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?
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 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.
In other ways they could not be more different. Clement, who was raised in the picture-perfect town of Cedarburg, Wisconsin, is low-key, unflappable, unfailingly polite, and speaks in the most carefully crafted, soothingly modulated sentences. Dinh, who has told of escaping communist Vietnam with his family in a small boat, is a live wire: volatile, occasionally loud, and apt to say whatever pops into his head, often accompanied by a boisterous laugh.
Until Clement joined Bancroft, his career followed the more conventional route of government service and big-firm law practice. He spent three years as an associate at Kirkland & Ellis, and had two stints as a partner at King & Spalding before and after his tenure as solicitor general.
Dinh's professional eye is more restless, constantly searching for opportunities. Although he was a summer associate at Munger, Tolles & Olson, he says he didn't consider a big-firm career. "Other people may appreciate structure a lot more than I do. Let's put it that way," he says by way of explanation. He formed Bancroft in 2003 after he left the Justice Department, working out of the basement of his home with two other exgovernment lawyers, trying a mix of legal and consulting work. (The firm was named for the street where Dinh then lived.)
Six years after forming Bancroft, Dinh tested another venture. In 2009 he founded Guidepost Investigations, a private investigations firm, along with former Manhattan federal prosecutor Bart Schwartz. But Dinh is no longer active in that venture and retains just a small ownership interest in a successor company. "Viet is very busy these days with his successful and growing practice," says Schwartz. "I wish he had more time for us."
Dinh, who also teaches full-time at Georgetown, has found time to serve on the boards of at least six public and private companies. Most notably, he's been a News Corp. director since 2004. In June he joined the board of Revlon, after serving on the board of another company affiliated with Revlon chairman Ronald Perelman, M&F Holdings. Dinh made $647,675 last year when Perelman bought the rest of M&F Holdings that he didn't already own. On the political front, Dinh served as one of seven national cochairs for Asian Americans and Pacific Islanders for Romney.
Clement, in contrast, isn't overtly political, and doesn't sit on any boards. His passions, outside of the law and his family, include the Green Bay Packers and bicycling to work. He's found a way to combine both by making his daily commute wearing a bike helmet adorned with a Green Bay logo.
Although Clement has advocated on some of the most charged political cases of our times, he's managed not to appear ideologically driven. David Rivkin of Baker & Hostetler, who represented the challenging states in the earlier stages of the health care litigation, says that's one reason Clement was chosen for the Supreme Court appeal. "While I consider myself a strong conservative, we tried to drive this [litigation] as a nonideological exercise, a nonpartisan exercise," says Rivkin. "He has a reputation for a lack of ideological fervor."
"Paul has very deeply held, strong political and jurisprudential beliefs, but he has never worn them on his sleeve in a way that is offensive to others," says Paul Cappuccio, executive vice president and general counsel of Time Warner Inc., who was an associate with Clement at Kirkland and has known him for years. "He's not a person who puts them in your face." He adds, "In every respect but one he's John Roberts. He's absolutely brilliant. I've seen no one who can stand up in court without a single note and answer articulately any question put to him."
The difference, however, is the type of cases that the chief justice of the Supreme Court handled when he worked in private practice at Hogan & Hartson (now Hogan Lovells). "John by and large kept his powder dry by working on largely very boring commercial cases across the spectrum," Cappuccio explains. "PaulI admire him for not caring. He's more inclined to take what you have to describe as movement cases."
In September, Dinh gave a talk to students at Harvard Law School as part of its Program on the Legal Profession. He extolled the entrepreneurial nature of working at a boutique firm, but he stressed that his priority remains teaching. "When someone asks me what I do, I say I'm law professor at Georgetown. And that's what defines me and what defines my life's work."
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.
With the presidential election settled, and the unlikely prospect that Clement or Dinh will be leaving for the bench or the government in the near future, Bancroft should be well positioned for more success.
The firm this fall expanded its Washington, D.C., offices, nearly doubling its space. But Dinh avoids specifics about Bancroft's long-term strategy, including whether it will bring in more lateral partners or grow much more. "We have never had the aim to be the next big law firm," he says. "Greatness comes with excellence."
Adds Clement: "We're very happy to be doing what we're doing, and to make our current practice as interesting as possible."
BANCROFTS POLITICAL DOCKET
Bancroft has represented Republican interests in litigation over some of the most hot-button political issues of our times. In most cases, its handled these matters for a fixed fee. The following is a list of the fees charged in five cases in which the firm represented governments.
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. KATHLEEN SEBELIUS
U.S. Supreme Court
Challenge to Obama health care law
Client: 26 states, led by Florida
Fee: Fixed fee of $250,000
ARIZONA v. UNITED STATES
U.S. Supreme Court
U.S. Department of Justice challenge to Arizona immigration law
Client: Arizona, but fee paid by privately funded legal defense fund
Fee: $400,000 ($150,000 for cert petition;
additional $250,000 for merits phase)
DEFENSE OF MARRIAGE ACT LITIGATION
Various federal district and appellate courts
Defending the Defense of Marriage Act,
which prevents the federal government
from recognizing same-sex marriages.
More than a dozen cases have been
brought by individuals affected by the act.
Client: Bipartisan Legal Advisory Group of
the House of Representatives
Fee: In April 2011, when he was at King
& Spalding, Clement agreed to take this
assignment for $500,000. In September 2011,
at Bancroft, he renegotiated the cap to $1.5 million.
PERRY v. PEREZ
U.S. Supreme Court
Dispute over Texas redistricting
Fee: $376,829.91 (rates capped at $520 an hour)
SOUTH CAROLINA v. UNITED STATES
U.S. District Court for the District of Columbia
South Carolina suit to get court approval for new voter identification law
Client: South Carolina
Fee: $2,834,550 (rates capped at $520 an hour).