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Big Law Builds Up State AG Expertise Amid Enforcement Boost

May 12, 2021, 8:45 AM

Top law firms are building out practice groups focused on state attorneys general, whose aggressive moves on everything from workers’ rights to Big Tech have clients looking for lawyers with a deep understanding of the process.

The latest entrant is DLA Piper, which unveiled its new practice Tuesday, led by veterans of the New York and California state attorneys general offices. Other big firms with similar practices include Jones Day, O’Melveny & Myers LLP, and Crowell & Moring LLP.

Companies face scrutiny from state attorneys general on all sides. Democratic-led offices are set to team up with the Biden administration on complex investigations and, in some cases, have been granted broader jurisdiction. Republican-led offices are taking aim at Big Tech.

“Advertising a practice that says, ‘Look, we understand the dynamics here, both the legal aspects and the political aspects,’ is a potential sell to clients,” said Marquette University professor Paul Nolette, who studies state attorneys general.

‘Increased Influence’

Most of the growth in law firm practices has played out over the past five to 10 years in response to state AGs’ ramped up enforcement work in antitrust, health care, worker rights, and other areas, lawyers said.

State officials have increased their clout through recent solo actions like Massachusetts Attorney General Maura Healey’s consumer protection lawsuit against Exxon Mobil Corp. over climate change. Multistate investigations, including a recent Texas-led antitrust case against Google, give state AGs a national stage and put other companies on notice.

State and federal lawmakers have also steadily broadened the jurisdiction of state attorneys general, granting them authority to police different areas of law. Since 2017, for example, lawmakers in Minnesota, Illinois, and the District of Columbia have given state attorneys general explicit authority to enforce labor laws.

“I don’t think it’s any secret that AGs have become much more well known and respected as a force to be reckoned with,” said Lori Kalani, co-chair of the state attorneys general practice at Cozen O’Connor.

Defendants, in turn, increasingly seek out lawyers who understand the unique features of state AG investigations: broad subpoena powers, public attention, politics, and related layers of federal action and private litigation.

“What clients really want is a go-to firm that can handle all of those things that are highly skilled and experienced in managing all those areas,” said Courtney Lyons Snyder, administrative partner for the AG practice Jones Day launched in March. The ability to navigate layers of enforcement action is especially important now, she said, as Democratic attorneys general are set to boost collaboration with federal officials during the Biden administration.

Scott R. Wilson, who is co-leading the new DLA Piper practice, said “it can be dangerous to take a kind of standard investigation or government regulatory playbook and deploy it to a state AG matter.”

“There’s no cookie cutter approach to defending state AG investigations,” said Wilson, a senior adviser and special counsel in the New York attorney general’s office from 2011 to 2013. He is leading the new practice alongside Jeff Tsai, an alum of the Justice Department and the California attorney general’s office.

Relationships

Most Big Law state AG practices are anchored by lawyers who worked in AG offices or held elected office themselves. Former Delaware Attorney General Matthew Denn (D) is part of DLA Piper’s new practice. Former Colorado Attorney General Ken Salazar (D), later a senator and Interior secretary, helps lead the team at WilmerHale. Crowell & Moring’s practice is stocked with former senior officials from state offices.

Harvard Law School’s State and Local Enforcement Project director Terri Gerstein, former head of the Labor Bureau in the New York attorney general’s office, cautioned private practice lawyers against relying too heavily on relationships formed during their past work in state offices.

“As with any kind of a government advocacy work, it’s always helpful to have someone who understands how that office works, who has relationships,” she said. “That doesn’t substitute for substantive knowledge of that area of law or just being a courteous adversary who takes the investigation extremely seriously.”

Jones Day’s practice is sensitive to that dynamic, practice leader Antonio F. Dias said.

“This is not about lobbying,” Dias said. “This is about getting the respect of AG offices that we can provide vigorous defense to companies that we think are wrongfully targeted, and at the same time, provide a really organized, legitimate way of defending companies or providing AGs with what they need.”

‘Wannabes’ or Specialists?

State AG practices can be a lucrative specialty, with big-money clients and intensive state investigations that often involve a long series of subpoenas and other information requests—and generate a lot of billable hours.

“The competition is fierce in a law practice like ours, but that’s because the market’s booming, and the market’s booming because state AGs and a lot of federal regulators are the ones who drive the work,” said Tsai of DLA Piper, who added that he expects to see a “separation” over time of law firms with shallow state AG practices and those with more substantive teams.

Some practice groups have lawyers dedicated to state AG issues, while others simply coordinate attorneys from subject-matter practice groups across their firms. Cozen O’Connor practice co-chair Bernard Nash, whose group has 19 lawyers working exclusively on state AG issues, said the dedicated team is essential to building up expertise.

“We can handle the multistates because we know all of the AGs, their quirks, their idiosyncrasies, what their priorities are, and the direction they’d like to take a case in, as well as the working staff,” he said. “There are a lot of wannabes and very few specialists.”

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editor responsible for this story: Seth Stern at sstern@bloomberglaw.com

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