Harvard Law, Hale and Dorr, 2006 R2-20

In my final year at Harvard Law School, I applied to law firms in New York, Boston and Rochester, but was not smart enough to contact all of my friends from college and law school who were one or two years ahead of me to seek their advice and perhaps introductions to law firms in New York. I also had decided that I did not want to practice in a firm that was primarily Jewish, and at that time, 1964, most law firms in New York were assuredly either primarily Jewish or primarily Christian.

Among premier New York firms, only Paul Weiss Rifkind Wharton and Garrison was really religiously balanced. Not being on Law Review, I figured I would not have a good chance at a premier New York firm, but tried a few anyway.

As I had hoped to practice in New York, and that was not Honora’s first choice for where to live and raise a family, I applied to law firms that I thought reflected my interest in various aspects of the law, based on the imperfect information of the postings on the bulletin board at Harvard Law School, and the limited guidance from the guidance office. I applied to Paul Weiss, as well as to three or four others, including Donovan Leisure Newton & Irvine. I went to New York for interviews, and had one scheduled with a prominent partner at Donovan Leisure, and I had seen a photo of him. When I arrived at their office, I was told that he was out of town on business and I would see someone else, who was much junior to him, and I assumed I was getting the brush-off. However, just prior to going in to that person’s office, I recognized the partner with whom I had the original appointment walk by and someone addressed him by name. Unfortunately, I've never had the opportunity in legal practice to get even with that firm.

I did like Paul Weiss very much, and hoped to join it more than any other firm. However, I received a letter from a prominent partner William Lloyd Garrison, stating that they had no position for me then, but would keep my name in their file in case an opening arose. When I was elected a Senior Partner at Hale and Dorr, Daryl Bristow, a law school friend and partner at Baker Botts in Houston wrote and congratulated me, and asked if I should perhaps take my name off the wait list at Paul Weiss. When I discussed my impending transfer from senior partner to senior counsel at Wilmer Hale in 2003, Joe Steinfield observed that perhaps I could still get into Paul Weiss. I had no hard feelings about that firm, and I’ve sent business to Mark Alcott, a law school classmate, litigator, and at onetime president of the with New York State Bar Association.

I applied to several law firms in Boston and Rochester, and after New York, it was a very close call for Honora and me as to whether we wanted to settle in our hometown of Rochester or Boston. Rochester offered the advantages of many family connections, certain involvement in community and civic activities, and the expectation that I would get involved in politics. I had received an enthusiastic invitation to join Harris Beach Keating Wilcox, Dale and Linowitz, one of the two major firms in Rochester and certainly not primarily Jewish. My parents knew Linowitz, a major leader in the Rochester community, and the key legal and business advisor to a local company named Haloid, which soon became famous when it changed its name to Xerox.

I interviewed with Linowitz in Rochester, and received an offer from the hiring partner, Abe Harpending, a friend of my father's, and a major collector of 18th Century American furniture. Deed knew him through their shared interest in antique furniture and its renovation. I turned down the offer, in spite of their increasing it and Abe Harpending telling me on the phone "but no one in Rochester has ever been given an offer this high." I’ve sometimes wondered what our lives would have been like if Honora and I had gone to Rochester. I probably would have gone into politics. My friend Howard Relin, who grew up three doors away, and also went to Columbia, served as District Attorney of Rochester for twenty years. Might I have ended up in politics and entered the state legislature, or run for Congress?

It’s also possible if I had taken that offer and worked for Linowitz, that perhaps I would have moved with him to Washington as his assistant just two years later, when he was appointed by President Johnson as Assistant Secretary of State for Inter-American Affairs, then became a partner at Coudert Brothers, and served later still with distinction as President Carter's negotiator of the Panama Canal treaty by which the Canal was transferred back to Panama. That would have been an interesting career line too.

I’ve also wondered what our lives would have been like done if I had practiced law in New York. My own expectation is that I would have left a major law firm, and gone into an investment banking firm, since I always thought doing deals was more fun, to say nothing of more rewarding. Part of me has always wanted to the be principal or the investment banker, rather than the lawyer, but lawyer I remained.

For a long time, I didn't hear from Boston law firms either. My grades were good, I graduated cum laude, but I was not on either Harvard Law Review or the Board of Advisors. I did not enjoy the pressure of law school classes, with the professors’ practice of having a map of the classroom, with the picture and name of each student with his or her (and few ‘hers’ – 14 out of 500 in my class) assigned seat, and the professors calling on everyone by name, and challenging them. While there were few women at Harvard Law, or any other law school in those days, ours was regarded as breakthrough class, with a number of impressive women. Judith Richards Hope later became the first woman member of the Harvard Corporation, and wrote a fascinating book about the experiences of the women in our class entitled Pearls and Pinstripes, and a good read too (with my picture unidentified, in a large photo of a classroom). While now half of every law school class is made up of women, it’s difficult to imagine what life was like for them when there were only four or five in a section of about 125 students. Some professors held “women’s day,” announced on the prior day so the women would be prepared, and the professor would just call on them. The very stern and conservative Dean Erwin Griswold also held a dinner early in September of each year for the new women students and asked each as he went around the table why they were taking the place of a man in the class who could support a family. One woman in my class turned to him and said: “Because I didn’t get into Yale Law School.”

I had gotten to know Jim Vorenberg, a young law professor who later became Dean, and worked for him for much of the summer of 1963, doing research on United States Supreme Court cases on criminal law. I was in Jim's first corporation law class during my second year and did relatively well. When I was applying to law firms in my third year, I went to see Jim and explained my circumstance, that most law firms had not come through, that I was still waiting to hear from Paul Weiss, and the law firm in Boston that I liked best was Hale and Dorr, having interviewed with George Foley, and perhaps one or two others. While Jim never acknowledged that he called Hale and Dorr, I am sure he did, and whether he called George Foley, or his friend Jerry Facher, or Jack Cogan, I don't know, but I credit him with my receiving an offer and joining the firm in late August 1964. There were about forty-five lawyers, and only fifteen partners and eight or ten junior partners. I have been lucky enough to ride an “up escalator” that became one of the largest, most successful, and most prestigious law firms in the country. As I changed my status from senior partner to counsel at age sixty-seven on December 31, 2006, I marveled at my good fortune of having joined a firm that became one of the twenty largest, most successful and most prestigious law firms in the world. Thanks Jim!

I first started working for Jack Cogan and Paul Helmuth, two dynamic and energetic attorneys. Paul was the managing partner, and Jack the assistant managing partner. Both were involved with the Pioneer Mutual Fund complex, and Paul was also connected to Cabot, Cabot & Forbes, a real estate development company controlled by Paul's client Gerald Blakeley. Helmuth had been the right-hand man to Royal Little, the corporate leader who built Textron, one of the first successful conglomerates, and then the protégé of the prior managing partner, Reginald Heber Smith, still alive in 1964, who recruited Paul specifically to join and ultimately succeed him after just a few years as managing partner. Smith was the most important attorney in the development of Pro Bono law practice in the country and the major annual award of the American Bar Association for pro bono work bears his name. Smith wanted to build Hale and Dorr into a great law firm, and he picked the right person to succeed him in Paul. A visionary, Paul wanted to change the style of Boston law firms, and create the model for a great firm in a city other than New York or Washington, and with a distinctly regional base. While Boston law firms all emphasized tradition with loyal adherence to seediness in their offices, Paul decided that Hale and Dorr should step out and make a statement of modernism by moving into a new office building (built by Cabot, Cabot & Forbes of course) with glamorous space, attractive and sophisticated offices, and a fancy luncheon club on the top floor of the building. In order to sell this concept to conservative partners, Paul had CC&F build out two model offices in a nearby building and took each partner, and then each junior partner, and then each associate, over to show them what new offices would look like and how we would be the standout in legal practice in Boston. He won the day with that pitch. Partners in other firms could not believe what our offices looked like how Hale and Dorr had spent money and set a new standard of what law firm offices should look like, and in effect, how law firms should practice in Boston, in the years ahead – being run like efficient businesses, shedding old-fashioned habits.

During my first month at the firm, I was ushered into Smith’s office to meet the great man, and he was formal but cordial. He rarely came to the office in his old age, and the next time I was in his office was during the day games of the 1967 World Series when several of us would use his radio to follow the game. Smith was the leader who really built the firm, not Richard Hale and Dudley Dorr, both from old-line Yankee families.

My first assignments for Paul turned out to be critical to my reputation and career at Hale and Dorr. Twentieth Century Fox had made a film, starring Shirley MacLaine, which spoofed the Notre Dame football team. Paul was an alumnus and a trustee of Notre Dame, and Father Theodore Hesburgh, the President, and many alumni and trustees, were extremely upset at Notre Dame and its football team being made fun of, at a time when the university was establishing a stellar reputation as a quality school, as well as maintaining its status as a football power. They legitimately believed that the public would conclude that Notre Dame had granted permission for the film to depict football team when nothing could be further from the truth.

Paul asked me to research case law in various jurisdictions as to whether Notre Dame might have the ability to stop the use of its name in the movie. I looked to see if a college could have an exclusive right to use its name for commercial purposes such as a movie, and came upon a New York State case involving Cornell University and a company that manufactured bread using the name Cornell. As Cornell had major home economics, agriculture and hotel management schools, the University argued that using the name without approval would suggest that Cornell had endorsed that bread, and perhaps received compensation. Judge Henry Clay Greenberg ruled that the bakery was unfairly trading upon the name of the University and issued a permanent injunction.

Relying on that case, I suggested to Paul that Notre Dame bring suit in New York State trying to tie a Notre Dame fact pattern to the Cornell case as much as possible. However, I also warned that based on other cases, it was likely that Twentieth Century Fox would respond that they were indeed using the name Notre Dame, but only to make fun of it, and they had a right under free speech doctrine to write a comedy that really was a satire on college football in America.

The story of the movie was that the Notre Dame football team somehow ended up in Saudi Arabia, and the kingdom would not allow the team to leave until they had taught Saudi kids how to play football, and play them in a game.

Paul took my memorandum to the Notre Dame board meeting, which approved suing in New York, and they retained as counsel a retired New York State judge named Peck, a partner at Sullivan and Cromwell. Judge Peck called me to indicate that they were going to sue using my analysis, but he was delaying filing the suit from November until December 1st because the judge sitting in "equity jurisdiction" in New York State Supreme Court in Manhattan as of that date was going to be Henry Clay Greenberg!

Twentieth Century Fox and its counsel Rogers & Wells, fell into the trap, arguing that they only used the name Notre Dame because of its fame and it would help encourage interest in the movie. With that admission, Judge Greenberg entered an injunction against the movie being shown, ruining its hope for year-end Christmas season ticket sales.

Immediately after that decision, Twentieth Century Fox fired Rogers & Wells and hired Judge Samuel Rosenman, who took the appeal to the Appellate Division of the Supreme Court of New York, and then to the New York State Court of Appeals, arguing that the Appeals Court should not believe the record in the case, and that they should disregard what their client and Rogers & Wells said as to the reason for the use of the name Notre Dame. He argued that the case was one of free speech and satire, and won the support of virtually every judge in the two appellate courts; in spite of the admissions by Twentieth Century Fox before Judge Greenberg.

I have still never seen the movie! Twentieth Century Fox tried to dissuade Notre Dame from bringing the suit by showing that the team was not depicted in a negative way and invited Hesburgh, Helmuth and other trustees to come to New York to see the movie prior to its release. Paul was kind enough to invite me, an associate for all of three months, to come to New York too, but I explained I could not, because my wife and I were expecting our first child to be born within the next couple of days, and the invitation was for the next day.

And, indeed, Jon was born the next day, November 22, and so I missed the screening of the movie, but Jon was well worth it. Since husbands in that day and age were not allowed to be present in the delivery room when a child was born, I had gone home for a nap, and then drove back to the hospital as soon as Jon was born, late at night from our rental in a two-family house in Newton Highlands. I was speeding a little fast, but not too much, on Route 9, only to be stopped by a Brookline police officer. I told him that my wife had just had a baby at the Boston Lying-In Hospital, and I was racing to see my wife and new child. He put his hands to his side, which held a pencil in one hand and the ticket book in the other, and warned me that "this better be true." He asked my name, the name of the hospital, and looked at my license, and informed me that if the baby and my wife weren't there, I was in big trouble. He then wished me luck and left, and I never heard from him again. Thanks Jon!

That was a rousing way to start off at Hale and Dorr, and it was promptly followed and with thanks to the Notre Dame case as Paul then nominated me to be a clerk on the U.S. Court of Appeals for the First Circuit in Boston. Chief Judge Bailey Aldrich of the three-judge court wrote the major Boston law firms seeking a second law clerk, because he was now the only full-time judge on that court, with a vacancy caused by the recent death of the only other judge then serving, the third having died the year before and no new judge had yet been appointed and confirmed.

Paul nominated me, and I interviewed with Judge Aldrich, whose first clerk was Stanley Futterman, a good friend of mine from both college and law school. Aldrich chose me and I clerked from January 1 to June 30, 1965. Judge Aldrich was imposing, friendly, somewhat formal, and a solid taskmaster, who expected solid research and good writing at all times.

A few cases stand out in my memory. There was one involving the Central Maine Power Company and the Federal Power Commission. The FPC was represented by one solitary lawyer from Washington, and Central Maine showed up in court with about five lawyers. The oral argument was made by a name partner of a prominent New York law firm, LeBouef Lamb & Leiby, but that prominent partner did not know the case as well as he should have, and had difficulty answering questions from Judge Aldrich, who seemed to take a burn at lawyers who struck him as pompous, overly sure of themselves, or thought they could show up unprepared.

It was clear Aldrich was not happy with the responses or the argument from that partner. On the way up to his suite of offices in the elevator, he muttered to me "Let's get to work right away. I'm going to publish this opinion before those guys get back to New York by train later today." And, he did. The New York law firm was of course furious, claiming Aldrich did not understand the case, and sought a rehearing, and subsequently an appeal to the U. S. Supreme Court, but they got nowhere.

Another case, Janigan vs. Boston Electro Steel Casting Company, involved a lawsuit against a man who had been running a company, had control of the figures, bought out all the shareholders, just before the company became immensely profitable. The disgruntled shareholders brought a suit for fraud, but only after the statute of limitations for a fraud action had run. Their attorney claimed that the statute of limitations should be “tolled” pursuant to the doctrine that fairness required the time limit for suing to be extended. They claimed the CEO had concealed information about the expected turnaround in the company’s fortunes from the selling shareholders. There was a case on point by the great Judge Henry Friendly of the U.S. Court of Appeals for the Second Circuit in New York. I proposed a way around that decision as I thought he had not concealed key information, but Judge Aldrich would not go against Judge Friendly’s well stated doctrine in a similar case.

I remember well, however, working as an associate on an appeal case for Jerry Facher, on an appeal from a decision by Judge Roy to the Supreme Judicial Court. Facher was a stickler for effective writing, and an absolutely brilliant teacher of writing. He would painstakingly go over every paragraph, sentence and word with an associate, making the associate demonstrate how that word, sentence, or paragraph, moved the argument ahead. If any of them didn't, they shouldn't be there. Every word and sentence must contribute to making the afar argument a winning one to the judge or judges.

One evening, Facher gave me back the brief on which I had worked, and literally threw it across his desk, with some humor and playfulness, as well as a willingness to make the point, yelling at me to "try English!" and saying "Words are weapons! Use them!"

To this day, I pride myself on my ability to write effective speeches and letters, and have learned to edit with Jerry's admonitions of how to make an argument effective. I think I learned more about how to write something convincing to the reader from Jerry than from anyone else. To this day, I never give a speech unless it has been edited about eight different drafts, and some memoranda or letters of the same.

Ray Roberts was the principal estate planning attorney in our firm, and a wonderful, scholarly and gentle lawyer who was a pleasure to work with. He was good at training too, and when he died suddenly while Honora and I were on a vacation at about 1969 or 1970 in Spain. As I had been assisting him on the estate planning work being done under the overall direction of Paul Helmuth, upon our return from Spain, I was asked to take the lead on the estate planning work for Ken and Polly Germeshausen and Doc and Esther Edgerton. Paul was encouraging both of them to set up private foundations that would continue through the lives of their children, and it is through that initial work that I ended up as the attorney, executor and trustee for both of those families and trustee of their foundations. To my great benefit, I also became a close friend of all four of them.

Most of my work however was in the corporate field, and I worked extensively for Jack Cogan, Sam Dennis and when I brought in my own cases, sometimes with Norman Asher. I remember attending a Massachusetts tax audit meeting with Sam Dennis and the agent for the Mass. Department of Revenue. Sam bantered away about the prior night’s Red Sox game and never got to the one issue separating the client from the state position. Finally, the agent said “Well Mr. Dennis I know your time is short. How would you like to settle this case?” Sam then gave his answer and the agent called later that day to say that the proposal was acceptable. The lesson was to build a personal relationship with any governmental or other person with whom you are negotiating, preferably before serious business. That sometimes works, sometimes not.

Paul Helmuth had an interesting career and was a major figure in Boston, Notre Dame and at Harvard Law School. One day I was asked by Rose Nester, the tax department administrator, to handle the IRS audit of the J. Frederick Brown Foundation, of which Paul was the trustee. I went to his office and spoke with his formidable but very warm executive assistant, Miss Helen Sheehan, and told her that I was asked to do an audit of the J. Frederick Brown Foundation. Miss Sheehan said somewhat incredulously “What did you say?” I repeated what I had said, whereupon Miss Sheehan held out her hand and said “Give me that file, there will be no audit of the J. Frederick Brown Foundation”. That was the end of that. However, a year or two later, there was a front page right hand column article in the New York Times about the CIA funneling money to send American college students to communist countries for conferences in order to make sure there were appropriate representatives of American viewpoints present. The article identified the conduit for the CIA as being money the J. Frederick Brown Foundation, and went on to state that “A call to the office of Mr. Helmuth was answered by a Miss Sheehan, who promptly hung up the phone.” I never asked Paul about that matter.

As I recall my good fortune of the Notre Dame case, clerking for Judge Aldrich, being the attorney, trustee and advisor to two generations of the Edgerton and Germeshausen families and their foundations, I acknowledge how much of that was the luck of being asked by Paul to do some work at the beginning, being trusted by him and learning from him. I am sure because of Paul, I became a young member of the firm’s Executive Committee as well, thus being tapped by him as being a leader.

I also remember the occasion when he and I were meeting with a major Massachusetts CEO of a large family dominated public company, and he did not strike either Paul or me as being very sharp. On the way back to his office, Paul said “can you believe he’s the head of a major American Corporation?” We both laughed.

I also learned that the early reputation you get can either hurt or protect you when you make mistakes later on, as we all do. I was fortunate to have gotten off on the right foot, and know that Jack Cogan for example overlooked some work and advice that I had given a client that was not good. He could have criticized me to other partners, even delayed my becoming a partner. But he just took the matter away from me. Jack became a close friend. He was an amazing person, never wasting a minute, and accomplishing a great deal as the CEO of the Pioneer Mutual Fund complex, managing partner after Paul of Hale and Dorr, and an immensely important figure in many major charitable institutions in Boston. Wendy and I would make sure that we would get to Boston for the annual late November cocktail party that Jack and his wife Mary Cornille would have at their apartment at the Charles Hotel complex in Cambridge, filled with a few who were his friends from the law firm, as well as those in the corporate, nonprofit and Harvard worlds. My three most important mentors at the firm were Paul Helmuth, Jack Cogan and Jerry Facher, but I also note the guidance and friendship of Sam Dennis, Norman Asher and John Dolan.

Two other partners deserve special note. I worked with Fred Fisher, one of the first major attorneys in any prominent U. S. law firm that had a bankruptcy department, as that had always been relegated to a law firms that only handled bankruptcy work. Fred had signed his name to join the World Peace League (?) when he was at Harvard Law School and later was viciously attacked by Sen. Joe McCarthy in the Army-McCarthy hearings, at which the Army was represented pro bono by Joe Welch and Jim St. Clair of Hale and Dorr. Fred was a brilliant attorney and negotiator, and also handled litigation. He once had an impossible to win case in Rhode Island involving a will contest and he was a bulldog in trying to win a case where the law was unyielding. The issue was whether an adopted child could inherit when Rhode Island law did not permit that unless the will included a specific provision to include adoptees within the meaning of the words denoting descendants. Fred took the case anyway, and had me do research which led to my finding one Rhode Island case that might provide a glimmer of a chance of winning. Fred thought it worth the effort and argued to the court but to no avail. He taught me that you never give up when you’re trying to do something for a client. The inheritance went to a wealthy branch of the family, with none to an adopted poor relative, and Fred never billed the client for his work.

Once I had a reputation in the firm, Jim St. Clair had me handle a major corporate transaction for him, the sale of a significant insurance brokerage firm in Boston, owned solely by the brilliant, elderly and very elegant Maurice Saval, who owned the building in which his offices were located, and had a private Hungarian chef who cooked lunch for him and his executive staff. She became a friend of Honora and me and would cater for us on occasion and give us her recipes. Saval was a member of Lloyd’s of London. In connection with the sale of his company, I learned from him to insist on a clause if important enough even if the alternative was no deal. He insisted that he would not represent that the insurance reserves were sufficient because it was impossible to know if a disaster was looming that would wipe out the reserves and potentially bankrupt your company. It was that lesson of the need for a “Come Hell or High Water Clause” that led us to the insistence in the sale of HCW Oil and Gas that we not make any representation as to the value of the oil reserves.

Early in my career I represented Sandy Greenberg in his business interests. The first was his creation of EDP Technology in the mid-1960s, a computer services company, and we obtained the financing from American Securities, a Rosenwald family company. Norman Asher worked with me on the investment. Sandy ran EDP for several years, but it finally failed. Among his other ventures was a real estate development in South Carolina named Tega Cay, and we hired a local lawyer named John Spratt, and I got to know him very well.

John’s family had been in South Carolina for many years, and he also owned a local bank and had been a Rhodes Scholar. He later was elected to Congress, serving for 28 years and was chairman of the House Budget Committee. Former Secretary of the Treasury Bob Rubin and I once held a fundraiser for him at the Lotos club.

One day he called me, knowing that Jim St. Clair had represented real estate owners in the northeast in connection with the Eastern Indian Claims litigation. Congress had adopted a law in the 1870s forbidding the purchase of land from Native American tribes without the approval of Congress. However, the law was never obeyed by sellers or buyers and never enforced. Native tribes began to sue in the 1980s, claiming ownership of much land throughout the east leading to a total inability to obtain title insurance necessary for transfer of ownership. The Catawba tribe of South Carolina brought suit tying up the land of Tega Cay. I told John that I would take the case to Jim St. Clair and he sent me the complaint. I read it and it indicated that Spratt himself was also a defendant. I called and asked him why and he said “Well Marty, my grandpappy was the first white man to befriend the Indians, and they gave him 10,000 acres and I still own much of that land. So, they are suing to get back what they gave my grandpappy.”

St. Clair took the case, and represented the South Carolina defendants for many years of litigation that ended up in the Supreme Court and he was assisted by Bill Lee and Jim Quarles. All of the cases were finally settled when Congress appropriated funds for that purpose late in the 1980s. So, I had the good fortune of knowing someone who sent us a major case for the firm, much to my credit. Spratt remained a good friend of Hale and Dorr and assisted us in matters when we needed his help in Congress.

St. Clair’s office was down the hall from mine and I would visit him from time to time. He would never write about his cases including his representation of President Nixon in the impeachment or the Army-McCarthy hearings, other than in his annual presentations to attorneys in the firm. When Honora first ran for the Newton School Committee, with a Newton fundraising limit of $100 per donor, I held a fundraiser at the firm and a number of my partners who were friends came to it and contributed. Jim, a prominent Republican, came and since all donors had to be listed, he simply gave me an envelope of 100 single dollar bills and said “I’m happy to make a contribution but don’t list me.”

I also have a lasting memory of him as the perfect gentleman, courteous and cordial to everyone. As a young associate in our old building at 60 State Street in about 1966, I was walking out of the offices on the 10th floor at about 7 o’clock at night, about 30 feet behind Jim, who was about to reach two swinging doors being approached by an elderly cleaning woman at the same time from the other direction. I stopped, wondering what he would do. He got to the door first, opened the door and waited for the cleaning woman, said good evening in a cordial manner and then walked out. This compared to the arrogance I often ran into when dealing with partners in certain New York law firms.