The BLT: The Blog of Legal Times

Nixon Peabody Adds Two Partners

Partners Samuel Feigin and Mark Kass joined Nixon Peabody’s Washington office Nov. 10 in the firm’s corporate transactions practice. Both came from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo where they headed its Israeli business practice.

With Nixon, Kass and Feigin will focus on representing high-tech and life science companies involved in transactional matters in the D.C. area and internationally. Kass told Legal Times that he and Feigin will continue to be heavily involved with representing Israeli high-tech and life science businesses at Nixon.

Kass says one of the primary reasons for the move to Nixon from Mintz was because of Nixon’s broader national and international reach. Mintz has seven domestic locations and one international office in London. Nixon has 19 offices, including three that are located abroad.

“We thought Nixon offered an even better platform for our practices," Kass says. "Nixon Peabody has a large network of national and international offices.”

Kass declined to name any clients that he or Feigin represent or whether any would follow them to Nixon. He did say, however, they are already working with clients at Nixon.

Lawyer Sentenced to 70 Months for Child Pornography Conviction

A former Hunton & Williams partner was sentenced today to 70 months in federal prison for using his firm’s laptop to download and store videos of child pornography.

The lawyer, Emerson Briggs, who made partner at Hunton & Williams in 2003, pleaded guilty in September to one count of receiving child pornography. Judge Colleen Kollar-Kotelly of U.S. District Court for the District of Columbia also sentenced Briggs, 41, to 10 years of supervised release and ordered him to pay a $12,500 fine.

Briggs has been in custody since his plea hearing. Steptoe & Johnson partner Bruce Bishop, who represented Briggs, declined to comment. Briggs is “ashamed and remorseful about his past actions,” his wife wrote in a letter to the judge. Briggs entered counseling after losing his job at Hunton & Williams.

Government prosecutors say Briggs, a Maryland resident, admitted to downloading pornographic videos at his Hunton & Williams office on K Street between November 2005 and April 2006. Some of the videos involved minors under the age of 12, said Wendy Waldron, a special assistant U.S. attorney in the child exploitation and obscenity section.

Briggs was free for two years after the FBI seized his firm’s laptop. Bishop argued for Briggs’s release pending sentencing, saying Briggs is a first-time offender with no criminal history who posed no danger to the community. Briggs, the lawyer said in court papers, has never “had or attempted any inappropriate contact with a minor, online or otherwise,” according to court papers. Bishop also argued the receipt of child pornography is not a crime of violence even though Congress has designated it as such.

But Kollar-Kotelly was unmoved. “There is no question that these videos involve physical violence, and that the defendant, and all other defendants who are similarly situated, create the demand for this conduct,” Kollar-Kotelly wrote in an opinion last month in which she ordered Briggs held pending sentencing.

Conyers, Leahy Want Details on Gonzales' Legal Fees

Democratic leaders in Congress are urging Attorney General Michael Mukasey to disclose the details of a Justice Department agreement to pay a private attorney to defend his predecessor, Alberto Gonzales, against allegations that he encouraged his subordinates to weigh politics in department hiring.

The agreement, reported last week by McClatchy, stems from a lawsuit filed on behalf of eight law students, who say they were rejected from two Justice Department programs based on political or ideological affiliations. The suit came on the heels of a June report by the Justice Department’s two watchdogs, which concluded that officials weeded out certain candidates with liberal-leaning resumes in violation of department policies and civil service law.

According to McClatchy, the Justice Department has agreed to pay $200 an hour or $24,000 a month (a maximum of 120 billable hours) for Gonzales’ defense. White & Case’s George Terwilliger III has been representing Gonzales in the Justice Department investigations, but today Schertler & Onorato's Vincent Cohen Jr., Peter Taylor, and Lisa Fishberg filed notice of appearance on Gonzales' behalf. The plaintiffs are represented by Daniel Metcalfe, a professor at American University Washington College of Law and a former director of the Justice Department's Office of Information and Privacy.

Rep. John Conyers (D-Mich.) and Sen. Patrick Leahy (D-Vt.), chairmen of the House and Senate judiciary committees, wrote a letter to Mukasey today, asking him to describe the terms of the fee arrangement; to disclose whom in the department approved it and on what basis; and to say whether the department has agreed to cover the legal expenses of other officials named in the lawsuit.

Justice Department spokesman Peter Carr said in a statement that "officials are often represented by private counsel at Department expense, but the Department does not discuss publicly the basis for such determinations in any individual case."

In this case, Carr said the department so far has agreed to pay private lawyers to represent Gonzales and Louis DeFalaise, the director of the Office of Attorney Recruitment and Management, who is also named in the lawsuit.

Lawyers from the Justice Department's Civil Division typically represent department employees who are sued in connection with their official actions, but federal regulations allow the department to pay for a private attorney in some circumstances. The department can decline such requests if the attorney general “determines that the employee’s actions do not reasonably appear to have been performed within the scope of his employment” or that “representation is not in the interest of the United States.”

Click here for a copy of the department's retention agreement.

Obama Chooses Former Kennedy Lawyer to Lead Domestic Policy Council

One of President-elect Barack Obama’s key domestic policy advisers will be a lawyer who worked for Sen. Edward Kennedy (D-Mass.) for more than seven years.

Obama, at a news conference in Chicago today announcing economic appointees, said that Melody Barnes would be director of his Domestic Policy Council. She had been advising the Obama campaign and the transition on domestic policy, and she previously worked at the Center for American Progress, led by Obama adviser John Podesta.

Barnes worked for Kennedy from December 1995 to March 2003 as his chief counsel on the Senate Judiciary Committee. Kennedy was chairman of the subcommittee on immigration for the year and a half during Barnes’ time that Democrats had a majority in the Senate.

According to Barnes’ biography at the Center for American Progress (scroll to the bottom): “As Senator Kennedy’s chief counsel, she shaped civil rights, women’s health and reproductive rights, commercial law, and religious liberties laws, as well as executive branch and judicial appointments.”

She has also worked as director of legislative affairs for the Equal Employment Opportunity Commission and as assistant counsel to the House Judiciary Subcommittee on Civil and Constitutional Rights. She began her career as a lawyer with Shearman & Sterling in New York.

Former White House Aide Faces 90-Day Suspension of Law License

A committee of the D.C. Board on Professional Responsibility has recommended that a former White House adviser have his law license suspended for 90 days in connection to a series of thefts from Target stores.

Claude Allen, a former assistant to President George W. Bush for domestic policy issues, admits that on three separate occasions, he bought an item at a Target store, brought the receipt back to the store, picked up an identical item, and then used the receipt to return it, allowing him to keep the item at no cost. According to the committee’s Nov. 19 report, in 2005 Allen stole a $525 Bose stereo, a $237 Kodak printer, and an $88 RCA stereo.

Allen pleaded guilty to one misdemeanor count of theft of property under $500 on Aug. 4, 2006, after he was arrested at a Target store in Gaithersburg, Md. He was sentenced to two years of supervised probation, 40 hours of community service, and a fine of $625.

The report says Allen should face a “modest sanction” because as an adviser to Bush during Hurricane Katrina, which occurred shortly before the thefts, he internalized some of the suffering he witnessed during the crisis. The report also takes into account his public service, cooperation with the investigation, and the fact that he has already completed a 90-day suspension in Pennsylvania and Virginia.

Allen, who resigned in February 2006 as President Bush's top domestic policy adviser, was nominated by the president to serve on the U.S. Court of Appeals for the 4th Circuit. Legal Times reported in 2003 that Allen drew fire during his confirmation hearing for his use of the word “queer” in remarks he made during the re-election campaign of then-Sen. Jesse Helms, (R.-N.C.). As Helms’ chief spokesman, Allen said Helms' opponent, then-North Carolina Gov. James Hunt, had links to "radical feminists" and "the queers."

He later withdrew his name in the face of Democratic opposition.

A member of the D.C. Bar since 1992, Allen also served as deputy secretary for the U.S. Department of Health and Human Services.

Two D.C. Circuit Judges Skeptical of Releasing Uighurs in U.S.

Two federal appellate judges on a panel today seemed inclined to overturn a district judge’s order that the government release into the United States a group of Uighur detainees at Guantanamo Bay who were once deemed enemy combatants.

Judges Karen LeCraft Henderson and A. Raymond Randolph of the U.S. Court of Appeals for the D.C. Circuit appeared sympathetic to argument from Solicitor General Gregory Garre that the government can detain the Uighurs in military confinement pending resettlement. The resettlement effort, Garre said, is “ongoing and active.”

Judge Judith Rogers noted several times that government lawyers failed in district court to introduce evidence supporting the continued detention of the Uighurs, Chinese Muslims who were detained in Afghanistan and have been held at Guantanamo for more than six years. In October, Judge Ricardo Urbina of U.S. District Court for the District of Columbia ordered the government to release the men into the United States.

Government lawyers appealed, and the D.C. Circuit—the same three-judge panel that heard argument today—entered a stay in a 2-1 vote, with Rogers dissenting. Garre argued today that Urbina did not have authority to order the release of an alien into the United States. When Garre delved into national security issues related to the Uighurs, Rogers raised her voice, interrupting Garre. “Counsel, you can’t make that representation on the evidence in the record. Let’s be very careful here before we taint people without evidence.”

The Uighurs, Randolph said, have an opportunity to return to China, but Bingham McCutchen partner P. Sabin Willet, arguing today for the Uighurs, said the men face safety concerns if they are returned there. “That’s the equivalent of putting a bullet in their head,” Willet argued. “The fact is they have no where to go.”

Said Willet: “Our clients are not even warriors. They are civilians. They are not our enemies.” There is nothing about the weapons training the Uighurs undertook that would make them “terrorists,” he said. The same training can be done at any gun range in the metropolitan area, Willet said.

Guantanamo detainees do not have due process rights under the Constitution, Randolph said. An alien cannot be admitted in the United States until proving there is a right to be here, Garre argued. Garre called the Uighur’s situation “regrettable but not unprecedented” and questioned whether the Uighurs would be successful in applying for admission into the United States through immigration laws.

Judicial Pay Raise Stalls Again

Automakers were not the only ones left empty-handed at the end of last week's lame-duck session of Congress. The federal judiciary's long quest for salary increases made little progress -- though hope remains that the post-Thanksgiving session will bring some results.

"We continue to work daily with the leadership to rectify this problem the judiciary confronts," says James Duff, director of the Administrative Office of U.S. Courts. The Judiciary Committees in both houses had endorsed increases earlier in the session, but budget constraints and, most recently, the financial meltdown, have made further progress tough. In fact the only change in judges' benefits that passed into law in the current Congress, which we reported on here, was a ban on judges receiving honorary club memberships valued at more than $50.

Judges are walking a difficult line, not wanting to appear selfish when the populace at large is suffering, but their pay has lagged for years. "While many Americans are struggling financially today, few of us have jobs where we are routinely skipped over for even a routine cost of living increase and get no clear guidance on what we will earn in the year ahead," says H. Thomas Wells Jr., president of the American Bar Association, which has fought for judicial pay increases for years. The Congressional Budget Office estimates that the roughly 29 per cent pay raise for Article III judges included in the bills before Congress would cost taxpayers about $131 million in the first year -- not much, compared to what the corner bank is receiving.

For seven of the last 14 years, judges have not even gotten a cost-of-living increase, and if the current session ends without even that two-to-three per cent adjustment, judges will be disappointed to say the least. Unlike with other federal employees, judges get a COLA only if Congress affirmatively approves one. The Senate approved it by unanimous consent on Nov. 20, but there was no action in the House.

This Week in Legal Times...

Mike Scarcella reports Arent Fox Partner Joseph Price, his domestic partner Victor Zaborsky, and their friend Dylan Ward were indicted last week on an obstruction-of-justice charge for allegedly covering up the murder of Robert Wone. As of last Friday, no murder charges had been filed. Price had been put on administrative leave since Oct. 31.

President-elect Barack Obama has reportedly tapped Williams and Connolly partner Gregory Craig for White House counsel and Covington & Burling partner Eric Holder Jr. for attorney general. Joe Palazzolo reports not since the end of George H.W. Bush’s administration, have Washington-grown lawyers simultaneously occupied the nation’s two highest legal offices.

Tony Mauro reports former Solicitor General Paul Clement has returned to King & Spalding after serving in the solicitor general's office since 2001. It has been rumored that King & Spalding had to ante-up for Clement with some speculating that the firm will pay Clement a package worth about $5 million.

Morning Wrap

Citigroup Gets Government Help: The government announced late last night that it will protect Citigroup beyond the first $29 billion the bank loses on its troubled assets according to The Washington Post. The government will receive up to $7 billion in preferred shares.

Citi Study Shows Bleak Legal Outlook: According to The American Lawyer, The Law Firm Group at Citi Private Bank made several notable observations of the legal industry - many of which showed a grim outlook - in its most recent review of about 150 law firms. Among those observations of the legal industry are head count at law firms have remained relatively flat and New York-headquarted firms are bearing the brunt of the slow economy.

Detroit Troubles: The Big Three Detroit automakers owe more than $100 billion to their bankers and shareholders. The New York Times reports investors are increasingly concerned that without a bailout of the industry, the automakers won’t be able to pay it back.

Big Names Want Presidential Help: With President Bush’s term nearing its end, high-profile criminals, like Michael Milken and Randy “Duke” Cunningham (R-Calif.) are appealing to the president for consideration on pardons and clemency. Those seeking presidential action might not want to hold their breath. The Washington Post reports Bush has only issued 157 pardons out of 2,064 petitions and granted only six of 7,707 requests for commutations.

Change in Administration Could Alter Debate Over Regulatory Pre-emption, Lawyers Say

Two left-leaning legal scholars are wondering whether the debate over pre-emption could soon be turned on its head.

In a forum Friday at the Federalist Society’s convention in Washington, Walter Dellinger and Jeffrey Rosen suggested that the incoming Obama administration might deliver the change. Whereas Democrats—whom Dellinger called the “party of regulation”—have tended to favor aggressive state regulations during the deregulatory Bush administration, and Republicans have tended to oppose those state actions, the next four years could see Washington taking the lead on regulation.

The result could be a lot of advocates switching sides. “This is one way in which the balance between state and federal responsibilities will be up for debate,” said Dellinger (pictured above), a Duke University law professor and chair of the appellate practice at O’Melveny & Myers.

Rosen, a George Washington University law professor and an editor at The New Republic, said new regulations from the Obama administration will be a test of Justice Antonin Scalia’s commitment to defending federal authority.

Regulatory pre-emption cases have been in the spotlight, including in one of the most-watched Supreme Court cases this term, Wyeth v. Levine. That case was argued Nov. 3.

Dellinger and Rosen’s two sparring partners Friday weren’t as ready to expect a change in the pre-emption debate. Former solicitor general Paul Clement said the Supreme Court has decided several recent pre-emption cases by lopsided margins, focusing on issues of statutory construction. “If they’re explicit enough in what they want to do in pre-empting state law, Congress pretty much gets to do it,” Clement (pictured above right) said.

John Eastman, dean of the Chapman University law school, said other nuances—such as the application of the commerce clause to the specifics of the case—also affect pre-emption cases.