The Washington, D.C.-based attorney co-founded Bernabei & Wachtel, an eight-lawyer firm that represents whistleblowers as well as plaintiffs in employment and civil rights cases. Among her many notable cases challenging institutions to change their practices, Bernabei has represented a gay staffer fired from the Democratic National Committee, women faculty alleging gender discrimination at DePaul University and whistleblowers at Los Alamos National Laboratory.
Name: Lynne Bernabei
Firm: Bernabei & Wachtel
Practice Areas: Employment Discrimination, Civil Rights and Whistleblower Cases
Location: Washington, DC
Law School: Harvard Law School, 1977
Undergraduate: Harvard University, 1972
Lawdragon: How would you describe your practice?
Lynne Bernabei: We represent whistleblowers in large corporations, accounting firms, or the government who disclose significant illegalities or financial irregularities. We also counsel employees in discrimination disputes with their employers, as well as litigate cases against employers who have discriminated or retaliated against employees on the basis of the employees’ gender, race, ethnic origin, disability, sexual orientation, or other prohibited characteristic. Most of the cases we bring are against large corporations who are covering up significant illegalities or a pattern of illegal discrimination.
LD: What do you like about our type of practice? What is professionally satisfying?
LB: I enjoy being able to bring some justice to clients who have suffered from losing their job, and who are often blackballed in their profession. In many instances, litigating their case involves changing the practice of a large corporation or the government, or bringing public attention to an egregious pattern of discrimination that needs to be eliminated. We often work with public interest or grass roots groups that want to see a change in policy or practice, and our lawsuit can be a way to bring public attention to the problem and organizing support for a change.
Among the most interesting cases we have done is for a gay staffer at the Democratic National Committee (DNC) that the DNC terminated because his partner criticized the Democratic Party for refusing to address issues of importance to the LGBT community, while taking the money of the LGBT community to promote Democratic candidates. The case brought attention to the DNC’s refusal to address issues such as gay marriage or discriminatory employment practices throughout the country programmatically. The case drew a great deal of press attention, which solidified the LGBT movement behind changing anti-gay policies, including the “don’t ask, don’t tell” policy then existing in the U.S. military. That movement went on to push toward elimination of the military policy, and more federal government support of marriage equality.
Similarly, in recent cases against a Chinese broadcast company on behalf of five women and four men, the court’s ruling that New York law did not protect unpaid interns from sexual discrimination, unleashed a firestorm that led to amendments of the New York state and New York City laws which banned discrimination, including sexual harassment, against unpaid interns.
We also have many cases that never reach the litigation stage, because they are settled privately, which help change internal government and corporate policies for the better.
LD: What types of cases are keeping you busy these days? Are there trends you are seeing in your practice?
LB: We are litigating three cases in New York and Washington, D.C. against Phoenix Satellite Television, in which we allege that the former director of the East Coast offices sexually assaulted and sexually molested 10 current and former employees, interns, and job applicants over a period of at least eight years. Phoenix is one of the largest Chinese international broadcast companies in the world, and its executives have close ties to the Chinese government. Although Phoenix has terminated the employment of the director, it continues to retaliate against the plaintiffs who still work for the company, and forced out or fired the four men who have supported the women who have come forward with charges. As the litigation has progressed (and we are just entering the deposition stage), Phoenix employees have filed three suits against the plaintiffs and two against us as counsel for the plaintiffs, in a manner that we allege is retaliatory. Press on the case has been censored in China, which has led to press in this country about continuing press censorship in China. The case illustrates some multinationals’ refusal to abide by United States laws, and bringing a bias against women into their operations in the United States. The company has paid two interns $180,000 each to resolve their claims. We are preparing to begin depositions in the two ongoing cases.
We also represent a senior professor at California Institute of Technology (CalTech) whom the administration is attempting to force out because she spoke to investigators from the Federal Bureau of Investigation about potential security violations in work she and others at CalTech are conducting. CalTech has a multimillion dollar contract to manage the Jet Propulsion Laboratory where our client works, and has had a string of reports of security violations. That case is currently proceeding in state court in California.
LD: What do you expect the impact of the cases to be?
LB: We are hopeful that in the CalTech case we are able to move CalTech toward more responsible management of JPL, an important national research laboratory. I represented the two whistleblowers at Los Alamos National Laboratories who brought to public and Congressional attention massive fraud and corruption, as well as security violations at the laboratory. Congress eventually forced the Department of Energy to bid the contract for Los Alamos, which led to the University of California losing its exclusive contract to manage Los Alamos, and a stop to the most egregious theft and corruption at the Laboratory.
In the Phoenix case, we are hopeful that Phoenix, an important Chinese company operating in this country, will realize its need to comply with US laws, including anti-discrimination statutes, and be an example for other multinationals operating in the US, in a manner inconsistent with our laws.
LD: What are the key challenges of litigating these types of cases?
LB: Many of our clients no longer are employed, or have limited resources. Therefore, we have to learn to litigate cases without the resources of the defendants. This requires being very strategic about how we spend money, what discovery we seek, and the issues on which we focus. It also requires to keep changing our focus as the case proceeds, to make the most of the facts that we are uncovering, or the witnesses who have come forward.
LD: What other types of matters are keeping you busy these days? Are there trends that you are seeing in your practice?
LB: We have negotiated a number of important resolutions of employment disputes especially in the area where the client holds Sarbanes-Oxley Act (SOX) claims. In most of these matters, the client holds an important position in the company and has unsuccessfully opposed an illegal or financially irresponsible practice, in violation of SOX. In many of these cases, the clients are significant threats to the higher-ups in the company who endorsed the illegal practices, so the cases tend to resolve early.
It is hard to know in any particular case what effect bring forward SOX claims will have, but I have to believe that at least for some companies, the exercise serves to encourage the top management to clean up its shop. In other cases, it is likely that if the company continues down the same path, these illegal corporate practices will come out by other employees bringing public claims.
LD: Is this the type of practice you imagined yourself practicing while in law school?
LB: I really did not have a firm idea of what I wanted to do when I was practicing law, although I knew that I wanted to do some form of public interest law. I also wanted to do something having to do with constitutional law, which is involved in some of our whistleblower cases, and some of general civil rights cases we handle.
LD: Is there a case in your career that stands out as a “favorite” or one that is particularly memorable?
LB: The Los Alamos security whistleblowers were very brave, and forced a national examination of how Los Alamos operated, and how to fix some of the egregious security and financial problems at the lab. Congress was interested in making sure that the problems were fixed, and put enough pressure on the Department of Energy to make sure that got done. The two whistleblowers eventually were vindicated, but they both endured tremendous personal and financial injury before that happened.
I also remember a set of gender discrimination cases at DePaul University which we handled. Five women whom we represented challenged their denial of tenure on the basis of discrimination. Their cases helped to galvanize the faculty to push out the Provost (who we alleged to have engineered the denial of their tenure) bring some much needed transparency to the tenure process. One of the five cases, now being handled by other counsel, is headed toward trial, since summary judgment was denied. The women clients are incredible teachers and scholars, and the strength of their records ultimately forced DePaul into a somewhat more open tenure process.
LD: Tell us about your career path. What drew you to start your own firm?
LB: Another employment attorney and I started a predecessor firm in 1987. When we separated and formed two different firms in 2006, both of us were established and respected employment attorneys. Our current firm does not only employment matters, but a number of civil rights cases, including a case against a racially discriminatory police department in Arizona, and challenges to government abuses in the anti-terrorism area.
When my former partner and I started the original firm, we had no idea what we were getting into, and I am happy that things worked out for so long. However, I think in the current climate, starting one’s own law firm is more difficult, without somewhat greater experience, because of the high cost of litigation, especially for those on the plaintiff’s side.
LD: Tell us your role in the firm’s management.
LB: We have an eight-lawyer firm. I am the primary attorney dealing with finances. My law partners and I jointly decide on what cases we will take, and what cases we need to turn down. We have different interests and strengths, so that working on different cases works out well.
LD: What are some of the challenges now in running the firm?
LB: We are not able to pay the kind of salaries that lawyers in large firms receive. We realize that it is difficult for many young lawyers coming out of law school to pay back student loans and work in a public interest law firm.
LD: What do you do for fun when you’re outside the office?
LB: I play tennis and love classical and jazz music.
LD: Are you involved in any pro bono or public interest activities?
LB: I have many friends in the public interest community who need legal advice or representation in an amicus brief or informal matter. Our firm often writes amicus briefs and we advise a number of advocates on a pro bono basis.
LD: If you weren’t a lawyer, what would you be doing now professionally?
LB: I would be a piano teacher, if I had kept up my playing.