Future Forum: Guilt, Innocence, and the Death Penalty 
HOUSTON LAW
HOUSTON LAW
Three of the nation's largest law firms are in Houston. They have kept their awesome power, their pervasive influence, and their closed societies out of the public eye. Until now.
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THE EXTRAORDINARY EDIFICE OF POWER erected by the Big Three is built on two secure cornerstones: politics and economics. Their political power is enormous, but it is not displayed in the manner that the general public has come to expect. Seldom does a partner manage a campaign, even locally. Almost never does one seek public office. Judges, too, come from someplace else. There is no tradition of public service in the big Houston firms, no noblesse oblige. Their sense of dignity clashes with the realities of politics as they perceive it: politics is not a gentleman's game in this state; therefore gentleman lawyers do not sully themselves by becoming politicians. This distaste extends to other forms of public service as well. Dillon Anderson of Baker & Botts, who served as Special Assistant to Dwight Eisenhower, and John Crooker, Jr., of Fulbright Crooker, who took a leave of absence to assume the chairmanship of the Civil Aeronautics Board, are exceptions to a very rigid rule. Much more typical is John Heard at Vinson Elkins, who declined John Kennedy's request to serve as Commissioner of Internal Revenue because his firm objected.
The big firms, of course, cannot please their critics either way. The very people who deplore their unwillingness to share the responsibilities of public service would be furious if they decided to do so, considering the possibilities for conflict-of-interest charges that could be levied against a legislator whose law firm represented the multitudinous clients of the Big Three. In any event the question of direct political participation is academic. As one lawyer remarks, "The big firms are conceived and bred like thoroughbred horses for one purpose: the practice of law. That is the end of their collective existence."
The political power is instead derivative. It flows through the big firms—and from them—but is not generated by them. It belongs to the people who have the money: those who rule empires of insurance, lumber, shipping, petrochemicals, utilities, and banking, to name a few. It belongs, in other words, to their clients (except in the case of the banks, which are often run by the lawyers themselves).
The big Houston firms act as mediators between these men with money and the men who hold (or want to hold) public office. "If you thought something needed to be done in Houston," muses a partner at Vinson Elkins, "the managing partners of the big firms would be the logical place to start." The firms' endorsement is a sort of imprimatur that gives credibility to a candidate, a proposal, or an idea; their power comes primarily from the fact that their judgment is trusted.
"Nothing big is going to happen in Houston unless Houston Lighting and Power, Humble Oil, et al. want it to happen," a liberal-minded trial lawyer insists. "And they're all represented by one of the Big Three. They go to their lawyer and have their lawyer tell the mayor." Not all the firms, however, have equal political clout. Baker & Botts seems at times to take a perverse pride in losing politically-tinged battles like the recent contest for Cable TV franchise rights, as though a certain degree of ineptness in dealing with politicians was the hallmark of a truly professional lawyer. Fulbright Crooker (which clobbered Baker & Botts in that fight) has a record of backing winners in political races without much regard to whether they were Republicans or Democrats. A study of the "Houston Establishment" last year placed PC at the apex of its pyramid. Vinson Elkins has for many years been the most politically astute of all, if one measures astuteness by success in seeing one's allies elected to public office; but their greatest impact has been on state, not local, politics.
To the outside observer, the role of the big Houston firms in state politics is a masterwork of subtlety. In essence it is a screening system that approves candidates and enables them to tap the great resources of establishment wealth.
"All the state officials go down and see them, hat in hand," says a wealthy, aristocratic former state legislator. But why bother with the lawyers, he is asked: it's the clients who have the big money. "Of course," he says. "But that's not the way it works. You have to go through the firm before you get to the client. You have to run the gauntlet first. In the old days you went to see Judge Elkins, or old man Crooker…Now it's one of the other partners, but the routine is just the same. If the firm approves, you've got access to the client. Unless you could get their blessing, you couldn't get the money from the client. And the firms would charge their clients fees commensurate with the heat they'd taken off them."
The last Texas governor who was not the candidate of the big firms (or substantially acceptable to them) was James Allred. He left office in 1939. The firms also take an abiding interest in the races for State Treasurer (held by Jesse James since 1941), Attorney General, the Railroad Commission, and of course, the Texas Supreme Court. Occasionally a candidate slips up on them, as did John Hill, a trial lawyer who made his reputation on the opposite side of the docket from the big firms and squeaked through to election as Attorney General in 1972. Hill's strategy was simple: he announced his candidacy at the last minute, preventing the big firms from fielding a third candidate who would split the anti-Crawford Martin vote. Hill has continued to be independent of them.
By reputation the Big Three have a hefty say in the selection of judges, particularly local judges. Partners in the firms seldom deign to accept judgeships themselves, but there is no doubt they keep close watch on those who do. Younger lawyers outside the big firms claim to see the malevolent hand of self-interest at work: "Get a judge who doesn't know the law," says one aggressive young newcomer, "and he has to depend on the reputation of the attorneys in the case…or of their firms." The quality of trial judges in Harris County is considered uneven, to say the least, but the appellate bench is exceptionally able for a state court. In the opinion of some experienced attorneys outside the big firms, it is at least the equal of the state Supreme Court in character, integrity, and legal scholarship. There is no real evidence that the Big Three actively attempt to maneuver mediocre minds onto the bench, although they do frequently get the benefit of the doubt in mediocre judges' decisions.
Members of the Big Three candidly admit that the firms hold a virtual veto over Harris County judicial appointments. (Although judicial positions are elective in Texas, most vacancies occur by death or resignation and are filled by gubernatorial appointment. The new judge then runs at the next election with whatever advantage an incumbent might have.) One prominent trial lawyer views judicial appointments as merely another example of the comfortable, symbiotic power relationships between big law firms and their prosperous clients. "Say you have a governor who got oil money the last time he ran. The law firm has a guy they want to see appointed judge. All they have to do is pick up the phone and call the Chairman of the Board of one of those companies, who just happens to be their client, whom they've just happened to keep out of trouble in the courts, and ask him to mention to the governor that so-and-so would make a fine judge down here. I'm not saying it's dishonest. I'm saying they use the political tools available to them."
Once on the bench, moreover, a Texas judge faces a lifetime of re-election campaigns if he wishes to remain there. While it is true that incumbent judges are hard to beat, very few are reckless enough to risk their positions by ignoring the political niceties. And the indispensable ingredients for apolitical campaign—publicity and finances—are conveniently available through the big firms and their corporate clients.
No one familiar with the practice of law in Houston seriously contends that the judges who win appointment or re-election in this fashion put on their robes and step into the courtroom determined to disregard the law in order to reward the lawyers and litigants whose influence helped them get there. But the idea that some lawyers and some clients exercise a disproportionate influence over the accession of judges has an insidious effect on the confidence other lawyers feel for their courts. Like so much else, it perpetuates an "us and them" attitude in the Houston bar.
Power Is Where the Money Is
THE ECONOMIC POWER OF THE firms is even more impressive than their political power. It can be traced to their special relationships with major Houston banks. National Democratic party chairman Robert Strauss, a Dallas lawyer, observes that while in most cities the big financial interests dominate the big law firms, in Houston the situation is reversed. And there is nothing at all derivative about that power.
On paper, the interpenetration is impressive: Jaworski is chairman of the executive committee of the Bank of the Southwest, and FC senior partner Hugh Buck also serves on the board. The firm also represents Houston-Citizens Bank, where two other partners, Newton Gresham and John Crooker, are on the board. Vinson Elkins is practically synonymous with First City National Bank, where senior partners John Connally and Marvin Collie serve on a board chaired by Judge Elkins' non-lawyer son. Baker & Botts has its share of partners on various local boards, but it has no major "captive" bank of its own. Paradoxically, however, this situation has given them special influence over many medium-sized banks. As a giant firm with the largest corporate clientele of all, they automatically fall heir to much banking business, and the other banks tend to prefer doing business with them because they are not identified with Bank of the Southwest or First City National.
Economic power flows both ways, of course; the answer to the question of who controls whom is often murky. But the influence of lawyers from the Big Three is obviously substantial. The banks have channelled a disproportionate amount of their legal business to their allied law firms, in sharp contrast to the Dallas banking tradition of spreading the work around. Houston law practice is rife with tales of heavy-handed banking tactics. In effect the firms can use the banks to promote their own business. Lawyers from the small firms insist they often do.
Nor is the alliance of lawyers and banks limited to the downtown giants. Because the Texas constitution prohibits branch banking, there is nothing comparable to California's vast Bank of America with statewide offices. Instead there is a plethora of small suburban "community" banks, each ostensibly an independent business enterprise. But the names of directors at the big banks appear with uncanny regularity as proposed directors for community banks seeking operating charters from the State Banking Board in Austin. An observer who has watched the Banking Board for years says, "When an application comes up, you can always tell which big bank is interested in it, just by looking at the names." Through this system of interlocking directorates, the big banks have dominated the Texas banking scene far more than the casual observer might suspect.
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