US Treasury lawyers have been more than busy of late, working on deals stemming from the Government's Troubled Assets Relief Program. Marisa McQuilken reports

There is at least one law office that still has more transactional work than it can handle.

Since October, lawyers at the Treasury Department's Office of General Counsel have completed $306bn (£214bn) worth of deal work stemming from the Troubled Assets Relief Program (TARP). In a few short months, they have closed 418 separate transactions with financial institutions receiving funding under TARP's capital purchase programme.

The work marks an unprecedented transformation for the office, which traditionally focuses on supplying policy advice and interpreting law for Treasury's other divisions. Now, its lawyers say their responsibilities more closely resemble those of a corporate transactional law shop.

"We work 12-hour days and pretty much every weekend," says Laurie Schaffer, the department's assistant general counsel (GC) for banking and finance.

Robert Hoyt, who stepped down as Treasury's GC last month, says his former office is "cranking out a higher deal volume than, I would guess, any institution in the entire world." (Bernard Knight is now acting GC.)

In order to manage the deal flow, Treasury has been looking to recruit lawyers with transactional expertise. Duane Morse, a retired Wilmer Cutler Pickering Hale and Dorr bankruptcy and corporate finance partner, filled the new position of interim chief counsel of the TARP in November. Treasury has also contracted with a number of private law firms to assist with the work, but the deal flow is being tightly managed from within the GC's office.

Now that the remaining $350bn (£245bn) in TARP funds have been released, and President Obama's administration has said it plans to infuse even more cash into banking and lending institutions, the lawyers are bracing for another wave of work. "The whole building is moving at all times," says Treasury's counselor to the GC, Stephen Albrecht. "Everyone realises this is a very important time."

Treasury's in-house legal division employs 2,000 lawyers, but the bulk of the work has been funnelled to the eight-lawyer banking and finance section. Schaffer, who heads the section, joined Treasury last April from her post as GC of Charles Schwab Bank, but most of the lawyers who report to her have spent years at the department.

Senior counsel Brad Lerner has worked in the banking and finance group for the past 11 years. He now serves as central command overseeing the 30 to 50 weekly deal closings under the capital purchase programme. Outside counsel from Hughes Hubbard & Reed and Squire Sanders & Dempsey, both of which have $5.5m (£3.8m) contracts with Treasury through April, are at the closing table with banks from across the country each week. Treasury simply does not have the manpower or the nationwide presence to do that part on its own.

Race to finish line

But those lawyers answer to Lerner. Leading up to closing day – which happens every Friday – he fields the questions and complications that inevitably come up as the financial institutions review and finalise the closing documents. "As the week progresses, Brad is in constant contact with the law firms, resolving issues, figuring out if there's any last-minute glitches, figuring out who can close and who can't," says banking and finance head Schaffer.

Now repeat that task at least 30 times. Then factor in that once the applications for TARP funding make it through the bank regulators into the hands of Treasury's lawyers, the deals are typically completed in fewer than five business days. For Lerner, that means each week is a race to the finish line. So far, the programme has completed $196bn (£136bn) in deal work.

In order to sustain the massive volume and speed of the transactions under TARP's capital purchase programme, Treasury has designed them to be nearly identical. Still, the banking and finance lawyers say complications arise each week. Litigation against the banks or compliance matters with their regulators that were not previously disclosed can surface during the days leading up to closing, Lerner says. Schaffer said the financial institutions sometimes change the amount of funding they want, or fail to secure the necessary shareholder votes.

More work coming

Even with hundreds of applications for TARP money still pending from public and private banks, Treasury is embarking on additional programmes to inject cash into financial institutions.

Then there is the capital assistance programme introduced by new Treasury Secretary Timothy Geithner last month. The programme will require banks to undergo 'stress tests' to determine whether they need financing from the TARP.

"Secretary Geithner rolled out the plans, but there is a lot of work that goes into turning those plans into actual operating programmes," says Albrecht, Treasury's counselor to the GC. "Once those institutions are identified, there will be another round of investment… That will be a new phase of deals with closings."

Morse, TARP's interim chief counsel, is busy working on another initiative introduced by Geithner to expand a programme to revive the secondary lending markets. The initiative is an extension of the Federal Reserve's Term Asset Backed Securities Loan Facility, but will rely on credit protection from the TARP money overseen by Treasury. Morse is focused on drafting the agreement between Treasury and the Fed. "Our role is to make sure that there are appropriate protections for the TARP money that are built into the loan agreements," he says.

Morse started at Treasury last autumn, after reaching out to then-GC Hoyt, who, like Morse, is also a former Wilmer partner. Morse retired from Wilmer's office in 2006, but he says the possibility of doing work related to the TARP piqued his interest. "My background is in bankruptcy and corporate transactions, among other things, so I was looking around for something interesting to do," he says.

Hoyt helped create Morse's position within Treasury's Office of Financial Stability, which was set up by the TARP legislation. Morse also reports to the banking and finance legal section. Since joining Treasury, he has brought on four other lawyers to assist him, all from transactional practices at private law firms.

And just as Treasury's legal shop is one of the few still overflowing with transactional work in this economy, it is also one of the few that is still hiring. Morse said he is in the process of hiring another lawyer, and hopes to find more after that. Banking and finance head Schaffer said she would like to bring on as many as five new lawyers with banking and transactional experience, since the GC's office is clearly still growing into its new role. Says Schaffer, "none of this existed four months ago".

A version of this article first appeared in Legal Times, Legal Week's US sister title.