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TYCO’S FLANIGAN TO REPLACE COMEY Last week, the White House named Tyco lawyer Timothy Flanigan to replace Deputy Attorney General James Comey in the Justice Department’s No. 2 slot. If Flanigan is confirmed by the Senate as expected, he will be responsible for managing the Justice Department’s day-to-day operations and overseeing the nation’s 93 U.S.attorneys. Yet unlike Comey, Flanigan has never served as a U.S. attorney or as a line prosecutor. Neither has Attorney General Alberto Gonzales or the administration’s nominee to run the Criminal Division, Alice Fisher � a point that didn’t evade the notice of critics. Following the announcement, Sen. Patrick Leahy (D-Vt.) issued a statement questioning the “growing deficit in practical prosecutorial experience in the top ranks” of the DOJ. Then again, Bill Clinton Deputy AG Jamie Gorelick and George H.W. Bush Deputy AG William Barr (later AG) also were without prosecutorial experience, and both were well-respected within the department. (Flanigan did previously serve in the Justice Department, as head of the Office of Legal Counsel, during the administration of Bush I.) In a May 25 interview, Gonzales defended the administration’s choice of Flanigan and noted that Montana U.S. Attorney William Mercer had agreed to serve as Flanigan’s top aide. “I’m not worried about . . . the experience and ability of this office to prosecute cases and go after bad guys,” Gonzales said. “We’ve got a lot of people already on board or coming on board to provide advice.” Flanigan, a former partner in the D.C. office of White & Case, served as deputy White House counsel to Gonzales from 2001 to 2002. “Tim was in the Situation Room on 9/11,” Gonzales said. “He has dealt with a number of issues that currently confront the department.” Two U.S. attorneys who were candidates for the post of deputy attorney general � Paul McNulty of the Eastern District of Virginia and Johnny Sutton of the Western District of Texas � were named last week to leadership posts on the AG’s U.S. attorney advisory committee. � Vanessa Blum Perelman’s Pot. Corporate financier Ronald Perelman likely won’t be the only one enriched by the $1.5 billion judgment against Morgan Stanley announced earlier this month in Palm Beach, Fla., Circuit Court. West Palm Beach plaintiffs attorney Jack Scarola and co-counsel at Jenner &Block are also set to take home millions. Jenner &Block’s Chicago-based chairman, Jerold Solovy, led a team of more than 25 lawyers who spent several months working full time on the case. The group included D.C. partners Paul Smith and Sam Hirsch and six D.C. associates. Last week, Morgan Stanley’s team, headed by Mark Hansen of D.C.’s Kellogg, Huber, Hansen, Todd, Evans, & Figel, asked the presiding judge to overturn the verdict and grant a new trial. But observers familiar with the case expect a settlement rather than an appellate battle. Perelman had accused Morgan Stanley of conspiring to defraud him after the investment house advised him to accept 14 million shares of the Sunbeam Corp. in a 1998 deal, stock that ended up worthless when Sunbeam went bust three years later. � Jason McLure, Legal Times; Dan Lynch, Miami Daily Business Review NO WORRIES The issue of courtroom security reached the Supreme Court last week, when the Court held that forcing defendants to appear before juries in visible shackles during sentencing was unconstitutional. Justices Clarence Thomas and Antonin Scalia issued a sharply worded dissent, warning that the Court’s ruling failed to consider the “dire security situation faced by this nation’s courts.” But some local judges are unconcerned. In D.C. Superior Court, defendants always appear in street clothes and are seated in such a way that any security measures are invisible to the jury, says Chief Judge Rufus King III. Specific rules vary from state to state, says Judge Gayle Nachtigal, president of the American Judges Association and a circuit court judge in Washington County, Ore., but many courts already use stun belts and leg braces underneath a defendant’s clothing or hide the restraints in some way so a jury would never see them, she says. � Bethany Broida HAIL TO THE CHIEF As the new chief judge of the D.C. Court of Appeals, Eric Washington will have the distinction of being the youngest, newest, and most powerful judge on D.C.’s highest court. Last week, the Judicial Nomination Commission chose Washington, 51, to replace current Chief Judge Annice Wagner, who is retiring after nearly 30 years on the bench, the last nine as chief. Washington’s four-year term begins in August. “This is an opportunity for me to be on the front lines and to make an impact,” says Washington, who was nominated to the court in 1999 by then-President Bill Clinton. In addition to overseeing an $85 million renovation and the move of the Court of Appeals into the city’s historic courthouse, Washington takes over at a time when the nine-member court is in flux. With Wagner’s retirement, the court will have two vacant seats. The other vacancy was created when Judge John Steadman took senior status last August; D.C. Superior Court Judge Noel Anketell Kramer has been nominated to fill that seat. Two more openings are expected next year, when Judges John Terry and Frank Schwelb reach the mandatory retirement age of 74. � Bethany Broida STRANGE BEDFELLOWS Stung by the mass defection of all its London and Moscow partners, New York-based Coudert Brothers is exploring a possible lawsuit against San Francisco’s Orrick, Herrington & Sutcliffe, the firm that hired the partners away. Coudert has retained Barry Ostrager, the co-head of the litigation department of Simpson Thacher & Bartlett, to conduct an investigation into whether Orrick and the departing partners breached confidences gained in merger discussions between the two law firms. Orrick announced two weeks ago that it had hired 11 partners from Coudert, eight in London and three in Moscow. The move left those offices, previously among Coudert’s strongest, with only associates and other junior lawyers. Coudert’s choice of counsel is particularly noteworthy because it comes after the two New York firms publicly feuded over work both did for Global Crossing Ltd. Two years ago, Coudert issued a scathing report of Simpson Thacher’s work for Global Crossing, which was then under investigation by the Securities and Exchange Commission. The report accused Simpson Thacher of legal malpractice and conflicts of interest and prompted a spokesperson from the firm to comment to The Wall Street Journal that only “personal jealousy” by Coudert could have led to such a damning report. � Anthony Lin, The New York Law Journal; Emma Schwartz, Legal Times JUDICIAL WATCH The Senate will take up two more federal circuit court nominees when it returns from its Memorial Day recess. Debate is scheduled to begin June 7 on controversial California Supreme Court Justice Janice Rogers Brown, whose expected confirmation for a seat on the U.S. Court of Appeals for the D.C. Circuit will be followed by debate and a vote on former Alabama Attorney General William Pryor, who is up for a seat on the 11th Circuit. The expected confirmation of both nominees is part of the June 23 agreement reached by 14 moderate senators. Although both nominees have been fully vetted in the Senate Judiciary Committee, Democrats say they still want a full debate. “Their troubling records are still troubling,” says a committee staffer. Agreements between Democrats and the GOP have also been reached to vote on two 6th Circuit candidates, David McKeague and Richard Griffin, as well as former Senate Legal Counsel and D.C. Circuit nominee Thomas Griffith. Their votes are not yet scheduled. � T.R. Goldman TRADE IMBALANCE With his departure in June, Federal Trade Commission member Orson Swindle leaves the relatively inexperienced group of commissioners with an even partisan divide. “A 2-2 commission is not best to work with. It can be tough,” says Swindle, one of three Republicans on the five-member FTC and a commissioner since 1997. Three out of the four remaining commissioners have less than two years experience on the job. A self-proclaimed “maverick,” Swindle championed industry self-regulation to safeguard privacy on the Internet and opposed taxation of online commerce. Swindle says George Washington University Law School professor and former FTC General Counsel William Kovacic is likely to be nominated as his replacement. Also departing government next week is Department of Justice antitrust chief R. Hewitt Pate, who will return to Hunton &Williams, where he will head the firm’s competition practice. In Pate’s two-year tenure at the helm of the Antitrust Division, its intervention in merger activity increased and included a challenge last spring to the Oracle Corp.’s hostile takeover bid for competitor PeopleSoft Inc. Joining Pate as a partner is one of his key deputies, David Higbee. Veteran FTC litigator Mel Orlans joins as counsel. � Lily Henning ORBITAL APPROACH The Dulles, Va.-based Orbital Sciences Corp. sought last week to defuse news that government agents had searched the aerospace company’s facilities in Virginia and Arizona. The company has not been charged with any wrongdoing, but Orbital said in a statement that it believes “the investigation is focused on contracting procedures on certain U.S. government launch vehicle programs” and that it was “not aware that it has violated any federal contracting laws.” The statement came just two days after Orbital announced former Secretary of the Air Force James Roche had joined the company’s board of directors. Roche resigned from the Air Force’s top job in November, in the wake of the Boeing Corp. procurement scandal and just two weeks before Sen. John McCain (R-Ariz.) released a host of e-mails from Roche and other Air Force brass regarding a controversial tanker lease deal with Boeing. Orbital spokeswoman Susan Herlick says the company has retained Barbara Van Gelder of Wiley Rein &Fielding in connection with the procurement investigation. Attorneys at Wiley Rein have advised the firm on government contracting matters, Herlick says. � Jason McLure

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