After David Bernick joined Philip Morris International as general counsel in 2010 following a three-decade run at Kirkland & Ellis, it took him two years to realize he missed being a trial lawyer. It took him roughly half as long to decide that client conflicts associated with the firm he joined upon returning to private practice—Boies, Schiller & Flexner—were hampering his ability to rebuild his book of business.
As a result of those conflicts, Bernick is on the move once again, with Dechert announcing Friday that he has joined its New York office.
In an interview with The Am Law Daily, Bernick, 59, described his decision to leave Boies Schiller so soon after joining the firm as the product of unforeseen circumstances. "I had underestimated how much impact the firm’s plaintiffs practice has on my ability to continue relationships that I’ve had for many years with my best clients," he says.
A Boies Schiller spokeswoman confirmed in a statement that conflicts between the firm's existing clients and those Bernick hoped to take on drove him from the firm, which he joined in August 2012. "We wish him well for the future," the statement said. Neither Bernick nor Boies Schiller offered any details about the specific conflicts at issue.
In the course of his career, Bernick has taken on cases for Dow Chemical Co., ABB Ltd., Brown & Williamson, Babcock & Wilcox Co., and National Lead Company of Ohio, according to Dechert's press release announcing his arrival. In the year prior to his departure from Kirkland, Bernick secured acquittals for W.R. Grace & Co. and three of the chemical conglomerate executives in a federal criminal case in Montana in which his clients were accused of environmental contamination. The high-profile win contributed to what sibling publication The Am Law Litigation Daily called his "smokin' hot year" in 2009.
More recently, Bernick represented Dow in an antitrust case that ended in May with a federal judge in Kansas ordering the company to pay $1.2 billion in damages for fixing the price for the chemical urethane. (Dow is appealing the decision.)
Bernick says that once that case concluded, he realized that "if I was going to make a move to resolve this problem with conflicts I had to do it soon," because the situation was unlikely to improve, and because of his sense that summer, when work is typically slower, would be a good time to switch firms.
To assist in his search for a new professional home, Bernick enlisted the help of recruiters at Major, Lindsey & Africa, including Jon Lindsey and Jacquelyn Knight, whom Bernick says pointed him toward Dechert. (News of Bernick's hire was first reported by The New York Times.)
For his part, Dechert chair Andrew Levander says that adding a litigator of Bernick's caliber complements the ongoing expansion of Dechert's litigation group. "In my view, you can’t stockpile too much talent," Levander says, pointing to a group of hires from recent years that includes, among others, Edwin Woodsome from Orrick, Herrington & Sutcliffe; David Kistenbroker from Katten Muchin Rosenman; and Linda Goldstein from Covington & Burling.
That Dechert is clearly committed to boosting its litigation group appealed to Bernick. "Their trajectory is really going up," he says.
Levander insists Dechert's recruiting efforts did not involve offering Bernick—whose pay package totaled more than $6 million in 2012 and upward of $3.6 million in 2011, made him among the country's highest-paid general counsel during his two years at Philip Morris—any form of guaranteed compensation. "David’s compensation will rise and fall over time with the firm and with his own performance," Levander says.
At Boies Schiller, equity partners earned an average of $2.7 million last year, according to The American Lawyer's most recent Am Law 100 data. Dechert partners, by comparison, took home average profits of $2.1 million.
Bernick is at least the fourth partner to leave Boies Schiller this year. In February, John Tober left to open a firm with offices in New York and Miami. New York–based Matthew Friedrich lateraled to Freshfields Bruckhaus Deringer in April, and San Francisco litigator David Shapiro cofounded his own firm in June.