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Law360 Highlights Kirkland’s Congressional Investigations Practice

Partner Reg Brown is quoted in this Law360 Pulse article discussing the growth of congressional investigations practices as the pace of congressional oversight has exploded in recent years.

For the small group of attorneys who specialize in representing clients hauled before Congress, last December's hearing on antisemitism in higher education was a brutal case study in why they're suddenly so in-demand — and how quickly fortunes can rise or fall in their niche line of work.

During the five-hour Dec. 5 hearing before the House Committee on Education and the Workforce, lawmakers grilled the presidents of the Massachusetts Institute of Technology, Harvard University and the University of Pennsylvania, accusing them of failing to curb campus antisemitism in the wake of the Oct. 7 attack on Israel and the subsequent Israel-Hamas War.

The university presidents seemed ill-prepared and gave dithering "it depends" answers to charged questions like, "Does calling for the genocide of Jews violate MIT's code of conduct or rules regarding bullying and harassment? Yes or no?"

Clips of the exchange quickly went viral, and intensely negative press coverage soon followed. Liz Magill of the University of Pennsylvania resigned just three days after the hearing, and Harvard's Claudine Gay followed suit a few weeks later.

The hearing was also a black eye for the law firm that helped prepare Gay and Magill: WilmerHale, one of the most prestigious and well-connected firms in Washington, D.C., which prides itself on handling exactly the sort of crisis ignited by the hearing. In a statement, WilmerHale managing partner said the firm stands by its work, "as do these universities who continue to call us in their most significant matters."

The episode shows how much is at stake for companies and top executives caught in a congressional investigation — a nail-biting process that blends litigation with politics and public relations — as well as the lawyers that represent them.

Those highly specialized attorneys are now a hot commodity as the pace of congressional oversight has exploded in recent years, according to several dozen attorneys, industry analysts and recruiters who spoke with Law360 Pulse.

"When I was on the Hill, only a few firms were doing this," said Ronak Desai, who recently made partner at Paul Hastings LLP as head of the firm's nascent congressional investigations practice. "Now most firms recognize that if you have a major D.C. presence, you have to be doing this."

An informal survey of the legal industry appears to bear that out. Just in the past few years, at least 25 BigLaw firms have established congressional investigations practice groups, a few with splashy, big-name hires.

But those new entrants may have a tough time establishing themselves.

There are just a handful of firms with a reputation as top-tier, battle-tested experts at congressional investigations, according to interviews with a wide range of industry sources. Those are Covington & Burling LLP, Kirkland & Ellis LLP, Akin Gump Strauss Hauer & Feld LLP, King & Spalding LLP, Gibson Dunn & Crutcher LLP and WilmerHale.

And they aim to keep it that way.

"There are a lot of firms entering this space, but if you're a client and you need an important matter handled, do you really want to bet on the rookie?" said one longtime congressional investigation attorney who requested anonymity to speak candidly. "Or do you want to stick with the veterans?"

An Easy Place to Develop an Ulcer

The scope of what Congress can investigate is nearly limitless. Over the years, lawmakers have probed everything from the Wall Street crash of 1929, to the Iran-Contra affair, to how consolidation in the ticketing industry led to long waits, astronomical prices and millions of furious fans ahead of Taylor Swift's recent Eras Tour.

Once lawmakers have acquired a target, they can bring to bear powers that would make most prosecutors blush.

Unlike civil or criminal litigation, lawmakers are not bound by any rules of discovery and do not even formally recognize attorney-client privilege, meaning they can demand to see sensitive information that might otherwise be easily shielded. Congress can also force witnesses to testify under oath at hearings thronged with reporters and broadcast live on C-SPAN.

Because such probes are often intertwined with bet-the-company litigation in other forums, one misstep can alter the course of a civil case, spark damaging headlines, send stock prices tumbling or even lead to criminal liability.

A January 2023 Senate hearing on Ticketmaster's business model and the Taylor Swift debacle, for instance, led lawmakers to publicly call for the U.S. Department of Justice to consider breaking up the company. Last month, the DOJ unveiled a historic antitrust suit which seeks to do just that.

At a March 2023 hearing, meanwhile, lawmakers grilled TikTok CEO Shou Zi Chew on the popular social media app's ties to China and its negative effects on American children. His performance was so disastrous it's now widely considered the first domino to fall in a series of events culminating in a recent law that forces TikTok's parent company to sell off the app or see it banned in the U.S.

"The risk of these matters is extraordinary," said Reginald "Reg" Brown, a partner at Kirkland who leads the firm's congressional investigation practice. "It's an easy place to develop an ulcer."

For law firms, this means two things. First, representing corporate clients ensnared in a major congressional investigation can be lucrative.

In a recent fee dispute, for example, it was revealed that Sidley Austin LLP attorneys billed $1.15 million to prepare Twitter's former legal chief for a single congressional hearing. Sidley attorneys have said extenuating circumstances were at play, but other congressional investigations attorneys said that figure isn't too far off from the going rate. And things can quickly become much more expensive if large-scale document production is required.

"This is not an area where companies are looking to pinch pennies," said Brian D. Smith, a partner at Covington who co-chairs the firm's congressional investigations practice.

Second, and perhaps even more importantly, handling congressional investigations is a great way to cement relationships with existing clients and attract new ones.

"The work is profitable, but it's also C-suite visibility," said Brown. "Every law firm wants to be there for their clients when they have their toughest challenges, and these tend to be their toughest challenges."

Aaron Cutler, leader of the government relations and public affairs practice at Hogan Lovells, echoed that point.

"This is trusted-adviser-status, bet-the-company type stuff," Cutler said.

Despite all that, until 10 or 15 years ago, handling congressional investigations wasn't really considered a full-on practice area by most attorneys. Expertise in this area was often treated as simply a specialized side hustle for D.C. litigators and lobbyists.

That's no longer the case, as several factors have produced an explosion of congressional oversight in the past few years.

One is partisan gridlock. As it's become harder to pass bills, lawmakers have increasingly turned to oversight to solve problems and score political points. As the saying goes, "If you can't legislate, investigate."

There's also the rise of the 24-hour news cycle and social media, which have drastically increased the reach of information and dramatic moments generated by congressional investigations.

At the same time, increasingly partisan state attorneys general mean congressional oversight is more likely than ever to go hand-in-hand with civil and criminal lawsuits, as lawmakers piggyback on law enforcement probes and state attorneys general piggyback on congressional inquiries.

"Over the past five years, it's become a feedback loop," said Robert Kelner, who co-chair's Covington's congressional investigations practice alongside Smith. "It escalates the risks of both."

But perhaps the single-biggest factor is the rise of populism within the Republican Party since the election of Donald Trump in 2016.

Until then, Republican lawmakers could usually be counted on to oppose investigations into corporate America simply on principle. Now, as right-wing lawmakers set their sights on everything from Big Tech to businesses' China ties to corporate diversity initiatives, Republicans are every bit as feared in Fortune 500 boardrooms as Democrats.

Alyssa DaCunha, a partner at WilmerHale who co-chairs the firm's congressional investigations practice, said all of those factors have combined to make congressional oversight an everyday concern for clients.

"What shifted is the work stopped being cyclical," she said.

A Bifurcated Bar

All that new work has been a windfall for the handful of firms with well-established congressional investigations practices, the top tier of which is widely viewed as Covington, Kirkland, Akin, King & Spalding, Gibson Dunn and WilmerHale, according to interviews with a wide range of industry sources.

Hogan Lovells, which formalized its congressional investigations team in 2019, is also a top-ranked firm in the popular Chambers USA Legal Guide and is viewed as nipping at the heels of its more well-established competitors.

There are several other firms with highly regarded congressional investigations practices as well. But attorneys at those top six firms claim — and attorneys at many other firms begrudgingly admit — they exist in a league of their own.

"It's a bifurcated bar," said one longtime congressional investigations attorney who requested anonymity to speak candidly. "The matters involving big corporations with the resources to defend themselves vigorously, those tend to be handled by a handful of firms."

Another veteran attorney put it similarly.

"To be blunt, there's a very big drop off between the firms with major practices and everyone else," they said.

Those top firms stand out mainly because they have a proven track record of repeatedly handling high-stakes congressional probes and coming out the other end with their clients mostly unscathed. This leads to a self-reinforcing feedback loop that makes those firms the first choice for future congressional investigations.

"The top firms provide a level of insurance for board members [of large corporations] — if things go south, at least they can say they went with the best," said Dan Binstock, who heads the partner practice at legal recruiting firm Garrison.

Success in congressional investigations hinges on several factors, including synergy between the subject-matter expertise and client base of a given firm's other practices, institutional knowledge, and a deep bench of experienced partners and associates.

But mostly, success depends on two or three veteran partners at each firm who have mastered the art of congressional oversight. Because the area was so niche for so long, the list of true experts probably only includes one dozen or two dozen names in total, according to in-the-know attorneys and analysts.

"There's a very limited group of individuals that have the credibility and the track record to enjoy 'safe choice' status," said Kent Zimmerman, a consultant at legal industry advisory firm Zeughauser Group.

That's both a blessing and a curse for the firms that currently have market-leading congressional investigations practices.

"The risk is having a single point of failure to maintain their market position," Zimmerman said. "Competition for talent in less rate-constrained practices is a thing that keeps law firm chairs up at night more than anything else."

Anecdotally, it seems those fears may be justified. There have only been a few big lateral hires of congressional investigations attorneys lately, but several top-tier partners said recruiters are calling incessantly. Binstock said that squares with what he's hearing as well.

"A number of firms are aggressively looking to poach top congressional investigations partners, because they're swimming in work," Binstock said.

A Tremendous Area of Growth

Besides the sheer amount of work and the lucrative nature of it, there are a few other factors that have led firms to invest in congressional investigations practices in recent years.

One is a broad focus on diversifying revenue streams at BigLaw firms, after mergers and acquisitions activity hit a 10-year low in 2023 due to rising interest rates and other headwinds.

Most BigLaw firms try to strike a balance between practices like M&A and private equity that thrive in bull markets, countercyclical practices like bankruptcy that flourish when the economy isn't doing well, and so-called evergreen practices where demand isn't tied to economic factors at all, according to Zimmerman.

"Washington-facing practices" like antitrust, regulatory and congressional investigations are a key part of that evergreen revenue stream, he said.

Another factor is the general desire among BigLaw firms to wring as many billable hours out of big clients as possible.

"There's a limited list of board-level matters that command a highly profitable firm's full rates," Zimmerman said. "The largest, most profitable firms want to cover as many of those as possible."

By the same token, firms without congressional investigations practices have grown uneasy at the prospect of letting rivals handle such high-profile matters for their clients.

"No law firm is ever going to want another law firm to come into their valuable client relationship and spend 27 hours a day with the CEO and the board, helping to plot strategy around a critical moment," said Mike McNamara, the former CEO of Dentons and current CEO of legal PR and advisory firm Baretz + Brunelle.

All of that has led roughly two dozen BigLaw firms to formally establish congressional investigations practices since 2019.

The most notable move came from Kirkland in the fall of 2020, when it hired Brown away from WilmerHale. Brown helped build WilmerHale's congressional investigations practice into a powerhouse and is widely viewed as one of the field's top practitioners.

He also has a thriving financial markets practice and deep ties to the industry; just a month before he jumped to Kirkland, Brown joined the board of Blackstone, the world's largest private equity firm.

Several experienced attorneys moved from WilmerHale to Kirkland alongside Brown. In 2021, Kirkland bolstered the team further by hiring Allison Murphy, a former Brown protégé with nearly a decade of experience on the Hill.

Hiring someone like Brown is the simplest route available to any BigLaw firm looking to instantly establish a top-ranked congressional investigations practice, according to industry sources, but it's also one that's only available to ultra-profitable firms like Kirkland that can afford to pay ultra-competitive salaries to key partners. Kirkland declined to comment.

Brown's departure was a blow to WilmerHale's congressional investigations practice, though by no means a fatal one, according to in-the-know attorneys and analysts. WilmerHale denies that, however. In a statement, Jamie Gorelick, chair of the firm's regulatory and government affairs department, said the firm's congressional investigations practice "has flourished in the ensuing years."

The situation at WilmerHale calls to mind the departures of Kathryn Ruemmler from Latham & Watkins LLP and Stephen M. Ryan from McDermott Will & Emery LLP in 2020, the former to become Goldman Sachs' chief legal officer, and the latter to retire.

Both had been superstar congressional investigations attorneys, and their departures left a void, although Latham's 2022 rehiring of former White House deputy counsel Jonathan Su and Nicholas McQuiad, an ex-DOJ official, has gone a long way toward rebuilding its formerly elite practice, according to industry sources.

In a statement, a Latham spokesperson said the firm's congressional investigations group "is a destination practice" for big companies and their executives. McDermott declined to comment.

The departures of Ruemmler, Ryan and Brown underscore just how important even a single veteran attorney can be to a firm's congressional investigations practice.

"It's an area that requires very specific expertise, and not everybody has that," said Louis Ramos, a managing director at legal recruiting firm Major Lindsey & Africa.

Cooley LLP, meanwhile, took a page out of Kirkland's book by hiring rising star Susanne Sachsman Grooms in February from litigation boutique Kaplan Hecker & Fink LLP to launch its congressional investigations practice.

Prior to Grooms' three years at Kaplan Hecker, she spent a decade in leadership roles at the feared House Committee on Oversight and Reform. She quickly began making a name for herself in private practice after joining Kaplan Hecker in 2021.

Silicon Valley-headquartered Cooley has long been known as one of the nation's premier life science and technology firms, both sectors that have attracted heavy scrutiny from lawmakers and regulatory agencies in recent years. In response, Cooley has been beefing up its white-collar investigations and regulatory teams. Cooley litigation department chair Michael Attanasio said further investing in a congressional investigations practice made perfect sense.

"Susanne was the missing piece," Attanasio said.

Attanasio and Grooms both acknowledge that taking on the established top-tier firms will be difficult, but Attanasio said he relishes the role of being the "new kid in town."

"I won't argue that it's easy for anyone to do," Grooms said. "But I would argue we're as well positioned as anyone for success going forward."

Several other firms have also made big moves in recent years.

Jenner & Block LLP rehired partner Emily Loeb in 2022 after a two-year stint as an associate deputy attorney general in the DOJ to launch the firm's congressional investigations practice. The firm then added a handful of other prominent lateral hires to the practice in 2023.

Loeb is quick to point out that Jenner & Block has a long history of handling high-stakes congressional investigations through its government controversies and public policy litigation team, which handles oversight, state attorneys general matters and crisis management, among other things. The decision to make congressional investigations its own practice group, which sits within government controversies, simply represents the firm further investing in those capabilities, Loeb said.

"We've been doing this a long time," Loeb said. "We decided to break it out specifically because of the growth of that part of our practice."

Hogan Lovells, Holland & Knight LLP and Paul Hastings all formalized congressional investigations practices in 2019. The latter two moves both coincided with the hiring of experienced oversight attorneys.

Christopher Armstrong, co-lead of the congressional investigations practice at Holland & Knight, is an oversight veteran who spent more than a decade on the Hill before joining the firm in 2019.

"If a congressional inquiry is handled the wrong way, it can hurt all of your client's other interests," Armstrong said. "That's why we're here."

Paul Hastings' Desai, meanwhile, spent several years working under Grooms on the Hill, helping Democrats push back against the House Select Committee on Benghazi. He now leads Paul Hastings' congressional investigations practice after joining the firm in 2019. Last year, he was honored as a rising star by Law360.

"It's a tremendous area of growth," Desai said. "It just made sense to bolster our existing capabilities."

Mayer Brown LLP, Kramer Levin Naftalis & Frankel LLP, Freshfields Bruckhaus Deringer LLP and Venable LLP, among others, have also made hires in recent years to bolster or launch congressional investigations practices.

Zimmerman and other market watchers said that while it will be difficult for newcomers to break into the top ranks of the highly concentrated congressional investigations bar, it's not impossible — especially if any of the new entrants develop a strong track record in the next few years, and if any of the current leaders begin to slip.

"It's hard to build any practice brick-by-brick, no matter how good the bricks are," Zimmerman said. But at the same time, "the market's perspective of a law firm's strengths often lags reality by eight to 10 years."

Part 2 available to subscribers 

Part 3 available to subscribers