The BLT: The Blog of Legal Times

Schaerr Leaves Winston to Represent Utah in Marriage Case

Veteran Supreme Court and appellate advocate Gene Schaerr is leaving Winston & Strawn to represent the state of Utah in defense of its constitutional ban on same-sex marriage.

“We are pleased that he is so eager to represent our state and that he would leave his firm so he can focus on this case exclusively,” Utah Attorney General Sean Reyes said in a press release announcing the hiring of Schaerr Thursday. Reyes said Schaerr has agreed to cap his fees at $200,000 for his work on the case before the U.S. Court of Appeals for the Tenth Circuit.

Schaerr will lead the team appealing the December 20 decision in Kitchen v. Herbert in which a U.S. District Court judge struck down the Utah constitutional provision prohibiting same-sex marriage on equal protection and due process grounds.

“Gene Schaerr is an elite Supreme Court and appellate expert. He is from Utah. He understands our unique history and community,” Reyes said in the announcement, also noting that Schaerr used to work with the late U.S. solicitor general Rex Lee. Lee is a revered figure in Utah, where he also served as president of Brigham Young University. Schaerr worked with Lee at Sidley Austin before joining Winston in 2005.

The Morning Wrap

Surveillance reform: President Obama this morning will deliver a speech at the U.S. Department of Justice that outlines reform of government surveillance efforts. Obama is expected to announce an overhaul of the controversial National Security Agency bulk phone data collection program. Sens. Richard Blumenthal, Ron Wyden and Mark Udall wrote an op-ed for POLITICO trumpeting the push to reform the Foreign Intelligence Surveillance Court.

Voting rights: Federal lawmakers Thursday unveiled their effort to fix the Voting Rights Act following a U.S. Supreme Court ruling that gutted a key provision, The National Law Journal reports. Coverage in NPR here, and USA Today here.

Cell phone searches: The U.S. Supreme Court today could announce whether the justices will review the scope of Fourth Amendment protection concerning police searches of cell phones. The Associated Press reports: "The Supreme Court decided 40 years ago that police don't need a search warrant to look through anything a person is carrying when arrested. But that was long before smartphones gave people the ability to take with them the equivalent of millions of pages of documents or thousands of photographs."

Budget Bill Would Help Legal Aid Providers

The nation's legal aid providers stand to get back funding this year under Congress' latest budget plan.

A bipartisan appropriations bill moving through Congress this week would undo last year's $25 million budget cuts to Legal Services Corp, a spokesman said today. Those cuts, which came as a part of sequestration, brought a 7 percent reduction in grants for the 134 legal aid agencies that rely on LSC funding.

Lawmakers also included $2.5 million in the bill for LSC to start a new grant program—the Innovation Fund—to promote creativity in the expansion of legal assistance. The $2.5 million came at the request of the staff of Rep. Frank Wolf (R-Va.), who heads the House appropriations subcommittee that controls LSC funding.

The Morning Wrap

Quiet times: "The surprising silence coming from the Supreme Court over the last week on a challenge to Obamacare by a group of Colorado nuns suggests justices are divided over what to with the complicated dispute," the Los Angeles Times reports. The U.S. Department of Justice is opposed to the stay Justice Sonia Sotomayor issued on New Year's Eve.

No women: The Am Law Daily has this story today: "No New Women Partners at Five Am Law Firms This Year." From the report: "Scores of Am Law 200 lawyers have celebrated achieving a long-sought career goal in recent weeks as their firms announce the latest class of new partners. In some cases, however, the crowd of revelers is surprisingly homogeneous."

Missing: Tens of thousands of Indians who are owed money under a landmark settlement over land royalties cannot be found, The New York Times reports. “Historically, there is no question that the government mismanaged these accounts and should have known where these people were,” David Smith, a lawyer involved in the case, told the Times.

Still looking: Pattons Boggs, The New York Times reports, "is not immune to the broader forces sweeping the legal field, where law firms long accustomed to operating like exclusive clubs are finding that they have to be nimble business strategists as well." Earlier coverage here and here in The Am Law Daily on Patton Boggs' now-ended merger talks with Locke Lord.

Bancroft Firm Names Three New Partners

The Bancroft firm named three new partners on Thursday, reflecting the boutique’s sharp growth in power, if not size, since former solicitor general Paul Clement joined the firm in 2011.

Promoted were Erin Murphy, George Hicks Jr. and Jeffrey Harris. All three are former law clerks to Chief Justice John Roberts Jr. and have played key roles in the firm’s Supreme Court and litigation practice.

The promotions are in keeping with the firm’s goal to grow “moderately and deliberately,” said Viet Dinh, who founded Bancroft in 2004. Dinh is a former top Justice Department official who also teaches at Georgetown University Law Center. Dinh said the firm now has 14 lawyers – seven partners and seven associates – up from the three partners and eight associates the firm had after Clement arrived three years ago.

Former FTC Commissioner Joins Baker & Hostetler

Norton Rose Fulbright lost former Federal Trade Commissioner Pamela Harbour to Baker & Hostetler, her new firm announced Wednesday.

Harbour, who served as an independent on the commission from 2003 to 2010, has joined Baker & Hostetler as a partner in the antitrust and competition practice and a co-leader of the privacy and data protection team. She has offices in Washington and New York.

Harbour said she hadn't considered leaving Norton Rose until Baker & Hostetler approached her. Baker & Hostetler didn't win her over right away, however.

Senior State Department Lawyer Joins Arent Fox

Arent Fox has picked up a senior attorney-adviser at the U.S. State Department for the firm's Washington office.

Lee Caplan, who spent almost 10 years at the State Department's Office of the Legal Adviser, has joined Arent Fox as a partner in the international arbitration and dispute resolution practice. He will focus on foreign investment law and policy, among other international law matters.

Caplan said he enjoyed his time at the State Department but was ready for something new. "I sort of got to the point in my career when I wanted to branch out," he said.

Paul Clement Takes on Health Care Law Again

Paul Clement of Bancroft listens to Sen. Ron Johnson (R-Wis.) speak about the lawmaker's new lawsuit on Capitol Hill today. Credit: Diego Radzinschi

Republicans have turned again to Paul Clement of Bancroft for a high-profile challenge to President Barack Obama's new health care law.

Clement appeared on Capitol Hill today next to Sen. Ron Johnson (R-Wis.), who filed a federal lawsuit today challenging an Office of Personnel Management rule regarding health coverage for members of Congress and staff.

The issue is narrow but politically potent: Johnson wants the courts to void a rule that allows lawmakers and their staff to receive subsidies for their health plans. The Senate, Johnson said, held votes on provisions that require members of Congress and staffs to be treated the same way as constituents.

This Week in The National Law Journal

Pro Bono Hot List: Which attorneys stand out for the time they volunteered for nonprofit causes in 2013? The National Law Journal takes a look in its annual pro bono report.

Courts Join NSA Fight: The U.S. Supreme Court may have to rule upon the National Security Agency's data gathering after two federal judges came to such widely different conclusions about the agency's telephone surveillance program in December, Andrew Ramonas, Todd Ruger and Tony Mauro report.

Of Bandmates and Bad Blood: The desire to prevent former bandmates from trading on past rock and roll glory is driving two similar federal trademark cases, Sheri Qualters reports.

John Marshall Law Has Its First Skadden Fellow: Karen Sloan reports on how Sarah Hess beat the odds.

DOJ Surveillance Law Memo Can Remain Secret, Court Says

The U.S. Department of Justice can keep secret a legal memo that addresses the authority and legality of the FBI's ability to acquire phone records without legal process, a federal appeals court in Washington ruled today.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, including one of the court's newest members, Sri Srinivasan, said the "deliberative process" legal privilege shields the document from public scrutiny. Read the opinion here.

The appeals court said the privilege—which can protect information that's shared among government officials as agencies develop policy and make decisions—applies to the entire Office of Legal Counsel memo. The D.C. Circuit panel, which included senior judges Harry Edwards and David Sentelle, declined to dig into whether any part of the document can be publicly disclosed.

The challengers, the Electronic Frontier Foundation, sued in 2011 under the Freedom of Information Act to try to obtain a copy of the memo, which addresses the FBI's pursuit of information from telecommunications companies. The FBI in late 2009 sought advice from the Office of Legal Counsel to respond to an internal review of the bureau's effort to collect phone records.