It's been a busy summer for Douglas Hallward-Driemeier, the managing partner of Ropes & Gray's Washington office. On the last day of the Supreme Court term, the high court said it would review the limits of power of bankruptcy judges; the firm is involved in the case. Then in early July, Hallward-Driemeier, the leader of Ropes & Gray's appellate and Supreme Court practice, took over as office managing partner.
From 2004 to 2009, Hallward-Driemeier was an assistant to the Solicitor General at the U.S. Department of Justice. At Main Justice, Hallward-Driemeier argued 13 cases before the high court and filed more than 150 briefs. He returned to Ropes & Gray in 2010 to lead its appellate and Supreme Court practice.
Legal Times sat down with Hallward-Driemeier in Ropes & Gray's 12th Street N.W. office to discuss the previous Supreme Court term, his pending brief in the bankruptcy case and, overall, what’s keeping the office busy.
Legal Times: How does the D.C. office of Ropes & Gray fit with the rest of the firm?
Hallward-Driemeier : The first thing that is critical to understand about the D.C. office is that it is very well integrated with the rest of the firm. The firm policy overall is to run as a single firm. There is a lot of wonderful collaboration across offices. We are not simply on our own at all. That said there is a distinctive flavor of the D.C. office. It is much more government-facing and we are able to provide that additional range of services to clients.
Some of the areas where we have particular depth in the D.C. office include life sciences. Again, showing the collaboration across the practice groups, we have both a number of people who focus on regulatory matters but we also have government enforcement partners. We do IP litigation and administrative-type litigation. Some of the IP work is very D.C.-focused. We have a number of very big matters before the ITC right now. There is a new administrative body at the Patent and Trademark Office called the Patent Trial and Appeals Board. In its short lifespan, we have become the leading practice before that body. I think we have something like 16 of the first 40 cases filed there. It's adding to the repertoire of what we can do for the clients.
What is the potential for growth in the Washington office?
I think our headcount is about to go up. I think we're getting 11 new associates coming in this fall which will push us up over 80 in terms of numbers. Look at the growth that we've had over the last five years and the common theme is the government-facing aspect of what they do. We've added two partners in government enforcement, each of who came out of the Criminal Division at DOJ. We've added an two antitrust partners; one of whom who had DOJ antitrust experience and the other was at the FTC doing antitrust work. We've expanded the capacity for ITC litigation at the ITC and the Patent Trademark Office. Life sciences expanded beyond pharmaceuticals to food and consumer protection. The constant theme of all of those ways in which we've been growing is the government facing. I see that continuing as kind of an organizing principle. Looking specifically to grow in those areas where the firm is so strong and where we can expand the breadth of that representation to do even more. Healthcare is one area where we would expect to see some additional growth in DC. Likewise, investment management and SEC regulation and enforcement.
How does the Supreme Court and appellate practice fit into the D.C. office?
The Supreme Court and appellate practice that I head up, we work across the firm and the country. I think we were involved in four of the last six cases that the court decided in the last term. Then on the last day of the term, they granted cert in the petition that we had filed in a bankruptcy case that presents some really, very interesting questions of the separation of powers and constitutional authority of bankruptcy judges. That is a matter of what I'm working closely with one of our bankruptcy and restructuring partners in Boston.
What is the significance of the bankruptcy case you're working on?
The case presents some critical questions about the circumstances in which Congress can assign responsibility to non-Article III judges to enter final judgment in cases that would be traditional state law causes of action. One aspect of that issue was decided by the Supreme Court a couple of terms ago in a case called Stern v. Marshall, which was famous in the press mostly because Anna Nicole Smith was one of the litigants. One question that the decision there left open was "Even if Congress can't on its own assign final adjudication of these issues to the bankruptcy court, can the parties nonetheless agree that a judge other than an article three judge—nominated by the president, confirmed by the Senate—can exercise that core judicial authority of the United States?" That is the issue that our case presents. Is this so fundamental a question of the separation of powers that it would be akin to saying that some private agency or association would purport to and enact legislation for Congress? No. You can't do that and there are Supreme Court cases that say that. We would say the same is true here. Even if it is expeditious for Congress to do that and the parties agree, the constitution says that judges—nominated by the president, confirmed by the Senate—have these qualities and if they don't then they can't do that critical, essential act of the judiciary which is to enter judgment into the United States.
When is your brief due?
Our brief is due on September 9.
What are your thoughts on the "revolving door" between government and private practice?
I think that it is essential to the operation of government that people there understand how the private sector works. And I think it's essential when you represent clients in the private sector to understand how the government works. What are the really critical aims that the government has in pursuing this investigation so that you can respond accordingly and represent your client as best as possible? I don't think that it's anything sinister at all. I think it’s a wonderful thing. In D.C. perhaps more so than in other cities, those opportunities are really very rich. You do see a little more of the turnover for that. We see that as positive in our ability to represent our clients.
The last Supreme Court term saw decisions involving the Voting Rights Act, affirmative action and gay marriage. What are your thoughts on the cases themselves or the term as a whole?
We were glad to be involved in each of those three. One of the things that are most salient about it is that in none of those three instances did the court go all the way as one or the other side might have hoped. In the Voting Rights Act decision, obviously great disappointment on one side that the coverage formula was struck down, but you see in the Attorney General's most recent actions in connection with Texas that he takes very seriously what the court said. All they were striking down was the coverage formula. Where you can show that the kind of supervision is appropriate, that remains a possibility.
Likewise in affirmative action, reaffirming that we take this very seriously that you have to have a very strong reason to use race, but equally taking seriously the longstanding commitment to a diverse educational environment. We were certainly very happy to see that reaffirmed for the clients that we represented which were a number of selective research universities.
In gay marriage, I think the court took a very important step to recognize that there was no basis for the federal government to refuse to recognize the validity of marriages performed under state law, but at the same time not going as far—at least yet—to decide whether that is something binding on all states or whether it's an issue on which states can have differing views. It will be interesting in each of those areas to see where it will go next. It's been rewarding to be part of those cases for our clients.
What keeps you busy outside the practice of law?
I am on the governance counsel of our church so I help with that. Other than that it's family and spending time with our kids. I am the coach of my youngest son's little league baseball team. I am involved as a uniformed adult leader for my oldest son's Boy Scouts troop. They are fun and great opportunities to spend time with my kids, but also a good opportunity to give back to the community.
This is part of a series of Q&A sessions Legal Times is conducting with D.C.-based law firm managing partners. Photo by The National Law Journal's Diego M. Radzinschi.