Viet Dinh of Bancroft. June 28, 2011. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL. ()
Give credit to Mark Filip, the former deputy U.S. attorney general and current Kirkland & Ellis partner, for the firm’s acquisition of appellate litigation boutique Bancroft and its marquee partner Paul Clement.
Kirkland approached Bancroft earlier this year, and Filip, now a member of Kirkland’s management committee, was the man who drove the deal. Filip, who joined Kirkland in 2009, has been friends with Clement and Bancroft founder Viet Dinh since their days at Harvard Law School. And when Clement and Filip clerked for former U.S. Supreme Court Justice Antonin Scalia during the 1993-94 term, the two shared an office in the court’s chambers.
“I don’t think this transaction would have happened if it hadn’t been Kirkland and it hadn’t been Mark Filip,” Dinh said in an interview Monday. “It feels like we’re getting the band back together.”
The acquisition is a coup for Kirkland—rival appellate litigators said as such Monday—as it gives the Chicago-based firm an expanded presence at the top of the appellate bar in Washington, D.C. Bancroft’s absorption by Kirkland also marks the end of an era for Supreme Court representation. Clement has appeared in an almost superhuman number of briefs and high-profile cases, especially ones that pressed a conservative political agenda.
“If Kirkland’s desire is to become a top-tier player, there is no more visible way to accomplish it than Paul,“ said Carter Phillips, a Supreme Court bar contemporary of Clement’s and chairman of Sidley Austin, another Chicago-based Am Law 100 firm known for its appellate expertise.
Kirkland’s appellate practice, currently led by Christopher Landau in Washington, D.C., already has an established, but not superstar-level, reputation. Clement began his private practice career at the firm in the mid-1990s. His first day as an associate at Kirkland, according to a 2007 profile in The American Lawyer, was the same day that the firm’s one-time top litigator Kenneth Starr—another former solicitor general and federal appeals judge—left to commence the Whitewater investigation of Bill and Hillary Clinton. (Starr was demoted earlier this year as president of Baylor University and subsequently stepped down as chancellor of the Texas school.)
Clement, 50, has gone on to build his own reputation, serving as U.S. solicitor general from 2004 to 2008 and on a series of blockbuster cases linked to conservative political issues. Since 2000, Clement has argued more cases before the Supreme Court than any other lawyer, for a total of more than 80, Kirkland said in its statement announcing his hire Monday.
Upon concluding his tenure as solicitor general with three losses in 2008, Clement rejoined King & Spalding, a firm where he had previously practiced after leaving Kirkland and several other roles in public service. At King & Spalding, Clement represented proponents of the Defense of Marriage Act, only to leave the firm in 2011 after it stopped supporting taking on cases opposed to the legalization of same-sex marriage.
Clement hit the ground running at Bancroft, arguing the DOMA case, opposing the Affordable Care Act’s individual mandates and representing religious groups opposed to the health care law. Sometimes Clement represented major corporations in cases of little interest outside the business community; other times, television broadcasters and the National Football League hired him.
Some of Clement’s clients would only bring in revenue if he won their cases. Other times, like many Supreme Court lawyers, he represented them pro bono. Even the top Supreme Court practices do little for a firm’s bottom line, but they are still attractive to the legal elite because of their prestige and high visibility.
While Bancroft’s past work could be polarizing among some large firm partnerships, Kirkland’s Filip said the addition of the firm would be “synergistic.” He added that Clement’s move now plugs him into a larger network of corporate litigators and institutional clients.
The marriage of Kirkland’s litigation focus and Bancroft’s appellate work was “a perfect fit,” Clement wrote in an email Monday. “We also wanted to ensure that the move was a positive from the perspective of everyone at Bancroft,” he added.
Dinh said his firm’s combination with Kirkland allows for “upward mobility of all of our colleagues,” giving lesser-known litigators a way to branch out and grow business in a larger firm. The deal hinged on the latter firm’s willingness to hire all 17 Bancroft lawyers, said Dinh, noting that the deal is structured as a mass lateral hire, not a merger.
“One of our preconditions, which Kirkland was able to accommodate and did so very happily, was all for one and one for all,” Dinh said.
Nonetheless, frictions could still arise. Could professional necessities, conflicts and even political momentum limit Clement, as it did quite publicly at King & Spalding? Will Clement need to raise his billing rate—reportedly $1,350 an hour, which is $450 less than frequent competitor Ted Olson at Gibson, Dunn & Crutcher—to fit within a larger, highly profitable firm?
Clement, pictured right, isn’t worried about such a scenario.
“Because we have an up and running practice, the nature of our clients, issues and fee arrangements are all well-established,” Clement said. “That practice is diverse, including representations of Fortune 100 companies in commercial disputes, state, local and foreign governments and pro bono representations from the Omaha Tribe to the Little Sisters of the Poor. Kirkland was excited to add that practice and we are looking forward to combining forces.”
Supreme Court litigation remains a practice area in flux. Following the death of Justice Scalia in February, the eight-member court has one less consistent conservative vote. A new U.S. president’s arrival in January may not restore the balance that favorably granted conservative petitions. But Kirkland doesn’t see less opportunity for Clement and his team.
“I don’t think people who have been successful at the Supreme Court have been successful because they’ve been perceived as being simpatico with an ascendant wing of the court,” Filip said. “The people who are talented advocates are talented advocates.”
Bancroft had always forged its own path. Dinh, when he founded the firm, decided not to name it after a person’s surname, as is the tradition across the legal industry. Instead, he used the name of the Dupont Circle address that was its first location. (Bancroft, which moved near the Georgetown University Law Center last year, now plans to sublease that office space.)
The boutique also didn’t dabble as much in the approach its competitors use to pick up lawyers after Supreme Court clerkships. Instead, two years ago, Bancroft sent four associates to the Supreme Court. Dinh said that Bancroft has no plans to become a subsidiary of Kirkland.
“Get your Bancroft swag now,” he said jokingly, noting that the legacy entity will effectively disappear and become part of the broader Kirkland brand.
Dinh declined to disclose the financial terms of his deal with Bancroft, but it’s safe to assume that he and Clement will be well-compensated. Clement’s previous partnership role at King & Spalding reportedly netted him $5 million a year. Kirkland has offered at least one recent lateral partner hire in Chicago some $9 million per year for his services, as well as $8 million to another recruit in London.
“We cannot dwell on the money,” Dinh said. “I know that’s antithetical to where the legal industry is. Suffice it to say, everybody wins here.”