Donald Verrilli Jr.

Former U.S. Solicitor General Donald Verrilli, one of the highest-ranking lawyers of the Obama administration, isn’t interested in one of Washington, D.C.’s oldest traditions: taking it easy after a stint in government. Instead, his choice—to found a D.C. office for Munger, Tolles & Olson—is an uncommon one. Verrilli, perhaps best known for defending President Barack Obama’s Affordable Care Act before the Supreme Court, must build not just a book of business, but a broader practice area and an entire office, from scratch.

“There was a real temptation, coming out of the SG position, to go someplace and rest on my laurels and just be a senior statesperson,” Verrilli acknowledges. “That’s not what spoke to me. This can be, if it succeeds, as I believe it will, an important part of my legacy as a lawyer.”

Washington is one of the most challenging cities for a firm to take root in. But for Los Angeles’ Munger Tolles, having Verrilli open an office there was an opportunity that the firm couldn’t pass up.

The firm began its conversation with Verrilli last June, around the time he left the Solicitor General’s Office. Name partner Ronald Olson and co-managing partner Brad Brian asked Verrilli to dinner at Fiola Mare in Georgetown. Over seafood and pasta, members of the firm teased out what Verrilli hoped to do in private practice.

 

“We talked about the values of the firm. We talked about what we want to do. We talked about why we thought this made sense to us. We talked about how, frankly, we had never been interested in opening a Washington, D.C., office,” Brian says. “You could sense almost immediately that there was this mutual respect and admiration and almost affection for the values that we hold.”

During the summer, Verrilli visited Munger Tolles on the West Coast, meeting almost half of the lawyers at the firm over two days of interviews. The firm then had a meeting that included all lawyers, even associates—testimony to Munger’s inclusive decision-making approach—to discuss whether adding Verrilli 2,300 miles away made sense.

Verrilli had widely been expected to return to Jenner & Block, where he had long practiced before moving to the government, and which by late 2016 would find itself without an appellate practice head. Paul Smith, Verrilli’s former practice co-head, left corporate defense work in January for a nonprofit voting rights group. “We were very sorry that [Don] didn’t come here, and we respect his decision,” says Samuel Feder, Jenner’s Washington, D.C., managing partner. “We were looking at Don not just as an appellate lawyer,” he added, describing how Verrilli could now excel at strategic advice and other complex litigation work.

Verrilli had worked for years alongside such Jenner partners as Tom Perrelli, who founded the firm’s government controversies and public policy litigation practice, and then worked with the same crowd during the Obama years at the Justice Department.

“We used to call them the ‘illi’ brothers, Verrilli and Perrelli,” says one of Verrilli’s professional acquaintances. Perrelli returned to Jenner in 2012 from the Department of Justice, where he was the third-highest-ranking lawyer, at a rank equivalent to the Solicitor General’s.

When Verrilli was exiting the government, Jenner made him an offer worth several million dollars. “Going back to Jenner was one option, and I considered that very, very seriously,” Verrilli says. “It’s a great place, so it was an incredibly difficult decision not to go back there.”

But in the end, the opportunity Munger presented stood out. “Each of us, after we’ve had an experience in government, [have] an opportunity to think about where will I thrive best. You’ve got to look at it fresh,” says David Ogden, the Obama administration’s first Deputy Attorney General, who was a Jenner partner earlier in his career and is now with Wilmer Cutler Pickering Hale and Dorr.

What He’ll Do

At least initially, the investment in Verrilli hasn’t shaken Munger’s balance sheet. “Our firm made a modest investment to open the Washington, D.C., office,” said Henry Weissmann, the firm’s finance committee chair, in a statement. “We did not incur debt to do so nor do we anticipate it having a significant impact on our year-end financial results.”

Generally, Verrilli alone could cost the firm $5 million or more a year. The pool of former solicitors general is so small and distinguished, that Paul Clement, a frequent opponent of Verrilli’s at the Supreme Court in the past eight years, reportedly commanded $5 million a year before leaving King & Spalding in 2011. (Munger partners earned $1.865 million on average in 2015, while Jenner partners, for comparison, made $1.72 million, according to our Am Law 200 survey.)

Verrilli won’t bring with him a book of business like Clement’s yet. Jenner & Block appears to have retained clients that Verrilli represented before his time in government, such as the performance rights organization SoundExchange.

Michael DeSanctis, a longtime Jenner partner who lateraled to Munger Tolles with Verrilli, says he’s continuing to work for that client and others in the entertainment industry, but on different matters than he handled at Jenner. And Verrilli may be able to help such longtime Munger Tolles clients as Berkshire Hathaway and Northrop Grumman Corp., which made an appearance at the welcome party Munger held for Verrilli and colleagues late last year in D.C.

Though he vacationed abroad and waited three months before he chose a firm, a federal cooling off period and ethics pledge in place at press time bar Verrilli from working on matters that involve federal litigation for another year and a half. “The recusal is massive, particularly for an appellate lawyer,” says Neal Katyal, the acting Solicitor General who preceded Verrilli. “You’re not just the Supreme Court lawyer, you’re overseeing appellate litigation in every [federal] Circuit Court.”

When Katyal joined Hogan Lovells in 2011, he built out work advising technology companies to work around the conflicts. Those companies, especially if they’re inventing technology like driverless cars and artificial intelligence, have questions about insurance and tort liability—the very types of legal issues that might arrive at an appellate court decades later.

Former government appellate lawyers can also sidestep the challenges of the cooling off period by working in earlier stages of litigation, like in federal district court. Katyal says his group not only writes motions in federal district court litigation, it also provides appellate counseling by observing trials. “If a case is important to a client, you don’t care if it’s in traffic court. You go. Don is one of the more humble people in our bar,” Katyal says.

Verrilli already seems to be at home in the same sort of work. Airbnb Inc., the online vacation rental company, is among one of Verrilli’s first clients. The privately held San Francisco-based company signed him onto the team of lawyers defending it in an ongoing case against the city of San Francisco in November. At press time, the parties are currently in settlement talks while the case is on hold before the U.S. District Court.

“One of the things I really love about [Munger Tolles] is it doesn’t think about the practice of law in what’s become the conventional way to think about it,” Verrilli says. “It doesn’t say, ‘Well, we need to have practice group X and practice group Y and practice group C, and they each have to have 15 lawyers in them.” Instead, the firm uses “teams of super excellent lawyers,” Verrilli says.

“At Munger Tolles, trial lawyers often do appellate work, and appellate lawyers often do trial work,” says former Munger Tolles partner Bart Williams, who moved to Proskauer Rose in April 2016. “I think the folks they’ve hired [in D.C.] fit in really, really well with both the culture and the people.”

Challenges Ahead

Still, Munger Tolles is entering a period of transition. Williams’ departure caused the litigation world to take notice long before Verrilli and DeSanctis joined in D.C. Another partner, former U.S. ambassador to Australia Jeffrey Bleich, moved to Dentons’ public policy and regulation group last March. A handful of other partners departed throughout 2016 for in-house positions or for other firms. Olson, for many years the highest-billing partner, is 75 years old and still practicing, though he may step down in the coming years.

From the firm’s perspective, strategic decisions, including the expansion into D.C., have been “about people,” Olson says. Although plenty of other Los Angeles-founded firms, such as Gibson, Dunn & Crutcher, Latham & Watkins and Quinn Emanuel Urquhart & Sullivan, have expanded into New York, Munger Tolles has never done so, even when it represented Salomon Brothers during its Treasury bond scandal in the 1990s.

“We’re not as sharply managed and sharply defined planners” as other firms may be, Olson says.

Georgraphic concentration has strengthened Munger Tolles’ culture over the years, as has been the case at other fortress-like firms like Williams & Connolly, the single-office Washington, D.C., litigation powerhouse, and Cravath, Swaine & Moore in New York.

But the current expansion into D.C. could change that. “It’s a big move cross-country, so it’s unusual,” says Peter Zeughauser, a California-based law firm consultant. “It’s always better to send some of your own partners to a new office, people who’ve been with the firm for some time.”

So far, the firm has counted on Verrilli and DeSanctis to spend time in California as well as build the Washington office, with the two partners, an of counsel who also joined from Jenner & Block, and two associates.

Munger Tolles hosted welcome soirees in San Francisco, Los Angeles and Washington, D.C., after the lawyers joined the firm. And Verrilli has kept up a grueling schedule of breakfasts, lunches, coffees and public appearances since he returned to private practice. He’s spoken on five panels since November and written op-eds in publications like Time and The National Law Journal.

“I’ll bet they’ll be successful, because why wouldn’t that formula work, if you can pull it off? I don’t think they sit around thinking about how much money they make. They think about how good a job they can do,” says Elliot Peters, a partner at Keker Van Nest & Peters, a competing California litigation firm.

Brian, Munger’s co-managing partner, says he expects the firm to find itself before the Supreme Court in due time. He also expects more lateral hires in Washington, from the government or elsewhere, during 2017.

Verrilli is ready, and until then he says he plans to emphasize pro bono work, including involvement in voting rights and immigration policy issues. The Trump administration does not daunt him.

“The replacement of Justice [Antonin] Scalia will result in a court very much like the one that I practiced in front of as SG for five years, so I’ve got a pretty good feel for that,” he says. A friend reports that when he saw Verrilli recently in D.C., the former solicitor general looked “tan, rested and ready.”

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