The BLT: The Blog of Legal Times

D.C. Bar Celebrates New President, Pro Bono

In her speech last night accepting the William J. Brennan Jr. Award, the D.C. Bar’s highest honor, Patricia Fugere quickly turned to the topic of her children. The executive director of the Washington Legal Clinic for the Homeless mentioned that in her own home, game time had always been a vehicle to teach social values.

“When playing Monopoly, if they wanted to build hotels on Boardwalk, they also had to build houses on Baltic and Mediterranean,” she said to laughter.

Often, she added, the kids would stump her with simple questions.

"Mommy, why can't God work a miracle and just zap down an apartment building in that empty lot on the corner so the homeless people have a place to live?" she said one of her children had asked. “My halting response to this high-stakes question was ‘Well, we have to be the instrument of those miracles.’"

Last night at the Renaissance Mayflower Hotel, members of the D.C. Bar celebrated a year of its members’ achievements and welcomed a new president at the group’s annual business meeting and awards dinner. And as the group’s leaders, sporting red carnations for the evening, hailed the importance of pro bono work, Fugure’s speech provided an emotional high point for the evening.

Members donated more than $600,000 to the bar’s pro-bono program in honor of new president Kim Keenan of The Keenan Firm. That amounts to more than a third of the bar’s overall budget.

After she was sworn in, Keenan addressed the 450-strong crowd and promised to “inject the culture of leadership into everything we do.”

The bar also handed out awards for significant contributions to the bar and exceptional pro-bono work. Jenner & Block partner David DeBruin won pro bono lawyer of the year for his work representing indigent clients, including a Washington man accused of three separate homicides. Jones Day took home the law firm pro bono award for their involvement wtih the Landlord Tenant Resource Center, among other projects.

Fugere, who helped found the homeless clinic in 1986 and has served as executive director for most of the more than two decades since, talked at length about the personal strength of her clients and how they had enriched her own life. She urged members to “help craft a new law” that established a right to housing and mandated a living wage.

“There is much to be done, many miracles to make,” she said. “In tribute to Justice Brennan, let's get to work, There is an empty lot on the corner waiting to become someone's home.”

A carnation on display. Kim Keenan, new president of the D.C. Bar, speaks at the pro bono reception. Outgoing D.C. Bar president Robert Spagnoletti, Chief Judge Eric Washington of the D.C. Court of Appeals, and Keenan, during her swearing in. Patricia Fugere, executive director of the Washington Legal Clinic for the Homeless, accepts the William J. Brennan Jr. award. Bar members before dinner.

Congressional Research Service on Sotomayor: Hard to Categorize

The non-partisan Congressional Research Service has produced a report on the opinions of Supreme Court nominee Sonia Sotomayor, drawing conclusions that lend support to her advocates' assertions that she is far from an extreme liberal.

"As a group, the opinions belie easy categorization along any ideological spectrum," states the report, which became available online yesterday. "Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents. Other characteristics appear to include what many would describe as a careful application of particular facts at issue in a case and a dislike for situations in which the court might be seen as oversteping its judicial role."

In her respect for precedent, the report adds, Sotomayor's approach "would be in line with the judicial philosophy of Justice [David]Souter," the justice she is in line to replace. The report also says a common characteristic of her opinions on the U.S. Court of Appeals for the 2nd Circuit is "a meticulous evaluation of the particular facts at issue in a case, which may inform whether past judicial precedents from the circuit are applicable. Her approach to statutory interpretation seems similarly nuanced."  In a story this week we also looked at her meticulous opinion-writing style.

In terms of outcomes, one of the few patterns the report discerned is in cases involving individuals with disabilities. There, the CRS states, her opinions "could be seen as appearing to favor plaintiffs' claims."

But in other areas, partly because of the range of cases that reach her court (few if any death penalty cases, for example,) few conclusions can be reached, according to the report. There is "little guidance" from her writings on how she would handle issues of executive power in national security matters, the report states.

The 55-page report stands as a useful survey of Sotomayor's opinions that will likely be discussed at her confirmation hearing starting July 13. And it is already drawing criticism. At National Review Online, commentator and Sotomayor critic Ed Whelan wonders in a headline whether the report signals the "political corruption" of the Congressional Research Service.

UPDATE: In Whelan's posting about the CRS report, he asked whether it was unusual for the service to analyze the work of a Supreme Court nominee. Spokeswoman Janine D'Addario said this morning that CRS "has a long history of supporting the Senate's advice and consent role" in judicial nominations with such research. CRS reports on Samuel Alito Jr. and others can be found online. Adhering to CRS policy, D'Addario added that "it's not appropriate" for her to specify whether the report on Sotomayor was prepared at the request of a member of Congress, or in anticipation of such a request. CRS reports originate in both ways.

Morning Wrap

King of Pop: News of Michael Jackson's death yesterday afternoon shocked fans around the world. The Jackson family lawyer, Brian Oxman, spoke to reporters yesterday outside UCLA Medical Center, according to laist.com.  

Kent Resigns: Texas federal Judge Samuel Kent hand-delivered a resignation note Thursday to Senate officials visiting him in prison to serve a summons as part of his impeachment proceedings, reports the Houston Chronicle. Kent, who sexually molested two women who worked for him and is in prison for obstruction of justice, earlier offered a resignation from the bench effective in 2010. U.S. House officials moved to impeach him, rather than let him collect his salary for another year.

"Healthy" Election: Iran's 12-member Guardian Council-- the country's main electoral oversight body-- ruled today that the ballot in the heavily disputed presidential election had been the "healthiest" since the Islamic revolution in 1979, reports the NYT.

Pay Cut: Buchanan Ingersoll & Rooney is the latest firm to cut associate compensation due to the recession, reports The Legal Intelligencer. The firm's CEO John Barbour said associate pay will be reduced by between 5 percent and 10 percent per year.

Former N.J. Prosecutor Defends Contract for Ashcroft

The former U.S. attorney for New Jersey told lawmakers today that he did nothing wrong when he steered a multimillion-dollar contract to the firm of former Attorney General John Ashcroft.

Chris Christie said during a House subcommittee hearing that controversy over the no-bid contract — worth as much as $52 million — has been exaggerated by Democrats looking to derail his bid as a Republican running for New Jersey governor. He said he recommended Ashcroft’s firm for the job because he knew that Ashcroft was qualified and because there was no Justice Department process to put the contract out to bid.

Christie, telling lawmakers he had a train to catch, finally walked out of the hearing in frustration after two and a half hours. Democrats tried to get him to stay as television cameras followed him out.

The contract for Ashcroft’s firm has caused anxiety at the Justice Department and in Congress for more than a year, since media reports in New Jersey questioned whether Christie had given Ashcroft, his former boss, a deal. The Justice Department has since changed the process for how such contracts are awarded.

In 2007, Christie recommended the Ashcroft Group to monitor the operations of Zimmer Inc., a medical device manufacturer that signed a deferred prosecution agreement in order to settle charges that it defrauded Medicare. Zimmer accepted the recommendation and hired the Ashcroft Group as its monitor, but it later protested when it found out how much the Ashcroft Group planned to charge for its role.

The contract’s value has been estimated between $28 million and $52 million, though the exact amount has not been disclosed. The contract included a flat fee of $750,000 a month for 18 months, plus hourly billing and expenses.

Fulbright & Jaworski partner Frederick Robinson, representing Zimmer in October 2007, protested to Christie about the size of the contract. But Christie refused to get involved, according to an e-mail exchange distributed today by House Democrats’ staff.

“I am very disappointed that this matter has not been resolved by your client,” Christie wrote to Robinson on Oct. 19, 2007. “I am not convinced that this dispute is at the point where it cannot be resolved between your client and the Monitor.”

Democrats today again questioned the propriety of the contract.

“The reality is that $52 million is a lot of money — $52 million to a former attorney general who you worked for,” said Rep. Bill Delahunt (D-Mass.). “The public is going to say, ‘$52 million for what? For one single case?’”

Christie said he consulted career prosecutors in New Jersey and his staff’s ethics officer before making recommendations on who should monitor Zimmer and four other medical device companies. “We picked the five best people we thought to recommend to these companies,” he said.

Rep. Mel Watt (D-N.C.) said he thought others could have done the same work for less, saving money for the company’s customers. “When I see that someone offered to do the job for $3 million and someone was paid $52 million to do it, that goes beyond appearance of impropriety,” Watt said.

Questioned whether he approached possible monitors whom he did not already know, Christie said he did not. “There was no process within the Department of Justice to do that,” he said. He added, “It is not my position to set up guidelines in the Department of Justice.”

Republicans on the subcommittee stayed away from discussing the contract with Ashcroft, choosing instead to focus on Christie’s record as a prosecutor and the timing of the hearing amid Christie’s gubernatorial campaign.

Judge Declines to Dismiss Charges Against Abramoff Associate

A federal judge today refused to dismiss the government’s case against former Jack Abramoff associate Kevin Ring.

In a 41-page opinion, Judge Ellen Huvelle of the U.S. District Court for the District of Columbia upheld all ten of the counts facing the ex-lobbyist, who is accused of helping Abramoff pull off his plot to bribe lawmakers and their aides by lavishing them with free gifts, trips and meals.

“The government does not seek to criminalize 'traditional' lobbying activities such as constitutionally protected petitioning or even the provision of meals and drinks in order to cultivate goodwill,” Huvelle wrote in response to criticisms by Ring’s lawyers. “Nor does the government seek to criminalize Ring’s supposed failure to prevent public officials from violating ethics rules by accepting his gifts. What the indictment does charge is that Ring devised and assisted as scheme … to deprive the public of the honest services of certain identified public officials.”

The judge’s ruling is a much-needed piece of good news for the prosecution. Last week, Justice Department lawyers disclosed that Public Integrity chief William Welch II had recused himself as supervisor of the case. Ring’s lawyers — Miller & Chevalier partners Richard Hibey, Andrew Wise and Timothy O’Toole — accused Welch of redacting important information from documents he had turned over to them. They also argued that his involvement in the Ted Stevens case posed a conflict of interest, because one of the witnesses set to testify against Ring, Henry Schuelke III of Janis, Schuelke & Wechsler, has been appointed investigate possible prosecutorial misconduct during the former senator's trial.

Senate Confirms Koh

The Senate just confirmed Harold Koh to be legal adviser to the State Department.

Koh, the outgoing dean of Yale Law School, will head up the department's legal staff, advising Secretary of State Hillary Clinton on a wide variety of issues. He returns to the department after having served as an assistant secretary of state during the Clinton administration.

Senators voted 62-35, largely along party lines, to confirm him. On Wednesday, Koh overcame procedural roadblocks thrown up by Republicans who questioned his commitment to U.S. sovereignty.

Deputy Labor Secretary Becomes Latest Morgan, Lewis Hire

Lately, it seems like hardly a week goes by that we don’t get an announcement from Morgan, Lewis & Bockius about a new hire.
 
Today, the firm announced that former deputy secretary of labor Howard Radzely will join the Washington office on July 1 as a partner in the labor and employment practice. Radzely served in the Department of Labor from June 2001 until last February. Prior to becoming deputy secretary, he was solicitor of labor.
 
Before heading to the Labor Department, Radzely practiced at what was then Wiley, Rein & Fielding, now Wiley Rein. That makes him the latest Wiley alum to join Morgan, Lewis. Former White House counsel Fred Fielding—once a name partner at Wiley—went to Morgan, Lewis in April, and Barbara “Biz” Van Gelder, left Wiley Rein in 2007 for Morgan, Lewis.
 
Radzely said the fact that he would be working with former colleagues factored into his own decision. “It certainly helps when you can see some old friends,” he said.
 
Radzely also said he was drawn to the firm because it’s “one of, if not the best, labor employment firms in the country.” He said his practice will be a mix of regulatory, compliance, litigation, and appellate work.
 
Several other Bush administration officials have joined Morgan, Lewis this year as well, including former senior litigation counsel at the Federal Trade Commission Thomas Lang, former assistant attorney general of the Justice Department’s environmental and natural resources division Ronald Tenpas, and former deputy solicitor of labor Jonathan Snare.
 
“Given the change in administration, it’s always a good time to get high level officials and lawyers out of the government, especially in areas where we either have a strong practice or are interested in starting a practice,” said D.C. managing partner Grace Speights.
 
Morgan, Lewis has had several other additions this spring, including 12 ex-Bingham McCutchen lawyers who joined the business and finance practice in Boston, and 14 health care lawyers from Sonnenschein, Nath & Rosenthal, who joined in D.C. and San Francisco.

Fannie Mae, KPMG Push Hard to Settle Securities Suit

After four years and tens of millions of dollars in legal fees, Defense lawyers in the Fannie Mae securities fraud suit asked a federal judge today to send the case to mediation.

Attorneys for Fannie Mae and its former auditor, KPMG, first made the request yesterday afternoon in a joint motion filed with Judge Richard Leon of the U.S. District Court for the District of Columbia. The move amounts to the two corporations’ hardest push yet to settle the hodgepodge of litigation that grew from Fannie’s 2004 accounting scandal.

The attorney general of Ohio filed suit against Fannie Mae and KPMG in 2005 on behalf of the state’s pensions, following revelations that for years the mortgage giant had vastly overstated its profits. Fannie and KPMG quickly filed suit against each other as well.

At a status conference today, lawyers for the two companies said they were nearly ready to resolve their claims against one another, but that lawyers representing Fannie's investors were refusing to take part in meaningful settlement talks.

"If we did get things settled with the plaintiffs, it would be a global settlement," said O'Melveny & Myers partner Jeffrey Kilduff, who represents Fannie Mae.

In their motion, KPMG and Fannie accused the investors of refusing to acknowledge “the drastically changed landscape” following Fannie’s government takeover. The motion notes that in his Congressional testimony, the head of Fannie’s government caretaker said the company could be split into a “good bank” and “bad bank,” to flush out its toxic assets. Such a split would essentially end any chance of the investors recovering a judgment from the suit.

Mediation would let the plaintiffs “hear from an objective third-party what the likelihood of eventual recovery is,” the motion states.

At the status conference, lead plaintiffs’ counsel Stanley Chesley, name partner of Waite, Schneider, Bayless & Chesley played down the possibility that the company would be broken up, and said he would be open to settlement talks if Fannie’s government conservator were to take part.

“I cannot sit and settle this case in fear,” he said.

By the end of the hearing, Judge Leon had not indicated whether or not he would order the case into mediation. But with Fannie Mae on government life support, he said it would be “in the interest of taxpayers and the parties” to finally settle.

AG Holder Praises Hate Crime Legislation on Capitol Hill

Expanding the ability of the federal government to prosecute hate crimes when state authorities are unable or unwilling is vital to protect against violent, intolerance-infused attacks, Attorney Eric Holder Jr. said in testimony today before the Senate Judiciary Committee.

The Justice Department is pushing legislation that would allow the federal government to prosecute defendants whose crimes are motivated because of the victim’s actual or perceived sexual orientation, gender or disability. The federal law in place now only includes race, color, religion or national origin.

Calling it one of his highest personal priorities since returning to the Justice Department, Holder urged swift passage of legislation that was first proposed more than a decade ago when Holder was the deputy attorney general.

“Perpetrators of hate crimes seek to deny the humanity that we all share, regardless of the color of our skin, the God to whom we pray or whom we choose to love,” Holder said in a statement to the committee. A copy of the statement is here.

The legislation, Holder said, does not replace state prosecution of violent crime outright but serves to bolster the state effort to hold defendant's accountable for biased-based attacks. Also, Holder said the legislation does not touch speech or religion.

Democratic committee members, including the chairman, Sen. Patrick Leahy of Vermont, praised the renewed effort to see the Matthew Shepard Hate Crimes Act of 2009 through to law.

“Recent events have made clear that these vicious crimes are a continuing problem,” Leahy said. “The Senate has before it bipartisan legislation that would help law enforcement respond to this problem, and this legislation has stalled for far too long.”

Critics of the proposed legislation, including the ranking member of the committee, Sen. Jeff Sessions (R-AL), questioned whether the legislation violates the spirit, if not the principle, of double jeopardy. Sessions said Holder failed to persuade him that state prosecutors are not aggressively tackling hate-based violent crime.

Supreme Court Rules Student Strip Search Unconstitutional

In one of his final decisions, if not his final one, as a justice, Supreme Court Justice David Souter ruled for a divided Court this morning that the intrusive strip search of an Arizona middle-school girl in pursuit of drugs was a violation of her Fourth Amendment rights. But because the constitutional standard was not clear at the time of the search, the Court agreed that the assistant principal who ordered the search in 2003 was entitled to qualified immunity from liability for the violation. The ruling came in Safford Unified School District v. Redding, one of the most widely-watched decisions of the term.

The case involved Savana Redding, then 13, who attended a public school with a zero tolerance policy toward possession of all drugs. Acting on reports that the girl had prescription-strength ibuprofen pills, an assistant principal ordered the search to be conducted by the school nurse. She was told to strip to her underwear and pull out her bra and underpants to show that she was not hiding individual pills. None were found. Her mother sued the school district claiming a Fourth Amendment violation, and last year an en banc ruling by the U.S. Court of Appeals for the 9th Circuit found that the search was unconstitutional and the assistant principal was not immune from liability.

Souter said that under the Court's precedent on student searches in the 1985 case New Jersey v. T.L.O, the school was justified in conducting a limited search of the girl's backpack and outer clothing. But requiring her to strip to her underwear and partly expose herself was excessive, Souter said. Such searches, Souter said, are "so degrading" that some school districts have banned them "no matter what the facts may be." But Souter said that lower court interpretations of the T.L.O. case and others vary widely enough that the school officials who ordered the underwear search were not violating "clearly established law" and therefore deserved immunity from liability for their acts.

The Court divided this way in the Redding case: Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, Stephen Breyer and Samuel Alito Jr. joined Souter on both the constitutional and the qualified immunity issue. Justices John Paul Stevens and Ruth Bader Ginsburg agreed with Souter on the constitutional violation, but dissented on qualified immunity, arguing that the constitutional standard should have been clear to school officials. Justice Clarence Thomas agreed with the majority that the school official should be immune, but he dissented in part because he argued that the search did not violate the Fourth Amendment in the first place.

The Court also ruled in three other cases, including Horne v. Flores, a dispute over the adequacy of programs for English language learners in an Arizona school district. The 5-4 decision prompted Justice Stephen Breyer to read from his dissent from the bench. 

The justices adjourned without issuing a ruling in probably its most-anticipated case of the term, Ricci v. DeStefano, involving the claim of non-African American New Haven firefighters who claim they were victims of race discrimination because they were not given promotions after passing a test. The city threw out the test after no African-Americans scored high enough for promotions.

The Court indicated that Monday will be the final decision day of the term. An orders list, which may include cases that the Court has agreed to hear in the fall, is also expected. For more on today's action at the Supreme Court, check back here later today.