Biglaw

Merrick Garland Asked To Put A Stop To Biglaw Revolving Door... He Won't.

There's an opportunity here to discuss a persistent problem, but we're not going to get it.

By  
on

(Photo by Brendan Smialowski/AFP/Getty Images)

It’s a shame that the Merrick Garland confirmation hearings will be remembered for John Cornyn asking about the barely remembered Trump pee tape dossier and Mike Lee trying to school the Jewish federal judge on what anti-semitism really means, because there are some important issues facing the Department of Justice that the performative politics sideshow will overshadow. Maybe this is all a masterstroke by Biden. Any serious criticism of Neera Tanden’s OMB nomination has fallen aside as folks galvanize around the insanity that the people who voted to acquit Donald Trump weeks ago are incensed by mean Tweets all of a sudden. That one may not work out in the end, but if the administration’s whole goal is to quash substantive dissent by letting hearings get overtaken by scurrilous nonsense, it appears to be working.

Unfortunately, the Department of Justice should face a reckoning when it comes to the ongoing revolving door between Biglaw and the upper echelons of leadership. Biden’s initial leadership picks — Judge Garland, Kristen Clarke, and Vanita Gupta — all come to their new posts from outside the corporate legal superstructure. But they’re seemingly the exceptions rather than the rule.

A coalition of 37 racial, worker, environmental, and social justice organizations has sent a letter to Garland calling on him to reject “Filling the Department with corporate lawyers who profited defending powerful industries puts the fox in charge of the hen house — or at least the counsel who won the fox’s business over dozens of other attorneys.”

“If you’re a multimillionaire because you help corporations and corporate executives evade or violate the law, you should not be in charge of enforcing the law,” said Revolving Door Project Executive Director Jeff Hauser. “Lawyers at BigLaw firms, especially those with ‘government affairs’ practices, spend all day working to weaken and hamstring enforcement of white-collar criminal law, environmental law, antitrust law, and anything else which gets in the way of the biggest businesses’ bottom lines. These lawyers use tours through the Justice Department to refresh their insider knowledge, then take those insights back to corporate clients who want to dodge basic democratic accountability. It was an unacceptable practice when perpetrated under Trump, and it should have no place in the Biden administration.”

Reportedly, Garland had planned to hand leadership over antitrust efforts to a Susan Davies, who already defended Facebook against antitrust allegations. Garland said that’s not the case, but noted that, “Fortunately or unfortunately, the best antitrust lawyers in the country have some involvement” with the tech giants most deserving of antitrust inquiry.

On the one hand, I’m a believer in the old Vulcan proverb that “only Nixon could go to China” and its American legal corollary “only Joe Kennedy could make the SEC.” Putting the notorious stock market speculator in charge of writing and enforcing the rules reined in post-crash Wall Street. At a certain point, there’s expertise that can only be earned by sitting on the other side of the table.

Sponsored

In the reverse, lawyers exiting government service can and do use their experience to help clients skirt the system, but that’s hardly universal. I worked under a former SEC General Counsel and can vouch for the fact that his advocacy was always grounded in advising clients to do what the SEC rules expected rather than seeking out some sort of advantage. And getting it right the first time so they never had to find themselves on the wrong end of an enforcement action was the whole reason to hire him.

On the other hand, especially in enforcement roles, the temptation to pull punches to maintain employability on the back end is far too high. It’s an appearance of impropriety issue. Add in the smoothing of zeal that comes from recruiting from the ranks of people who built relationships with those they’re asked to regulate over the course of decades and there’s more than enough reason to impose a moratorium of Biglaw hiring at senior positions. As the letter states:

Rather than empower conflicted BigLaw attorneys, we urge you to instead appoint attorneys with a longstanding and consistent commitment to carrying out the missions of the divisions they will run. Public defenders running the criminal division, environmental lawyers leading the environment and natural resources division, plaintiffs attorneys running the antitrust division, and so on will produce more equitable outcomes. Alternative career paths which take attorneys outside of the fancified halls of corporate law firms better prepare them for the actual work of representing the federal government, and are statistically more likely to bring sorely-needed diversity to the Department’s halls. A Department which looks like America, including coming from life experiences similar to those of most Americans, is more likely to earn the trust of America.

Ethical rules that block people from taking clients averse to their government positions for a period of time are all well and good but they’re easily skirted and hardly long enough. Frankly, it would be ideal if we could have a shadow government structure where Biglaw attorneys interested in a post with a future administration have to depart their private sector job for a period of time before being eligible for a government position. It’s not that every private sector lawyer is corrupt, it’s that we can all do better when it comes to something as important as the Department of Justice.

But instead we’ll deal with Tucker Carlson yelling about Merrick Garland and Russiagate and just keep the revolving door twirling.

Sponsored

(Full letter on the next page…)

Garland Must Lock BigLaw Out Of DOJ Leadership To Enact Biden Agenda, 37 Groups Say [Revolving Door Project]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

1 2Next »

Topics

, , , ,