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?
"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 lawwhich was revised during the litigation to be more voter-friendlywas constitutional, but that it could not be enforced for the November election for lack of adequate preparation.
"Nobody is going to call us for something that's routine," Clement says. "What is nice about our practice is that we have a couple of clientsI wouldn't say the only way to have them is to have a boutique law firmbut we have some clients that are more unusual because they raise a lot of conflict problems for a big firm."
When asked which clients he's referring to, Dinh jumps in. "Well, I don't knowthe House of Representatives of the United States!" he says, erupting in laughter. He's referring, of course, to the Defense of Marriage Act litigation.
Clement, who isn't laughing, steers the discussion in another direction. "No, I think the better example is, we represented the 26 states in the health care case," he says. He points out that this assignment could create problems for firms that represent companies that have legal disputes with these states.
Clement insists that his personal and political views don't influence the cases he chooses to take. "It has a lot to do with who calls," he explains during a later interview in October. "I try to keep my personal views out of the process." Why did he take the DOMA litigation? "Having spent seven years in the solicitor general's office, defending the constitutionality of statutes comes naturally to me," he says. "The general ethos of the [solicitor general's] office is that it's all about defending acts of Congress without regard to the policy merits of the underlying statute."
When asked if Bancroft has any gay or lesbian employees, and how they feel about the firm defending the statute, Vinh answers. "We do, but we won't go into that. They're still at the firm," he says. "We're protective of our rank and file."
Dinh and Clement have known each other since they were students at Harvard Law School. They both clerked for the conservative Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit, and then for Supreme Court justices (Sandra Day O'Connor for Dinh and Antonin Scalia for Clement). Both also held high-ranking posts in the administration of George W. Bush: Clement as solicitor general from 2005 to 2008 and Dinh as head of the office of legal policy in the Justice Department from 2001 to 2003.