The BLT: The Blog of Legal Times

Obama Taps Dept. of Homeland Security General Counsel

President Obama has tapped Ivan Fong, chief legal officer and secretary of Ohio-based Cardinal Health, to be general counsel of the Department of Homeland Security. 

Fong was a deputy associate attorney general at the Justice Department during the Clinton administration, and was a partner at Covington & Burling earlier in his career. At Justice, Fong was the primary author of a key report on cyber-crime policy, “The Electronic Frontier: The Challenge of Unlawful Conduct Involving the Use of the Internet.” 

According to his bio on the Cardinal Health Web site, Fong specialized in civil litigation, white-collar defense, intellectual property, and appellate litigation at Covington.

Abramoff Associate Pleads Guilty

Another former associate of disgraced lobbyist Jack Abramoff pleaded guilty to corruption charges today, admitting that he had handed out tens-of-thousands of dollars in illegal gifts to Congressional staffers.

Todd Boulanger, worked with Abramoff as a lobbyist at Preston Gates & Ellis and Greenberg Traurig between 1999 and 2004, according to the Justice Department. The 37-year-old admitted that between March 2002 and March 2004, he gave $25,000 worth of tickets, meals and drinks to a Senate staffer who in turn helped push his firm’s lobbying agenda.

He said that during the same time period, he provided $10,000 worth of perks to an unnamed Senator’s legislative director, and that in 2003, he and former lobbyist James Hirni, who pleaded guilty to similar charges last month, used World Series tickets to try and coax two more Congressional staffers into helping them add an amendment to a federal highway bill.

So far 17 people have pleaded guilty in the course of the Abramoff investigation, which is still ongoing.

Wilmer Associate Joins VP's Office as Associate Counsel

The roster of lawyers in the Obama administration continues to grow. Katherine Oyama, a litigation associate in the D.C. office of Wilmer Cutler Pickering Hale and Dorr, is heading to the Office of the Vice President to work as an associate counsel, according to an internal Wilmer source. Today was Oyama’s last day at the firm. 

Michael Steele Elected GOP Chairman

After a contentious six rounds of voting, the Republican National Committee elected former Maryland Lt. Gov. Michael Steele as its new chairman, marking the first time an African American has been chosen to head the GOP.

On the final ballot of the day, Steele, who grew up in D.C., bested South Carolina Republican Party Chairman Katon Dawson 91 to 77, the Associated Press reports.

The contest, which began with five candidates, slowly dwindled as the day wore on with incumbent GOP Chairman Mike Duncan, who had been hand selected by President George W. Bush for the post, dropping out after the third round of votes.

Steele, who campaigned heavily for Sen. John McCain (R-Ariz.) during the presidential campaign, will take the helm of the Republican Party as it struggles to find its footing after a series of heavy losses in recent elections.

Paul Craney, a spokesman for the D.C. Republican Committee, says his group had been a strong supporter of Steele going into the elections. With Steele’s win, Craney says the party is on the right track to become competitive in areas of the country that had previously proven difficult to reach.

“He has been a longtime supporter of what we’ve been trying to do which is to be competitive in the urban, traditionally blue areas of the country. We couldn’t be prouder,” he says.

Appeals Case Tests Privilege Between Attorney, Patent Agent

Bingham McCutchen lawyers are fighting for correspondence from the law firm Young & Thompson in a dispute on appeal that explores the scope of attorney-client privilege between a lawyer and a patent agent.

Privilege law on the question is unsettled, according to U.S. District Judge James Robertson, who ruled in December against Bingham McCutchen’s effort to acquire documents from Young & Thompson, a firm in Alexandria that specializes in patent litigation.

Bingham McCutchen represents Silynx Communications, which is accused of infringement in federal court in Maryland. In discovery, Silynx’s lawyers served a subpoena against Young & Thompson. The plaintiff in the patent dispute is a Norwegian company called Nacre, represented by the firm Fish & Richardson. Nacre makes a miniature communication headset, with noise protection, that the company sells to military and law enforcement. Silynx has filed a counterclaim that says Nacre’s patents are unenforceable.

Silynx’s lawyers, including Bingham partner William Cravens, this week took the subpoena dispute to the U.S. Court of Appeals for the D.C. Circuit. No argument date is set. Cravens was not immediately available for comment.

Young & Thompson, which prosecuted Nacre’s patents at the Patent and Trademark Office, withheld 35 documents between its attorneys and employees of ABC-Patent. The firm cited attorney-client privilege in refusing to turn over the requested documents.

Bingham lawyers argued the correspondence is not protected because none of ABC-Patent’s employees, who are based in Norway, are registered with the PTO. The lawyers also contend ABC-Patent was not working under the direction of Young & Thompson.

Robertson (pictured at left) rejected Bingham McCutchen’s motion to compel Young & Thompson to produce the correspondence. The judge ruled that ABC-Patent acted at the direction and control of a foreign client (Nacre) to seek legal advice and assistance from attorneys in the United States. ABC-Patent was working between Nacre and the Young & Thompson lawyers.

“That standard reflects the prevailing trend in privilege law towards a more inclusive definition of ‘client’ in the attorney-client relationship,” Robertson wrote.

Young & Thompson partner Douglas Rigler, who heads the firm’s licensing and litigation group, was not immediately available for comment.

Judicial Watch Files Suit to Remove Clinton

After first threatening the possibility nearly two months ago, the conservative crusaders at Judicial Watch filed suit yesterday against Hillary Clinton, to undo her appointment as secretary of state. The group is claiming that the Constitution’s emoluments clause – which bans any member of Congress from being appointed to a government position if its salary increased during their term in office – makes Clinton ineligible to head up Foggy Bottom. During Clinton’s second term as Senator from New York, the Secretary of State’s salary jumped up to $191,300, up from $186,600.

Before she was confirmed, Congress passed what it commonly calls the “Saxbe Fix,” knocking the salary back down to what it was before Clinton started her last go-around in the Senate. But Judicial Watch, which filed suit in the U.S. District Court for the District of Columbia, says that doesn’t cut the constitutional mustard.

The change “does not and cannot change the historical fact that the ‘compensation and other emoluments’ of the office of the U.S. Secretary of State increased during Defendant Clinton’s tenure in the U.S. Senate,” the complaint states.

Judicial Watch is suing on behalf of David Rodearmel, a U.S. Foreign Service officer who claims he would not be able to faithfully fulfill his oath to defend the constitution if Hillary Clinton were to remain his boss.

Clinton, of course, has been something of a bete noir for Judicial Watch since the groups early days in 1990s. The organization came to prominence by peppering the Clinton administration with 18 different lawsuits prying into such scandals as “Filegate” and “Chinagate.” While they never actually won any of their cases, the ever-vocal group’s shotgun approach did allow its lawyers to depose nearly every major figure in the White House, save the first lady herself.

The suit is being handled by Judge Reggie Walton. In a high profile decision earlier this month, Walton refused to enjoin Chief Justice John Roberts Jr. from adding “So help me God” to the presidential oath of office, writing that none of the atheist groups who had filed suit could prove sufficient injury.

Appeal for "Cuban 5" Heads to Supreme Court

Lawyers for five agents of the Cuban government who were convicted on charges relating to their infiltration of anti-Castro groups in Florida in 2000 filed an appeal at the Supreme Court today. They claim that the trial judge's refusal to grant a change of venue from Miami to Ft. Lauderdale subjected the defendants to an unfairly hostile climate and jury pool in Miami, with its large anti-Castro population.

If the Court grants review, the justices could take their first look in decades at the standard that should be used in deciding when to change venue in criminal trials. With heightened media scrutiny that makes local news national almost instantly, the issue is timely, according to statement by some judges in the case below. In the case of the Cuban defendants, the U.S. Court of Appeals for the 11th Circuit used a stringent test of whether it would be "virtually impossible" for defendants to get a fair trial, and based on that test said a change of venue was not needed.

Among the lawyers filing the petition today are Thomas Goldstein, co-head of appellate practice at Akin Gump Strauss Hauer & Feld in D.C., and the legendary Leonard Weinglass, who, along with William Kunstler, defended the Chicago 7, dissidents accused of conspiracy to riot during the 1968 Democratic convention. In a telephone press conference this morning, Goldstein said the case of the Cuban 5 has gotten "tremendous international attention" from human rights groups that criticize the fairness of the trial because of local hostility in Miami to the Cuban government. The defendants are serving prison terms ranging from 15 years to life.

The appeal also includes a challenge to the prosecution's strike of most potential jurors who were black.

Hausfeld's New Home

Hausfeld LLP has announced the opening of its D.C. office and has named it the firm's global headquarters. The office is located at 1700 K St. N.W.

Hausfeld’s founder Michael Hausfeld says the office is "up and running," as are the firm’s New York, Philadelphia, and San Francisco offices. Hausfeld adds that the he expects the firm’s London office to open for business in about two to four weeks.

The K Street location was chosen over other spots in the Dupont Circle and Foggy Bottom areas because Hausfeld says it was "readily available." After Hausfeld was expelled in November from then-Cohen Milstein Hausfeld & Toll (now renamed Cohen Milstein Sellers & Toll), he was occupying space in Venable's Washington office. Nearly three months after Hausfeld’s expulsion, Cohen Milstein and Hausfeld are still in dispute over clients and cash.

Hausfeld declined to say what he paid for the 16,000 square feet K Street location, but did say “it was less expensive than it would have cost a year ago.” Thomas Fulcher Jr., the co-manager of the Washington office of the real estate firm Studley, says the Hausfeld suite on the sixth floor is situated in the nicest space on the floor – primarily overlooking Farragut Square and K Street. Fulcher adds Hausfeld probably paid $55 or $56 per square foot.

The firm also announced that it had elevated eight associates to equity partner: Megan Jones, James Pizzirusso, Hilary Ratway, Andrew Bullion, Brent Landau, Steig Olson, Chris Lebsock, and Jon King. Hausfeld says the firm has “eliminated the non-equity category.” According to the firm's Web site, Hausfeld now has 15 equity partners (including the recently promoted partners).

Bruno Dips Inside the Beltway for Counsel

Joe Bruno, the pugnacious former New York state senator who was recently indicted on eight counts of public corruption, shored up his legal team last week with McDermott Will & Emery’s Abbe Lowell.

Lowell is representing Bruno alongside William Dreyer of the Albany-based Dreyer Boyajian. Lowell, who also represents convicted lobbyist Jack Abramoff, is coming off a victory in another high-profile public corruption case. In November, the Justice Department dropped its long-running investigation into the affairs of Lowell’s client, Nevada Gov. Jim Gibbons, who was dogged by allegations that he steered millions of dollars in defense contracts to a software company in return for cash and cruises.

Bruno is accused of commingling his private business and his public office in undisclosed business arrangements with more than a dozen unions and other firms looking to do business with the state. Bruno, 79, who spent 32 years in the Senate, including 14 as majority leader, collected as much as $3.1 million through the deals, prosecutors allege. The indictment says Bruno deprived the public of his honest services by using his office for private gain from 1993 through at least December 2006.

Lowell says the charges represent “an unprecedented expansion of the ‘honest services’ theory that should trouble every part-time legislator because of its attempts to make criminal a person’s need to have an outside job. After 40 years of great public service, Sen. Bruno deserves a lot better than he received from the prosecutors.”

Morning Wrap

Staffing Up at DoJ: The boss's confirmation process is not keeping the Obama Administration from naming new officials in the Justice Department. Here's the latest list from this blog, posted last night. Among them is Ed Siskel, a former law clerk to Justice John Paul Stevens who also happens to be the nephew of the late film critic Gene Siskel.

A Red Letter Ledbetter Day: With Lilly Ledbetter looking on, President Barack Obama signed into law the bill Congress passed to undo the 2007 Supreme Court decision on pay disparity that bears her name: Ledbetter v. Goodyear Tire & Rubber Co. It was a celebratory occasion for civil rights leaders -- like they'd just come out of a long drought -- and an important moment for First Lady Michelle Obama, according to this Washington Post article.

Billable Hours, R.I.P.?: Have you heard this song before? A story in The New York Times today suggests that the tough economy may finally bring an end to the billable hour at law firms and a shift toward flat fee arrangements.

Martin v. Marvel: Eminent trial lawyer Martin Garbus is taking on Marvel Entertainment and comic book creator Stan Lee in the latest chapter in a complex battle over copyright and royalties. Find out more in this story from The American Lawyer via law.com.

Holder Still Holding: Monday appears to be the day when the Senate will confirm Eric Holder Jr. as the next attorney general, says this Associated Press story.