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WILL A NEW FRONT OPEN IN WAR OVER SENTENCING? The U.S. Sentencing Commission did what Congress told it to do and voted Oct. 8 to limit the number of so-called downward departures in prison terms. But the move probably won’t put an end to the long-running feud that pits the judiciary against Congress and prosecutors. The commission acted within a congressionally imposed deadline to cut back on judges’ power to hand down sentences more lenient than those called for by federal guidelines. But the Department of Justice remains dissatisfied, believing that the seven-member panel didn’t go far enough in curtailing departures. “Despite a clear directive from Congress to act, the Sentencing Commission failed to respond with substantive, decisive measures to curb the decade-long trend of courts granting downward departures from the mandated sentence range in an ever-increasing number of cases,” says Justice Department lawyer Eric Jaso, who had until recently represented the DOJ on the commission. While prosecutors see an epidemic of leniency in federal courts, especially for white collar crimes, many judges, including Supreme Court Justice Anthony Kennedy, are saying publicly that sentences are often too harsh. Congress passed the Feeney Amendment last spring, calling on the commission to reduce downward departures. Jaso indicated at an August meeting that the Justice Department would probably go back and ask Congress to change the law rather than give the commission another chance. Although the DOJ did not specify last week which types of departures are the most troubling to prosecutors, it is on record as being concerned about how judges use criminal histories when imposing sentences. A DOJ official testified in August that judges should never be allowed to reduce a sentence on the grounds that a defendant’s rap sheet is less ominous than it appears. The sentencing panel voted to curtail, but not to ban, that type of departure. The U.S. Judicial Conference, the official body that represents federal judges, came out against the Feeney Amendment last month. It had no further comment last week on the issue. Barry Boss, a D.C. criminal defense lawyer who co-chairs the Sentencing Commission’s practitioners advisory panel, says, “From the actions and statements of the Justice Department, it doesn’t seem that they’ll be content until they’ve wrested control of sentencing away from the judiciary and placed it in the hands of prosecutors.” � Jonathan Groner WILEY’S WIN Thomas Kirby and Scott Bain, intellectual property litigators at Wiley Rein & Fielding, scored a nearly $20 million verdict on Oct. 3 for financial newsletter publisher Lowry’s Reports Inc. A federal jury in Baltimore concluded that Legg Mason Inc. infringed on 240 of Lowry’s registered copyrights, says Kirby. Legg Mason employees subscribed to Lowry’s stock market analysis newsletter. But they started posting the newsletter on Legg Mason’s intranet, circulated it within the company electronically, and forwarded it to their head librarian, despite cease-and-desist requests from Lowry’s. “Legg Mason is an excellent company, with many wonderful employees,” Kirby says. “They lost track of the importance of respecting the rights of individuals and small businesses.” Legg Mason counsel Terence Ross, a partner in the D.C. office of Gibson, Dunn & Crutcher, declines to comment. Legg Mason, in a statement, said the company was shocked at the extent of the damages. � Christine Hines NEUTRAL DIVERSITY The JAMS Foundation, an arm of the country’s largest private provider of alternative dispute resolution services, is hoping to increase the number of minorities who work as full-time neutrals. D.C. JAMS neutrals Homer La Rue and Marvin Johnson conceived a plan to mentor and train neutrals to help them get enough clients to sustain a full-time mediation career. An advisory board of companies that use ADR, JAMS neutrals, and others will offer the program fellows training, mentoring, and business development support. La Rue says minority mediators have had difficulty connecting with potential clients. “The problem has been that the users of the services do not know these mediators,” he says. “This project is designed to link the two.” The program will begin in pilot form early next year with six fellows, but John Welsh, vice president and general counsel of JAMS, says each following year should see about 15 fellows. “There have to be more role models,” he says. � Marie Beaudette TAKING CHANCES All’s not fair in love and lateral hiring. At least that’s what defunct Brobeck, Phleger & Harrison says in its unfair competition suit against Clifford Chance filed Oct. 8 in Alameda County, Calif. Faye E. Hanger, et al. v. Clifford Chance Rogers & Wells accuses former Brobeck chairman and current Clifford Chance partner Tower Snow Jr. of triggering Brobeck’s January 2003 demise by shopping the firm’s securities litigation group to Clifford Chance in 2002 while still at Brobeck. The complaint refers to e-mail exchanges between Snow and Brobeck partner Michael Torpey about a Clifford Chance request for billing and compensation information, and suggests that partners made London trips to Clifford Chance on Brobeck’s dime. The plaintiffs � including the trustees of Brobeck’s claim liquidation trust, six longtime Brobeck employees, and 10 retired partners who lost their retirement benefits when the firm collapsed � are seeking $100 million in actual damages and unspecified punitive damages. Lawyers for Brobeck include W. Mark Lanier of Houston and Oakland, Calif.’s Kazan, McClain, Edises, Abrams, Fernandez, Lyons & Farrise. Clifford Chance says in an official statement that it’s “absurd” to blame the firm for Brobeck’s demise. “We believe we acted appropriately in our dealings with Brobeck and with the former Brobeck partners who joined Clifford Chance.” � Renee Deger, The Recorder CHINA TRADE Joan McEntee, a partner in the D.C. office of Baker, Donelson, Bearman, Caldwell & Berkowitz, has made more than 60 trips to China in her career � and there’s even more travel to the People’s Republic in her future. Officials in Kunming, the capital of Yunan, a 92,700-square-mile province in southern China with a population of more than 40 million, have named her an economic adviser on programs and policies to attract international investors to the province. McEntee, chair of the international practice at Baker, Donelson, says that in her unpaid position she will help the region foster Western investment, while also preserving its abundant natural resources. Yunan, she says, needs “a combination of those who really want to do business in China yet would also really benefit the Chinese province and city.” The area is unique, she says, because the government is approaching development with an eye to conservation: “There aren’t a lot of developing areas with that focus.” McEntee’s clients are also potential winners. The former deputy undersecretary of the Department of Commerce in the first Bush administration represents primarily Western companies seeking to invest in China. McEntee says she doesn’t anticipate conflicts getting in the way, because she will disclose her client relationships to Chinese officials if necessary. � Marie Beaudette OCTOBER SURPRISE October has been good to McKenna Long & Aldridge. The firm, while registering a big win in federal court, announced it was bringing on two high-profile Georgia Republicans to work in both Washington, D.C., and Atlanta. Randolph Evans, general counsel to the Georgia Republican Party, and Stefan Passantino will become partners working on complex insurance litigation and government relations matters. The lateral hires boost McKenna’s client roster, adding insurance companies CIGNA, ACE Ltd., and Zurich Financial Services as well as current U.S. Congress members, including House Speaker Dennis Hastert (R-Ill.), and other congressional and Georgia state political figures for whom they do campaign election and ethics compliance work. The two also represent former House Speaker Newt Gingrich (R-Ga.), and former Rep. J.C. Watts (R-Okla.) in their business enterprises. Passantino and Evans will be joined by fellow partner Anthony Morris, two of counsel, and three associates � all eight lawyers are exiting Atlanta’s Arnall Golden Gregory. “This group would be an expansion of our general litigation capabilities,” focused on financial institution litigation, says the firm’s litigation co-leader, Atlanta partner Phillip Bradley. Separately, McKenna won the dismissal Oct. 3 of an unusual case under the Alien Tort Claims Act and other statutes. Dozens of Palestinian plaintiffs had sued President George W. Bush, the Israeli government, and many others for fostering alleged Israeli human rights abuses against Palestinians. Among the defendants: five defense contractors that provided arms to Israel under U.S. military sales programs. Judge John Bates of the U.S. District Court for the District of Columbia dismissed the case against them, President Bush, and Secretary of State Colin Powell, finding that it involved political questions about U.S. Middle East policy over which courts lack jurisdiction. Says McKenna partner Raymond Biagini, lawyer for the contractors: “We agree with the judge’s rationale and hope that this brings the litigation to a conclusion for our clients.” New York lawyer Stanley Cohen, who filed the case, did not return a call for comment. � Christine Hines and Jonathan Groner LOSING IT IN VIRGINIA Skadden, Arps, Slater, Meagher & Flom shuttered its five-lawyer Reston outpost in September. But the move doesn’t necessarily presage a spate of closures in Northern Virginia, says Skadden’s D.C. managing partner, Michael Rogan. “We never intended that to be an office with 100 lawyers by 2005,” says Rogan. “And I don’t think other firms won’t make strategic decisions to expand out there in the future.” The Skadden quintet headed back to the D.C. offices of the firm, which has 1,750 lawyers worldwide. And Morgan, Lewis & Bockius, despite murmurings that it would scale back operations in McLean, says it hopes to add litigation, immigration, and eventually corporate strength to that office’s 16 lawyers. D.C. managing partner Michael Kelly recently took over management responsibilities in Northern Virginia from Robert Jay Smith, a labor and employment partner who stepped down from the post because of client demands. � Lily Henning

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