In some circles, today (4/20) is known as Weed Day. But we at Lit Daily prefer to celebrate Litigator of the Week.

Our runners-up include Orrick, Herrington & Sutcliffe appellate star Josh Rosenkranz, who convinced Justice Neil Gorsuch to side with his client James Garcia Dimaya, a convicted California burglar facing deportation. The resulting majority opinion struck down one of the government's favored provisions for deporting immigrants with a criminal conviction.

There was also Paul Hastings' Preston Ratliff, who successfully represented Sumitomo Dainippon Pharma and its U.S. subsidiary Sunovion Pharmaceuticals in a patent infringement case. He beat a back a challenge by generic drug makers to his clients' blockbuster bipolar drug, Latuda, which has annual sales of $1.25 billion. 

Likewise, Paul, Weiss, Rifkind, Wharton & Garrison litigation partners Nick Groombridge and Eric Stone successfully represented Vanda Pharmaceuticals Inc. in an action against Roxane Laboratories, which had sought to invalidate a Vanda patent on its schizophrenia drug Fanapt.

Another nomination came from Hunton Andrews Kurth, where Michele Beilke and Julia Trankeim defeated a Private Attorneys General Act claim in California on behalf of Dunn-Edwards Paints.

These are all very fine wins. But here's the thing: Not every Litigator of the Week need be the victor of a long, scorched-earth battle in court.

Sometimes, all it takes to change a case, even to change history, is the perfect interjection—the right objection at the right time. And for that, we recognize this week's winner: Davis Wright Tremaine partner Robert Balin, who convinced Judge Kimba Wood to require Michael Cohen to reveal the name of his third client.

ALM's Colby Hamilton has the story.

Litigator of the Week: And Client Number Three Is…

By Colby Hamilton

It was the denouement in the riveting drama that played out over two days before U.S. District Judge Kimba Wood in Manhattan federal court. Attorneys for Michael Cohen, President Donald Trump's personal attorney, were desperately trying to keep Judge Wood from forcing them to reveal the third mystery client they said may have privileged communications among the materials seized from Cohen by the government.

The assembled press corps was there hoping for the reveal, as was Stephanie Clifford, the adult film actress who goes by Stormy Daniels. Cohen paid her $130,000 as part of a hush deal just before the 2016 election that made his client president. She is currently suing the president to nullify the deal.

Cohen's other clients were already made public in a filing earlier in the day. One was, obviously, Trump. The other was a former Republican National Committee official. Cohen helped negotiate a $1.6 million payment to a former Playboy model with whom the official had had an affair.

The third, McDermott Will & Emery partner Stephen Ryan told the court, was a prominent public figure who did not want to be exposed, considering the sticky situation Cohen had found himself in.

In the midst of Ryan's attempts to persuade a skeptical Judge Wood to keep the name from becoming public, Davis Wright Tremaine partner Rob Balin rose to address the court.

“I must tell you: I've been practicing at the media law bar for 30 years, and this may be the first time I've been in court with a porn star and the president's lawyer,” Balin said in a subsequent interview.

Technically, Balin, a three-decade media law veteran, was there representing five media organizations, including The New York Times, the Associated Press, and CNN. But, as he made clear to the reporters there from every conceivable outlet, he was the lawyer for all of the press.

Balin noted to Judge Wood that the case law Ryan referred to in defense of keeping the name sealed, the U.S. Court of Appeals for the Second Circuit's 1993 decision in Vingelli v. U.S., actually undercut Cohen's privilege claim.

“It states the well-settled proposition in the Second Circuit—and, frankly, everywhere across the country—that, absent some exceptional circumstances, the name of an attorney's client is not covered by the attorney-client privilege,” Balin said.

As he was about to recite a critical part of the decision, Judge Wood interrupted to ask him to just tell her which paragraph.

“I was very pleased that the judge had the case sitting there with her on the bench,” Balin recalled.

At that moment it was clear Judge Wood's mind was made up in the matter—she and Balin were literally on the same page. Moments later, Ryan was forced to reveal that Fox News host Sean Hannity was Client #3.

“We had a terrific judge, with unimpeachable integrity, who listened,” Balin said.

The reveal sent a shockwave of surprise and disbelief through the courtroom that soon spread, through the power of the media, into the daily conversations of millions of Americans. For Balin, that was the higher victory.

“To my mind, at least, while dramatic, for sure, and audible gasps, what the public got to see on Monday was our First Amendment access rights in operation,” he said.

Media law is clearly Balin's life-long passion. He says he stumbled into it after spending a few years practicing medical malpractice defense and copyright enforcement work.

“I was making the world safe for Gucci and Louis Vuitton,” he said.

In 1985, a friend who worked for Rolling Stone magazine told him about a “hip” firm that practiced media law. He started on January 1, 1986 with the predecessor to the New York office of Davis Wright Tremaine, after taking a 50 percent pay cut.

“I have never looked back,” Balin said.

Over the years he's represented small and large companies involved in small and large matters, while teaching the area at Columbia Law School. He says he appreciates moments like the hearings before Judge Wood because it's a “wonderful opportunity … to show the public what lawyers for the media do.”

“At least to my mind, what happened on Friday and Monday was very reassuring. What is envisioned by our First Amendment public access principles is what happened,” Balin said, noting that this was a team effort. His colleague at the firm, partner Rachel Strom, handled the Friday hearing, and they were both assisted by the hard work of associates Alison Schary and Adam Lazier, he said.

In an era of “fake news” accusations, Balin said media lawyers play a critical role in helping reporters tell their stories, which, in turn, helps them perform their critical role in informing the public.

“What the people need to see is what is in front of this judge—what is the evidence, what are the arguments—and that's where we media lawyers come in. To my mind, having full public access in court proceedings, especially one of such national significance as this one, is the antidote to fake news,” he said.

The results, so far, in the Cohen case left him feeling “warm and fuzzy” as a media attorney.

“Our experiment in self-government is to make as much information as possible available to the people and the electorate, so they can make their own decisions,” he said. “They'll eventually go to the polls in 2018 and 2020, and they should be able to see what happens in all their institutions, including their courts.”

 

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