The BLT: The Blog of Legal Times

The Morning Wrap

Whiskey Plates: The Wall Street Journal examines the issue of "whiskey plates," license plates that include a clue the car's owner is a convicted drunk driver. Defense lawyers and civil libertarians don't like them.

Lying Accusation: The New York Times reports that, according to court documents, Fox News chief Roger Ailes was the one whom publisher Judith Regan once accused of encouraging her to lie to federal investigators about Bernard Kerik.

Cantor in Cambridge: In a speech at Harvard, House Majority Leader Eric Cantor (R-Va.) said he's "never been around when a president decided not to defend a law on the books," The Associated Press reports. (Then again, The NLJ reported last year that DOJ has done so 13 times in the past six years.)

Call Him Dean: Former U.S. Rep. Tom Campbell (R-Calif.), who ran unsuccessfully for Senate last year, will be the next dean of the Chapman University School of Law in Orange, Calif., the Los Angeles Times reports.

Past Sinks Aide: An aide to D.C. Mayor Vincent Gray was forced out after questions about past criminal allegations, The Washington Post reports.

Former Sen. Dorgan: $223M Legal Fee Request is 'Shameful'

Former Senator Byron Dorgan of North Dakota, who championed a landmark settlement to resolve a Native American class action in Washington, today called the plaintiffs’ lawyers demand for at least $223 million in fees "shameful."

Dorgan, now a senior policy adviser at Arent Fox in Washington, said the settlement set out sufficient compensation for the team of lawyers representing lead plaintiff Elouise Cobell.

The $3.4 billion settlement, announced in December 2009, provides compensation to potentially hundreds of thousands of Native Americans for the government’s mismanagement of individual trust accounts stemming from the use of land for oil, gas and minerals. The suit was filed in June 1996.

Under the terms of the agreement, the plaintiffs’ attorneys, including a group of Kilpatrick Townsend & Stockton lawyers and D.C. solo practitioner Dennis Gingold, agreed to a range of fees between $50 million and $100 million. The settlement said the presiding judge, Thomas Hogan, has the final say on fees.

Gingold was not immediately reached for comment this afternoon. Kilpatrick partner Keith Harper in Washington also was not immediately reached.

In an interview, Dorgan called the fee demand from the plaintiffs’ lawyers “shameful,” saying that “every dollar from the settlement that goes to the lawyers is a dollar that is taken away from the victims.”

“For the attorneys to argue for this amount of money now undermines the very interest of the victims they were representing,” Dorgan said. “It just makes me angry. There were real victims hurt in this case. This should not be, in the end, how much the lawyers get.”

Dorgan, who co-chairs Arent Fox's government relations practice, said he hopes Hogan “will slam the door shut quickly on this.” Dorgan (above, with Cobell) said the $223 million fee request “is not a level that is acceptable and it’s not a level that was contemplated by the agreement.”

Cobell’s attorneys justify the request for at least $223 million on several grounds. One, the lawyers argue there was never a “cap” on fees because the presiding trial judge has the final say and can award any amount—or no money—he sees fit.

The plaintiffs’ lawyers also argued in court papers that the fee is justified given the length and complexity of the case. The $223 million amount is rooted in a contingency fee arrangement between the plaintiffs and their lawyers. Cobell’s lawyers contend that $223 million in fees would be on the low end of the compensation scale for lawyers who handle complex, prolonged class actions. (The plaintiffs' fee petition is here.)

The U.S. Justice Department this week is expected to file the government’s opposition to the plaintiffs’ legal fee demand.

Emily Lawrimore, a spokeswoman for Sen. John Barrasso (R-Wyo.), who wanted to cap legal fees at $50 million, said in an e-mail this afternoon that the settlement included “extremely generous” compensation for the plaintiffs’ attorneys.

“They agreed not to ask for more than $99.9 million in attorneys’ fees, and that was the message they sent to Congress and Indian Country before the settlement bill was signed into law,” Lawrimore said. “Every extra dollar the lawyers receive will mean less money reaches the folks who need it most in Indian country.”

Political Activist Loses Legal Challenge Over Closed Courtroom

A D.C. Superior Court judge was wrong to close his courtroom to the public during jury selection, but the error isn't enough to overturn a man's conviction on a disorderly conduct charge, an appeals court in Washington said today.

The trial judge, Robert Rigsby, cleared his courtroom in April 2008 to question prospective jurors individually before the start of a trial in which a man was charged with disrupting a Senate Foreign Relations Committee hearing.

The defendant, David Barrows, who interrupted the testimony of General David Petraeus during a hearing on Sept. 11, 2007, did not object at the time to the closure of Rigsby’s courtroom. The D.C. Court of Appeals has long held that the public has a right to attend jury selection.

Barrows raised the issue on appeal for the first time, saying the sealing of the room violated the integrity of his trial. Barrows was pro se in the trial court, receiving help from two attorney-advisers. He was sentenced to 18 months of supervised probation and ordered to pay a $500 fine.

Calling the case one of first impression, a three-judge panel of the D.C. Court of Appeals rejected Barrows’ contention that Rigsby’s action was egregious enough to warrant a reversal of the criminal conviction.

For starters, the appeals court said, it was unclear whether a woman in the courtroom actually objected to being removed from Rigsby’s courtroom or whether she displayed a facial expression of displeasure of having to get up and move.

The appeals court said a “structural” error—one that affects the framework of a trial and not simply the trial process—is likely to have an effect on the “fairness, integrity or public reputation of judicial proceedings.” The court added, however, that the closure of this courtroom did not “seriously” affect those factors.

The closure was brief, the appeals court said, and the judge assured spectators that they could attend the trial. There is nothing in the record, the court said, indicating that Rigsby wanted secret proceedings to avoid public scrutiny.

“We cannot conclude that the judge’s (polite) handling of the matter, though erroneous, had any serious adverse effect on the public reputation of the court,” Judge Phyllis Thompson wrote in today’s 23-page ruling [.pdf], joined by judges Vanessa Ruiz and Noel Kramer.

Even if spectators had been allowed to remain in court, the observers would not have heard the exchanges among Rigsby, the prosecutor and Barrows. The judge turned on a white noise device commonly called a “husher.”

A lawyer for Barrows, Jeffrey Light, a Washington solo practitioner, said he is planning to review whether to ask the full court to hear the case.

Federal Judiciary Braces for Possible Government Shutdown

The federal judiciary is developing contingency plans in the event of a government shutdown next month and urging all federal judges and staff to limit non-salary spending to the essentials, the Administrative Office of the United States Court said in a memo Wednesday.

Judiciary officials are planning to send out guidance to all federal judges, circuit court executives and federal public defenders for managing during a shutdown, James Duff, the director of the administrative office, said in the memo [.pdf].

Duff said the “magnitude of the funding cuts” in a House spending bill, which passed in February, “could potentially result in the loss of a significant number of on-board court staff.” The judiciary, he said, “will take all steps necessary to minimize adverse personnel actions.”

The bill, which President Barack Obama has vowed to veto, reduces overall spending for the federal judiciary by $145 million below fiscal year 2010 and $200 million below the “level needed to maintain base operations and current on-board court staffing levels,” the memo said.

Duff (at left) said he spoke with Chief Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit, who chairs the Judicial Conference’s executive committee, and with Judge Julia Smith Gibbons of the U.S. Court of Appeals for the 6th Circuit, chairwoman of the budget committee.

“With all of this uncertainty and out of an abundance of caution, we are urging chief judges and court unit executives to institute immediately a hiring freeze for all but the most critical vacancies until a final FY 2011 spending bill is enacted,” Duff said in the memo. “We also urge you to defer cash awards and discretionary step increases and to limit non-salary spending to essential expenditures only.”

Law Profs Urge Ethics Rules for Supreme Court Justices

More than 100 law professors have signed on to a letter released today that proposes congressional hearings and legislation aimed at fashioning "mandatory and enforceable" ethics rules for Supreme Court justices for the first time. The effort, coordinated by the liberal Alliance for Justice, was triggered by "recent media reports," the letter said, apparently referring to stories of meetings and other potential conflicts of interest involving Justices Antonin Scalia and Clarence Thomas among others.

The professors note that the Court is not covered by the code of conduct that lower federal court judges are required to follow. The Supreme Court has long said it looks to the code for "guidance" -- a concession which, the signers agree, "has proved insufficient." The letter also points out disapprovingly that individual justices alone decide whether they should or should not recuse in a given case, not subject to review by anyone else, and with no requirement to explain their decisions. We delved into the recusal issue in a recent story in our newsletter Supreme Court Insider (subscription required.)

"Adherence to mandatory ethical rules by justices, and requiring transparent, reviewable recusal decisions that do not turn solely on the silent opinion of the challenged justice will reinforce the integrity and legitimacy of the Supreme Court," the letter asserted.

The professors directed their letter to the leaders of the Senate and House Judiciary Committees, with an eye toward hearings and legislation that would apply and enforce the code of conduct on Supreme Court justices, and impose rules for transparency and review of justices' recusal decisions.

In making their case, the professors invoked the Court's own language from the 2009 decision in Caperton v. A.T. Massey Coal Co., which disapproved of a state judge's refusal to step aside from a case that involved a major campaign donor. "Judicial integrity is," the Court said, "a state interest of the highest order."

Alliance for Justice president Nan Aron said her group became involved with the letter-writing effort after consulting with some legal ethics experts in the context of the growing controversy over meetings with conservative groups by Thomas and Scalia, as well as lobbying activities by Thomas's wife Virginia. "They were alarmed about what was happening," said Aron, so she agreed to "shepherd" the professors' letter through to fruition. "The time is overdue," Aron said, for new ethics rules for the high court.

Among the signers are leading names and experts on legal and judicial ethics, including Stanford Law School's Deborah Rhode, George Washington University Law School's Stephen Saltzburg and Alan Morrison, James Alfini of South Texas College of Law, Yale Law School's Lawrence Fox, Amanda Frost and Herman Schwartz of American University Washington College of Law, Northwestern University School of Law's Steven Lubet and Ellen Yaroshefsky of Benjamin N. Cardozo School of Law.

Notably absent, however, was Stephen Gillers of New York University School of Law, perhaps the best known legal ethics expert nationally. Asked about the letter today, Gillers said he agreed with most of it, but parted ways with the group over the recusal issue. Requiring justices to submit their recusal decisions for review by other justices, he said, could lead to "the appearance of opportunistic behavior" aimed at keeping a colleague on or off the case, and could spoil the Court's collegiality. Citing the current "highly politicized" debate over justices' ethics, Gillers also said he would rather that hearings and legislation take place "in a more neutral time."

Complaint Accuses Hunton & Williams of Dirty Tricks

Three Hunton & Williams partners face an ethics complaint before the D.C. Bar after the release of e-mails saying they worked on an effort to undermine liberal activists.

The organization Stop the Chamber says it filed the complaint on Wednesday. Stop the Chamber, a critic of the U.S. Chamber of Commerce, was among the groups targeted by the security companies that Hunton & Williams worked with, according to e-mails.

The 14-page complaint (PDF) accuses the three Hunton & Williams lawyers of violating Rule 8.4 of the D.C. Rules of Professional Conduct. The rule prohibits misconduct including conduct “involving dishonesty, fraud, deceit, or misrepresentation.”

The lawyers violated the rule, says the complaint, when they collaborated with the three security companies on a project to gather information on and to undercut the Chamber’s critics. In November, the e-mails say, the companies’ employees discussed covert ways to “discredit” the union-backed U.S. Chamber Watch, including the creation of a forged document and “fake insider personas.”

Hunton & Williams has declined to comment on the more than 71,000 e-mails, which hackers took after breaking into the servers of a potential Hunton & Williams subcontractor. A message left today with a firm spokeswoman was not immediately returned. The three lawyers targeted by the complaint are all partners in the firm’s Washington office: Robert Quackenboss, John Woods and Richard Wyatt Jr.

The bar complaint was signed by Kevin Zeese, a lawyer who works with Stop the Chamber and its affiliate Velvet Revolution. In May 2009, Zeese signed complaints accusing 12 former Bush administration lawyers of violating professional standards. Salon first reported last week that Zeese was planning to file a complaint against the Hunton & Williams lawyers.

D.C. Bar Counsel Wallace “Gene” Shipp Jr. declined any comment, citing bar confidentiality rules.

Morning Wrap

Change in Course: The Obama Justice Department will no longer defend the constitutionality of the federal Defense of Marriage Act, Attorney General Eric Holder told Congress Wednesday. We had Marcia Coyle's story yesterday afternoon, and here is The New York Times' take.

New Hearing for Liu: Embattled judicial nominee Goodwin Liu will face another Senate Judiciary Committee hearing next week, our David Ingram reports here. The reconstituted committee could be more hostile than last time.

Flom Dead at 87: Deal-maker Joseph Flom, the last living named partner at Skadden, Arps, Slate, Meagher & Flom, died Wednesday in New York. Sibling publication New York Law Journal recounts Flom's long life and career. 

Assange Extradition: A British judge this morning ruled that Sweden's request to extradite Wikileaks founder Julian Assange so he can face sex-crime allegations must be honored. The Washington Post story is here.

Tweet Trouble: An Indiana deputy attorney general was fired Wednesday after Mother Jones Magazine revealed he was the author of some vitriolic postings on Twitter, including the suggestion that Wisconsin police should "use live ammunition" to clear pro-union demonstrators from the state capitol.

Goodwin Liu to Get Second Hearing

Republicans will get a second chance to question Goodwin Liu, who is one of President Barack Obama's most contentious judicial nominees, and Liu will get another opportunity to answer the criticism.

The Senate Judiciary Committee gave notice today that it will hold a second confirmation hearing for Liu. The hearing is set for Wednesday, March 2. Sen. Dianne Feinstein (D-Calif.), a staunch supporter of the nominee, is scheduled to preside over the hearing.

Obama nominated Liu a year ago to the U.S. Court of Appeals for the 9th Circuit. Widely seen as a potential future Supreme Court nominee, Liu is a professor at the University of California, Berkeley School of Law. He’s also a former O’Melveny & Myers associate and former clerk to Justice Ruth Bader Ginsburg.

Republican criticisms of Liu have been harsh. During his confirmation hearing in April 2010, GOP senators laid into Liu over his academic writings and his testimony in 2006 against the confirmation of Justice Samuel Alito Jr. Sen. Lindsey Graham (R-S.C.), who voted for both of Obama’s nominees for the Supreme Court, has said he might oppose Liu.

The second hearing could include the committee’s two newest members, Sens. Richard Blumenthal (D-Conn.) and Mike Lee (R-Utah). Blumenthal clerked for Justice Harry Blackmun, while Lee clerked for Alito twice. When The National Law Journal asked Lee about the nomination this month, he demurred. “I will review that nomination thoroughly and carefully and give it the consideration it deserves,” Lee said.

In January, committee aides said that senators were negotiating whether any judicial nominees announced during the 111th Congress would need second hearings during the 112th. Liu would be the first.

Update (2/24): The hearing will also be the first opportunity for Sen. Chris Coons (D-Del.) to question Liu. Coons took office in November.

DOJ won't defend Defense of Marriage Act

By Marcia Coyle

The legal landscape on which gay marriage battles are being fought shifted dramatically on Wednesday with the announcement that the U.S. Department of Justice will no longer defend the constitutionality of the federal Defense of Marriage Act.

Attorney General Eric Holder, in a letter to Congress, said President Barack Obama had concluded that the law failed to meet a heightened standard of scrutiny and was therefore unconstitutional. The law, commonly known as DOMA, defines marriage for federal purposes in Section 3 as only between a man and a woman.

Reaction to Holder’s announcement followed swiftly and ranged from pure elation from civil rights and gay and lesbian groups to anger and determination to fight for the law from some members of Congress and traditional marriage advocates.

“It’s a lawyer’s decision based on a careful consideration of the law,” said Paul Smith, head of the Supreme Court and appellate practice at Jenner & Block, and counsel with Gay & Lesbian Advocates & Defenders in a DOMA challenge now pending in the U.S. Court of Appeals for the 1st Circuit.

“There was only one right answer,” he said. “When you examine the law and which groups need heightened protection under the equal protection clause, you realize that sexual orientation is one of those kinds of discrimination that is suspect. There really was no way for them to defend Section 3 of DOMA because the law doesn’t serve any purpose other than to stigmatize persons.”

But signaling that the legal fight is far from over, House Judiciary Chairman Lamar Smith (R-Texas) countered, “There is no rule that requires the Justice Department to apply a higher standard of proof in these cases. And yet, DOJ has decided to apply that standard as an excuse to avoid defending the law. In other words, the Administration built a wall so that it could complain that it’s too tall to climb.”

New York Judicial Nominees Report Income

The nomination of two New York lawyers for federal judgeships has opened small windows into Wilmer Cutler Pickering Hale and Dorr and the legal shop of a major cable provider.

Paul Engelmayer, who is the head of Wilmer's New York office, earned partner income of $1.1 million in 2010 and of $1.6 million in 2009, according to a financial disclosure report he was required to fill out for his nomination.

J. Paul Oetken, who is senior vice president and associate general counsel for Cablevision Systems Corp., had income from the company of $834,036 in 2010 and of $760,405 in 2009, according to his financial disclosure report. He also reported a salary of $3,000 in 2009 from Fordham University.

Both are nominees for U.S. District Court for the Southern District of New York. Oetken was nominated on Jan. 26, Engelmayer on Feb. 2. Both are former U.S. Supreme Court clerks — Engelmayer for Justice Thurgood Marshall, Oetken for Justice Harry Blackmun.

Engelmayer’s reported income was well above Wilmer’s average in 2009. The firm had average profits per partner of $1.33 million in 2010 and $1.13 million in 2009, as The National Law Journal reported last month. The financial disclosure report asks nominees for net income.

Engelmayer listed his net worth as $18.1 million, including $4.9 million in real estate assets against a mortgage balance of $7,142. Other assets include $5.2 million invested with Berkshire Hathaway. He previously served as an assistant to the U.S. solicitor general and as chief of the major crimes unit in the U.S. Attorney’s Office for the Southern District.

Oetken, a former Debevoise & Plimpton counsel and associate White House counsel during the Clinton administration, listed his net worth as $2 million. That includes a $2.5 million personal residence with a $1.5 million mortgage. He reported $357,610 in Cablevision stock.