As the FBI pursued its investigation of Brett Kavanaugh this week, Kerry Berchem made headlines for trying to reach the bureau with information she had about the U.S. Supreme Court nominee—reportedly text messages suggesting Kavanaugh wanted to refute an accuser’s sexual misconduct claim before it became public.
As a management committee member of Akin Gump Strauss Hauer & Feld, Berchem hardly lacked the means to find a channel to the FBI. Akin Gump isn’t just one of the country’s largest, richest law firms, it’s also well-stocked with former prosecutors and other white-collar lawyers.
Still, the firm, which also has a large appellate practice, has kept mum on the extent of any support it gave Berchem, highlighting the awkward and risky territory for large law firms whose partners have spoken up, as witnesses or commentators, during Kavanaugh’s highly controversial nomination.
In a statement, Akin Gump focused on the partner’s independent efforts.
“As a concerned citizen, Ms. Berchem has come forward with facts that she believes require investigation so that this critical matter can be decided on a complete record,” an Akin Gump spokesman said late Wednesday afternoon.
The spokesman and Berchem did not respond to questions about whether the firm supported her in getting the text messages to the FBI, or whether she worked with any other firm attorney in the effort.
According to an NBC News report this week, Berchem, a New York attorney who leads Akin Gump’s corporate department, exchanged text messages with Karen Yarasavage. Both are friends of the judge. Those messages suggested Kavanaugh had personally discussed an allegation from former Yale University classmate Deborah Ramirez before it was made public. Kavanaugh testified that the first time he learned about the accusation was in a Sept. 23 New Yorker story detailing Ramirez’s claims.
In one message, Yarasavage said Kavanaugh asked her to go on the record in his defense, according to news reports. NBC News said Berchem, in a memo, wrote that Kavanaugh “and/or” his friends “may have initiated an anticipatory narrative” as early as July to discredit Ramirez.
According to the NBC News report, Berchem said she has not drawn any conclusions as to what the texts may mean or may not mean, “but I do believe they merit investigation by the FBI and the Senate.”
Berchem said that she had reached out to the FBI multiple times and hired a lawyer to help get the information in the right hands, but had not heard back, according to the NBC News report, updated on Tuesday. Berchem and the firm did not respond to ALM’s questions on whether she had finally heard back from any authorities.
Akin Gump has nearly 80 lawyers in white-collar criminal defense and investigations, many of whom would have expertise in navigating FBI channels. Several attorneys’ biographies said they have represented clients in FBI investigations, while some Akin Gump lawyers who worked in federal government have worked closely with the FBI in various investigations.
Meanwhile, the firm also has a top-notch appellate and U.S. Supreme Court team, which has 23 lawyers, according to its website.
Having attorneys come forward with information or opinions about Kavanaugh is a sensitive proposition for any Am Law 200 firm that may appear before Kavanaugh, either before the U.S. Court of Appeals for the D.C. Circuit, where Kavanaugh sits now, or potentially the U.S. Supreme Court.
Some have already run across potential conflicts after Kavanaugh’s nomination. When Michael Bromwich joined the legal team assisting another Kavanaugh accuser, Christine Blasey Ford, he had to resign from his position as senior counsel at Robbins, Russell, Englert, Orseck, Untereiner & Sauber, citing “objections” within the partnership about the representation while being employed at the firm.
In a statement in late September, Robbins Russell said he had already been planning to leave the firm but indicated he left sooner “to ensure that his efforts would not be colored by or in conflict with” the firm’s work before appellate courts.
Other firms have also taken pains to distance themselves from a partner’s actions related to Kavanaugh. After a partner at Bartlit Beck Herman Palenchar & Scott came forward to a Senate committee to suggest Ramirez was “mistaken” in alleging Kavanaugh exposed himself to her, Bartlit Beck’s managing partner said the firm’s leadership was not aware of Joseph Smith’s submission to the Senate and it reflected Smith’s views and not those of the firm.
Regardless, some attorneys at large firms have had no problem going on the record about Kavanaugh. Helgi Walker, a former colleague of his in the White House counsel’s office and a partner and practice leader at Gibson, Dunn & Crutcher, told PBS’ “NewsHour” that “ he’s innocent.” In another strong public statement, her Gibson Dunn partner, Theodore Olson, a former U.S. solicitor general with strong ties to Republican groups, dropped his membership with the American Bar Association because of the group’s support of the FBI’s Kavanaugh investigation.
Legal ethics experts suggest most situations in which an attorney speaks out about Kavanaugh don’t present legal conflicts for partners who may have to appear before the judge. Roy Simon, a New York legal ethics adviser, said, in general, he doesn’t see a conflict between those lawyers who make public announcements about Kavanaugh and the rest of their firms.
Joel Cohen, who has represented attorneys on ethical issues and who is of counsel at Stroock & Stroock & Lavan, said he doesn’t see an ethical wrongdoing by an attorney supplying information voluntarily that will support an investigation.
But both agree that there could be business risks for any law firm whose attorneys may have spoken up during the nomination process. “Most law firms,” Cohen said, “want to make sure that [their lawyers] are making public statements that are not saying something that will be offensive to the client base or before a court” in which one of their partners practices.
Cohen said there may be some people who went to college with Kavanaugh and could attest to his past behavior, but “they just want to stay out of the fray.”
For their law firms, given the nation’s increasing divisions, that may not be as easy as it once was. “As the country becomes more polarized and more passionate,” Simon said, “it becomes harder and harder not to be on a side.”