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A Death in the Office

By Richard B. Schmitt

November 2, 2009, 4:50 am CST

Mark Levy began his last day at Kilpatrick Stockton like he’d begun countless others.

He pulled his Jaguar into the garage at the law firm two blocks from the White House just before 5:30 and took the elevator up to the 11th floor.

Always an early riser, he enjoyed getting a jump on the news of the day and sharing it with friends and colleagues. His were often the first e-mails they received—a pitch to attend a Democratic fundraiser, a pat on the back for a well-written article, or his take on the latest from the U.S. Supreme Court.

But this particular Thursday morning something was different. Levy had cleared his calendar, coyly dodging the reason when he canceled lunch the day before with a longtime friend.

“He said something had come up, and that I’d be able to read about it in the papers,” the friend says.

“I thought he’d gotten a big case. I was happy for him.”

Levy, 59, was one of the most skilled appellate lawyers in the country. He was of counsel at the firm and chair of its Supreme Court and appellate advocacy practice. He had argued 16 times before the court and in January had posted a 9-0 victory in an em­ployee-benefits case for DuPont.

He was one of Samuel A. Alito Jr.’s classmates at Yale Law School. The future Supreme Court justice once house-sat for Levy when they worked together at the Justice Department—watching after the Levy family’s golden retriever. When another classmate, Hillary Rodham Clinton, ran for president, Levy knocked on doors in the middle of an Iowa winter on her behalf.

Relentlessly upbeat, if a little uptight, he was passionate and enthusiastic about even the most arcane aspects of the practice of law. An impeccable dresser, he always looked like he was ready to go to court.

If he was distressed with the arc of his career, even his closest professional colleagues had no inkling—and they certainly had no idea that he would sit down in his office chair the morning of April 30 and, with a .38-caliber handgun, fire a bullet into the right side of his head.

Mark Levy had a loving family. He seemed financially secure. He had earned the admiration and respect of his peers.

What Levy did not have, however, was a job.

Just days before he killed himself, he found out that he was being let go by Kilpatrick in a round of cost-cutting driven by the unraveling economy. He had been one of 24 lawyers nationwide laid off by the 500-lawyer firm.

Measured against massive firings elsewhere, Kilpatrick’s cutbacks were unremarkable—except to those no longer employed. In many cases, layoffs have become so routine that even the gentlest protocols have been abandoned. (See sidebar: “The Less Final Option: For lawyers suffering from depression, there is help.”)

Levy, for instance, had asked the firm whether he could keep his office while he figured out his next move, according to his cousin Leslee Gilhooley. Even just five years before, that had been a common way to cushion the blow for senior lawyers at major firms. But not in this recession.

“When they wanted him gone, they wanted him gone,” Gilhooley says.

Levy’s death shocked the Washing­ton legal community. Justice Alito eulogized him in the Yale Law School alumni bulletin. “Mark was of course an incredibly talented lawyer—surely one of the best appellate attorneys in the country. But my strongest memories of Mark will always be as a true friend and a warm and considerate person,” he told a reporter.

“Mark never forgot and sincerely cared about his classmates and old friends,” Alito said. “I only wish that I had had some inkling of his distress in recent months.”

“It is so out of character with the guy I knew,” says Gary Baise, a Washington lawyer and former counsel at Kilpatrick Stockton. “This was not a guy who was reclusive or who would harbor what you would think would be deep feelings of self-destructiveness. He struck me as one of the most solid, funny, gifted guys that you just loved to be around. It was a hell of a shock.”

Nancy Bekavac, another law school classmate who retired as president of Scripps College in Claremont, Calif., is still baffled by Levy’s final state­ment. “The thing that seems so hard for me is that this is the last person in the world who would inflict the kind of pain and sorrow that his death inflicted on other people. It makes you so sad to think what it would have taken to come to the point of view that that was the thing to do.”

Kilpatrick declined to comment, beyond a prepared statement: “We are deeply saddened by the death of Mark Levy earlier this year and our condolences continue to go out to his entire family, friends and colleagues,” said Bill Dorris, the firm’s co-managing partner. “Mark made such a positive impact on so many people during his life and career. He was highly respected in the legal and business communities for his numerous successful appearances before the Supreme Court of the United States. Out of respect for his family, we will not offer additional comment.”

In June, Kilpatrick joined a growing list of firms that have trimmed associate salaries, cutting them 10 percent. Some lawyers took that as a direct response to the Levy tragedy: taking a little from many lawyers rather than putting a few on the street.

TRYING TO UNDERSTAND

Levy’s wife, Judith, declined to be interviewed for this story. With the passage of time, however, his friends have begun to identify what they think were contributing factors to his decision to end his life. Levy was deeply invested in his work. He had few interests outside his work and family. He had struggled in earlier years with depression, and few knew or noticed that he had purchased a gun.

Levy loved the practice of law, but he struggled with the business of law. Without a firm stable of paying clients, he grew vulnerable in a world where rainmaking is often valued over skill and judgment. For all his prestige, he had little real power behind his formidable stature.

To some his final act was a rebuke to what his beloved profession had become—a statement made in the very office he had been told to vacate.

“He was not interested in compromising to make law a business. His pleasures in practicing law were largely intellectual and professional,” says Herbert Zarov of Mayer Brown in Chicago, who worked with Levy there in the 1980s. “I suspect that change in the profession, given Mark’s temperament and commitment to values, hit him real hard.”

Says another Washington lawyer who knew him for years: “He was a very proud person whose self-image was very tied to his profession. So to the extent he suffered from de­pression, I always perceived it as around his failure to achieve all as an appellate lawyer he had hoped to achieve.”

The lesson this lawyer says he takes from Levy’s death is that “none of us should have our self-worth tied up in our professional existence as lawyers. It is a fool’s errand to do that because it is a profession that is very hard on people even when they are succeeding.”

Ruth Wedgwood, a law school classmate of Levy’s who is the director of the program on inter­national law and orga­nizations at Johns Hopkins University’s School of Advanced International Studies, sees his death in a broader context. “If someone like him cannot prosper in law practice, you wonder what law practice has become.”

Levy had a resumé to envy: He graduated summa cum laude from Yale College with a dual major in physics and philo­sophy. He was the second-ranking editor on the Yale Law Journal and the recipient of the prize for best student writing. He won a coveted clerkship with an iconic federal judge, Gerhard Gesell, who over­- saw cases related to the Watergate scandal and the publication of the Pentagon Papers.

He worked at the prestigious Washington law firm of Covington & Burling before becoming an as­sistant to the solicitor general in the Justice Department; in that role, he argued more than a dozen cases before the Supreme Court.

He moved back to his hometown of Chicago in 1986, where he joined another top-flight firm, Mayer Brown, and became part of the core of what is today one of the top Supreme Court practices in the country.

In 1993, levy left Mayer Brown, giving up a lucrative partnership to return to the Justice Depart­ment, where he served as the top appellate lawyer in the civil division during President Bill Clinton’s first term. He supervised a staff of 60 attorneys, leading the defense against attacks on such controversial administration policies as handgun control, gays in the military, and federal protections for abortion clinics.

For as long as anyone remembers, he was generous and well-liked, besides being over-the-top smart.

“He used to let me copy his Latin homework,” says Roy Simon, a classmate at Highland Park High School near Chicago who is now a professor at Hofstra School of Law.

Philip Bobbitt, a professor at Columbia Law School, was on the Yale Law Journal with Levy and recalls how he volunteered to babysit when the journal’s top editor and his wife had their first child.

Another former Gesell clerk, Scott Harris, says, “I was working for Gesell for two weeks when it was clear that I was not going to meet the standards that Mark set.” Harris, now general counsel of the Department of Energy, adds, “The judge thought highly of his work; everyone in the courthouse thought highly of his work.” When Levy got married in 1979, the judge officiated.

When returning to practice in 1994, Levy had discussions with Mayer Brown about joining its D.C. office. But it is unclear how much the firm, which already had a stable of distinguished appellate lawyers, was willing to accommodate him. Some lawyers say that caused a hurtful breach that never healed.

In a way, he was an appealing can­di­date to many law firms: An elite appellate lawyer like Levy figured to be the perfect complement for law firms that did a lot of trial work. He would be the ace in the hole in cases that went awry and needed to be taken up on appeal—or so the firms could tell their clients.

But the economics of an appellate practice are tricky. The best way to build the practice is by representing parties before the Supreme Court. Yet with the high court taking fewer and fewer cases, it is often a loss leader—with some firms willing to do the work for little or no money to burnish their reputations.

In theory, successful appellate lawyers make their money on cases in the lower federal courts, from their own clients and from internal referrals within their firms.

In practice, lawyers at some of the firms Levy went to were not always so eager to hand off cases they had worked years on, even to a talented new colleague.

LOOKING FOR SUPPORT

Levy never relished the role of salesman. instead, he became the man to see among several nonprofit business groups in Washington, such as the U.S. Chamber of Commerce, filing friend-of-the-court briefs on matters of broad interest to industry. The work was high-profile and interesting, but not highly profitable—unless a lawyer could leverage new business from the organization’s members.

“He was a superb lawyer but he wasn’t a business-getter,” says Stephen Bokat, former general counsel of the U.S. Chamber of Commerce. “No­body gets rich” working for the chamber, he adds.

Quentin Riegel, deputy general counsel of the National Association of Manufacturers, another client, says Levy “was not the kind of guy who made a hard sell to try to get work. He was more collegial. He was more interested in the issues.”

That left the firms feeling that Levy had underachieved, and Levy feeling unsupported and underutilized. He spent eight years at a major antitrust firm in Washington, Howrey. He was co-head of its Supreme Court and appellate practice but did not argue a single case before the Supreme Court. The firm put him under a microscope. He ultimately left.

“I think he was extremely successful in all of his cases. But I don’t think he had as much work as he wanted to have or should have had,” says John Briggs, a Washington lawyer who helped recruit Levy to Howrey. Being a successful appellate lawyer at any firm, he says, “is a tough nut to crack.”

Kilpatrick Stockton, a growing Atlanta-based firm trying to make a splash in Washington, hired him in January 2004; and for a time, Levy seemed re-energized.

GAINING STATUS

He soon became one of the firm’s best-known and most visible lawyers. He wrote columns for the National Law Journal; and he was often quoted, analyzing Supreme Court decisions for PBS or sizing up his friend Alito for the Los Angeles Times.

Levy worked with other lawyers at the firm, providing advice on the nuances of appellate court procedure and helping frame issues in their briefs.

But his disdain for marketing and client recruitment again seemed to undermine his standing with firm management.

One of his clients was the Asso­ciation of Corporate Counsel, a Washington-based trade group for lawyers who work at major corporations—precisely the sort of paying customers that law firms covet.

Levy did work for the association, once preparing a brief on the sanctity of the attorney-client privilege during the investigation of the suicide of former White House lawyer Vince Foster. But he never sought to tap into the rich vein of its membership base.

“He never asked me, ‘Can I come and speak at your annual meeting in front of your members so I can get a better opportunity?’ ” says ACC general counsel Susan Hackett.

“He never asked for anything in return,” beyond the minimal fees he got directly from the association, she says, adding that “people like me got to take advantage of Mark’s incredible service.”

Over the last year, he began to feel the pressure again. “Mark’s practice never really took off. He may have blamed the firm for that. There just was not enough high-level appellate work to keep him busy,” says a lawyer familiar with the situation at Kilpatrick Stockton.

About a year ago, Levy began shopping his practice around Washington. “It is a constant struggle for me to market myself,” he told one friend at a bigger firm. “I am not at a law firm that generates much work.”

He had discussions about joining an even larger firm in the city, and the two sides “got very far down the road,” says a person familiar with the discussions. But the firm pulled back when the financial crisis hit.

Levy contacted a friend with connections to the Obama transition team to explore the possibility of getting another political appointment at the Justice Department. But that proved to be another dead end.

Yet, as the new year began, things were looking up.

WINNING APPROVAL

In January, Levy found out he had won a unanimous supreme court ruling in a case he had argued in the fall—his first appearance before the court in two decades. (The issue: What should a pension administrator do when a divorced retiree dies, leaving his ex-wife as his beneficiary? Levy argued that the ex-wife should get the money, even though she had given up rights to the pension in divorce papers. All nine justices agreed.)

In mid-March, he won a federal appeals court decision helping Native American groups—a major firm client—in a suit against the federal government for mismanaging millions of acres of tribal land. The same month, Levy was named in a list of 100 “super lawyers” in a survey of 35,000 Washington-area attorneys. Kilpatrick touted the distinction in a press release.

In late March, Kilpatrick hired Michael Halloran, a former SEC official and top lawyer at Bank of America. At a firm reception, Levy was openly hopeful that Halloran would help him generate new business. “You know a lot of people,” Levy said.

In mid-April, he attended a federal court committee meeting in Kansas City, Mo. The group advises judges on changes in federal appellate court rules. He called an old friend to wish her a happy birthday and to make a date for an annual lunch they had every June. He accepted an invitation to a May 1 reception at George­town University Law Center, where he had helped prepare other lawyers for upcoming Supreme Court arguments.

Then came the layoffs. On the cusp of 60, facing starting his professional life over again, Levy chose another path.

Kilpatrick announced the layoffs in a press release on Tuesday, April 28. The moves were “structured to further the long-term success of the firm and to enhance the achievement of our strategic goals through more efficient use of personnel and realignment of our expense structure,” explained Diane Prucino, the firm’s other co-managing partner.

“We all understand the impact that this action will have on each of these attorneys and their families,” Prucino said, adding that those affected would receive “competitive and generous” severance.

In Washington, Halloran heard a rumor that his new friend Levy had been affected. “Do you want to talk?” he said in an e-mail sent to Levy on Wednesday. Halloran does not remember getting a response.

The next morning, around 8 a.m., anoth­er colleague, who stopped by Levy’s office to say goodbye, found his body.

At his home, Levy had left a note saying he loved his family and instructing his wife on how to handle finances and other matters. The note was discovered by his 20-year-old son. He also left an older daughter.

Levy and his wife had long planned a trip to Italy this summer to celebrate his birthday—he would have turned 60 on June 28. In his suicide note, according to his cousin Gilhool­ey, he encouraged the family to proceed with their plans. His wishes were honored.

In death Levy was, as in life, sending messages of encouragement to those he loved and the first to share news. For those who e-mailed him the morning of April 30 after word spread that someone, yet unidentified, had committed suicide in the office, he replied with an out-of-office automated message: “As of April 30, 2009, I can no longer be reached. If your message relates to a firm matter, please contact my secretary. … If it concerns a personal matter, please contact my wife. … Thanks.”

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Richard B. Schmitt, a former Justice Department correspondent for the Los Angeles Times, is a freelance writer based in Washington, D.C.