Judicial Notice (03.02.25): The $3,000-An-Hour Club

DOJ drama and departures, lawyers getting sanctioned left and right, eye-popping profits at Paul Weiss, and Cravath’s latest lateral.

Bill Burck (left) and Alex Spiro of Quinn Emanuel (photo by Patrick Dove via Getty Images).

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Last week was another crazy one in the news, driven by Donald Trump and his administration—but for some reason, it felt less overwhelming to follow than some other recent weeks. Maybe I’m getting used to the heightened level of activity. Welcome to the new (ab)normal?

I don’t have much to report on the personal front. We’ve been enjoying the warmer weather—and the fact that nobody in the family has a cough or cold (knock on wood). Our one-year-old son is talking up a storm (“more pizza!”), and our seven-year-old, who leads our Monopoly series 11-5, has moved on to trouncing me in Risk.

Now, on to the news.

Lawyers of the Week: Alex Spiro and Bill Burck.

In the latest act in the high-stakes drama surrounding the federal prosecution of New York City Mayor Eric Adams on corruption charges, his lawyers on Wednesday moved to dismiss the case—with prejudice, i.e., permanently, without the government being able to bring the charges back (e.g., if Adams doesn’t help the feds enforce the immigration laws). The 20-page motion was filed by four prominent partners at Quinn Emanuel: Alex Spiro, Bill Burck, John Bash, and Avi Perry.

Adams had previously consented to the government’s motion to dismiss without prejudice, as the motion acknowledges. But according to Adams’s motion, “recent government leaks provide this Court with an independent and more-than-sufficient basis to dismiss this prosecution due to the irreparable prejudice to Mayor Adams’s rights.” The motion focuses on the February 12 letter sent by then-acting U.S. attorney Danielle Sassoon (S.D.N.Y.)—which didn’t go easy on Eric Adams, and which was part of “an extraordinary flurry of leaked internal Justice Department correspondence” that also included “an unhinged resignation letter by one of the former line prosecutors on this case,” Hagan Scotten.

The motion reminded me of something that many of us had forgotten in the uproar over the underlying case: internal documents of the U.S. Department of Justice (DOJ) were leaked to the media, which isn’t supposed to happen. When Adams previously complained about leaks in the case, the prosecution responded by saying that the leaks could have come from sources outside the government, like grand jurors. But here, according to the motion, the documents “could only have originated from within the government,” since they were all authored by and addressed to DOJ lawyers.

Conservative commentator Andrew McCarthy, a former federal prosecutor in the S.D.N.Y., described the motion as “border[ing] on the frivolous.” But former federal judge Paul Cassell of The Volokh Conspiracy disagreed: “I'm not so sure…. While the prosecutors were entitled to argue for continuing the case internally, leaking that view constituted politically motivated wrongdoing designed to harm (among others) the Mayor. An appropriate response to that deliberate, Government-caused harm could well be ending the Government’s prosecution once and for all.”

Setting aside the merits of the motion, I agree with McCarthy’s theory of what’s really going on here: the Trump DOJ is probably fine with this motion. Why? It gives them a face-saving way to exit this mess of a case, while being able to “blame the loss of a future corruption prosecution against Adams on the supposed misconduct of the S.D.N.Y. prosecutors, whose letters stung Main Justice.”

Another well-known legal analyst and former federal prosecutor, Ken White, agreed. Speaking with Josh Barro on Serious Trouble, he suggested that Adams’s lawyers might have even run their motion by the DOJ. Expecting the case to end with a dismissal, White made a grudging acknowledgment about Alex Spiro, whom he hasn’t always had warm words for: “Is Alex Spiro a good lawyer? Yeah. By the measures we talk about, which is achieving results for his clients, yes.”

Excellent results: that’s why clients pay Alex Spiro and Bill Burck a whopping $3,000 an hour—which is, as far as I know, the highest hourly rate in Biglaw. And they’re not the only members of that club. Two other superstar litigators, Neal Manne and Bill Carmody of Susman Godfrey, also charge $50 for a minute of their time, per Reuters. Are there more? If you know of some, please email me and spill the beans.

Other lawyers in the news:

• Heaven help us: Jeff Clark, a former top DOJ official and enthusiastic participant in Trump’s effort to overturn the 2020 election, could be returning to government. According to The Federalist and Politico, he’s likely to be appointed as associate administrator of the Office of Information and Regulatory Affairs (OIRA). It’s an influential and important role in the world of regulatory law—and conveniently for the controversial Clark, it doesn’t require Senate confirmation.

• Speaking of lawyers whose devotion to The Donald knows no bounds, Trump’s nominee for U.S. Attorney for D.C., Ed Martin, is making headlines again. After the Associated Press sued the Trump administration over being excluded from certain media events (last week’s Litigation of the Week), Martin went on Twitter and declared that “[a]s President Trumps’ [sic] lawyers, we are proud to fight to protect his leadership as our President and we are vigilant in standing against entities like the AP.” This struck Aaron Blake of The Washington Post (among others) as unseemly, since “it’s not prosecutors’ jobs to fight against people just for refusing to abide by the president’s political agenda,” but “to prosecute crimes.” Then on Friday, Martin demoted several top prosecutors in the U.S. Attorney’s Office to… the misdemeanors division, where newbies cut their teeth. What put them in his crosshairs? These lawyers prosecuted January 6 defendants and/or Trump allies, such as Roger Stone and Michael Flynn.

• Martin’s confirmation hearings will be… interesting. Expect him to be asked about whether the president and members of his administration must follow court orders. Many questions along these lines were posed at the Wednesday confirmation hearing of three Trump DOJ nominees: John Sauer (to serve as solicitor general), Harmeet Dhillon (to lead the Civil Rights Division), and Aaron Reitz (to head the Office of Legal Policy). All three gave answers that could be called “nuanced” or “alarming,” depending on your point of view.

• Speaking of Justice Department nominees, we still don’t have a pick to lead the Office of Legal Counsel (OLC), a critical component that advises on executive power. Sometimes OLC tells the president “no”—or at least “no, you can’t do it that way, but try this instead.” On a recent episode of Advisory Opinions, I wondered whether the Trump administration was intentionally neglecting OLC because it doesn’t want to be told “no,” on anything—and according to Charlie Savage of The New York Times and former OLC head Jack Goldsmith of Executive Functions, OLC has indeed been “sidelined” by this administration.

• Still on the subject of DOJ drama, Paul Ingrassia, who previously served as the White House Liaison for the Department of Justice, got reassigned to serve as the White House Liaison for the Department of Homeland Security. Ingrassia reportedly butted heads with Attorney General Pam Bondi’s top aide, DOJ Chief of Staff Chad Mizelle, per ABC News.

• Speaking of DOJ departures, there has been massive attrition in the Civil Division—especially in the Federal Programs Branch, where around a third of the 130 lawyers have quit since Election Day, per The Washington Post (gift link). So even though there’s a general hiring freeze at the Justice Department, the Civil Division is in hiring mode. But look before you leap, and think carefully about what you’d be willing to do and what you’d resign over; there’s a reason why DOJ alum Stacey Young’s new support organization for current and former Department lawyers, Justice Connection, has been swamped with requests for help.

• Former Supreme Court advocate and SCOTUSblog publisher Tom Goldstein, indicted on federal tax and other charges, appealed to Judge Lydia Kay Griggsby (D. Md.), asking her to overturn a magistrate judge’s requirement that his electronic devices be subject to monitoring. According to Goldstein, this unnecessary requirement “creates the significant risk of disclosing attorney-client privileged communications.” (In other news, SCOTUSblog has returned to X—and some readers wondered to me whether Goldstein might be trying to get on the good side of X owner Elon Musk, who holds major sway with Trump.)

Meanwhile, in the world beyond Washington (because yes, there is life outside D.C.):

• The Morgan & Morgan lawyers behind the latest ChatGPT fail got sanctioned for filing a brief full of fake citations. Judge Kelly H. Rankin (D. Wyo.) fined Rudwin Ayala and T. Michael Morgan to the tune of $3,000 and $1,000, respectively.

• In a complaint filed last month, the Illinois Attorney Registration and Disciplinary Commission alleged that William Michael Doyle Jr., a former partner in the Chicago offices of Winston & Strawn and Greenberg Traurig, overbilled clients by more than $3.5 million over 20 years.

• Judge Liles Burke (N.D. Ala.) sanctioned three lawyers involved in LGBTQ rights litigation—Carl Charles of Lambda Legal, and Melody Eagan and Jeffrey Doss of Lightfoot Franklin & White—for judge shopping, when deciding where and how to challenge Alabama’s ban on gender-transition care for minors. (Eight other lawyers who were previously ordered to show cause escaped unscathed.)

In memoriam: Barbara “Barbie” Chillemi—who practiced law for almost 30 years, primarily as in-house counsel for multiple major companies, before retiring two years ago—passed away unexpectedly last Sunday. I extend my deepest condolences to my former colleague from the U.S. Attorney’s Office, Ron Chillemi, and the entire Chillemi family. Rest in peace, Barbara.

Judges of the Week: Judges William Alsup and Amy Berman Jackson.

Will Donald Trump succeed in dramatically shrinking the size of the federal workforce? The answer depends not only on Elon Musk and his team at the Department of Government Efficiency (DOGE), including a 19-year-old nicknamed “Big Balls”; it also depends on folks with Big Gavels, namely, federal judges.

On Thursday, Judge William Alsup (N.D. Cal.) held a hearing in American Federation of Government Employees (AFGE) v. U.S. Office of Personnel Management (OPM). The plaintiffs allege that OPM, essentially the federal government’s human-resources office, issued unlawful directives telling various agencies to terminate thousands of probationary employees, en masse. Judge Alsup, a Clinton appointee, held these directives illegal—and didn’t mince words at the hearing, as reported by Politico:

• “OPM does not have any authority whatsoever under any statute in the history of the universe to hire and fire employees within another agency.”

• “That’s just not right in our country, is it, that we would run our agencies with lies like that and stain somebody’s record for the rest of their life? Who’s going to want to work in a government that would do that?”

• “How could so much of the workforce be amputated suddenly overnight? It’s so irregular and so widespread and so aberrant from the history of our country. How could that all happen?”

On Friday, Judge Alsup issued a written order, which embodied (and slightly tweaked) his ruling from the bench. The order’s practical effect is somewhat unclear, since he didn’t directly order a stop to any pending layoffs or reinstatement of any previously laid-off employees; instead, he declared the OPM directive to be illegal, ordered its rescission, and ordered OPM to share his order with the affected agencies. Even so, his ruling definitely complicates OPM’s efforts to make big cuts.

Then on Saturday, on the opposite coast, Judge Amy Berman Jackson (D.D.C.) issued a 67-page opinion and permanent injunction in Dellinger v. Bessent (a Litigation of the Week from last month). Judge Berman, an Obama appointee, upheld the constitutionality of the statute providing that Trump could not remove Hampton Dellinger as head of the Office of Special Counsel (OSC), an agency that protects federal whistleblowers, except for “inefficiency, neglect of duty, or malfeasance in office”—none of which Trump cited when he purported to fire Dellinger on February 7.

Judge Jackson distinguished Dellinger from cases like Seila Law LLC v. Consumer Financial Protection Bureau and Collins v. Yellen, in which the Supreme Court held that the president’s control over the executive branch prevented Congress from placing limits on his ability to remove the leaders of agencies with a single head:

What troubled the Court in both Seila Law and Collins were restrictions on the President’s ability to remove an official who wields significant executive authority. The Special Counsel simply does not. He cannot bring a case in court on behalf of the United States, impose a disciplinary sanction on behalf of the United States, demand payment on behalf of the United States, promulgate a regulation on behalf of the United States, or issue a decision on behalf of the United States. While he may perform some typically executive functions, such as conducting investigations, he has no power to enforce his own subpoenas or to overcome other agencies’ objections to his requests for records. If an inquiry reveals wrongdoing, he cannot bring a complaint or call for corrective action himself; he must petition a multi-headed quasi-judicial agency, or the appropriate administrative agency under Presidential control itself, to do so. They are free to turn him down….

This is not significant executive authority. It is hardly executive authority at all.

Dellinger wasn’t offended by Judge Jackson’s description of the limited nature of his role. Instead, he said in a statement, “I’m grateful to see the court confirm the importance and legality of the job protections Congress afforded my position. My efforts to protect federal employees generally, and whistleblowers in particular, from unlawful treatment will continue.”

And there’s actually an interesting relationship between cases like AFGE v. OPM and Dellinger v. Bessent. As noted by The Times, Dellinger announced last week that the OSC was investigating the Trump administration’s attempts to fire probationary employees, en masse, “without individualized cause”—the efforts at issue in AFGE.

What happens next? The parties disagree. Acting Solicitor General Sarah Harris would like the justices to step in—and give the green light to Dellinger’s termination. Dellinger’s lead lawyer, Joshua Matz of Hecker Fink, would like the case to go first to the D.C. Circuit, like a typical appeal from a D.D.C. ruling. But either way, the success of Donald Trump’s effort to remove Hampton Dellinger will turn on federal judges—assuming Trump follows the applicable court orders, of course.

In other news about judges and the judiciary:

• On Saturday, the number of active legal challenges to actions of the Trump administration reached 100, according to Mattathias Schwartz and Zach Montague—who provide a helpful overview of the current state of play in The New York Times (gift link).

• Following up on last week’s discussion of Judge Paul Engelmayer (S.D.N.Y.), the subject of (in my view meritless) impeachment articles, Republican senators have divergent views on trying to impeach judges who block Trump administration initiatives. Senators John Cornyn (Tex.) and Lindsey Graham (S.C.) expressed skepticism, while Senator Mike Lee (Utah) implied that jurists who rule against Trump might be “corrupt” (but cited no evidence of actual corruption).

• Judicial independence, a subject that’s in the news a great deal these days, requires an environment in which judges can discharge their duties free of fear. Judge Michael Ponsor (D. Mass.) wrote an eloquent essay for The Times, offering a personal perspective on what it’s like when you and your family must contend with such fears.

• I don’t believe judicial independence is threatened by prohibiting judges from mistreating clerks and other staff—which continues to be a serious problem, according to a nearly year-long investigation by Carrie Johnson of NPR. Aliza Shatzman of The Legal Accountability Project suggested to Johnson that the federal judiciary could be “the most dangerous white-collar workplace in America”—in large part because federal judges are exempt from Title VII of the Civil Rights Act, which prohibits almost all other employers from engaging in discrimination, harassment, retaliation, and similar practices.

• The Article III Project filed a misconduct complaint against Judge M. Casey Rodgers (N.D. Fla.), citing her February 23 order declaring that “females should be adequately represented” among the ranks of lead counsel for the multidistrict litigation over the contraceptive Depo-Provera. According to the complaint, her order reflects “improper judicial favoritism and violates the principle of impartiality.” (Judge Rodgers is a George W. Bush appointee.)

In memoriam: Judge Bruce Selya (1st Cir.), known for his stylish writing and capacious vocabulary, passed away at 90. Howard Bashman, who conducted a delightful interview of Judge Selya in March 2004, collected coverage about his passing at How Appealing. Judge Selya, requiescat in pace.

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Ruling of the Week: Lackey v. Stinnie.

The U.S. Supreme Court issued four opinions last week. Two were unanimous and uncontroversial: Waetzig v. Halliburton Energy Services, Inc. (civil procedure) and Dewberry Group, Inc. v. Dewberry Engineers Inc. (trademark infringement).

In Glossip v. Oklahoma, the Court awarded a new trial to Oklahoma death-row inmate Richard Glossip. Justice Sonia Sotomayor’s majority opinion was joined by Chief Justice Roberts and Justices Kagan, Kavanaugh, and Jackson. Justice Clarence Thomas, joined by Justice Alito, dissented. Justice Amy Coney Barrett joined parts of both the majority and the dissent; she agreed that Glossip’s rights were violated, but would have left the issue of ordering a new trial to the lower courts on remand. And Justice Neil Gorsuch was recused (perhaps because, as a Tenth Circuit judge, he sat on an earlier appeal by Glossip). Like another recent case—Andrew v. White, which also involved an Oklahoma death-row inmate—Glossip reminds us that even the current, quite conservative Court will rule in favor of criminal defendants, as long as a majority of the justices conclude that it’s justified by the law and the facts.

I previously discussed Glossip at length in these pages, so today I’d like to bring a different case to your attention. Lackey v. Stinnie involved an issue that’s of keen interest to most lawyers: attorney’s fees. Here’s the opening paragraph of Chief Justice Roberts’s opinion, reflecting his characteristic clarity:

Respondents are Virginia drivers whose licenses were suspended due to their failure to pay court fines or costs. The drivers sued the Commissioner of the Virginia Department of Motor Vehicles under 42 U.S.C. § 1983, arguing that the Virginia statute requiring suspension of their licenses was unconstitutional. The District Court preliminarily enjoined the Commissioner from enforcing the statute. But before the case reached final judgment, the Virginia General Assembly repealed the challenged law, rendering the action moot. The question presented is whether the drivers are “prevailing part[ies]” who qualify for an award of attorney’s fees under § 1988(b).

Because Section 1988 allows for fee-shifting in certain civil-rights cases, the drivers received amicus support from a wide range of organizations that benefit financially from such fees, including the ACLU on the left and the Alliance Defending Freedom on the right. And eleven circuit courts had held that at least some preliminary injunctions could entitle a plaintiff to attorney’s fees under § 1988. But seven justices went the other way: “Because preliminary injunctions do not conclusively resolve the rights of parties on the merits, they do not confer prevailing party status. A plaintiff who secures a preliminary injunction has achieved only temporary success at an intermediary ‘stage[ ] of the suit.’”

Justice Ketanji Brown Jackson, joined by Justice Sotomayor, dissented. Justice Jackson argued that the majority’s interpretation “lacks any basis in the text of §1988(b) and is plainly inconsistent with that statutory provision’s clear objective, which is to encourage attorneys to file civil-rights actions on behalf of the most vulnerable people in our society.”

I believe Chief Justice Roberts and the majority have the better reading of the statutory text and precedents—and as someone with a weakness for clear, bright-line rules, I like the fact that the rule set down in Lackey is easy to administer. The dissent raises a valid policy concern—but as noted by the Chief, “If Congress determines that the rule we adopt today is unwise, it may amend the statutory language.”

Turning to the circuit courts, it appears that only the Ninth Circuit did anything interesting last week:

• Please allow me to quote John Ross of Short Circuit in discussing Mi Familia Vota v. Fontes: “Look, your summarist is just gonna put his cards on the table and say he’s bumping up against a deadline and doesn’t have time to decipher this 156-page opinion of the Ninth Circuit [by Judge Ronald Gould] holding (over a dissent) that various provisions of Arizona voter registration law are legally… not good… in some fashion.” My only addendum is to give props to Judge Patrick Bumatay for these lines from his dissent: “Our robes are not blue or red but black. Sweeping rulings setting aside a State’s [voting] laws don’t help.”

• Yo Holmes: you’re staying in prison. In an opinion by Judge Jacqueline Nguyen, a unanimous panel of the Ninth Circuit rejected all of Theranos founder Elizabeth Holmes’s challenges to her convictions and sentence. And her co-defendant and former paramour, former Theranos president Sunny Balwani, fared no better.

Litigation of the Week: Ames v. Ohio Department of Youth Services.

If you’ll allow me to say something that’s perhaps politically incorrect, “The gay mafia is real” (to borrow the title of a Will & Grace episode featuring Elton John). I’ve seen situations where I suspect being gay was a “plus factor” for someone’s hiring—just as being gay was a negative in terms of your career (and life) for, oh, centuries.

It might not even have been conscious; research shows that we tend to be drawn to people who are similar to us, and there’s even a term for it: “affinity bias.” So just as you might bond with someone who went to your law school or shares your interest in scuba diving, I might bond with someone who’s gay. (For example, some of my best sources as a journalist are fellow gays, and I sometimes adopt a flirtatious tone on our calls; as I like to say, “I give good phone.”)