Back in the early Seventies, some enterprising young legal services lawyers filed a creative lawsuit that challenged the procedures for evicting public housing tenants in Chicago. Following the U.S. Supreme Court's landmark opinion in Goldberg v. Kelly, they argued that public housing residents are entitled to fair hearings before the institution of eviction cases. The upshot of the suit was the creation of tenant boards, which had to approve every eviction (for grounds other than nonpayment of rent) before the city's housing agency could even file a forcible detainer action in court.
But the victory proved ephemeral: The residents who volunteered to serve on the boards had little tolerance for their neighbors who were accused of lease violations such as drug use or violence, or even less harmful infractions like making noise or keeping pets. By the time I joined Chicago's legal assistance foundation in 1973, its lawyers had basically given up on the tenant boards. My supervisor told me not to represent clients at pre-eviction hearings, explaining that no one had ever won one. (Given the staggering caseload, it made sense to concentrate on cases we might actually win.)
I suppose that the obduracy of the tenant boards might have given me some interesting insights into the jury system-perhaps ordinary citizens are not really more lenient than "the establishment"-but I was young and idealistic, so I ignored it and continued to put my faith in the judgment of "the people."
And that brings us to the subject of real jury trials in criminal cases. Just about everyone thinks that jury trials provide a relative advantage to defendants, and some very high-profile acquittals in controversial cases seem to underscore the point. (Think of O.J. Simpson, Richard Scrushy, the Amadou Diallo case, and the second Andrea Yates trial.) Lawyers and defendants alike appear to have internalized the lesson, overwhelmingly preferring juries to bench trials. Whether they expect common folk to be more incisive or more gullible than judges, more than three-quarters of defendants in federal cases opt for juries when they go to trial.
Surprisingly, however, it may turn out that the conventional wisdom about jury trials is wrong, just as Chicago's legal assistance lawyers were wrong about tenant boards. In a recent study published in the Washington University Law Quarterly in 2005, University of Illinois law professor Andrew Leipold discovered that federal court defendants fare far worse before juries than in bench trials. Between 1989 and 2002, Leipold found, there was an 84 percent conviction rate in federal jury trials, but only a 55 percent conviction rate in bench trials. In fact, the "conviction gap" actually increased over the period, with jury conviction rates holding steady and bench trial convictions falling dramatically. What's more, the disparity held true-with juries convicting far more reliably than judges-in every part of the country and in every type of case.
Professor Leipold's statistics are impressive and convincing, and his article, "Why Are Federal Judges So Acquittal Prone?," is far more readable than the typical venture into empirical legal studies. Most importantly, he asks the right questions about his findings: Why is there such a great difference in outcomes, with judges responsible for so many more acquittals than juries? And perhaps even more intriguingly, why do defendants and their lawyers consistently choose the fact finder that is more likely to convict?
Exploring the first question, Leipold notes that federal judges have not always been so acquittal-prone. In fact, not very long ago judges convicted at higher rates than juries, with the current imbalance really taking hold only in 1989. And that timing, Leipold observes, coincides rather neatly with the effective date of the mandatory federal sentencing guidelines in November 1987, which drastically limited judges' traditional discretion on sentencing. Many federal judges considered the guidelines draconian or worse, requiring them to impose overly severe sentences in case after case. Thus, Leipold conjectures that the increased bench trial acquittal rate may reflect judges' reactions to the guidelines. "Put more bluntly," he says, "judges may acquit more often because they found it to be the only way to avoid imposing an unjust sentence they know would follow a conviction."
I doubt that any judge would admit to intentionally acquitting a guilty defendant. That would amount to disrespect for the law. Still, the reality of extra-harsh punishment might well serve to focus judges' attention on the burden of proof. It is a well-recognized phenomenon that people tend to take weighty decisions more seriously, so it's reasonable to think judges might do the same, deliberately or not. And who knows? Maybe preguideline judges were conviction-happy, deferring to prosecutors and throwing doubt to the winds.
In any event, we may soon have a preliminary answer to this question, since the Supreme Court partially invalidated the guidelines in United States v. Booker (2005). Now that judges are freed from the most confining strictures of mandatory sentencing, it is possible that post-Booker bench trials will begin to return more convictions.
But whether or not the current trend continues, we still have to wonder why defense lawyers have spent 15 years demanding jury trials when it appears that judges would have been nearly three times as likely to acquit their clients. There are two possible explanations. Either defense lawyers are really stupid, or they are very smart.
According to the stupid-lawyer theory, defense attorneys have simply failed to notice that juries have become much tougher than judges. No matter that juries have regularly sent innocent defendants to prison-in Illinois alone, at least 18 innocent men were sentenced to death following jury convictions-lawyers have remained faithful to an ideal of jury-as-protector that has long been eroded by the public celebration of law and order. Alternatively, it might be the (guiltiest) defendants themselves who are stupid, refusing bench trials because they have deluded themselves into believing that they can confuse or bamboozle a jury of their peers.
On the basis of my experience, however, I tend to favor the smart-lawyer explanation. The disparity between bench and jury convictions may well reflect a successful strategy on the part of defense counsel, who astutely select the best fact finder for each case. Under this hypothesis, defense lawyers take their best cases to bench trials because they believe that judges will be more adept at recognizing reasonable doubt. In weak cases, however, where the prosecution evidence is strong-to-overwhelming, they prefer jury trials in the hope that lightning might strike. A public defender once explained it to me succinctly. "Our job," he said, "is to win bench trials and lose jury trials." That was many years before Leipold's conclusive study, but he accurately predicted the result.
There is another possible explanation for defense lawyers' seemingly counterproductive preference: In a bench trial, you either win or lose. In a jury trial, you can win, draw, or get a do-over.
The second outcome-a hung jury, or a tie-is preferable to a conviction, but does not show up in Leipold's statistics. Remember, it only takes one juror with a reasonable doubt to hang a jury. And following a mistrial, it is not unusual for the prosecution to tender a better plea bargain, perhaps by dismissing the more serious counts, in which case there would be no retrial. We do not know how often that happens, but the potential for a hung jury (and the attendant posttrial benefits) could certainly influence the defense lawyers' choices.
And even when a jury convicts, there is always the possibility that the judge will give the defendant a do-over. Federal district court judge Jack Weinstein recently did just that in the closely watched "Mafia cops" case in Brooklyn, New York. After the jury found two New York City police officers guilty of murder and conspiracy for their involvement in eight mob assassinations, Judge Weinstein threw out the convictions on statute of limitations grounds. Referring to the defendants as "heinous criminals" who had been "found guilty on overwhelming evidence of the most despicable crimes of violence," Judge Weinstein nonetheless released them because he concluded that the "Constitution [and] statutes" required it. It would have been difficult for a jury to acquit on such a "technicality," said one of the defense lawyers. Indeed.
Finally, let's consider the matter of, well, respect for the jury process. While no sane defendant would prefer conviction to acquittal, I suspect that many find it easier to accept convictions following jury trials. "If I'm going to do time," I have heard it said, "I want a jury to tell me that I am guilty." Even criminals, it turns out, may have faith in the system.
Criminal Law
Friday, September 15, 2006
Thursday, September 14, 2006
To be counted among the nation's elite, law firms need more than sheer size or money
Balance May be the X-factor that separates the top tier of the legal profession from the rest of the pack. You can't be on The American Lawyer's A-List-our annual ranking of the best of the best among the nation's top law firms-without it.
We compile the list by measuring performance of Am Law 200 firms in four key areas: Financial success is one component, commitment to pro bono is another. A firm must attend to the morale and training of its associates and do something more than pay lip service to the idea of a diverse workplace. Our goal here is fairly straightforward. We aim to determine, as objectively as possible, the firms that have been able to build successful practices without abandoning the profession's core values.
As our scores show, the best law firms find a way to balance it all. They marry good business with good works, treat associates decently, and work hard to promote diversity. A-List scores are based on data collected from our annual Am Law 200, pro bono, associate satisfaction surveys, and the Diversity Scorecard compiled by our sibling publication, Minority Law Journal. Some core values are more equal than others. We double the value of revenue per lawyer-our proxy for the ability to attract the best work from the best clients-and pro bono scores. (For a more detailed description of the methodology we use, click here.)
It is, by definition, difficult to make the cut: The A-List is composed of just 20 firms, or 10 percent of The Am Law 200. And as we noted last year, the bar for making the grade continues to rise. This year, the cutoff for the list rose another 19 points-that's on top of a 19-point jump in 2004.
Mass is not a barometer of A-List success. It's not how big you are that matters, it's what you do. Consider: Eleven U.S.-based firms have more than 1,000 lawyers, but just three of them made The A-List: Latham & Watkins; Skadden, Arps, Slate, Meagher & Flom; and Weil, Gotshal & Manges. The average size of an A-List firm this year is 690 lawyers. By contrast, the average size of a firm in the top 20 of The Am Law 100 was 1,211.
Repeat players dominate the list. Thirteen have made it each of the three years: Arnold & Porter; Cleary Gottlieb Steen & Hamilton; Cravath, Swaine & Moore; Covington & Burling; Davis Polk & Wardwell; Debevoise & Plimpton; Heller Ehrman; Latham; Patterson Belknap Webb & Tyler; Paul, Weiss, Rifkind, Wharton & Garrison; Simpson Thacher & Bartlett; Skadden; and Wilmer Cutler Pickering Hale and Dorr.
Debevoise has finished atop the chart for two consecutive years, and we examine how they did it. Also we find lessons from two firms that make their A-List debut: Shearman & Sterling and Cooley Godward; and two that have returned to the fold: Fried, Frank, Harris, Shriver & Jacobson and Weil, Gotshal. Being an A-List firm takes balance and will.
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We compile the list by measuring performance of Am Law 200 firms in four key areas: Financial success is one component, commitment to pro bono is another. A firm must attend to the morale and training of its associates and do something more than pay lip service to the idea of a diverse workplace. Our goal here is fairly straightforward. We aim to determine, as objectively as possible, the firms that have been able to build successful practices without abandoning the profession's core values.
As our scores show, the best law firms find a way to balance it all. They marry good business with good works, treat associates decently, and work hard to promote diversity. A-List scores are based on data collected from our annual Am Law 200, pro bono, associate satisfaction surveys, and the Diversity Scorecard compiled by our sibling publication, Minority Law Journal. Some core values are more equal than others. We double the value of revenue per lawyer-our proxy for the ability to attract the best work from the best clients-and pro bono scores. (For a more detailed description of the methodology we use, click here.)
It is, by definition, difficult to make the cut: The A-List is composed of just 20 firms, or 10 percent of The Am Law 200. And as we noted last year, the bar for making the grade continues to rise. This year, the cutoff for the list rose another 19 points-that's on top of a 19-point jump in 2004.
Mass is not a barometer of A-List success. It's not how big you are that matters, it's what you do. Consider: Eleven U.S.-based firms have more than 1,000 lawyers, but just three of them made The A-List: Latham & Watkins; Skadden, Arps, Slate, Meagher & Flom; and Weil, Gotshal & Manges. The average size of an A-List firm this year is 690 lawyers. By contrast, the average size of a firm in the top 20 of The Am Law 100 was 1,211.
Repeat players dominate the list. Thirteen have made it each of the three years: Arnold & Porter; Cleary Gottlieb Steen & Hamilton; Cravath, Swaine & Moore; Covington & Burling; Davis Polk & Wardwell; Debevoise & Plimpton; Heller Ehrman; Latham; Patterson Belknap Webb & Tyler; Paul, Weiss, Rifkind, Wharton & Garrison; Simpson Thacher & Bartlett; Skadden; and Wilmer Cutler Pickering Hale and Dorr.
Debevoise has finished atop the chart for two consecutive years, and we examine how they did it. Also we find lessons from two firms that make their A-List debut: Shearman & Sterling and Cooley Godward; and two that have returned to the fold: Fried, Frank, Harris, Shriver & Jacobson and Weil, Gotshal. Being an A-List firm takes balance and will.
Follow the Lawyer and Attorney section of http://www.netbestfor.com
Conflict Claim Sours Big Firm's Work With Health Giant
Accusations of bad faith, breach of loyalty and attorney activity "bordering on extortion" are flying in Georgia's Fulton County Superior Court, where medical conglomerate McKesson Corp. wants to have the Duane Morris firm disqualified from representing two Georgians against a McKesson subsidiary.
At issue is whether Duane Morris' representation of the Georgians against McKesson Information Solutions, while serving as local counsel for two other McKesson subsidiaries in Harrisburg, Pa, is a conflict of interest.
Documents in McKesson's case against the firm show that Duane Morris lawyers are relying on an engagement letter McKesson officials in the Pennsylvania case signed that waived conflicts that are not "subantially related" to that matter.
The case highlights the ethical risks when a megafirm like Duane Morris, which has 600-plus lawyers in 18 offices around the world, works for a huge company such as McKesson, a supplier of medical and health-care technology, training and pharmaceuticals that claims more than $80 billion in annual revenue.
The problem started in April, when McKesson Medication Management and McKesson Automation contracted with Duane Morris' office in Harrisburg, Pa., to serve as local outside counsel in a case being heard in U.S. Bankruptcy Court in which the two companies are among several creditors.
In July, Duane Morris' Atlanta office was hired by Nan and Alex Smith to help in their claims against McKesson Information Systems, the name for the health-care business they sold in 1994 to a company that has since been acquired by McKesson.
The Smiths took McKesson Information to arbitration to settle their claims that McKesson breached a noncompete agreement and committed fraud, based on allegations that the company shipped empty boxes to inflate sales figures several years earlier.
The trouble is spelled out in communication, included in the Fulton case file, between the Atlanta firm of Morris Manning & Martin, which was lead counsel for the McKesson subsidiaries in the Pennsylvania bankruptcy case, and Duane Morris' Atlanta office.
On Aug. 8, Duane Morris' Sean R. Smith sent a letter to Lawrence H. Kunin of Morris Manning. (There was no response by press time to an inquiry as to whether Sean R. Smith is related to Alex and Nan Smith.)
Smith argued that Duane Morris' engagement letter with McKesson clients in Pennsylvania expressly limited their attorney-client relationship to serving as local counsel to the two companies for the bankruptcy case.
"You recently stated that 'McKesson' believes that representation of one McKesson entity, under any circumstances, would automatically give rise to a conflict by representation against another McKesson company," wrote Smith. "We were very surprised to learn this, because the Engagement Letter was revised at the request of [McKesson], and the terms that specify that Duane Morris represents only McKesson Medical and McKesson Automation and not any affiliates and the waiver of conflicts were not identified as objectionable."
The agreement letter, signed by Duane Morris' Harrisburg partner Brian Bisignani and included in the Fulton case file, contains this statement: "Given the scope of our business and the scope of our client representations ... it is possible that some of our clients or future clients will have matters adverse to McKesson. ... We understand that McKesson has no objection to our representation of parties with interests adverse to McKesson and waive any actual or potential conflict of interest as long as those other engagements are not substantially related to our services to McKesson."
The next paragraph, however, contains a caveat that the waiver "shall not apply in any instance where ... we have obtained proprietary or confidential information."
Duane Morris' Smith wrote that that section "contemplates situations exactly like the current one," and conforms to the American Bar Association's "preferred method for resolving potential conflicts in the corporate affiliate context before they arise."
Should McKesson insist upon its position, Smith concluded, Duane Morris would bow out of the bankruptcy proceedings entirely.
Three days later, Kunin and Morris Manning partner Joseph R. Manning filed McKesson's Fulton case against Duane Morris.
The complaint terms the firm's threat of withdrawing as "bordering on extortion."
Pointing to the allegations of malfeasance the Smiths allege, Manning and Kunin wrote, "It is hard to imagine a more blatant breach of loyalty than to accuse your current client of fraud and then withdraw from the initial representation as pure punishment."
McKesson Information, the subject of the arbitration, and McKesson Automated are both part of a larger segment of the corporation, which has a single president and shares a legal department headquartered in Alpharetta, Ga., the complaint adds.
The complaint referred to a consultation with Paula J. Frederick of the State Bar of Georgia's Office of General Counsel. She cited Rule 1.7 of the Georgia Rules of Professional Conduct and Comment and said, according to the complaint, "Absent specificity, future waivers of conflicts of interest are invalid because a waiver must be 'knowing' and a party cannot know in advance exactly what conflicts are involved."
Frederick would not elaborate on her comments.
On Aug. 21, Duane Morris' Smith and partner John C. Herman and associate Antony L. Sanacory filed a motion in opposition to the emergency injunction and disqualification, describing the suit as an attempt "to create a conflict where none exists." The filing decried their firm's portrayal as "extortionists" as "an entirely unfounded and spurious claim," and said that Duane Morris' Pennsylvania attorneys have had limited contact with any employee at any McKesson-owned entity and "certainly received no confidential information related to [McKesson Information] at all."
Kunin said he could not comment.
Smith referred inquiries to Duane Morris' general counsel in Chicago, Michael J. Silverman, who similarly declined comment. A call to McKesson's local in-house counsel, Ami R. Patel, was unsuccessful.
Georgia State University legal ethics professor Clark D. Cunningham reviewed the filings and was troubled by Duane Morris' actions.
"A lawyer cannot commit unethical conduct because a client gives him permission," said Cunningham, calling the engagement letter an "unprofessional and unconscionable" effort "that's all about the lawyers' desire to make money and not about their clients' interests."
Cunningham said that Georgia Bar rules and case law "specifically require consultation with the client; that he receives, in writing, reasonable, adequate, detailed notice of the potential conflict ... and, once explained, he can say, 'No, I don't want to take that risk.'"
Cunningham said a provision of the engagement letter that waives notice of any conflict unrelated to bankruptcy, even though it may be adverse to McKesson's interest, is not only a violation of Georgia rules but also "an unconscionable breach of legal ethics."
"They're saying, 'We can pick and choose our clients,' and shop around for the most money, even if it's adverse to existing clients.'"
Duane Morris' Smith could not be reached to comment on Cunningham's assessment.
Attorney Magazine
At issue is whether Duane Morris' representation of the Georgians against McKesson Information Solutions, while serving as local counsel for two other McKesson subsidiaries in Harrisburg, Pa, is a conflict of interest.
Documents in McKesson's case against the firm show that Duane Morris lawyers are relying on an engagement letter McKesson officials in the Pennsylvania case signed that waived conflicts that are not "subantially related" to that matter.
The case highlights the ethical risks when a megafirm like Duane Morris, which has 600-plus lawyers in 18 offices around the world, works for a huge company such as McKesson, a supplier of medical and health-care technology, training and pharmaceuticals that claims more than $80 billion in annual revenue.
The problem started in April, when McKesson Medication Management and McKesson Automation contracted with Duane Morris' office in Harrisburg, Pa., to serve as local outside counsel in a case being heard in U.S. Bankruptcy Court in which the two companies are among several creditors.
In July, Duane Morris' Atlanta office was hired by Nan and Alex Smith to help in their claims against McKesson Information Systems, the name for the health-care business they sold in 1994 to a company that has since been acquired by McKesson.
The Smiths took McKesson Information to arbitration to settle their claims that McKesson breached a noncompete agreement and committed fraud, based on allegations that the company shipped empty boxes to inflate sales figures several years earlier.
The trouble is spelled out in communication, included in the Fulton case file, between the Atlanta firm of Morris Manning & Martin, which was lead counsel for the McKesson subsidiaries in the Pennsylvania bankruptcy case, and Duane Morris' Atlanta office.
On Aug. 8, Duane Morris' Sean R. Smith sent a letter to Lawrence H. Kunin of Morris Manning. (There was no response by press time to an inquiry as to whether Sean R. Smith is related to Alex and Nan Smith.)
Smith argued that Duane Morris' engagement letter with McKesson clients in Pennsylvania expressly limited their attorney-client relationship to serving as local counsel to the two companies for the bankruptcy case.
"You recently stated that 'McKesson' believes that representation of one McKesson entity, under any circumstances, would automatically give rise to a conflict by representation against another McKesson company," wrote Smith. "We were very surprised to learn this, because the Engagement Letter was revised at the request of [McKesson], and the terms that specify that Duane Morris represents only McKesson Medical and McKesson Automation and not any affiliates and the waiver of conflicts were not identified as objectionable."
The agreement letter, signed by Duane Morris' Harrisburg partner Brian Bisignani and included in the Fulton case file, contains this statement: "Given the scope of our business and the scope of our client representations ... it is possible that some of our clients or future clients will have matters adverse to McKesson. ... We understand that McKesson has no objection to our representation of parties with interests adverse to McKesson and waive any actual or potential conflict of interest as long as those other engagements are not substantially related to our services to McKesson."
The next paragraph, however, contains a caveat that the waiver "shall not apply in any instance where ... we have obtained proprietary or confidential information."
Duane Morris' Smith wrote that that section "contemplates situations exactly like the current one," and conforms to the American Bar Association's "preferred method for resolving potential conflicts in the corporate affiliate context before they arise."
Should McKesson insist upon its position, Smith concluded, Duane Morris would bow out of the bankruptcy proceedings entirely.
Three days later, Kunin and Morris Manning partner Joseph R. Manning filed McKesson's Fulton case against Duane Morris.
The complaint terms the firm's threat of withdrawing as "bordering on extortion."
Pointing to the allegations of malfeasance the Smiths allege, Manning and Kunin wrote, "It is hard to imagine a more blatant breach of loyalty than to accuse your current client of fraud and then withdraw from the initial representation as pure punishment."
McKesson Information, the subject of the arbitration, and McKesson Automated are both part of a larger segment of the corporation, which has a single president and shares a legal department headquartered in Alpharetta, Ga., the complaint adds.
The complaint referred to a consultation with Paula J. Frederick of the State Bar of Georgia's Office of General Counsel. She cited Rule 1.7 of the Georgia Rules of Professional Conduct and Comment and said, according to the complaint, "Absent specificity, future waivers of conflicts of interest are invalid because a waiver must be 'knowing' and a party cannot know in advance exactly what conflicts are involved."
Frederick would not elaborate on her comments.
On Aug. 21, Duane Morris' Smith and partner John C. Herman and associate Antony L. Sanacory filed a motion in opposition to the emergency injunction and disqualification, describing the suit as an attempt "to create a conflict where none exists." The filing decried their firm's portrayal as "extortionists" as "an entirely unfounded and spurious claim," and said that Duane Morris' Pennsylvania attorneys have had limited contact with any employee at any McKesson-owned entity and "certainly received no confidential information related to [McKesson Information] at all."
Kunin said he could not comment.
Smith referred inquiries to Duane Morris' general counsel in Chicago, Michael J. Silverman, who similarly declined comment. A call to McKesson's local in-house counsel, Ami R. Patel, was unsuccessful.
Georgia State University legal ethics professor Clark D. Cunningham reviewed the filings and was troubled by Duane Morris' actions.
"A lawyer cannot commit unethical conduct because a client gives him permission," said Cunningham, calling the engagement letter an "unprofessional and unconscionable" effort "that's all about the lawyers' desire to make money and not about their clients' interests."
Cunningham said that Georgia Bar rules and case law "specifically require consultation with the client; that he receives, in writing, reasonable, adequate, detailed notice of the potential conflict ... and, once explained, he can say, 'No, I don't want to take that risk.'"
Cunningham said a provision of the engagement letter that waives notice of any conflict unrelated to bankruptcy, even though it may be adverse to McKesson's interest, is not only a violation of Georgia rules but also "an unconscionable breach of legal ethics."
"They're saying, 'We can pick and choose our clients,' and shop around for the most money, even if it's adverse to existing clients.'"
Duane Morris' Smith could not be reached to comment on Cunningham's assessment.
Attorney Magazine
Wednesday, September 13, 2006
Judge Rules Attorney's Faxes Are Prohibited Advertising
A Manhattan judge has ruled that a lawyer's faxed advisories about legal malpractice issues and cases are prohibited "unsolicited advertisements" because they indirectly highlight his availability to represent clients in such matters.
Until last year, Manhattan solo practitioner Andrew Lavoott Bluestone wrote an "Attorney Malpractice Report" that he sent unsolicited to several lawyers whose fax numbers were listed in the New York Lawyers' Diary and Manual.
Bluestone specializes in legal malpractice representations and has written articles on the subject for the New York Law Journal.
One of the fax recipients, Peter Marc Stern, sued Bluestone in Manhattan Supreme Court last year on the ground that the advisories violated the federal Telephone Consumer Protection Act, which bans sending unsolicited ads to fax machines.
Bluestone responded that the faxes were not intended to advertise his practice but to educate and inform the legal community about legal malpractice issues. He noted the faxes contained no language touting him or his work and only contained his name, address, Web site and contact information.
But Supreme Court Justice Jane S. Solomon said that was enough.
"Although the faxes do not directly offer Bluestone's services as a legal malpractice attorney, they indirectly advertise the commercial availability and quality of such services," she said in an Aug. 25 decision, Stern v. Bluestone, 111895/05.
"[B]y including the name of his law firm and contact information, Bluestone indirectly proposes a commercial transaction," the judge continued.
She granted summary judgment to Stern on the issue of liability under the act, with trial to proceed solely on the issue of damages. Stern could not be reached for comment.
In her decision, Solomon admonished Bluestone, noting that she had previously granted summary judgment against him in a similar 2004 suit brought by another lawyer who received faxes from Bluestone.
In Antollino v. LaSalle Services, 116629/03, the judge also rejected Bluestone's argument that his faxes were not sent for advertising purposes.
"Common sense however indicates that there is no other purpose for them," she wrote at the time.
She cited the earlier decision in ruling that Bluestone "willfully and knowingly" violated the act when he faxed Stern. The statute specifies minimum damages of $500 per fax, with treble damages available in cases of willful conduct. Stern claims he received 14 faxes from Bluestone between November 2003 and March 2005.
Bluestone said Tuesday he had altered his faxes considerably since Solomon's earlier decision. At that time, his advisories also had stated that he concentrated in attorney malpractice litigation and that inquiries were welcome. He removed that language, leaving only his name and contact information.
"She's now ruled that any communication by fax that has a lawyer's name or address on it is an advertisement," he said. "I don't see how that can be."
Bluestone said the judge had stretched statutory language in order to label his faxes "indirect" ads.
"Everything's in some sense an advertisement," he said. "If I put on a suit to go to work instead of shorts, isn't that an advertisement that I'm a serious professional?"
The main purpose of the faxes, Bluestone said, was to spark conversation throughout the legal community on issues of professional liability. When he first started sending the faxes, he said, it seemed a "cutting-edge way of disseminating information."
He stopped last year after discovering an even more cutting-edge method of spreading the word: He launched a legal malpractice blog last June.
Brian L. Bromberg represented Stern. Scott N. Greenfield represented Bluestone.
Attorney Magazine
Until last year, Manhattan solo practitioner Andrew Lavoott Bluestone wrote an "Attorney Malpractice Report" that he sent unsolicited to several lawyers whose fax numbers were listed in the New York Lawyers' Diary and Manual.
Bluestone specializes in legal malpractice representations and has written articles on the subject for the New York Law Journal.
One of the fax recipients, Peter Marc Stern, sued Bluestone in Manhattan Supreme Court last year on the ground that the advisories violated the federal Telephone Consumer Protection Act, which bans sending unsolicited ads to fax machines.
Bluestone responded that the faxes were not intended to advertise his practice but to educate and inform the legal community about legal malpractice issues. He noted the faxes contained no language touting him or his work and only contained his name, address, Web site and contact information.
But Supreme Court Justice Jane S. Solomon said that was enough.
"Although the faxes do not directly offer Bluestone's services as a legal malpractice attorney, they indirectly advertise the commercial availability and quality of such services," she said in an Aug. 25 decision, Stern v. Bluestone, 111895/05.
"[B]y including the name of his law firm and contact information, Bluestone indirectly proposes a commercial transaction," the judge continued.
She granted summary judgment to Stern on the issue of liability under the act, with trial to proceed solely on the issue of damages. Stern could not be reached for comment.
In her decision, Solomon admonished Bluestone, noting that she had previously granted summary judgment against him in a similar 2004 suit brought by another lawyer who received faxes from Bluestone.
In Antollino v. LaSalle Services, 116629/03, the judge also rejected Bluestone's argument that his faxes were not sent for advertising purposes.
"Common sense however indicates that there is no other purpose for them," she wrote at the time.
She cited the earlier decision in ruling that Bluestone "willfully and knowingly" violated the act when he faxed Stern. The statute specifies minimum damages of $500 per fax, with treble damages available in cases of willful conduct. Stern claims he received 14 faxes from Bluestone between November 2003 and March 2005.
Bluestone said Tuesday he had altered his faxes considerably since Solomon's earlier decision. At that time, his advisories also had stated that he concentrated in attorney malpractice litigation and that inquiries were welcome. He removed that language, leaving only his name and contact information.
"She's now ruled that any communication by fax that has a lawyer's name or address on it is an advertisement," he said. "I don't see how that can be."
Bluestone said the judge had stretched statutory language in order to label his faxes "indirect" ads.
"Everything's in some sense an advertisement," he said. "If I put on a suit to go to work instead of shorts, isn't that an advertisement that I'm a serious professional?"
The main purpose of the faxes, Bluestone said, was to spark conversation throughout the legal community on issues of professional liability. When he first started sending the faxes, he said, it seemed a "cutting-edge way of disseminating information."
He stopped last year after discovering an even more cutting-edge method of spreading the word: He launched a legal malpractice blog last June.
Brian L. Bromberg represented Stern. Scott N. Greenfield represented Bluestone.
Attorney Magazine
EEOC Seeks Key Testimony in Sidley Austin Age Discrimination Suit
The U.S. Equal Employment Opportunity Commission has moved to compel testimony about recent conversations between Sidley Austin partners and a former financial director who signed a 1999 letter stating that the firm had a mandatory retirement policy. more about discrimination
Sidley has denied having such a policy in the face of an EEOC suit claiming the Chicago-based law firm discriminated against 31 partners on the basis of age when it demoted them to counsel in 1999. The EEOC has claimed the financial director's letter "flatly contradicts" the firm's position.
The letter, dated Oct. 21, 1999, and addressed to the Social Security Administration in Chicago, states that "it is the general policy of Sidley & Austin not to permit a partner of the firm to continue as a partner commencing the first of the year following the year age 65 is reached." The letter is signed by William B. White, financial director.
According to the EEOC motion filed last Tuesday in Chicago federal court, White testified at a July 26 deposition that he believed the letter to be an accurate statement of the firm's retirement policy at the time he signed it. But he also testified that, after conversations earlier this year with Sidley partners William F. Conlon and Theodore N. Miller, he realized the letter did not accurately state firm policy.
The lawyer representing Sidley at the deposition, Michael Conway of Chicago's Grippo & Elden, objected to questions about these conversations on the grounds that they were privileged. The EEOC is seeking to compel White's testimony about them.
"This motion presents the classic example of a Defendant seeking to use the attorney-client and work-product privileges to improperly thwart the Plaintiff's discovery into areas that are potentially damaging for the Defendant," the EEOC claims.
The agency argues the conversations are not privileged because White, who is retired but still works at Sidley on a contract basis, was not seeking legal advice from either Miller, who is vice chairman of the firm's management committee and a member of its executive committee, or Conlon, an executive committee member who acts as the firm's general counsel.
"The fact that Conlon and Miller are lawyers does not render every conversation that they have about this case privileged," the EEOC says in its motion.
Conway did not return a call seeking comment but, according to a partial transcript of the July 26 deposition, he justified his objection on the grounds that the partners "were offering legal advice."
"Miller was acting as counsel to the firm in connection with this matter," said Conway. "Having a conversation with White about activities during the scope of his employment I think is privileged."
The EEOC had moved in June to have counsel separate from the firm appointed for White. The firm quickly agreed to the appointment, but the letter received some media attention at that time, including articles in the Law Journal and the Chicago Tribune.
Represented at his deposition by his new counsel, Michael Hannafan of Chicago's Hannafan & Hannafan, White testified that he first became aware the retirement policy stated in the letter was not correct after he read the June 6 article in the Tribune. That morning, he said, firm executive director Timothy Bergen showed him the newspaper and told him he was a "celebrity." Bergen then told him to call Miller.
White later testified that Conlon also had called him about the letter and its possible inaccuracy in February 2006.
In his deposition, White also said he did not actually write the 1999 letter, only signed it. He said the letter was drafted by now-retired partner Wilbur C. Delp, who asked the financial director to sign the letter "so he could put it in his file in case there was a problem with his self-employment tax on his retirement payments."
In the past, law firms have not worried about EEOC scrutiny of their partner retirement policies because partners have traditionally been considered employers exempt from the protection of federal anti-discrimination laws.
In its suit against Sidley Austin, the EEOC has taken the novel position that the demoted partners were employees because they never voted on firm policy and all decisions, including partner compensation, were made by the firm's self-selecting executive committee.
The suit, which is seeking back pay for the demoted partners, could have far-reaching effect on the profession, as many large law firms have adopted similarly centralized management structures in recent years.
Sidley has denied having such a policy in the face of an EEOC suit claiming the Chicago-based law firm discriminated against 31 partners on the basis of age when it demoted them to counsel in 1999. The EEOC has claimed the financial director's letter "flatly contradicts" the firm's position.
The letter, dated Oct. 21, 1999, and addressed to the Social Security Administration in Chicago, states that "it is the general policy of Sidley & Austin not to permit a partner of the firm to continue as a partner commencing the first of the year following the year age 65 is reached." The letter is signed by William B. White, financial director.
According to the EEOC motion filed last Tuesday in Chicago federal court, White testified at a July 26 deposition that he believed the letter to be an accurate statement of the firm's retirement policy at the time he signed it. But he also testified that, after conversations earlier this year with Sidley partners William F. Conlon and Theodore N. Miller, he realized the letter did not accurately state firm policy.
The lawyer representing Sidley at the deposition, Michael Conway of Chicago's Grippo & Elden, objected to questions about these conversations on the grounds that they were privileged. The EEOC is seeking to compel White's testimony about them.
"This motion presents the classic example of a Defendant seeking to use the attorney-client and work-product privileges to improperly thwart the Plaintiff's discovery into areas that are potentially damaging for the Defendant," the EEOC claims.
The agency argues the conversations are not privileged because White, who is retired but still works at Sidley on a contract basis, was not seeking legal advice from either Miller, who is vice chairman of the firm's management committee and a member of its executive committee, or Conlon, an executive committee member who acts as the firm's general counsel.
"The fact that Conlon and Miller are lawyers does not render every conversation that they have about this case privileged," the EEOC says in its motion.
Conway did not return a call seeking comment but, according to a partial transcript of the July 26 deposition, he justified his objection on the grounds that the partners "were offering legal advice."
"Miller was acting as counsel to the firm in connection with this matter," said Conway. "Having a conversation with White about activities during the scope of his employment I think is privileged."
The EEOC had moved in June to have counsel separate from the firm appointed for White. The firm quickly agreed to the appointment, but the letter received some media attention at that time, including articles in the Law Journal and the Chicago Tribune.
Represented at his deposition by his new counsel, Michael Hannafan of Chicago's Hannafan & Hannafan, White testified that he first became aware the retirement policy stated in the letter was not correct after he read the June 6 article in the Tribune. That morning, he said, firm executive director Timothy Bergen showed him the newspaper and told him he was a "celebrity." Bergen then told him to call Miller.
White later testified that Conlon also had called him about the letter and its possible inaccuracy in February 2006.
In his deposition, White also said he did not actually write the 1999 letter, only signed it. He said the letter was drafted by now-retired partner Wilbur C. Delp, who asked the financial director to sign the letter "so he could put it in his file in case there was a problem with his self-employment tax on his retirement payments."
In the past, law firms have not worried about EEOC scrutiny of their partner retirement policies because partners have traditionally been considered employers exempt from the protection of federal anti-discrimination laws.
In its suit against Sidley Austin, the EEOC has taken the novel position that the demoted partners were employees because they never voted on firm policy and all decisions, including partner compensation, were made by the firm's self-selecting executive committee.
The suit, which is seeking back pay for the demoted partners, could have far-reaching effect on the profession, as many large law firms have adopted similarly centralized management structures in recent years.
Tuesday, September 12, 2006
Court Interprets 'Ordinary Course' Under New Bankruptcy Law
Some of the most-discussed changes made by Congress under the 2005 bankruptcy act are the seemingly small, but significant, changes to the "ordinary course of business" defense concerning the avoidability of preferential transfers. Now, a bankruptcy court has addressed the issue, finding that equal weight must be given to the "subjective" pre-petition conduct of the parties and the "objective" general industry standards to determine whether a transfer was made in the "ordinary course of business."
More about bancruptcy law
More about bancruptcy law
The Untouchables
When Marc Manly, then general counsel of the midwestern energy firm Cinergy Corp., first learned of his company's possible merger with Duke Energy Corporation last year, he knew who he wanted in his corner — New York — based Skadden, Arps, Slate, Meagher & Flom. Back in 1994, Skadden had helped Cinergy's predecessor company, The Cincinnati Gas & Electric Company, fight off a hostile takeover bid by a local rival. "People told them they couldn't win," Manly says. "It's in the worst situations that you discover the true mettle of a firm."
Cincinnati Gas kept Skadden on board later that year to steer it through its friendly merger with PSI Energy, Inc., to form Cinergy. In 2005, when Cinergy started down the aisle to its $9.8 billion marriage with Charlotte, North Carolina — based Duke, Manly naturally thought of Skadden. But he soon learned that he wasn't the only one speed-dialing the firm. B. Keith Trent, then general counsel of Duke, also wanted Skadden.
After a brief standoff, the two decided to let Skadden advise Duke, so long as Trent didn't use the group of lawyers who knew Cinergy's business, Manly says. He agreed to the arrangement because he didn't want to lose Skadden's energy-related expertise, even if it was technically being wielded on the other side of the table. Today, Manly is general counsel of Duke (Trent now serves as head of litigation), and still considers Skadden his go-to firm for big deals: "They're full-service. They have expertise on every little piece of the transaction."
For the past five years, Corporate Counsel has conducted a survey of Fortune 250 general counsel, asking them to list their "primary" outside counsel. This year, 93 companies provided information on their top law firms for corporate transactions, litigation, labor and employment, and intellectual property. Those companies named a total of 380 law firms.
Our five-year look reveals at least two noteworthy trends. Skadden, propelled by the kind of loyalty shown by Manly, has ranked as the number one go-to firm for corporate transactions nearly every year. (This year it was edged out by one mention by its rival at the top, Davis Polk & Wardwell.) But it isn't the only firm that GCs love to call. Over the same five years, Chicago-based Kirkland & Ellis has captured the number one spot for litigation.
What's behind this trend? Chief legal officers readily offer a laundry list of positives to justify their devotion. William Barr, general counsel of New York — based Verizon Communications Inc., says that his relationship with Kirkland & Ellis dates back to 1994, when he became general counsel of GTE Corporation, one of the Verizon predecessor companies. Barr says that he uses more than 100 outside law firms, but that he turns to Kirkland & Ellis for "big, important litigation," as well as smaller cases, regulatory matters, and, most recently, work for Verizon Wireless, the company's joint venture with Vodafone Group Plc. Aside from the results they've achieved, Barr says the Kirkland & Ellis litigation group has a lot of depth — "strength at every level." Another plus, he says, is the firm's efficient handling of its cases: "They don't throw unnecessary bodies at a matter to gin up the billables."
Still, plenty of law firms have the same qualities. And with few exceptions, for the past five years, a remarkably stable group of firms has monopolized the top ten spots in each practice area we survey. Six of the top corporate transactions firms this year showed up in 2002, the first year we did the survey (Skadden; Davis Polk & Wardwell; Mayer, Brown, Rowe & Maw; Simpson Thacher & Bartlett; Jones Day; and Sidley Austin). In litigation, six firms appeared in both the 2006 and 2002 top ten (Kirkland; Jones Day; O'Melveny & Myers; Mayer, Brown; King & Spalding; and McGuireWoods). What's keeping these firms on top? Size, skill, the strength of the brand name, the effect of convergence (the process generally favors big firms), and a tendency to reach out to large, expensive firms when there's big, potentially costly legal business at hand. That said, our five-year look reveals a few surprises — most notably, the disappearance of the Washington, D.C., firms from the top ten list in litigation.
While chief legal officers like to talk big about keeping a close eye on legal bills, when it comes down to a bet-the-company case, they typically say that they want the massive firepower of a large firm on their side — no matter what the expense. According to the most recent Am Law 100 survey, Kirkland & Ellis certainly meets that criterion, weighing in at 983 lawyers, of which 350 or so are litigators; Skadden is at an even heftier 1,616 lawyers, with more than 700 in the corporate department. The top ten litigation firms in our survey average 1,186 lawyers, which is significantly larger than the average Am Law 100 firm.
Convergence — remember that? — also plays its part in our survey. While many companies have refined their roster of preferred providers in recent years, the big firms on our list haven't been among the casualties. Consultant Rees Morrison says he doesn't find this surprising. "Convergence favors bigger firms," since they are equipped to handle a wider array of matters, says Morrison, a principal at the Somerset, New Jersey — based legal consulting firm Hildebrandt International, Inc.
Case in point: Schering-Plough Corporation, which went through a convergence process last year and is down to a core group of seven firms, two of which — Sidley Austin and Mayer, Brown — have more than 1,000 lawyers. (Schering had no further comment on its convergence process.) And once a company has gone through convergence, it tends to stick with those who've made the cut, Morrison says.
But size isn't the whole story. Firms with a thousand-plus lawyers dot today's legal landscape like poppy seeds on a bagel. So what's the edge keeping the top firms on top? Their brand names, says Daniel DiLucchio, Jr., a principal in the Newtown Square, Pennsylvania, headquarters of legal consulting firm Altman Weil, Inc. He says cost control, the one major factor that can cause GCs to shop around, just doesn't happen at this level.
For example, Manly says that he uses local firms such as Robinson, Bradshaw & Hinson to handle small transactions — "they produce comparable work at half the price" — but there comes a point when "a transaction becomes so complicated it's worth paying the $800 or $900" an hour for a senior Skadden partner.
Even the poster child for convergence, E.I. du Pont de Nemours & Company, goes outside its network of 42 "primary law firms" for large, complicated M&A transactions, says associate general counsel Roger Arrington. In our survey, for the last three years, DuPont has listed both Cravath, Swaine & Moore and Skadden among its top outside counsel for corporate transactions — but they don't appear on the company's official primary firm list. At DuPont, there's primary, and then there's primary.
Of the four practice areas we survey, labor and employment shows the most consistency. The same firms have captured the gold, silver, and bronze since 2003 (the first year we looked at this practice area), although they've swapped places a few times. This year, Morgan, Lewis & Bockius beat out number two Littler Mendelson and third-ranked Seyfarth Shaw to grab the top slot. Hildebrandt's Morrison says that stability reflects a very mature marketplace dominated by a few brands.
That said, our survey is not quite at the level of the weather in L.A. Story, in which Steve Martin's weatherman tapes his report of "sunny again" days in advance. One interesting trend: the wholesale disappearance of Washington, D.C., firms from the list of most mentioned litigation firms. In our first surveys, four D.C. firms — Howrey; Akin Gump Strauss Hauer & Feld; Covington & Burling; and Williams & Connolly — appeared in the top ten. Today, not a one. Morrison attributes this to the Bush administration. With the Federal Trade Commission and other agencies gone "toothless," he says, there's less regulatory enforcement — hence, less need for Washington's heavy hitters.
But other than those probably temporary downturns, the big guys stay on top, buoyed by the semper fidelis disposition of corporate counsel. As Verizon's Barr says, "Why shop around when you're successful with what you've got?"
More litigation at Attorney Magazine
Cincinnati Gas kept Skadden on board later that year to steer it through its friendly merger with PSI Energy, Inc., to form Cinergy. In 2005, when Cinergy started down the aisle to its $9.8 billion marriage with Charlotte, North Carolina — based Duke, Manly naturally thought of Skadden. But he soon learned that he wasn't the only one speed-dialing the firm. B. Keith Trent, then general counsel of Duke, also wanted Skadden.
After a brief standoff, the two decided to let Skadden advise Duke, so long as Trent didn't use the group of lawyers who knew Cinergy's business, Manly says. He agreed to the arrangement because he didn't want to lose Skadden's energy-related expertise, even if it was technically being wielded on the other side of the table. Today, Manly is general counsel of Duke (Trent now serves as head of litigation), and still considers Skadden his go-to firm for big deals: "They're full-service. They have expertise on every little piece of the transaction."
For the past five years, Corporate Counsel has conducted a survey of Fortune 250 general counsel, asking them to list their "primary" outside counsel. This year, 93 companies provided information on their top law firms for corporate transactions, litigation, labor and employment, and intellectual property. Those companies named a total of 380 law firms.
Our five-year look reveals at least two noteworthy trends. Skadden, propelled by the kind of loyalty shown by Manly, has ranked as the number one go-to firm for corporate transactions nearly every year. (This year it was edged out by one mention by its rival at the top, Davis Polk & Wardwell.) But it isn't the only firm that GCs love to call. Over the same five years, Chicago-based Kirkland & Ellis has captured the number one spot for litigation.
What's behind this trend? Chief legal officers readily offer a laundry list of positives to justify their devotion. William Barr, general counsel of New York — based Verizon Communications Inc., says that his relationship with Kirkland & Ellis dates back to 1994, when he became general counsel of GTE Corporation, one of the Verizon predecessor companies. Barr says that he uses more than 100 outside law firms, but that he turns to Kirkland & Ellis for "big, important litigation," as well as smaller cases, regulatory matters, and, most recently, work for Verizon Wireless, the company's joint venture with Vodafone Group Plc. Aside from the results they've achieved, Barr says the Kirkland & Ellis litigation group has a lot of depth — "strength at every level." Another plus, he says, is the firm's efficient handling of its cases: "They don't throw unnecessary bodies at a matter to gin up the billables."
Still, plenty of law firms have the same qualities. And with few exceptions, for the past five years, a remarkably stable group of firms has monopolized the top ten spots in each practice area we survey. Six of the top corporate transactions firms this year showed up in 2002, the first year we did the survey (Skadden; Davis Polk & Wardwell; Mayer, Brown, Rowe & Maw; Simpson Thacher & Bartlett; Jones Day; and Sidley Austin). In litigation, six firms appeared in both the 2006 and 2002 top ten (Kirkland; Jones Day; O'Melveny & Myers; Mayer, Brown; King & Spalding; and McGuireWoods). What's keeping these firms on top? Size, skill, the strength of the brand name, the effect of convergence (the process generally favors big firms), and a tendency to reach out to large, expensive firms when there's big, potentially costly legal business at hand. That said, our five-year look reveals a few surprises — most notably, the disappearance of the Washington, D.C., firms from the top ten list in litigation.
While chief legal officers like to talk big about keeping a close eye on legal bills, when it comes down to a bet-the-company case, they typically say that they want the massive firepower of a large firm on their side — no matter what the expense. According to the most recent Am Law 100 survey, Kirkland & Ellis certainly meets that criterion, weighing in at 983 lawyers, of which 350 or so are litigators; Skadden is at an even heftier 1,616 lawyers, with more than 700 in the corporate department. The top ten litigation firms in our survey average 1,186 lawyers, which is significantly larger than the average Am Law 100 firm.
Convergence — remember that? — also plays its part in our survey. While many companies have refined their roster of preferred providers in recent years, the big firms on our list haven't been among the casualties. Consultant Rees Morrison says he doesn't find this surprising. "Convergence favors bigger firms," since they are equipped to handle a wider array of matters, says Morrison, a principal at the Somerset, New Jersey — based legal consulting firm Hildebrandt International, Inc.
Case in point: Schering-Plough Corporation, which went through a convergence process last year and is down to a core group of seven firms, two of which — Sidley Austin and Mayer, Brown — have more than 1,000 lawyers. (Schering had no further comment on its convergence process.) And once a company has gone through convergence, it tends to stick with those who've made the cut, Morrison says.
But size isn't the whole story. Firms with a thousand-plus lawyers dot today's legal landscape like poppy seeds on a bagel. So what's the edge keeping the top firms on top? Their brand names, says Daniel DiLucchio, Jr., a principal in the Newtown Square, Pennsylvania, headquarters of legal consulting firm Altman Weil, Inc. He says cost control, the one major factor that can cause GCs to shop around, just doesn't happen at this level.
For example, Manly says that he uses local firms such as Robinson, Bradshaw & Hinson to handle small transactions — "they produce comparable work at half the price" — but there comes a point when "a transaction becomes so complicated it's worth paying the $800 or $900" an hour for a senior Skadden partner.
Even the poster child for convergence, E.I. du Pont de Nemours & Company, goes outside its network of 42 "primary law firms" for large, complicated M&A transactions, says associate general counsel Roger Arrington. In our survey, for the last three years, DuPont has listed both Cravath, Swaine & Moore and Skadden among its top outside counsel for corporate transactions — but they don't appear on the company's official primary firm list. At DuPont, there's primary, and then there's primary.
Of the four practice areas we survey, labor and employment shows the most consistency. The same firms have captured the gold, silver, and bronze since 2003 (the first year we looked at this practice area), although they've swapped places a few times. This year, Morgan, Lewis & Bockius beat out number two Littler Mendelson and third-ranked Seyfarth Shaw to grab the top slot. Hildebrandt's Morrison says that stability reflects a very mature marketplace dominated by a few brands.
That said, our survey is not quite at the level of the weather in L.A. Story, in which Steve Martin's weatherman tapes his report of "sunny again" days in advance. One interesting trend: the wholesale disappearance of Washington, D.C., firms from the list of most mentioned litigation firms. In our first surveys, four D.C. firms — Howrey; Akin Gump Strauss Hauer & Feld; Covington & Burling; and Williams & Connolly — appeared in the top ten. Today, not a one. Morrison attributes this to the Bush administration. With the Federal Trade Commission and other agencies gone "toothless," he says, there's less regulatory enforcement — hence, less need for Washington's heavy hitters.
But other than those probably temporary downturns, the big guys stay on top, buoyed by the semper fidelis disposition of corporate counsel. As Verizon's Barr says, "Why shop around when you're successful with what you've got?"
More litigation at Attorney Magazine
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