12 June 1995
by David F. Pike
Los Angeles Daily Journal Staff Writer
WASHINGTON – Andrew L. Frey jokes that “everyone says I look like Perry Mason . . . but I’m alive.”
There is, however, another similarity to the fictional lawyer portrayed for many years by actor Raymond Burr. Frey clearly enjoys delving into complex legal problems and coming up with a “solution.”
Frey, 56, is a partner in the D.C. office of Chicago’s Mayer, Brown & Platt. He is an appellate specialist who for nearly 25 years has explored cases involving cutting-edge issues of both criminal and civil law. Along the way, he has argued 61 cases before the Supreme Court.
During 14 years in the U.S. Solicitor General’s Office, Frey tangled with the developing issues of the exclusionary rule, double jeopardy and the scope of the Miranda rule.
Since returning to private practice in 1986, he has concentrated on white-collar crime, constitutional issues stemming from state taxation and punitive damages. Frey has argued two of the four punitives cases heard by the high court, submitted amicus briefs in the other two and will argue his third this fall, when the justices review BMW of North America v. Gore, 94-896.
Dennis Helfman, BMW’s general counsel, says, “We hired Andy Frey because of his reputation in appellate practice and his renowned expertise in the punitive damages area.”
Helfman describes a recent meeting in which Frey and other attorneys had a “substantial academic discussion of the issues. Andy took all the information in, broke it down and discussed each issue raised. He not only sees the angels on the head of the pin, but what they are wearing and what dances they are doing.”
David Cordero, the BMW attorney responsible for the case, adds that Frey “is a scholar as well as a practicing attorney. He’s very creative, analytical. He puts the pieces together so you can see the whole puzzle.”
Frey had the same modus operandi when he was in government service.
“He mulls a case a lot and examines it from a variety of angles and then turns out a superior product,” says former federal circuit judge Robert Bork, who as solicitor general in the Nixon administration was Frey’s boss. “He would bring in an assistant, and they would sit in there for sometimes two days until they thought they had the best line on the case.”
“He is an extremely meticulous lawyer . . . and he works ferociously,” adds Bork, now the John M. Olin Scholar in Legal Studies at the American Enterprise Institute in D.C., who also in recent years has dealt with Frey on some cases.
Frey took a circuitous route to appellate practice.
After graduating from Swarthmore College in 1959, the son of a New York City jeweler decided to go to law school “just because I thought law would be interesting, my parents didn’t particularly push me.” After graduating first in his class at Columbia University School of Law in 1962, Frey clerked for a year for Judge George T. Washington of the U.S. Circuit Court of Appeals for the District of Columbia, “the closest living collateral relative of George Washington – he was a descendant of his brother.”
Frey then “wanted to try something different before I started my career.” He learned through Supreme Court Justice Arthur J. Goldberg III of a job as special counsel to the governor of the U.S. Virgin Islands.
“It was something somewhat exotic but not unduly rigorous,” Frey says. But it could be frustrating working “in the Third World,” and he decided to leave after two years.
In 1965, he returned to Washington and turned to private practice. “I grew up in New York and always assumed I would live there, but when I was a law clerk here, I enjoyed the trees and grass, and the lack of crowds and soot,” he says. “Life was nice here.”
He joined Koteen & Burt, handling Civilian Aviation Board cases, as he had in the Virgin Islands. After four years, Frey left for a “general practice” with Dutton, Gwirtzman, Zumas, Wise & Frey. It was good experience, he says, but that job, too, was “frustrating.”
“But I had dinner in early 1972 with a friend from college and law school who told me they had a vacancy in the Solicitor General’s Office,” Frey says. He applied and a few days later was offered the job.
He recalls being interviewed by then-Solicitor General Irwin Griswold, who had been dean of Harvard Law School. “The first question he asked me was, ‘Were you rejected by Harvard?’ He assumed no one would go to Columbia voluntarily,” Frey says with a chuckle. “That, in fact, was not the case.”
Frey found appellate practice as an assistant SG “exciting and interesting, and there was a chance to practice before the Supreme Court.”
“The United States is a wonderful client. They don’t pay great but you have terrific cases,” he adds. “That was in the Nixon Administration, and my biggest reservation was that the job would be political. But I was persuaded it wasn’t, that it was a public service. I’m not sure that’s been true over the last 10 years. That’s an unfortunate change.”
In 1973, as Nixon began his second term, he asked all the top administration officials to submit their resignations and surprisingly accepted Griswold’s. Bork was named to replace him, Frey says, and “that was a difficult situation for Bork to come into.” When the deputy SG supervising criminal appeals soon left, Bork chose Frey for the job.
“I had no background in criminal law, some briefs and appeals, but I learned the job,” Frey says. “It was a very satisfying area of responsibility; we handled all the cases from the [Justice Department’s] criminal division, the Bureau of Prisons and the Board of Parole.”
It was an interesting time because the Supreme Court was “wrestling with” the scope of the exclusionary rule, Frey says. “A major question then was how far they would go, and the government’s mission was to limit the scope.”
In addition, “double jeopardy was a cloudy and confused area; we had three cases in the first couple of years,” he remembers. “It was an intellectually fascinating and complex problem. You had to look at the policies and then translate them into coherent rules . . . For a lawyer, it was really a lot of fun.”
“I argued 55 cases before the Supreme Court while I was there. The first one, I lost 9-0, it stands out in my mind,” Frey recalls with a smile.
But victories came, too. Among his most memorable were United States v. Watson, 423 U.S. 411 (1976), in which the justices allowed warrantless felony arrests in public places; Bell v. Wolfish, 441 U.S. 520 (1979), which set incarceration standards for pretrial detainees; United States v. DiFrancesco, 449 U.S. 117 (1980), which allowed the government to appeal criminal sentences; and INS v. Lopez-Mendoza,, 468 U.S. 1032 (1984), holding that the exclusionary rule does not apply to deportation proceedings.
Frey came close to leaving appellate practice in 1983-84, when he was nominated by President Reagan for a seat on the D.C. Court of Appeals, the local appellate court. Frey had to list the organizations he belonged to, and he also noted groups he had contributed to – including the National Abortion Rights Action League, Planned Parenthood and an anti-handgun group.
“Someone leaked the list to The Washington Post and everything blew up,” Frey recalls. “The Republican senators went crazy, and 13 asked Reagan to withdraw the nomination. Gun owners lobbied against it. It languished in [committee], and when the next Congress came in, I wasn’t nominated again.”
Frey notes that members of the judicial selection panel that recommended him were concerned he was too conservative. “But people too often confuse the lawyer with the client, and I was representing the government – now I represent criminal defendants,” Frey says. “I’m more committed to the law than any particular cause.”
“I can’t say I’m embittered,” Frey says of the experience. “It’s just an unfortunate token of our public life. It had nothing to do with my qualifications, and that court doesn’t even get abortion or gun control issues. But it was a bad time, and other nominees had problems from the right-wingers.”
He says he applied for the post because “I had been at the [Justice] Department for a while and had done what I could do. I was 47 and at the point to do something else.” Then, one Monday morning in early 1986, Frey met with two colleagues and they decided to leave and set up an appellate practice.
“Other firms said they would take one of us, but not three partners who had no business, especially in what wasn’t a traditional area of practice,” Frey recalls. But a partner at Mayer Brown in Chicago, a former SG staffer, “liked the idea of an appellate practice group,” and the three lawyers joined Mayer Brown’s then-19 lawyer D.C. office.
“It turned out to be a viable practice, and we attracted other people from the Solicitor General’s office,” he adds. The 600-lawyer Mayer Brown now has seven partners in appellate practice in the 75-lawyer D.C. office, plus five in Chicago and one in New York.
“There is no firm that has the appellate practice of our size and depth,” Frey asserts adding that what the lawyers do is “not traditional. We don’t just do appeals of the firm’s cases but bring in cases from the outside.”
Frey is glad the move back to private practice worked out. “I’m happy with what I’m doing,” he says as he sits in a cluttered office overlooking Pennsylvania Avenue whose walls are covered by historic maps and American political memorabilia.
“I spend about half my time on punitive damages. It reminds me of the exclusionary rule and double jeopardy. It’s new to the court, and they’re not sure where they are going,” Frey says. “There are a lot of ideas of what ought to be done, both constitutionally and under common law, but it’s hard to pick one.”
“No one has a personal interest in bringing about reform because [punitive damages cases] are making both sides rich, but it’s an ineffective way to get money to the plaintiff,” Frey says. “If I could have one reform, it would be that the defendant’s financial condition could not be an element in financial torts; it’s a big distortion factor.”
In the BMW case, a jury awarded an Alabama physician $4,000 in compensatory damages and $4 million in punitive damages because the company had not disclosed it had refinished scratches on a fender before delivering the car. The state supreme court reduced the punitives to $2 million, but Frey’s brief contends the award still is “grossly excessive in violation of the Due Process Clause of the Fourteenth Amendment.”
Frey is hoping the argument result is better than in his first punitives case, Browning-Ferris Industries of Vermont Inc. v. Kelco Disposal Inc., 429 U.S. 257 (1989), which “was not a glorious success.” The court rejected Frey’s argument that the Eighth Amendment’s prohibition against excessive fines applies to punitive damages.
But Frey prevailed last term in Honda Motor Corp. v. Oberg, 94 Daily Journal D.A.R. 8844, with the justices ruling the Due Process Clause demands that punitive damages have judicial review. Frey’s argument opponent was Harvard Law Professor Lawrence Tribe, another veteran high court advocate.
“It was not my smoothest argument, but I came out feeling good,” Frey says. “I’ve never had so many questions and interruptions, to the point where it was impossible to maintain the continuity of the argument. So I had to make my points in the course of answering questions, some of which were not helpful to my position.”
Frey’s preparation for argument focuses on “thinking of all the questions that will be asked and how to guide the court, and how the decision will affect the law in areas that it touches,” he says. Unlike other high court advocates, Frey spends little time rehearsing his presentation.
“I read the briefs, the important cases, the relevant part of the record, and then write down questions as they pop up,” he says. “I confer with colleagues and talk about the issues . . . I mainly try to anticipate questions.”
“The last thing I do is decide what to say, usually on the last day; it’s a little risky,” he adds. “You can never anticipate all the questions, but if you understand the case, you will be able to do a good job.”
Kenneth S. Geller, a former deputy SG who has worked with Frey for 20 years and went to Mayer Brown with him in 1986, says Frey’s “last-minute argument preparation is deceptive. He mulls over the problems in his head for weeks or months.” Frey is disappointed when judges don’t ask questions, Geller adds. “He wants to engage in dialogue and relishes the tough questions.
“He is probably the most imaginative lawyer I have ever met. He can analyze a legal problem inside and out and come up with a sensible solution that can be sold to a court,” Geller says. “He’s a law profession in lawyer’s clothes; he’s brilliant. I never saw anyone work better under pressure, and he’s a delightful fellow to work with.”
At Mayer Brown, Frey also has represented such white-collar criminal defendants as former Reagan White House aide Lyn Nofziger. “And I did a lot of appellate work for the Iran/Contra special prosecutor after they lost the Oliver North case,” including the D.C. Circuit argument for John M. Poindexter, he says.
Other recent cases Frey has argued before the Supreme Court have involved state taxation and the reach of the Commerce Clause.
“I thought I would have been incredibly bored, but intellectually it is fascinating, it takes a lot of effort to learn,” he says. “You have to deal with a court that doesn’t understand all the issues. It’s not like abortion, for example. But we ought to be generalists who can translate a technical area into an understandable and persuasive context for a court of generalists.”
When he’s not sleuthing legal issues, Frey enjoys doing logic puzzles, reading, traveling and rooting for the Washington Redskins. “I got season tickets in 1966, the last year you could get them,” he says proudly. In addition, he hosts a weekly poker game on a custom-made table in his D.C. home, a ritual for the last 25 years.
Frey, who is divorced, has two adult children. His son works for Save the Children in Katmandu, Nepal; his daughter is married to a lawyer and lives in Luxembourg.
Frey is about to break his routine; he plans to spend the next year working from his summer house in rural New York State. “I’m going to telecommute,” he says with a smile. “I’ve mastered the basic computer steps, and the reading and editing and analysis stuff you could do in a closet somewhere.”
[Copyright 1995 Daily Journal Corp. Reprinted With Permission].