Wednesday, October 26, 2011

Not For All

From “The Super-Lawyers: The Small and Powerful World of the Great Washington Law Firm”
by Joseph C. Goulden; chapter 1: “Covington & Burling: Pinnacle of Power” pp 60-62

Not all men who come to Covington and Burling are willing to do what is necessary to be invited to “Jack Valenti’s theater downstairs” to accept a partnership. A young lawyer who was most unhappy when he resigned from Covington and Burling after a year’s work there, bit into his veal cutlet in a small Italian restaurant north of K Street and chewed reflectively a minute before giving me an opinion of his old firm. “Covington and Burling is the top law firm in the country in terms of legal expertise, no doubt about that,” he finally said. “You pay top dollar, but you get top work.

“Why is it good? Because it has made money, lots of it, by representing the big corporations, and therefore afford to hire the best legal minds available. It’s a tradition- don’t hire anyone who isn’t top notch. When you get people who know they can be very rich in a few year’s time, you don’t have to give even lip service to pro bono work, or the public interest. Money. If you don’t want to be rich, you can get out.”

This young lawyer was not naïve about Washington Law. He worked and lived in Europe before graduation, and he had spent time in Washington. He had heard all the law school stories about Covington and Burling being a corporate firm; he knew what it did, and for whom. Why, then, did he go into the firm?

“Fifteen thousand dollars a year is one reason,” he said. “But I had to see for myself whether it was as bad as I had ever heard. It was, even worse. The moral blindness. The idea that the only way to do business was to gut the regulatory agencies. The complete disdain for any interest other than that of the corporation clients. Look at Tommy Austern. Nine years he managed to keep the Geritol case going. [See chapter 5, “Ruling the Regulators: Just Who’s Doing What to Whom?”] Could anyone be proud of a stunt like that?”

Covington and Burling does not like to hear such comments from former Bright Young Men, even secondhand. “We seem to spend an inordinate amount of time during our job interview explaining that corporations have a right to legal representation,” a senior partner says. “I’m always getting questions like, Will I have to represent corporations? Or anything else who comes along?” One year the question was, “What, for example would Covington and Burling do if asked to represent Eichmann?” Covington and Burling now has the answers (although, for the record, no one asked the question was hired): A young associate took a court appointment to defend a member of the American Nazi Party in a criminal action. “The lawyer was Jewish too, and I think maybe he went out of his way to prove something to himself.” Another partner quotes with distaste Robert F. Kennedy’s angry private remark that Edward Bennett Williams, the noted Washington criminal attorney, should be disbarred because he let his client Jimmy Hoffa take the Fifth Amendment more then one hundred times before the Senate rackets committee. The Bill of Rights, this man says, is a very encompassing guarantee, and it protects corporations and individuals alike, and once you start waiving it for one party, you eventually waive it for all. “The public interest- what is it? Who can define it?” asks John Sapienza. He defines “public policy” as an act of Congress that has been upheld by the courts. “I don’t recognize the omnipotence of a Federal official, and I have no qualms whatsoever about challenging a new law in the courts. That is a part of our system.” And Sapienza went into a litany of corporate faith which I heard repeated so many times in Washington law offices that I could mouth he words along with the speakers: If the “public interest” suffers because of one-sided legal representation, the persons concerned with the public interest should find some lawyers of their own, either through the government or through private groups. Covington and Burling isn’t obligated to pull its punches just because it is facing push-over opposition. Don’t gripe at us if we win a drug case at the FDA- gripe at the FDA for not hiring better attorneys. Or at Congress for not providing enough money to hire them. Or at yourself for not being willing to pay the taxes to provide the money to hire the better attorneys. And so forth.

When public interest law became fashionable in Washington in the late 1960s, many firms rather ostentatiously announced formal programs of free or low fee work (See chapter 10), “The New Washington Lawyers, Balancing the Scales.”) Arnold and Porter, for instance, adopted a policy of committing ten percent of the firm’s time to notable causes. Covington and Burling said nothing, but watched with a good deal of detached amusement. “We have been doing this sort of thing in our own unorganized, un-obstructured, un-public way,” a senior partner states, “long before it became “the right thing to do” in Washington Law.” Two outsiders agree. Professor Monroe Freedman, of the George Washington University law facility, and a keen critical observer of Washington firms, states, “C&B has long done this kind of work and shunned the credit.” And the American Civil Liberties Union, which uses Covington and Burling as an informal legal labor pool, gave the firm a twenty five year award for meritorious service a few years back.

Covington partners stress that the firm does not demand public interest work on a collective basis, but simply lets a new man know he can do as much or as little as he wishes, so long as he earns his keep in office. “I’d never tell a kid what to do,” states Thomas Austern. “It’s not our business whether he plays a piano in a whorehouse or in a church.” Some examples: Early partner George Rublee bargained desperately with Joseph Goebbels in the late 1930s to ransom Jews from Nazi Germany. His then assistant, Austern remarks, “I couldn’t even begin to tell you the number of weeks Rublee worked on this deal, because we don’t count things that way.” I could not even begin to tell you the number of weeks that Rublee worked on this deal, because we don’t count things that way.” Charles Horsky, as a member of the Maryland board of education, played a quiet but dominant role in desegregation of public schools in suburban Montgomery County. The fight against the Three Sisters Bridge which would destroy [?] a scenic Potomac landmark [which would have pointed at Jesuit Georgetown University]. A ruling that District of Columbia Courts would consider alcoholism a disease, not a crime. A $100,000, eighteen month fight to stop the U.S. Navy from selling the offshore Puerto Rican island of Culebra. “conscience work,” says one outside critic, “giving society a few cents change from all of the profits it makes.” Perhaps- perhaps not. “It’s a sad commentary on our society,” notes public interest lawyer Benny Kass, “but we judge a person’s sincerity today by how much money he is willing to give to a cause. On that criterion, Covington and Burling is damned sincere.”

Covington and Burling makes no pretense at rapport with all of its clients, and their policies. “Sometimes you really have to grit your teeth,” one man told me in a moment of rare candor about client-firm relations. I saw things I find personally repugnant. But I don’t suppose I’d tell all my clients if I practiced criminal law, or real estate law.” Saplenza insists that Covington and Burling does draw a line. “If a corporation is polluting a river, for instance, we’ll advise of its rights under the law, and how to go about complying with the law. But if some corporation cam in here and said outright, “To hell with the law, we’re not going to follow it, and we want you to fight the government as long as it takes we can,” we wouldn’t represent him.” Sapienza and his colleagues are really somewhat testy about what they feel are suggestions they really don’t give a damn what happens to the country. A broader view- that is what is needed, they say. A firm that pollutes might employ three hundred men whose families are dependent upon staying in business; the practices probably were legal when the factory began operation; management is sincere about obeying the statutes. The lawyer’s task is to find a mode of compliance that does not put the company out of business. And if doing so means haggling with the Federal government, and tough bargaining, so be it- that’s how Covington and Burling lawyers earn their living. “You’ve got to remember,” remarks partner Ernest Jennes, “that we are human beings and children as well as lawyers. Our wives and our children breathe the air, and so do we.”

Okay, Covington & Burling. How about a re-assigning of legal resources as already suggested here.

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