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GINSBERG’S OUT, BUT DEMOCRATS HANG ON The Democratic counterparts to GOP lawyer Benjamin Ginsberg have no intention of following his lead. Last week, Ginsberg stepped down as counsel to the Bush-Cheney campaign after news reports revealed that the Patton Boggs partner was also giving legal advice to the Swift Boat Veterans for Truth, an anti-John Kerry group separate from the campaign. As an independent political organization, the Swift Boat group is not supposed to coordinate its activities with those of the campaign. Although sharing a lawyer with a campaign is not generally viewed as improper coordination, Ginsberg decided to step down “to ensure that the giving of legal advice . . . doesn’t distract from the real issues.” In the wake of Ginsberg’s resignation, he and other Republican activists pointed out that the same law firm that represents the Democratic National Committee and the Kerry-Edwards campaign also represents so-called Democratic 527 groups. These independent groups have flourished since contributions to them are not capped under campaign finance laws. Democrats had been much more successful than Republicans in using 527 groups until very recently, when the GOP renewed its efforts. Marc Elias, a Perkins Coie partner who is general counsel to the Kerry campaign, says he has no intention of relinquishing his campaign post — even though his partner, Judith Corley, is counsel to America Coming Together, a leading 527 group that opposes President George W. Bush’s re-election. “I give legal advice regarding Federal Election Commission requirements to the campaign, Judy is counsel to ACT, and my partner Bob Bauer is a leading recount lawyer and is performing that role for the DNC,” says Elias. “I’m not troubled by that, and there is no reason for anyone to step down.” Because the reporting and compliance rules of the FEC are so arcane, a very small number of D.C. firms have developed expertise in the area. Last year, for example, three different lawyers from Perkins Coie, under Bauer’s general supervision, each represented a candidate competing in the Democratic presidential primaries. “The reality is that the campaign finance bar is not a very large bar,” says former FEC General Counsel Lawrence Noble, executive director of the Center for Responsive Politics, a watchdog group. “And there’s no per se rule that would establish coordination just because a campaign and an independent group share a lawyer. But the FEC regulations at least raise the issue of coordination when there is a common lawyer. After all, the fact that lawyers work for the campaign makes them attractive to other groups as well.” — Jonathan Groner VANITY PROJECT The latest buzz among Supreme Court insiders is that one or more of the law clerks who served during the momentous 2000 election case of Bush v. Gore are about to tell all — or at least some — about what went on behind the scenes at the Court. The details will be in the next edition of Vanity Fair, which hits newsstands in September. Contributing editor David Margolick is author of the piece, part of a package reviewing the Florida election debacle entitled “Path to Florida.” When Margolick began this summer to look into what happened at the Court four years ago, he found that justices, lawyers, academics, and even journalists had all “moved on.” But the law clerks were still angry, and Margolick says “several” talked to him at length. He won’t reveal his findings, but says the story reports “more than we knew before about what happened at the Court during Bush v. Gore, and certainly more than I thought I could get.” — Tony Mauro SCHOOLED The American Civil Liberties Union of Maryland says it had to turn to a D.C. firm for help on a lawsuit it won last week against the state of Maryland on behalf of Maryland’s schoolchildren. The ACLU asked Howrey Simon Arnold & White for assistance “when they were not able to find any Baltimore firm that felt comfortable taking the case,” says Howrey partner Elizabeth McCallum, who formed a pro bono team with partner Helen Michael and associates Melissa Kimmel and Andrea Farinacci, all of whom are based in D.C. Howrey and the ACLU argued that the state violated its constitution by failing to provide adequate education for Baltimore City’s schoolchildren. On Aug. 20, Maryland state judge Joseph Kaplan agreed, ruling that the state underfunded the city’s schools by $400 million to over $800 million. He ordered the state to substantially increase funding starting this academic year. The state has signaled it will appeal; Michael says Howrey will continue to participate. — Christine Hines LOOKING BACK Surrounded by boxes and wearing a cast on his foot, former Solicitor General Theodore Olson started work last week at his old firm, Gibson, Dunn & Crutcher. After three years as SG, Olson had been regrouping since early July at his cabin in Wisconsin, where he broke his left foot. “That’s what you get for taking a vacation,” he said. He planned to stay there through September, but the needs of new clients brought him back to D.C. early. In his new tour of duty at Gibson, the 63-year-old Olson will do appellate work and branch out into crisis management. But he won’t say if he is gearing up for any post-election litigation of the type that brought him worldwide attention four years ago as George W. Bush’s lawyer in Bush v. Gore. “It could be a close election, and one doesn’t know what might happen,” he said. During the Florida election litigation, Olson reminisced, “I felt like I was riding a bullet train, but on the outside, hanging on while people were swatting at me.” Olson looks back on his tenure as SG as “three years of high points.” In his first interview since leaving, Olson confirmed that he wanted to write a more strongly anti-affirmative action brief in the University of Michigan cases than he submitted in January 2003. He pulled back because President Bush did not want to shut the door on diversity programs in higher education. But Olson denied getting in any shouting match with White House officials or threatening to resign. “It worked exactly as it should. That’s why we elect a president.” While regretting his defeats in the terrorism cases decided in June, Olson doesn’t think he overplayed his hand by taking a rigid position against judicial interference in executive wartime decisions on enemy combatants: “As an advocate, I wish we’d picked up a few more votes, but I don’t think we could have presented our position any differently.” — Tony Mauro SMOKING GUNS After decades of lobbying alongside its fellow tobacco companies, industry behemoth Philip Morris USA went its own way several years ago by supporting giving the Food and Drug Administration regulatory authority over tobacco. Those lobbying battle lines have sharpened recently, with the Senate and House slated to conference in the coming weeks on a corporate tax bill that could include a Senate provision giving the FDA power over Big Tobacco. Philip Morris’ former allies, Reynolds American, Lorillard Tobacco, and U.S. Smokeless, are working furiously to keep the Senate measure out of the final bill. Among those in their corner are former Sens. Wendell Ford (D-Ky.) and Tim Hutchinson (R-Ark.), as well as Hutchinson’s wife, Randi Fredholm Hutchinson. All three are part of Dickstein Shapiro‘s tobacco lobbying team, which netted the firm a cool million from Lorillard in the first six months of the year, according to Senate documents. “Philip Morris thinks this is a one-way trip to banning [rivals'] products and getting a monopoly,” says Andrew Zausner, Dickstein’s chief tobacco lobbyist. He and his colleagues won’t have an easy fight. Philip Morris spent $13 million on lobbying last year, according to data compiled by Common Cause — $5 million more than the rest of the industry combined. — Jason McLure EMINENT DOMAIN Meanwhile, Philip Morris USA has prevailed on another front. In a ruling that could have broad implications for online merchants, Swiss cigarette retailer Otamedia last week was ordered to transfer its domain name yessmoke.com to the cigarette maker. Philip Morris, represented by Ken Chernof and Warren Rheaume of D.C.’s Heller Ehrman, sued Otamedia in the U.S. District Court for the Southern District of New York, charging it with unfair business practices and trademark infringement for illegally selling Philip Morris’ European cigarettes into the United States via the Internet. “Internet operators across the world should take notice,” Chernof says. “If you fail to comply with a U.S. court order, you may lose your domain names.” Judge Gerald Lynch found the Web merchant evaded U.S. excise taxes, failed to verify customer ages, and violated an earlier injunction. Philip Morris’ request for $395 million in damages is pending. But Otamedia appears undeterred. On its Web site, the firm referred to the legal proceedings as “crazy, insane, monstrous.” — Jason McLure NATURE LOVERS Earlier this month, the United States and Panama entered into an agreement to forgive nearly $11 million of Panama’s debt to the United States in return for an increase in Panama’s effort to conserve its tropical forests. The pro-environmental group the Nature Conservancy contributed over $1 million in support of the transaction. The project, nicknamed “Debt for Nature,” stems from the U.S. Tropical Forest Conservation Act of 1998, which gives the U.S. Treasury the authorization to eliminate a portion of developing countries’ debt in return for the commitment to conserve their forests. Stuart Irvin, the lawyer for the Nature Conservancy, says the law “is a very innovative approach to two problems: How do you conserve natural resources in countries that can’t afford to do that, and how do you reduce debt?” Irvin, of counsel at Covington & Burling, previously negotiated three similar deals in Belize, Peru, and the Panama Canal Zone. — Christine Hines BROBECK BID A coalition of plaintiffs lawyers thinks it can do better than a bankruptcy trustee when it comes to getting Clifford Chance to pay for Brobeck, Phleger & Harrison‘s collapse. The San Francisco-area attorneys made an offer last week to purchase the Brobeck estate’s rights to a suit against Clifford Chance for at least $4 million. They’re chiming in more than a month after Brobeck bankruptcy trustee Ronald Greenspan proposed that Clifford Chance pay $3.75 million to settle the claim that it contributed to Brobeck’s demise. Luther Orton, a member of Brobeck’s liquidation committee, says the group of lawyers has offered the estate $4.05 million, plus 5 percent of any amount recovered above that after costs and fees. “We were trying very hard to find people willing to come forward,” he says. Greenspan could use the offer as a model to solicit more bidders, Orton adds. The value of the suit has been a matter of dispute between the liquidation committee and the bankruptcy trustee. Greenspan has said Brobeck was likely already insolvent when former chairman Tower Snow Jr. and 16 other partners defected to Clifford Chance in May 2002, according to papers he has filed in U.S. bankruptcy court in San Francisco. — Pam Smith, The Recorder

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