Lawyers who want to defend Georgia from Florida's impending lawsuit over water rights range from a former U.S. solicitor general who regularly charges more than $1,100 per hour to a recent law school graduate who offered to work for free.
Those were two of the 29 applications the Georgia Law Department received by Tuesday's deadline. Two other applications were submitted after the deadline, and the department has not yet determined whether they will be considered.
This is the first time under Georgia Attorney General Sam Olens that the Law Department has sought bids for potential special assistant attorneys general.
Last month Florida Governor Rick Scott announced his state would file an original jurisdiction action in the U.S. Supreme Court seeking to limit Georgia's consumption of water from the Chattahoochee-Flint Hill-Apalachicola basin, arguing that Georgia is depleting the Apalachicola River and Bay and contributed to a federally declared commercial fishery failure of oysters this year.
Georgia Law Department Solicitor Nels Peterson, who oversees the office's appellate work, said the "enormous stakes of the case," along with the advance warning of litigation provided by Florida, warranted a search to ensure that Georgia has the best team.
"It's very rare that your opponent goes to the press and announces weeks or months ahead of time that he's going to file suit," said Peterson. "Typically, when we're in the position of appointing SAAGs, we've already been sued or we're thinking about filing suit and the fact that we're thinking of filing suit is confidential. We had the luxury of time and we might as well take it."
While the Law Department has not said how it will vet the SAAG applicants or when it will make appointments, several lawyers and firms offered to start representing the state right away.
Some of the larger or more recognizable firms to apply were King & Spalding; Strickland Brockington Lewis; Bancroft; Kazmarek Mowrey Cloud Laseter; Wilmer­Hale; Jones Day; Kilpatrick Townsend & Stockton; Baker Donelson Bearman Caldwell & Berkowitz; Hunton & Williams; Hall Booth Smith; Kirkland & Ellis and McKenna Long & Aldridge.
Former McKenna partner Bruce Brown, who opened a solo practice last year, and current McKenna partner Todd Silliman have been handling Georgia's water disputes for years. Both applied to work on the new Florida suit.
Peterson said he expected their involvement would continue regardless, and the Law Department would not disclose their application, citing attorney-client privilege from their current representation. Their current rate is $225 an hour.
King & Spalding proposed a team led by Patricia Barmeyer and including Daryl Joseffer, Lewis Jones and John Fortuna. The firm described itself in its application as having "the premier environmental practice of all firms in Georgia."
Barmeyer represents the Atlanta Regional Commission in the current water cases among Georgia, Florida and Alabama. She also represented Georgia in its original jurisdiction action against South Carolina involving land and water resources and the interstate boundary in the lower Savannah River. King & Spalding did not disclose a proposed rate but indicated it was willing to negotiate.
WilmerHale in Washington proposed a team lead by former U.S. Solicitor General Seth Waxman, who represented Georgia in oral arguments before the Eleventh U.S. Circuit Court of Appeals during the state's water war with Florida and Alabama.
Waxman would be joined by former Secretary of the Interior Ken Salazar, who the firm says "has wide experience in interstate water rights disputes dating back to his tenure as Colorado's attorney general." The firm proposed discounting its lawyers' regular rates by 15 percent. The application noted that Waxman's regular rate is $1,115 an hour, and Salazer's is $1,200 an hour. The other four lawyers on the team—Paul Wolfson, Christopher Babbitt, Joshua Salzman and Daniel Aguilar—normally charge between $815 and $550 an hour.
Strickland Brockington Lewis billed itself as adept at handling "politically charged litigation." The firm represented Georgia in its successful federal redistricting preclearance litigation in 2011. It also said its Georgia roots give it an advantage in this type of litigation over outside competitors.
"While large, national firms can be an asset, they also can be a liability if part of the firm is not as willing to make strong arguments on behalf of one state against another state due to local politics or varying economic interests inherent in the multiplicity of clients," Strickland Brockington Lewis stated in its application. The firm suggested a rate of $350 an hour for all lawyers working on the case and $100 an hour for paralegals. The firm also advised the state to budget $1.5 million for attorney fees.
Bancroft, headquartered in Washington, proposed a team headed by Paul Clement, a former King & Spalding partner and former U.S. Solicitor General who was hired in 2011 by the U.S. House of Representatives to defend the Defense of Marriage Act, which the high court effectively overturned in June. The firm also is representing Alcoa Power Generating Inc. in a suit by North Carolina over ownership of 38 miles along the Yadkin River.
The firm did not list a proposed rate but said it would be willing to negotiate an alternative fee arrangement, such as fixed fees or blended hourly rates.
Kazmarek Mowrey Cloud Laseter, a boutique environmental and energy law firm based in Atlanta and Washington, proposed teaming up with Goldstein & Russell, whose partner Thomas Goldstein publishes the Peabody Award-winning SCOTUSblog.
The firms did not list an exact rate but indicated they'd be willing to work at a 25 percent discount. However, the firm also cautioned, "This is a 'bet the State' case and should be budgeted for accordingly."
Jones Day proposed a team of seven lawyers and indicated in its application that Georgia has appointed lawyers from the firm as SAAGs in at least four other matters, including advising the Georgia Port Authority on environmental issues. The firm also counts 15 other states and attorneys general among its clients. Alabama, Arkansas, Indiana and Kansas have hired Jones Day to represent them in U.S. Supreme Court cases. Jones Day did not disclose a proposed fee but said it was willing to discuss a discount.
Kilpatrick Townsend & Stockton also proposed a seven-lawyer team, including Adam Charnes, who once clerked for Justice Anthony Kennedy. The firm recently represented Georgia and the state Ports Authority in the Savannah Harbor Expansion Project. It stated its average billing rate is $385 an hour, but indicated it was willing to negotiate.
Baker Donelson Bearman Caldwell & Berkowitz submitted a proposal in which four of its attorneys with experience in interstate water rights litigation would represent Georgia: Leo Bearman, David Bearman, Kristine Roberts and Chad Graddy. The firm represented the city of Memphis, Tenn., and its municipal public utility in a federal lawsuit filed by Mississippi over an aquifer, saving the city and utility from paying more than $1 billion in damages. The U.S. Supreme Court denied certiorari in the case in 2010. The firm's application did not disclose a fee.
Hunton & Williams submitted a proposal naming Stuart Raphael as lead attorney over a team of five other lawyers. Raphael successfully represented Virginia as special counsel in a 2003 original jurisdiction suit by Maryland over water rights. The firm proposed a fee structure that would include a 40 percent "holdback" on lawyers' standard fees for work leading up to the high court's ruling on a potential motion for leave to file the bill of complaint by Florida, which if denied would be considered a victory.
"If the Court denies Florida's motion, we would earn back the amount withheld, plus a 10 percent bonus," the application states. "If the Court grants Florida's motion, we will not be entitled to recover the 40 percent holdback, but you would have the discretion, in your sole professional judgment, to award a portion of that amount (or nothing) based on your view of the quality of our work."
The team's standard rate, not including the 40 percent holdback, ranges from $800 an hour for Raphael's work to $665 an hour for another team member.
Hall Booth Smith proposed a team comprised of John Hall Jr. and Georgia Air National Guard Brig. Gen. Bobby Shannon Jr. serving as lead counsel with Brad Carver and Scott Cole as assistants. Carver is currently a special executive counsel to Governor Nathan Deal on water issues and has advocated for suing Tennessee to access water and land from Lake Nickajack after it was discovered that the boundary line between the states was incorrectly drawn.
"We might not have the specific U.S. Supreme Court experience you seek to handle the front and back end of the case being filed by Florida, but we know how to try and win cases," the firm's application said. It proposed a blended hourly rate of $325 for partners and associates, as well as advised the state that the litigation may take four to five years and cost a total of $2 million to $3 million.
Kirkland & Ellis, based in Washington, proposed a team led by Christopher Landau, who clerked for Justice Antonin Scalia from 1990 to 1991. The firm defended BP from litigation arising from the Deepwater Horizon drilling rig explosion off the Gulf Coast in 2010, as well as several other large companies in environmental cases, including ConocoPhillips and the Dow Chemical Co. The firm estimated it would charge $100,000 for initial review of the record and fact development, $200,000 for briefing in opposition to original jurisdiction and then negotiate fees moving forward if the Supreme Court decides to hear the case.
Others who applied were:
• Solo practitioner Nathan Kotas. His proposed rate is $150 an hour.
• Solo practitioner David Cheng, who was admitted to the State Bar of Georgia in June. He offered to work on the team pro bono.
• Aviation attorney and solo practitioner Joe Hardy Jr. His proposed rate is $300 an hour.
• Solo practitioner Elizabeth Young. Her proposed rate is $225 an hour.
• Mercer University Law School professor David Oedel, who offered his services as a consultant pro bono for up to 80 hours. His proposed rate in excess of 80 hours is $150 an hour.
• Real estate lawyer and solo practitioner Dale "Bubba" Samuels, who was solicitor for Franklin County Probate Court and a municipal judge in Franklin Springs. His proposed rate is $125 an hour.
• Bouhan Falligant in Savannah. One of its proposed team members, Glen Darbyshire, clerked for Justice Thurgood Marshall from 1986 to 1987. The firm's proposed hourly rates range from $295 to $335 an hour.
• Martin Shelton of Scoggins Goodman, whose practice includes trial and appellate work involving water quality, storm water management and hazardous waste. His proposed rate is $300 an hour and $150 to $200 an hour for associates.
• Atkinson Ferguson in Monroe, which represents the Walton County Water and Sewage Authority and the Upper Oconee Basin Water Authority. Its proposed hourly rates are $150 an hour for partners and $125 an hour for associates.
• Summerville Moore, which successfully argued before the state Supreme Court for overturning Georgia's caps on damages in medical malpractice cases in Atlanta Ocuplastic Surgery v. Nestlehutt. Its proposed rates are $380 an hour for lawyers and $210 to $300 an hour for associates.
• Krevolin & Horst, whose environmental law practice is led by former Senior Assistant Attorney General Barbara Gallo. Its proposed rate ranges from $250 to $475 an hour.
• Jonathan Perry Waters, who has handled multicounty environmental disputes. His application included proposed hourly rates of $125 for him and $90 for associates, with a blended rate of $107.50 an hour.
• Venable, which is based in Baltimore, proposed a team lead by Margaret "Perry" Strand and Michael Schatzow. The firm did not disclose a proposed rate but indicated it would work at a 10 percent discount.
• Taylor English Duma proposed a team led by Craig Pendergrast. Its proposed hourly rates are $275 for counsel and $225 for assistants.
• Smith Welch Webb & White, located in McDonough, which represents the Water Authority of Henry, Butts and Lamar counties. Its proposed rate is $150 to $350 an hour.
• Timothy Tanner of Coleman Talley in Valdosta, whose practice focuses on local government law. His proposed rate is $250 an hour.
• Byron Sanford of Briskin, Cross & Sanford in Alpharetta, who has worked as a SAAG for the Georgia Department of Natural Resources. His proposed rate is $325 an hour.
• Peter Howard, an attorney in Santa Rosa Beach, Fla., whose submission came in past deadline. His proposed rate is $300 an hour.
• Chuck Biskobing, who said he represented BP oil spill plaintiffs. His submission came in past deadline. He proposed working as a SAAG pro bono.