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LEGAL TIMES -- JUNE 15, 1987

Covington's Courtly McKay Leads Wide Probe

BY JACK KNEECE
SPECIAL TO LEGAL TIMES

Although James McKay has been reducing his workload at D.C.'s Covington & Burling since he turned 65 five years ago, "when a big case comes in one of the first questions we ask is, "Is McKay available!." says Covington partner H. Edward Dunkelburger Jr.

Of late, McKay has not been available. The 70-year-old litigator is too busy handling what could be the biggest case of his career, serving as special counsel in the labyrinthine, politically sensitive Wedtech investigation.

While the burgeoning Wedtech scandal has attracted intense publicity, the courtly independent counsel handling the probe has so far managed to avoid the limelight. Unlike Lawrence Walsh, the independent cousel probing the Iran-Contra affair, McKay has shunned the press.

McKay says he has never been in the public eye, and he seems to be the kind of man who likes it that way. Although he recently agreed to an interview, he would not discuss any aspect of the Wedtech investigation.

Despite his reticence, McKay comes to the investigation with a reputation for being humble and charming but extremely tough. "He's one hell of a lawyer, and he's a tough son-of-a-bitch," says a former Covington colleague, D.C. Superior Court Judge Robert Scott.

McKay is part of what one Covington & Burling partner describes as "a golden generation of trial lawyers," who helped make Covington one of the city's most respected firms. Besides

McKay, the group includes Charles Horsky, Daniel Gribbon, and U.S. District Court Judge Gerhard Gesell, a former partner.

SEE MCKAY, PAGE 10

MCKAY FROM PAGE 1

McKay also helped train a younger generation of Covington & Burling litigators, including litigation partner Paul Tagliabue, who joined Covington in 1969. "McKay taught me everything I know," says Tagliabue, who worked under McKay for a decade on a series of cases for the National Football League. He recalls that on his first case, when he failed to stand up when the judge asked a question, McKay kicked him under the table.

"That wasn't McKay's idea of how you handle yourself in court, of effective communication," explains Tagliabue, who now stands promptly whenever he is addressed by a judge.

It has become a cliché, but almost everyone describes McKay as a lawyer's lawyer, even those too young to be aware of his considerable reputation in Washington.

Last October, for example, McKay traveled to Jackson, Miss., to represent David Tokman, a white teenager sentenced to death for killing a black man. Handling the case pro bono, McKay argued that Tokman had not been adequately represented at trial by his previous counsel.

Amy Whitten, a 33-year-old former Mississippi assistant attorney general, opposed McKay before Circuit Judge William Coleman.

Whitten says she and the other attorneys in the case were pleasantly surprised by McKay. She explains that many lawyers who visit Mississippi from other states continue their courtroom antagonisms outside the courtroom.

"But not Mr. McKay. He was a real gentleman, in and out of the courtroom," says Whitten. "I was tremendously impressed by his professionalism. There was no sign of ego." She adds that he charmed everyone involved in the case, including prison officials. The appeal is still pending.

Born in South Pasadena, Calif., McKay, who can still reel off the lineup of the 1924 Washington Senators baseball team, grew up in the District, where his father worked for the U.S. Department of Agriculture. After graduating in 1938 from Cornell University, where he majored in agriculture, McKay almost followed in his father's footsteps. He worked briefly for the California Fruit Exchange and then as a marketing specialist with the U.S. Department of Agriculture. But the bureaucracy was not for him.

Bored by Bureaucracy

"I was bored stiff," McKay says. "I had only about two hours of work a day, and then they hired someone to help me."

McKay took a friend's advice and decided to attend Georgetown University's law school at night. He also enlisted in the Naval Reserve, and World War II interrupted his law school studies.

After gunnery and navigation training, McKay was first assigned as the executive officer aboard a submarine chaser. Later in the war, he became captain of his own ship, a patrol craft with 67 men and five officers, which he commanded until the end of the war.

"I've never had so much power and responsibility before or since," McKay jokes.

After the war, McKay got a job clerking at what was then Covington, Burling, Rublee, Acheson and Shorb as he continued his legal education at Georgetown night school. He had been first in his class during his first year and graduated with honors in 1947, when he joined Covington & Burling full time. From the start, he specialized in litigation.

"I always said, 'If I am going to be in the Navy I wanted to go to sea, and if I am going to be a lawyer I wanted to be in court,' " recounts McKay.

Fresh out of law school, McKay was assigned by his boss, Howard Westwood, to argue a series of cases before the Civil Aeronautics Board.

"We found that he was a very mature chap," says Westwood, now retired from Covington. "He was a very responsible person. He's one of the best trial lawyers in this city."

Westwood and Dunkelberger both stress McKay's love of pro bono work and of helping young attorneys. For several years, he headed the firm's continuing legal education program, as well as the pro bono program that places associates on public interest cases.

"He has a wonderful way of putting you at ease," says one Covington associate.

Covington partner Tagliabue adds. "Everyone wants to work with McKay because he gives you a lot of responsibility, he takes a genuine interest in you, and he's genuinely appreciative."

McKay's billings on a series of big cases have also endeared him to his colleagues. One of his clients was the Pennsylvania Railroad, later Penn Central, which he represented in numerous personal injury cases. Although he did not win them all, he became known as a litigator who could either win a case outright or help drastically pare down the award

Football Hero?

He also developed a specialty fending off antitrust challenges on behalf of the National Football League.

In one celebrated case in the mid-1970s. the NFL Players Association challenged the "Rozelle rule," which provided that an NFL player could not sign with another club after his contract had expired unless the two teams agreed on compensation.

The players charged this was an obvious antitrust violation NFL Players Association attorney Richard Berthelsen says McKay paraded about 30 witnesses before the court in what Berthelsen terms an emotional "rah-rah, don't change the way things are" strategy. Mckay's witnesses included such famous coaches as Don Shula of the Miami Dolphins and George Halas of the Chicago Bears.

But after a complicated 55-day trial, a federal district judge decided that the rule was illegal, and the 8th Circuit upheld the decision. McKay subsequently won a few concessions, but it is generally conceded that he lost the case.

McKay was victorious, however, in another high-profile football case, known as the Joe Kapp case. In that matter, the former Minnesota Vikings and New England Patriots quarterback walked out of the training camp of the San Francisco '49ers and sued the team, charging that the standard players contract restricted players' options in violation of the antitrust laws.

McKay's courtroom technique is sometimes theatrical. He recalls that he once tried to make a point before a jury by saying, "It was a self-inflicted wound," as he thumped himself hard on the chest. But as he completed the gesture, confident it had made the appropriate dramatic effect, he says he was brought back down to earth by catching a glimpse of his daughter, who had slipped into the courtroom and was laughing at his histrionics.

He says he has learned some tricks from other attorneys. One tidbit came when a judge asked a jury to disregard an inflammatory statement by an opposing attorney. The attorney replied: "Your honor, the nail has been removed but the hole remains." McKay promptly expropriated the rejoinder and has used it many times since.

In the 1960s, McKay found himself in the midst of a controversy involving one of his clients, the Plumbing Fixtures Manufacturers Association. Believed to have knowledge of a price-fixing conspiracy among PFMA members, McKay was asked to testify before a grand jury in 1966 under a grant of immunity; the PFMA had also waived its attorney-client privilege. McKay has always maintained that he was unaware of his client's price-fixing activities.

Eight members of the trade association went to jail, but no action was taken against McKay, who describes the episode as "not the most fun I have had in my life."

With the plumbing fixtures case forgotten, McKay was mentioned as a possible candidate for the D.C. Superior Court in 1970, but the appointment never materialized. Instead, McKay continued full throttle at Covington & Burling, developing his antitrust practice.

He says the secret to his energy level is that he never loses sleep over a case and is able to leave his work behind at the office. (He says two pro bono Mississippi death penalty cases have been exceptions, causing him to toss and turn.)

SEE McKAY, PAGE 11

McKAY FROM PAGE 10

Even now, working on Wedtech, he is able to leave the complex web of details behind him at the end of the day. He describes himself as a binge reader who periodically re-reads all of Charles Dickens, Jane Austen, and Shakespeare. He is also a Civil War buff.

Early Riser

A physician friend, William Foote, once lived across the street from McKay. He remembers that as early as he arose to go to the hospital, usually around 6 a.m., he almost always ran into McKay leaving for Covington & Burling. According to colleagues at the firm, McKay drives himself as hard as ever.

As independent counsel, McKay says he usually gets to his 18th Street, NW., office at about 7:30a.m. and works for about 12 hours. He supervises a staff of five full-time and eight part-time lawyers and investigators, including three Covington associates, Carol Fortine, Newman Halverson Jr., and Richard Friedman.

When the investigation was widened to include Attorney General Edwin Meese III, McKay hired two more full-time staffers. He declines to speculate about how long he thinks the investigation will take, although another lawyer working on the probe says it will probably be a matter of months, not years.

Although McKay declines to discuss any aspect of the Wedtech case, he is known to be pursuing many lines of inquiry and has been presenting evidence to a grand jury. According to various press accounts, McKay is not only investigating former White House aide Lyn Nofziger's lobbying and Meese's actions involving Wedtech, but also the sale of aircraft by Fairchild Industries to the Air Force.

Ironically, McKay was first slated to be independent counsel in a completely different, and less significant, case involving allegations that Theodore Olson, former head of the Justice Department's Office of Legal Counsel, testified falsely before Congress. McKay resigned from the post shortly after his appointment last year, because of a potential conflict. "While I have no actual conflict of interest in connection with this investigation," McKay explains, "the appearance of a conflict of interest conceivably may exist because of advice given by another member of my firm in an area which might be considered to have a relationship to this investigation." McKay will not provide further details.

After his resignation from that post, his duties were assumed by his deputy, Alexia Morrison, a partner at D.C.'s Swidler & Berlin.

Morrison says she quickly became a fan of McKay and calls him "the consummate professional, a person with dignity and yet a wonderful sense of humor, energetic and hard-working."

Several months after his recusal from the Olson investigation, McKay was tapped for the Wedtech probe by the three-judge panel that selects the independent counsel. And now, with his mandate considerably broadened, the very fate of the attorney general may rest with McKay.

"We take great pleasure in the fact that the importance of the assignment has increased substantially," says Dunkelberger. "This could be a great cap to Jim's very distinguished career."

Dunkelberger is quick to add, however, that Covington is eager to have McKay back in harness to handle more cases.


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