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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TAL Dec 2012 Bancroft Paul Clement
Paul Clement

Dinh tried to dispel the impression that Bancroft is driven by a conservative agenda. "We are not a firm only of Republicans," he said in the video of his talk, which Bancroft posted on its website. He noted that the firm recently hired an associate from the Obama administration's Justice Department. Not only that, he pointed out, at this associate's request the firm was a sponsor of the annual convention of the liberal American Constitution Society. "Most of our work is in nonpolitical cases," he said.

Dinh also stressed during his talk that the firm doesn't take the political cases for a discount. It charges government clients a blended rate of $650 an hour for all lawyers' time, which "operates as full-freight rate," Dinh said. "I watch that very carefully and calibrate it to make sure these clients are paying full freight."

During the interview in October, however, Dinh was more equivocal about the fee structure for government clients. "I don't know what the exact number is," he says about the blended rate, but added that $650 an hour isn't "too far off." Clement, for his part, played down the concept of a blended rate for these clients. "I don't know if I've done a matter for a client for a [discounted] blended rate," he says, and adds that he's not averse to discounting rates for the right case. "I don't want to contradict Viet, but I don't subscribe to the view that we would never do a flat fee that results in a discount if it's a really interesting issue."

Most of the firm's government clients have paid a flat fee, ranging from $200,000 for the city of Indianapolis in a tax case to $1.5 million for the DOMA litigation [see "Bancroft's Political Docket," page 53]. (The $250,000 contract for the health care case was signed when Clement was at King & Spalding and almost certainly works out to less than $650 an hour.) At least two government clients paid hourly rates that were less than $650 an hour: Texas was charged $520 an hour for the redistricting case, as was South Carolina for the voting law litigation, according to the firm's contracts with those states.

For the DOMA litigation, Clement agreed to defend the statute for $500,000 when he was at King & Spalding. In September 2011, at Bancroft, he renegotiated the cap upward to $1.5 million. Clement's client is the not-very-aptly-named Bipartisan Legal Advisory Group of the United States House of Representatives, which consists of the three top-ranking Republicans in the House and the two top Democrats. In this case, it is anything but bipartisan. The Democrats didn't want to defend DOMA, or hire Bancroft. BLAG, as it's known, stepped in to defend the law when the Justice Department announced in early 2011 that it would no longer defend it.

This assignment has mushroomed into more than a dozen cases from coast to coast filed by individuals who have been denied federal spousal benefits because they were married to same-sex partners. At press time every ruling but one has gone against Clement, with courts lining up to find the law an unconstitutional violation of the equal protection clause, including the U.S. Court of Appeals for the Second Circuit in October. The Supreme Court almost certainly will weigh in.

Two days before the Second Circuit issued its ruling, House minority leader Nancy Pelosi blasted Speaker of the House John Boehner for "wasting" $1.5 million in taxpayer dollars to defend the law. "It is unconscionable for Speaker Boehner and Republican leaders . . . to continue to stand on the wrong side of history at taxpayer expense," she said in a press release.

Despite the highly charged nature of DOMA, it would be a mistake to pigeonhole Bancroft as a firm devoted to conservative political causes. Much of its work involves commercial cases or other nonpolitical matters. The firm, for example, is cocounsel with Milberg representing Motley Rice and other plaintiffs lawyers in a Second Circuit appeal involving a dispute over insurance coverage for a $375 million asbestos settlement. It has also done work for the recording industry in litigation over file sharing. And in October it sought Supreme Court review for a pro bono case involving the Indian Child Welfare Act, which restricts the adoption of children of Native American heritage. The firm represents the guardian ad litem for a child who supports the child's adoption by a non-Native couple.

Associate Kelsi Brown Corkran, who is working on the adoption case with Clement, says her political leanings go in the "other direction" from the firm's high-profile political matters. But the former Obama Justice Department appellate lawyer was drawn to the opportunity to learn from Clement. Aside from Corkran, who will be clerking for Justice Ruth Bader Ginsburg next term, three Supreme Court clerks have joined Bancroft since Clement's arrival, and two more are starting this month. "I wanted the most responsibility and opportunity to do substantive work as soon as possible," says associate D. Zachary Hudson, a Yale Law School graduate and clerk for Chief Justice Roberts. Hudson notes that he's already been second chair to Clement in several appellate oral arguments. (As a former clerk, however, he's barred from working on any Supreme Court cases for two years.)

Associates who came to Bancroft to work with Clement may not have quite as much face-to-face contact with him in the future, however. This fall the firm opened a small office in Alexandria, Virginia, close to where Clement lives, and the marquee partner now splits his time working there.

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