The BLT: The Blog of Legal Times

Judicial Nominees Start Over in Senate

Only one of President Barack Obama's judicial nominations has a clear path to Senate confirmation this year—U.S. District Judge Robert Wilkins, nominated to a key Washington federal appeals court.

Wilkins' nomination last year to the U.S. Court of Appeals for the D.C. Circuit was held over during the holiday break, giving Senators a chance to take action now without first having to repeat earlier procedural steps.

The same isn't the case for 55 other nominees, each of whom were not held over. The White House re-nominated 54 of them Monday, and now they must start the confirmation process back at the Senate Judiciary Committee.

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.

New Lawyer Named to D.C. Judicial Nomination Commission

Ronald Flagg, vice president and general counsel of the Legal Services Corp., is the newest member of the District of Columbia commission that vets lawyers applying to become judges on the city’s local courts.

Flagg replaces Karl Racine, a Venable partner who finished his six-year term on the D.C. Judicial Nomination Commission on Jan. 1.

The seven-person commission includes members appointed by the mayor, D.C. Council, D.C. Bar, White House and chief judge of the U.S. District Court for the District of Columbia. Flagg was appointed to one of two seats filled by the D.C. Bar.

In Black Farmers Case, Court to Consider Denied Claims

Hundreds of potential claimants in the high-profile black farmers discrimination case are challenging the denial of their claims for a share of a $1.25 billion settlement fund.

The federal government agreed to settle claims of loan discrimination by the U.S. Department of Agriculture not covered by a previous settlement in 1999. U.S. District Senior Judge Paul Friedman approved the new settlement in 2011.

Since then, Friedman wrote in a recent court filing, he has received a flood of challenges from claimants who sought compensation in the latest deal. In his Dec. 31 opinion, Friedman told lawyers for the class and the U.S. Department of Justice to respond to issues raised by the challengers by Jan. 30.

Ex-Lobbyist Wants 'Trial Penalty' Document Unsealed

A former lobbyist caught up in Jack Abramoff scandal has asked a federal judge to unseal government records to shed light on the "trial penalty"—the premium the government seeks to extract from defendants who exercise their right to trial instead of taking a plea offer.

Kevin Ring, sentenced earlier to 20 months in prison, has asked the federal district court in Washington to release portions of a government PowerPoint presentation given to him as part of pre-indictment dealings in 2008.

Back then, the government required the document to be kept secret, presumably to protect the secrecy of the government's then-continuing investigation into the Abramoff matter, according to Ring's attorneys, Andrew Wise and Timothy O'Toole of Miller & Chevalier in Washington.

Tax Reforms Could Bring Changes to Big Law

A tax reform proposal in Congress could mean big changes for the inner workings of the largest law firms, and business experts said it would spell financial hardship for the firms and hit partners with outsized tax bills.

Draft legislation that Senate Finance Committee Chairman Max Baucus (D-Mont.) released in late November includes a fundamental change to the way large law firms and other professional service firms report and pay their taxes. A draft bill in the House, first circulated in March, includes a similar provision.

Firms with gross receipts of greater than $10 million could no longer use the cash method of determining taxable income, but instead would use the much more complex accrual method, according to an analysis of the Baucus draft bill released last week by accounting firm PricewaterhouseCoopers.

Attorney Ethics Complaints in D.C. On the Rise in 2013

The Office of Bar Counsel is on track to receive more attorney ethics complaints in 2013 than it did in 2012, especially related to criminal cases.

According to the latest bar counsel statistics, the office received 1,090 complaints as of Nov. 13, up from 1,021 complaints received by the same time in 2012. There were a total of 1,081 complaints received by bar counsel in 2012.

Bar counsel officials said they weren't sure what accounted for the increase in complaints this year. "There's nothing in particular that we know of at this point," said Deputy Bar Counsel Elizabeth Herman.

Wiley Rein Defends Fee Request in Voting Rights Case

Wiley Rein is defending its request for $2 million in legal fees from the federal government after winning a constitutional challenge to the federal Voting Rights Act.

The U.S. Department of Justice has opposed the fee request, arguing Wiley Rein's client, Shelby County, Ala., didn't bring the type of claims covered under the voting rights law's fee-shifting provision. On Dec. 20, Wiley Rein filed court papers that accused the government of trying to relitigate issues the U.S. Supreme Court decided.

"[N]either their antipathy toward the rights Shelby County restored to the citizens of formerly covered jurisdictions nor the slew of other objections they raise can defeat Shelby County’s proper claim for attorney’s fees," firm founding partner Bert Rein wrote.

Protester's Claim of Unlawful Arrest for Profanity Can Proceed

An Occupy D.C. protester who claims he was unconstitutionally arrested for using profanity can proceed with his claims, a Washington federal judge ruled.

U.S. District Judge Ketanji Brown Jackson yesterday denied the government’s bid to dismiss claims against three U.S. Park Police officers. Based on facts alleged in the complaint, the judge said no officer would have reasonably found probable cause to arrest the protester, Anthony Michael Patterson, for disorderly conduct.

Jackson highlighted the First Amendment's protection of profanity. She said there was no evidence in Patterson's complaint that his speech risked provoking violence—one of the standards spelled out in the D.C. Code for disorderly conduct arrests.

Big Law Goes to Bat for Virginia Gov. Robert McDonnell

Lawyers from three prominent law firms were involved in the recent challenge of a decision by federal prosecutors in Virginia to bring charges against Gov. Robert McDonnell (R) and his wife.

According to The Washington Post, Justice Department officials, including Deputy Attorney General James Cole, met with McDonnell's lawyers on Dec. 12. Prosecutors originally intended to bring charges no later than this week, the Post reported, but delayed that decision following the meeting.

A person familiar with the investigation confirmed to Legal Times that Henry "Hank" Asbill of Jones Day and John Brownlee of Holland & Knight, lawyers for McDonnell, were at the meeting. Maureen McDonnell's attorney, William Burck of Quinn Emmanuel Urquhart & Sullivan, was also present.