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For law firms, it is one of the perils of success. When a key partner leaves for a lifetime appointment to the federal bench, how does a firm make up for the loss? While losing a partner to a judgeship is a tribute to a firm’s strength, it’s also a major business challenge. That’s why three of the nation’s largest law firms have been pondering the future of their appellate practice for months. And it just became even more likely that they will lose some top guns. Last week, big-firm appellate specialists John Roberts Jr. and Jeffrey Sutton had hearings at the Senate Judiciary Committee for nominations to federal courts of appeals, and Miguel Estrada’s nomination was approved by the panel and sent to the Senate floor. Roberts, 48, heads the appellate group at Hogan & Hartson, D.C.’s largest firm, and has argued 39 cases before the Supreme Court. Sutton, 42, won four Supreme Court cases in a single term for Jones Day. Estrada, 41, is a mainstay of Gibson, Dunn & Crutcher’s trial and appeals practice. All three nominations had been stalled for almost two years. The new GOP control of both the White House and Senate has suddenly boosted the chances the firms will be soon scrambling to fill holes. For all three firms, confirmation will at least be a jolt. Appellate and Supreme Court work isn’t the most lucrative area, but it is prestigious — considered by many a requirement for a global law firm. “These people don’t come back, unlike others who may leave for jobs in the administration,” says Lisa Smith, who heads the D.C. office of law firm consultant Hildebrandt International. “And appellate practice tends to be name-driven and personality-driven. When they lose a luminary, they lose a chunk of the practice.” Kenneth Geller, head of the appellate practice at Mayer, Brown, Rowe & Maw and partner in charge of the D.C. office, learned the feeling last year when Michael McConnell, a counsel in the appellate group as well as a law professor at the University of Utah, joined the U.S. Court of Appeals for the 10th Circuit. “Losing Mike McConnell was a big loss in terms of intellect and business development,” says Geller. “But we market ourselves as a team.” Geller says there are some firms that, unlike his, “are built [in terms of appellate work] around a single person, and they’d be affected more if someone leaves.” Robin Conrad, who as senior vice president of the D.C.-based National Chamber Litigation Center often hires elite appellate lawyers for major Supreme Court cases, has seen the issue firsthand for years. “Some firms have national reputations in certain subject areas, so it doesn’t matter whom you hire,” says Conrad. “But at others, losing a go-to guy or gal can be a real loss. A firm is well-advised to ensure that a client has numerous contacts within the appellate group. Otherwise, if a star leaves, the client may simply not know anyone else at the firm.” The key to success seems to be to follow Conrad’s advice: Stay away from the star system, and build a deep practice group that doesn’t depend on any one person. For Hogan & Hartson, Roberts’ shoes will be tough to fill. He is widely regarded as one of the top appellate lawyers of his generation. And the firm has already suffered losses that are at least temporary. David Leitch, 42, who has second-chaired many cases for Roberts, just became deputy White House counsel, and H. Christopher Bartolomucci, 36, who had been an appellate partner, has been an associate White House counsel since 2001. Roberts declines comment. J. Warren Gorrell Jr., Hogan’s managing partner, says, “We cultivate deep strength in all our practice areas, and we are confident that our clients will continue to receive the highest level of legal services in this as in all areas of practice.” “Teamwork is critical at Hogan & Hartson,” Gorrell says. “We have no one-man bands.” Gorrell says E. Barrett Prettyman Jr. and Allen Snyder, both of counsel at Hogan, and partner Jonathan Franklin, 38, are among the lawyers who would step in as practice leaders should Roberts leave. Other D.C. appellate specialists mention partner Catherine Stetson, 33, as a rising star. But Snyder, 57, has reduced his role in the firm since his nomination to the D.C. Circuit failed at the end of the Clinton administration. Prettyman, 77, is Hogan’s most senior appellate litigator, but works a reduced schedule, providing advice to other attorneys in the practice. In addition to expanding the role played by of counsel lawyers and promoting young partners, firms sometimes try to bring in an established star to fill a vacancy — on the rare occasions that such a luminary is on the market. That’s what Jones Day did in 2001 when it hired Michael Carvin after his boutique firm, Cooper & Carvin, split up. A year before, Jones Day partner Timothy Dyk had become a Federal Circuit judge. Jones Day viewed Carvin, an experienced Supreme Court litigator, as a worthy successor to Dyk. Carvin was in trial last week and was not available to comment on the impact of Sutton’s possible departure. Firm managing partner Stephen Brogan did not return calls seeking comment. Roy Englert Jr. of Robbins, Russell, Englert, Orseck & Untereiner, an appellate boutique that split off from Mayer, Brown in 2001, says many firms take steps, long before a partner leaves for a judgeship, to ensure that they can survive such a loss without missing a beat. “Most firms have a deep and broad bench,” says Englert. “After all, good people tend to attract other good people. Ted Olson [now U.S. solicitor general] was historically known as the stemwinder of Gibson, Dunn, but now they’re doing fine with Thomas Hungar, Miguel Estrada, and others.” Of course, if Estrada goes on the federal bench this year, Gibson, Dunn will be down two, at least as long as Olson remains solicitor general. “If and when Miguel is confirmed, we will miss him,” says Hungar, co-chair of the firm’s appellate and constitutional law practice group. “But we have a strong team of lawyers, including Bill Kilberg, Doug Cox, and Ted Boutrous.” Los Angeles-based Theodore Boutrous Jr., 42, is the other co-chair of the practice group and is a nationally known media and First Amendment advocate. Douglas Cox, a 46-year-old D.C. partner, is a former deputy assistant attorney general for legal counsel. William Kilberg, 56, primarily a labor lawyer, is a former Department of Labor solicitor. Sidley Austin Brown & Wood’s appellate and Supreme Court practice is widely identified with one person, appellate maven and D.C. office head Carter Phillips. Phillips has no plans to depart for a judgeship or anything else. He readily concedes that a good chunk of Sidley’s appellate work comes to the firm because of his personal reputation. “A third of my practice comes to me out of the blue, a third is shipped to me by other partners, and a third is composed of clients of the firm who would simply use another lawyer here were I to be unavailable,” says Phillips. “But without me, we may not get those calls in the first third. That’s the hardest part.” Phillips says that a firm that has lost a key partner to the federal bench might need to “become a little bit aggressive in terms of going out and looking for work, perhaps examining how you bill and giving some breaks to clients.” Those options are not very appetizing, but the succession process is not always an easy one, and other firms are ready to take advantage of an opportunity to grab new business. Says Mayer, Brown’s Geller: “I wish more of my competitors got judgeships.”

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