How Bancroft Became Conservatives' Law Firm of Choice for Hot-Button Cases

Paul Clement and the tiny firm he joined in 2011 have already taken on gay marriage, immigration, health care, voting rights, and redistricting. What's next?

, The American Lawyer

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Correction,1/4/13, 11:46 a.m. EST: The version of this article that appeared in the December 2012 print edition of The American Lawyer incorrectly stated that Bancroft helped Milberg Weiss negotiate a criminal plea with the U.S. Department of Justice in 2008. The firm entered into a non-prosecution agreement with the government in which prosecutors acknowledged that current partners of the firm had no knowledge of any wrongdoing. The 12th paragraph of this story has been revised to reflect the correct information. We regret the error.

It's a good thing that Paul Clement and Viet Dinh are such close friends. Not many lawyers would do well sharing an office divided down the middle by a sheet of glass. Not only can they watch each other work, but others can look in, too, observing the pair side by side through a hallway wall that is also clear glass. The overall effect is like an exhibit at a museum, or perhaps a zoo.

This strange arrangement was born of Clement's abrupt decision in April 2011 to join Dinh at Bancroft, after Clement's very public and very ugly split from King & Spalding. When the Atlanta-based firm backed away from advocating for the Defense of Marriage Act, which forbids the federal government from recognizing same-sex marriages, Clement took the case with him and sought safe haven at Bancroft. The firm's small warren of offices in Washington, D.C., didn't have space for another partner office, so Dinh chopped his own office in half.

Upon the arrival of this former U.S. solicitor general, Bancroft issued a press release touting the alliance. "We are shaking up the D.C. legal establishment," asserted Clement in the statement, noting that his new firm "offers its clients premier talent, without all the baggage of a megafirm." Dinh called Clement "a perfect fit with Bancroft, where we are building the next great law firm."

For Dinh, Clement's move was a stroke of great fortune. Overnight it transformed tiny Bancroft from a small player on the fringes of Washington's legal culture to a major force in appellate litigation. Before Clement arrived with his docket brimming with U.S. Supreme Court cases, the eight-year-old firm had worked on only four cases that produced reported decisions by any court in the United States. None were before the Supreme Court.

Less than two years later, freed from the constraints of a big firm, the 46-year-old Clement has tethered himself to litigation over some of the most hot-button political issues of our times: gay marriage, immigration, health care, voting rights, and redistricting. In each case the firm has lined up with conservative Republican interests, often working for fixed or discounted fees to advance their cause. And while Bancroft is also juggling a more typical docket for corporate clients like Exxon Mobil Corporation and GlaxoSmithKline plc, it's these politically fueled cases that have so far defined Clement's tenure at his new firm.

Meanwhile, Dinh continues to pursue his unorthodox practice. The 44-year-old is a full-time professor at Georgetown Law School, a director for Revlon Inc. and News Corp. (overseeing the board's independent investigation into the phone-hacking scandal), the general counsel for the for-profit Strayer University, and a consultant and lawyer.

In the past year, both Clement and Dinh were mentioned as likely judicial nominees in a Republican administration. And Clement has long been considered a good bet to be nominated for a vacancy on the Supreme Court. But with the reelection of President Barack Obama, it looks like the two will have to wait at least another four years.

So what is the future of Bancroft? At three partners and 10 associates, it's still a small operation. Is it really "the next great law firm," as Dinh predicted? Or is it a temporary and convenient way station for two very different lawyers with very different practices and very different goals?

Bancroft's offices in downtown D.C., viewed during a July visit, were a jarring mix of the august and the fly-by-night. In the small entry area, the receptionist's desk is jammed into a corner with a jumble of electrical cords cascading over the front. On one wall hangs a lovely black-and-white photograph of the Supreme Court building at night blanketed in snow. On another wall hangs a framed copy of a March 2012 Washington Post article about Clement. "He is the best advocate of his generation," the headline declares.

In July, Clement and Dinh sat down to talk about their firm in a small windowless conference room. Dinh starts off by joking that there are listening devices in the room and that he can read my emails. Dinh enjoys being known as the architect of the Patriot Act, a label that he acquired when he was U.S. assistant attorney general for legal policy during President George W. Bush's first term.

"We help clients solve very complex problems. It's not a definable practice area," Dinh says about his practice, as he fiddles with a plastic bottle cap. "The easiest way to define it is that we're rent-a-general-counsel."

Dinh's practice often involves smoothing the way for clients with federal officials. In 2008, for example, he helped Milberg Weiss resolve criminal charges by negotiating a rare non-prosecution agreement with the U.S. Department of Justice in which prosecutors acknowledged that the current partners had no knowledge of any wrongdoing. That same year, he also helped former Days Inn executive Stanley Tollman reach a $105 million tax evasion plea deal. In the past year Dinh successfully represented an Iranian dissident group that sued to be removed from a State Department terrorist list.

Clement's practice is more easily definable. He's one of the most sought-after appellate advocates in America, plain and simple. In the previous Supreme Court term, he argued seven cases, a modern-day record for a private practitioner. Along with representing states challenging the Obama health care law (which was largely upheld), Clement convinced the court to uphold key provisions of Arizona's controversial immigration laws, and ended up with a mixed ruling for Texas in a battle over newly drawn voting districts. In a more conventional corporate case, he won a ruling for GlaxoSmithKline that its sales representatives are exempt from overtime pay laws. This term, Clement has a lighter Supreme Court caseload. At press time he was scheduled to argue two cases: a tax dispute for PPL Corporation and a case representing plaintiffs lawyers who used DMV records to gather more information to pursue a class action.

The firm's third partner, H. Christopher Bartolomucci, who joined Bancroft from Hogan Lovells in February 2011 before Clement came on, recently handled the firm's first trial. He represented South Carolina in its effort to get court approval for its new voter identification law. In October a panel of three federal judges from the District of Columbia held that the law—which was revised during the litigation to be more voter-friendly—was constitutional, but that it could not be enforced for the November election for lack of adequate preparation.

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Originally appeared in print as Patron Saint of Conservative Causes

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