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Call it the three-year itch. With just over 14 months left in the Bush administration’s first term, the trickle of top administration lawyers heading back to private practice is starting to look more like a stream. In recent weeks, senior lawyers from the Department of Justice, the White House, the Office of Management and Budget, and more have stepped down — moves carefully timed so the administration can still line up replacements. “I think there is an unwritten rule that you don’t abandon ship in the heavy season of an election year,” says Bradford Berenson, a former White House associate counsel who rejoined Sidley Austin Brown & Wood as a partner in March. Berenson, a white collar specialist, says most people try to leave about a year before an election so the administration has a “team in place that has some continuity.” Notable recent departures include Jay Lefkowitz, who left his White House job as deputy assistant to the president for domestic policy to rejoin Kirkland & Ellis as a partner today. A few weeks earlier, Philip Perry, the general counsel of the Office of Management and Budget, returned to his Latham & Watkins partnership. White House Associate Counsel H. Christopher Bartolomucci went home to Hogan & Hartson, where he is a partner, while Helgi Walker, another veteran of the Office of the White House Counsel, joined Wiley Rein & Fielding as of counsel. The Department of Justice has also seen many of its ranking lawyers return to private practice. Alice Fisher, deputy assistant attorney general for the Criminal Division, rejoined Latham on Oct. 1, and in August, Ralph Boyd Jr., assistant attorney general for the Civil Rights Division, and his deputy, Robert Driscoll, went to the D.C. office of Atlanta’s Alston & Bird. Lawyer/lobbyist Barbara Comstock, who served as the director of the DOJ’s Office of Public Affairs, joined Blank Rome Government Relations (an affiliate of Blank Rome) as a principal on Oct. 1. The administration’s losses are local law firms’ gains, as many D.C. firms aggressively vie for the government talent once they get word of a top lawyer’s approaching departure. But while the fervor to hire government veterans remains strong, it has diminished some in the four years since the last crop of administration lawyers cycled out. Recruiters caution that law firms, although always on the prowl for talent, are being more cautious about big-ticket hires in the midst of a recession. “It’s a fairly high bar,” says recruiter Avery Ellis of Mestel & Co. “Firms do not throw around their money willy-nilly.” Instead of looking to hire a “title,” Ellis says, firms want high-profile lawyers with proven records in private practice as well. Headhunter Charles Garrison of Garrison & Sisson agrees. “Firms aren’t as aggressive” these days, he says. But, he says, there will always be a healthy market for the cream-of-the-crop lawyers from the White House, the DOJ, and other agencies. Among the lawyers likely to field multiple offers when they step down are Treasury General Counsel David Aufhauser, a former partner at Williams & Connolly; John Rogovin, the general counsel of the Federal Communications Commission and an alumnus of O’Melveny & Myers; Timothy Muris, the chairman of the Federal Trade Commission who, in addition to teaching law school, was of counsel at Howrey Simon Arnold & White; and Food and Drug Administration General Counsel Daniel Troy, formerly with Wiley Rein & Fielding. “The big value of having government people back is they understand the process,” says Wiley Rein managing partner Richard Wiley, himself a former FCC chairman. Indeed, the door between Wiley Rein and government — notably the FCC and the Department of Health and Human Services — tends to be a revolving one. In addition to Troy, former Wiley Rein lawyers now in government include HHS General Counsel Alex Azar; FCC Commissioner Kevin Martin; FCC Chief of Staff Bryan Tramont; and Department of Labor Solicitor Howard Radzely. Latham & Watkins, the destination of former OMB General Counsel Perry and former Deputy Assistant Attorney General Fisher, has also supplied its share of top lawyers to the Bush administration. Eric Bernthal, managing partner of Latham’s D.C. office, says the firm encourages its attorneys to do public service. “Associates and partners frequently get opportunities to go into the government and in many cases, these are opportunities which contemplate a one-, two-, or three-year stint in the government as opposed to a career change,” Bernthal says. “When lawyers choose to do that, we generally welcome that opportunity.” Like Fisher and Perry, most lawyers return to their former firms after their time in government is up, although many admit they were courted by others. “I listened to a number of offers, in-house and at other firms. It made the most sense to come back,” Perry says. “It’s great to return to your old partners.” Berenson, who returned to Sidley after finishing up a two-year White House stint in January, says it would have been hard to leave behind the good will and relationships he had built during his years at the firm. “It would have taken an alternative that would really have presented some compelling advantages to convince me to go elsewhere,” he says. “There were no opportunities that were different enough.” But Wiley cautions that it doesn’t always work so smoothly. “Sometimes you don’t get them back,” he says. “You just take your chances on that.” One prominent government lawyer who didn’t return to his former firm is Joseph Simons, who stepped down as head of the Federal Trade Commission’s Bureau of Competition in August. Rather than go home to Clifford Chance, Simons opted for the D.C. office of Paul, Weiss, Rifkind, Wharton & Garrison. Simons says he was attracted by the opportunity to build the firm’s antitrust practice. “I was looking for the opportunity to do something entrepreneurial,” he says. BREAK TIME The reasons for leaving government service of course vary, but these lawyers understand they took a temporary job that lasts an average of two years. In addition, the majority of these top legal jobs are political appointments that would end with a new administration. “I think after that length of service people just naturally feel the itch to move on to new challenges,” says former White House Associate Counsel Bartolomucci, who returned to Hogan & Hartson’s litigation practice on Oct. 1. The current administration’s lawyers may be especially ready for a break. Many of the recent departures have been from the White House and the Department of Justice, which have been under considerable stress dealing with two wars and the aftermath of the Sept. 11 attacks. Ask Fisher, who was responsible for terrorism policy at the Justice Department, including the implementation of the Patriot Act and the Sept. 11 investigations. Her packed schedule included briefing Attorney General John Ashcroft and Federal Bureau of Investigation Director Robert Mueller III on terrorism issues daily. “I can’t imagine that the stress and intensity will be the same,” she says. “But private practice brings many challenges that I am excited about facing.” The endless 18-hour days, especially under the intense post-Sept. 11 conditions, begin to take their toll, agrees Bartolomucci. “We worked extremely hard at the beginning of the administration,” he says. “We would go from super-busy to super-duper-busy.” Bartolomucci spent two and a half years in the White House, but the new father of a 4-month-old wanted to spend more time with his baby. And although a law firm partnership is no walk in the park, “the hours are a little bit more controllable,” he says. The pay is better too. A typical partnership draw at the biggest D.C. firms dwarfs the compensation for even the most senior government officials. After Bartolomucci’s wife, also a lawyer, stopped working to care for the baby, his family needed the higher firm compensation, he says. “Most people cannot survive but so long on a government salary,” says Alston & Bird’s D.C. managing partner Frank Conner. But many government lawyers, even some with previous experience in private practice, will not be automatically waived into full partnership. Instead, they may be required to start over in non-equity or counsel slots, Garrison says. Thus, the pressure is on for these lawyers to quickly rebuild their portfolios and reintegrate into law firm life, something that they contend can be very difficult. Wiley, who was at the FCC from 1970 to 1977, says he understands the difficulties of going straight from government into law firm partnership. “When I left the FCC, I didn’t have a client or know how to bring a client,” says Wiley, who joined Kirkland & Ellis when he left the commission. Berenson says starting over in a firm is often harder than making partner the first time around. “You don’t have the ongoing relationships with clients as you do as an associate,” he says. While all government lawyers returning to private practice face the challenge of rebuilding a book of business, White House lawyers, who don’t specialize or gain a new set of marketable skills, have it even harder. “The White House counsel’s office is one of those jobs in government that doesn’t translate directly into any practical benefit,” says Berenson. Still, few White House lawyers go begging for employment when they decide to leave. In general, government veterans gain valuable experience and high-ranking contacts while increasing their visibility, a combination that makes them more attractive to potential clients, says recruiter Garrison. “The experience enhances their overall marketability,” he says. Latham’s Bernthal agrees: “This is a very, very positive and enriching aspect of Washington practice.” He adds, “When the right people are out in the market looking, we hope to be one of the firms considered.” Wiley says both government and the firms are well-served by their frequent exchange of lawyers. The government gains well-trained lawyers from the firms, while the firms get back lawyers with a greater depth of knowledge and a new set of skills. “It’s a win-win all the way around,” he says. Still, the lawyers say, the main reason they endure the long hours and pay cuts of government jobs is the chance to serve their country and to have a hand in the most important national issues of the day. “It’s an honor to do it,” says Perry. “And you’ll remember it for the rest of your life.”

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