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ESLnotes.com - Philadelphia

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It is about a Philadelphia lawyer, Andy Beckett, who is fired from his job after he ... real reason he was fired is because his bosses found out that he had AIDS. ... For Andy and his family, the lawsuitwill come to represent a major fight against prejudice, ... At first, Joe refuses to work for Andy, inlarge part because he is himself ...

Philadelphia Story How Clarence Cain Lost His Law Job To Aids

by Don Russell, Daily News Staff Writer

POSTED: October 28, 1992

When Jonathan Demme, Tom Hanks and others got up at City Hall last Thursday to formally announce filming of "Philadelphia," the scene was a mix of media frenzy, political pronouncements and gasps of delight from curious onlookers.

The movie they'll film for the next four months, according to the movie producers, is about a gay lawyer who is fired when his firm learns of his acquired immune deficiency syndrome. It's the first major Hollywood production about AIDS.

At the back of the room, away from the glaring lights, a man listened, shook his head and wiped an eye.

"I can't believe it," Richard Silverberg finally said.

Silverberg had heard the film's story line before. In fact, he said he lived it.

In June 1990, a friend of his, Clarence Cain, died in Newport News, Va.

Cain, 38, was a gay attorney at a Philadelphia law firm who had been fired

because he had AIDS. Two months before he died, a U.S. District judge ordered the firm - Hyatt Legal Services - to pay Cain more than $150,000 for his wrongful dismissal.

The "Philadelphia" film producers say the movie is completely fictional, based on an original screenplay by Ron Nyswaner.

A spokeswoman for Apple Pie Productions said, "The script is not based on any particular incident." She said that the film-makers had "done a lot of research" but that she was uncertain if that included a look at the highly publicized Cain case.

Nyswaner, whose screenplay credits include the fact-based "Mrs. Soffel," declined to comment about the script.

Fact or fiction, some of those involved in the Cain case feel a heavy personal investment in the story, perhaps no one more than Silverberg.

"My first thought," Silverberg, 35, said a day before attending the press conference uninvited, "is that it's too much of a coincidence. When I first heard about the movie, I couldn't believe they could make it without talking to me or Clarence Cain's mother. Nobody has spoken to either of us."

Others close to the case agreed the film's brief plot description sounds awfully familiar.

"My first reaction was, 'Wow, it's incredibly similar,' " said Fran Stoffa, executive director of the AIDS Task Force of Philadelphia, who was friends with Cain. "The plot is like deja vu."

Stoffa and others involved in AIDS-related law could not recall any other case involving an attorney suing a law firm over an AIDS-related dismissal. If there have been other cases, they were never as widely reported as the Cain case, details of which appeared in dozens of newspapers. Cain also testified about his treatment by Hyatt before a presidential commission.

*

During a lengthy interview about the Cain case, Silverberg became visibly upset, often breaking out in tears.

"Clarence was my friend," Silverberg said, sobbing.

Clarence Cain grew up in poverty in Newport News, Va., one of 10 brothers and sisters. Friends and others familiar with his career said he had been proud he was the first in his family to make it through college and law school.

After 10 years of private practice, Cain joined Hyatt Legal Services, the national cut-rate law chain run from Cleveland by Joel Hyatt. He was recruited under Hyatt's fast-track program that groomed talented attorneys for management jobs. In November 1986, he was promoted to regional partner of Hyatt's Philadelphia region, overseeing 10 offices with 35 attorneys.

Shortly afterward, Silverberg joined Hyatt.

Although Cain was his supervisor, Silverberg said, the two quickly became friends, occasionally going out for drinks after work. "We just hit it off," Silverberg said.

On July 13, 1987, Cain entered Pennsylvania Hospital with pneumonia. Three days later, his physician, Michael Braffman, told him he had AIDS. "He was both shocked and frightened when I told him," Braffman said. "But he understood everything I told him, and he was strong."

Before the end of the month - while Cain was still in a hospital bed - Hyatt Legal Services, having learned of his affliction, dismissed him. Testimony showed the decision was made with the direct approval of Joel Hyatt

himself.

His replacement had Cain's desk cleared off by someone else, according to court records, because he was afraid to touch any of the AIDS-infected lawyer's belongings.

The firm offered Cain, who had been earning $40,000 a year, a $12,000 severance or a low-ranking staff attorney job in Virginia that paid about $20,000. Cain rejected the offers and was placed on non-paying medical leave.

Hyatt's treatment of Cain outraged Silverberg. "It was unbelievable, the extent of the paranoia. A number of us found it offensive, and I resigned," he said.

By that fall, Cain's condition improved as Braffman administered the then- experimental drug azidothymidine. In October 1987, Cain decided to move to Washington, D.C., to be closer to his family and older friends.

In early 1988, Cain telephoned Silverberg and asked for help. He wanted to sue Hyatt for employment discrimination on the basis of a handicap. Though Silverberg had landed a new job - at a firm headed by Edwin Dashevsky - neither he nor the firm's partners had much experience in civil-rights law.

Over the next months, Silverberg worked feverishly on his friend's lawsuit. It was his first federal court case, his first really big lawsuit. Dashevsky said, "Richard coveted this case. This was an ego case."

Dashevsky said he and his partners eventually grew concerned about Silverberg's devotion to the Cain case. They believed he was slacking off on the rest of his caseload.

Silverberg countered that he was handling what was essentially a groundbreaking lawsuit by himself. "There had not been a AIDS employment discrimination case like this in the commonwealth, so the task was that much more difficult," Silverberg said.

In late 1988, three weeks before the case was scheduled for trial, Dashevsky's firm brought in a pair of outside experts to evaluate Silverberg's handling of the lawsuit.

"We felt he was in over his head," Dashevsky said. The firm's partners told Silverberg he would have to step aside and serve only as co-counsel, with a civil-rights expert as lead attorney. Or he would have to leave the firm.

Silverberg was incensed. "I said, 'See ya,' and I got up and walked out. They come running after me - 'No, no, we're not kicking you out!' I said, 'See ya.' "

He said he moved out of the office that afternoon.

Meanwhile, Clarence Cain was dying of AIDS. He was bankrupt, had no job and no source of income other than a $600-a-month Social Security check.

Significantly, though, Cain stuck with Silverberg. Indeed, the entire case had become a matter of principle: Cain had rejected several Hyatt settlement offers - including back pay and a return to his old job - pressing for his day in court. And he would fight only with Richard Silverberg at his side.

As happens with litigation of this complexity, the trial was postponed. Silverberg landed a new job at another Center City firm and the same thing happened: Silverberg clashed with his firm over the Cain case and was out of a job.

Again, the trial was delayed. By then, it was early 1990. Silverberg was working on the case - his only case - in the basement of his apartment at 5th and Pine streets with a computer he'd borrowed from his sister. On Feb. 12, 1990, when the trial began, Silverberg used a credit card he'd received in the mail to pay for airline tickets to fly Clarence and his mother to Philadelphia.

Clarence arrived in a wheelchair, looking like skin wrapped around bones.

Silverberg remembers lying wide awake the night before the trial. He was going up against a team of attorneys from one of the city's biggest firms, Schnader, Harrison, Segal & Lewis. And because of a procedural error by Silverberg, a single judge - not a jury - would determine Cain's fate. Some observers later said the mistake may have cost Cain in the final judgment, for juries often grant large awards.

The trial lasted one week. Two months later, Judge Raymond Broderick issued a boldly worded ruling in Cain's favor.

"Their actions," Broderick wrote on April 3, "were a corrupt assault on the dignity of the plaintiff."

He ordered Hyatt to pay Cain $157,888.18.

Hyatt declined to appeal and paid the judgment.

Cain, however, never got a chance to spend the money. Two months after the ruling, he was dead.

The story of Clarence Cain could probably end with his death, but now Jonathan Demme's film about a case with a similar plotline is raising thoughts of the past. "I was just thinking about Clarence when I heard about the movie . . . I would have loved to have spoken to them about him." said Cain's physician, Dr. Braffman.

And then he added, "I'd like to see how they portray me . . ."

Silverberg says he's distressed because he fears the film is bound to corrupt the memory of his friend. He's upset that the AIDS- infected lawyer is being played by Tom Hanks, a white actor; Cain was black.

For two years, the case consumed him and thoroughly altered his professional career. It was his big case, and he's never had anything like it since.

Two years ago, Silverberg said, he got his strength to battle the giant Hyatt Legal Services and its army of attorneys for his terminally ill friend, Clarence.

But now, as the case comes back to haunt him in the form of a motion picture, Cain is gone.

Little remains other than an artist's framed courtroom drawing that sits on Silverberg's office floor. And the memories that he wishes Hollywood had asked him about.