Washington Lawyer

Legends in the Law: Richard Wiley

From Washington Lawyer, September 2012

By Kathryn Alfisi

Richard E. Wiley. Photo by Patrice Gilbert.
During the course of his distinguished legal career, Richard E. Wiley’s name has frequently been seen among those in the “top” or “best” lawyers lists, and his accomplishments have come to be described in such terms as “superstar” lawyer, “one of the decade’s most influential lawyers,” one of Washington, D.C.’s “power brokers,” and, alternately, the “father” or “godfather” of HDTV.

Wiley is a cofounder of Wiley Rein LLP, where he chairs the firm’s 80–attorney communications practice, the largest in the country. From 1987 to 1995, he chaired the Federal Communications Commission’s (FCC) Advisory Committee on Advanced Television Service, which played an important role in the development of a high–definition television standard in the United States, and for which he won a special Emmy Award.

He practiced law at Kirkland & Ellis and the now–defunct Chicago firm Chadwell, Keck, Kayser, Ruggles & McLaren. Wiley left private practice to work for Richard Nixon’s 1968 campaign and to join the FCC not long after. In 1972 he became an FCC commissioner and, two years later, was appointed FCC chair, a position he held until 1977, almost a year after the election of President Jimmy Carter.

Washington Lawyer sat down with Wiley to talk about his busy and varied career and how he has managed to stay at the top of such a demanding profession.

Where were you born?
I was born in Peoria, Illinois, but when I was very young my dad moved his small business to Chicago and our family to one of the city’s suburbs that had excellent public schools, which was fortunate for me. My parents had not gone to college; it was a different era. Also, my father was only eight years old when his dad died, leaving him and six siblings without a lot of money. However, he believed in education and he wanted to make sure that I did have the opportunity to attend college.

Where did you go to college?
I really did not have a clue about colleges. My high school grouped students by skill level, and I ended up in classes with students who were all going to Harvard, Yale, and Princeton. I didn’t even know where Princeton was located. At 16 years old (I skipped a grade in elementary school) I just drifted into the school that was closest to where I lived, Northwestern. Luckily, it was a fine university.

What ideas did you have about a future career?
My plan was to be a high school teacher and a baseball coach (I played the sport in high school and college), but while I was at Northwestern one of my professors told me that I should go to law school, which was something I had never considered. Apparently, he saw things in me that I didn’t. So I took the LSAT, did well, and was accepted to Harvard, Yale, [the University of] Michigan, and Northwestern. I wanted to attend an Ivy League school and get away from the Chicago area for a while, but Northwestern gave me a three-year scholarship and my parents did not have a great deal of money, so that’s where I went.

What were you planning to do after law school?
I felt that I perhaps had some executive ability and thought about a career where I could have leadership positions, and since I graduated from law school when I was so young, I felt I had time to get an MBA. So I took the GMAT and was accepted by the only business school to which I applied, Harvard.

This was in the late 1950s and the Army was still drafting young men for two years of training. An officer from Fifth Army headquarters in Chicago asked some of us who were graduating from law school if we would consider a three-year stint in the JAG [Judge Advocate General’s] Corps. It was an attractive option, but I told him that I was headed to Harvard. However, my draft board advised me that in their view I had enough education and should expect to be drafted. Accordingly, I changed my mind and accepted the JAG commission. I managed to do well at the JAG [Legal Center and] School at the University of Virginia and was assigned to the Pentagon.

What did you do at the Pentagon?
I was placed in the government appellate division where I got the opportunity to argue general courts–martial convictions on appeal. Down the hall was another team of young lawyers, guys who I went to JAG School with, who were in the defense appellate section. We would write opposing briefs and face off against each other in the Court of Military Appeals, as it was then called. It was a real learning experience. Here I was, fresh out of law school, arguing before federal judges in black robes. It was somewhat intimidating at first, but you got used to it.

Partway through my JAG tour of duty, President Kennedy was elected and his administration decided to reduce the number of line Army JAG officers at the Pentagon to only one (the rest were placed in temporary offices out by the armory). I was the one selected to remain and was transferred to legal assistance, given a private office, and told to wear a suit (I only had one) and not my uniform. I began advising officers, including the Joint Chiefs [of Staff], and their dependents on all kinds of legal problems. In the next nearly two years I saw some 5,000 clients. Because I was new to many of the issues facing me, I spent a lot of spare time in the Pentagon law library trying to better educate myself.

How was the legal assistance experience?
I am not sure just how good my advice was, but for me the position was tremendously rewarding and maturing. I had the opportunity to deal with and help lots of people, which I really enjoyed. However, during those Pentagon years I often thought about my law school classmates who were working on complex issues at big law firms in Chicago. I was concerned that I might be far behind them if I ever get to be an associate at one of those firms.

Is that why you decided to get an LL.M. (Master of Laws) while you were in the JAG Corps?
Yes, it was. I thought it might help me land a job back in Chicago and that it also might broaden my legal education, especially in the litigation area. So I took evening classes at Georgetown and eventually earned a master’s degree in law.

Around this time I also began to write articles on military law for a Federal Bar Association magazine. Then a friend in Chicago asked if I would write an article on trial practice for an ABA Young Lawyers [Division] publication, specifically on the voir dire process. I, of course, had never selected a jury in my life. Again, I repaired to the Army law library, read a number of books on the subject, and decided on an article that would present 50 thoughts on picking a jury. Somehow I must have miscounted because the article was published as “49 Thoughts,” which I guess seemed kind of catchy to my editors.

I was then asked to write “49 Thoughts” articles on direct examination and then on cross–examination, both of which were also not part of my knowledge base, to say the least. For years thereafter, I saw those lowly pieces reprinted in various state bar publications around the country. All of these led to my becoming editor of the ABA Young Lawyers publication and, after I had returned to Chicago, chair of the Young Lawyers [Division].

How did you end up teaching law?
I went back to Chicago after I was finished with the JAG Corps and started working in a large firm. I decided it would be good to hone my own legal skills by teaching legal writing and research at a local law school near my firm. While the legal writing and research positions were filled, the school asked me if I could teach torts, yet another subject on which I had very limited experience. Nevertheless, I managed to stay ahead of my students for the first semester and thereafter taught tort courses at night for all of the eight years that I spent in Chicago practicing law. Incidentally, I began with about 25 students in my class . . . , but with the advent of the Vietnam War that number swelled to nearly 150. Also, for years and years after I started teaching, I would run into people who had taken my torts classes, which I found pretty amusing.

When and how did you get involved in the Nixon campaign?
In 1968 I was in Chicago and was active in local Republican politics (due to the influence of my dad), and I was heading the ABA Young Lawyers [Division]. The Nixon campaign contacted me to ask if I could suggest some lawyers to work on the campaign, so I recommended a number of my ABA colleagues throughout the country. The suggestions were well received, and as a result I was invited to attend the Republican National Convention in Miami. In turn, this led to a position in the campaign here in Washington, D.C., and, more specifically, in the Willard Hotel, which was then in a state of some disrepair.

What did you do when the campaign ended?
I had worked pretty hard and thought I might get a position in the new administration, but the problem was that I had no important contacts with the Nixon team. So instead I returned to Chicago, eventually became a partner in my firm, and sort of forgot about joining the government. However, during my stay at the Willard, I interacted regularly with a retired Washington, D.C., real estate executive who later happened to volunteer his services in the White House personnel office. From time to time he would call me in Chicago inquiring about my interest in various administration positions, none of which were remotely in my core practice area, which was trade regulation. But then one day he asked when could I come to Washington to meet with the chair of the [Federal Trade Commission] at that time, Caspar Weinberger. My answer was, “How about tomorrow?”

I had a very good meeting with the chair. We talked about me heading the Bureau of Consumer Protection, which, of course, would have been a great post, but I was really interested in the general counsel position, which was filled. My friend who volunteered at the White House … suggested that I come back the following week to interview with Chair Dean Burch at the FCC, which was again an area I knew nothing about. However, Burch and I hit it off well. He liked the fact that I had no conflicts and he told me that the existing FCC general counsel, Henry Geller, would remain on his staff and so I would have some time to get up to speed on the position.

I accepted the offer, moved to D.C., leaving my wife and young children temporarily at home in Chicago, and spent three months working days at the FCC and reading at night to learn as much as I could about the communications field. Fortunately for me, it was not nearly as complex as it is today. I also inherited an excellent staff at the FCC, which helped me to make the transition to a new regulatory field and new management responsibilities.

Then, only a year later, one of the FCC commissioners left and, lo and behold, I was appointed by the president to take his place, which was something that I never expected. Two years after that, Dean Burch decided to take a White House position as a top advisor to President Nixon, and then President Ford. Once again the stars were aligned for me and I became his successor. I was very lucky, to say the least, to have all three of these important positions while I was in my 30s and very early 40s. In all, I served seven–and–a–half years at the FCC.

How much of your career success do you credit to luck, and how much to hard work?
Both have been important factors for me. Obviously, I spent long hours working at the Pentagon, at my Chicago law firm, teaching night law school, at the FCC, and, for the last 35 years, as a communications lawyer here in Washington. But in truth, I have liked every position that I have had, so none of them has been a burden. I feel blessed by all the career opportunities that happened to come my way.

Of course, you have to try and make things happen when and where you can, maybe by going beyond the limits of your job and trying to expand your knowledge, your contacts, and your activities. You also have to be ready when opportunity knocks, even when that opportunity involves subjects and issues that may be new to you.

What happened after your FCC career ended?
Well, my FCC career extended somewhat beyond what I expected. After Ford lost the 1976 election, I anticipated a required departure soon thereafter. However, the Carter transition team asked me to remain as chair until they could find the right person for my job. That extension, much to my surprise and to my wife’s exasperation (she was hoping that I would return to a better–compensated private sector position), lasted for almost a year. But in that time I got to know and work with many of the new administration officials, and that proved useful to me when I finally did move on to private practice once again.

Finally, in early November of 1977, I joined Kirkland & Ellis as a partner in the firm’s D.C. office. I chose Kirkland because it was a strong firm, was based in my hometown of Chicago, had a small communications practice that I hoped to grow, and had asked me to be the partner–in–charge in Washington. I also knew the firm’s Bert Rein, who had been a State Department official in the Nixon administration. During the next five years we managed to double the size of the D.C. office and increase the number of communications lawyers to 25. Things were going well.

Then why did you decide to leave and start your own firm with Bert Rein?
In 1983 I got a call from Kirkland’s managing partner in Chicago advising me that he was going to become the general counsel of one of the Bell Operating Companies and also remain a partner in the firm. This was good news for Kirkland, but not for me at the time. I had argued cases in court concerning the breakup of AT&T on the opposite side, and I also had a large number of conflicting clients who would have to go. It became quickly clear that to maintain and grow the competitive communications practice that I was building at the firm, I would have to leave Kirkland & Ellis, which, in truth, I really didn’t want to do.

However, the separation was both friendly and business–like. Rather than joining another large firm and risking similar conflicts … down the line, Bert and I decided to open our own firm. About half of [Kirkland’s] 75 D.C. lawyers chose to cast their lot with us. We equally divided the four floors in our building, and on May 1 we ventured into something of a legal unknown.

Tell me about starting your new firm. Were you worried about whether it would succeed?
Very much. When I first looked at our sign—Wiley Rein—that had replaced the Kirkland & Ellis sign, I thought, “What have I done?” But we had a cadre of good lawyers (including Jim Wallace, our IP expert, and other litigators), combined with my existing clients and Bert’s, who all came with us, and things quickly began to move along. Our goal was to build a large, diversified practice focusing on Washington, D.C., and the federal government. Today, we have two dozen regulatory, litigation, and transactional practices; 75 communications lawyers; and close to 300 lawyers overall. Along the way we have added some excellent laterals who have developed their own practices in diverse fields. We are, I like to say, a nation of immigrants.

Throughout the last three decades, I have remained active in the communications practice but also served as the managing partner of our firm; these are probably two full–time positions, but it has been possible due to the support of my partners and our senior staff, many of who have been with us almost from the start. Actually, I feel very good about the fact that a lot of people, professional and not, have found a home at Wiley Rein. I try to know everyone who works here and maintain a firm that emphasizes a balance between work and outside life. In my opinion, it can be successfully done.

I am often asked for career advice and I always try to provide it because, without that Northwestern professor who advised me to go to law school and that D.C. real estate man who arranged the FCC interview for me, my life would have been much different. If I similarly can help someone, I want to do it.

What has been the most interesting work in your legal career?
I have had the opportunity to work on many of the large mergers and transactions that have taken place in the communications field during the last 30 years involving the Bell companies, CBS, Comcast, AOL–Time Warner, Tribune Co. and other newspaper companies, SiriusXM, and others. These have all been lengthy, complex, challenging, and often hotly contested proceedings and they inevitably have taken me back to the FCC, which always has been sort of a home base in my career. Additionally, I have argued cases before various federal courts and have been involved in numerous major media rulemakings. In all of this, I have had the advantage of a very deep bench at our firm, including people like Mike Senkowski and Larry Secrest who also worked with me at the FCC. You certainly don’t succeed in this profession alone, and I greatly appreciate and respect the expertise of my colleagues at Wiley Rein and even those at other law firms and companies with which we interact. The communications bar in this town is impressive, and I feel privileged to have been a part of it for many decades.

Tell me about your work in developing HDTV.
I really enjoyed my 11 years in the federal government as I’ve always had a longing for public service. An opportunity arose to return by joining the Reagan administration’s Justice Department, but it was difficult for me to leave the communications field and, once Wiley Rein was formed, really impossible. So when I got a call in 1987 from [then FCC chair] Dennis Patrick asking me to head a federal advisory committee to develop a new broadcast transmission standard for the country, it was very welcome. Patrick described it as a two–year, part–time assignment. However, it was nine years later until we were finally able to complete the project. But who’s counting when you’re having fun?

The United States’ so–called analog transmission standard was first established in 1941 and colorized in the early 1950s. All TV sets sold in our country had to be in compliance with that norm. The objective of the advisory committee was to move to a new, more advanced standard that would make higher resolution pictures and sound possible. Research in this area had been going on in Japan and Western Europe for nearly a decade, and Congress and the FCC were concerned that the United States was going to be left behind.

Starting from scratch, our advisory committee, which was made up of the leaders of the nation’s major broadcasting, cable, receiver manufacturing, programming (and later, computer) companies, devised an international competition designed to select a system that would serve as the basis of the new standard. Numerous ideas were submitted, but ultimately only seven systems were actually built and tested under the objective standards that we had developed. For nearly a decade, a thousand and more volunteers, including the cream of this nation’s video engineering community, worked on this project.

Along the way digital transmission, as is used in computers, was introduced by a pioneering American company. Unlike Europe and Japan, which had invested years in developing advanced analog television systems and were initially reluctant to move away from them, our committee embraced the new technological advance, and with our encouragement, most of the companies participating in this project switched to digital transmission. After carrying out exacting test procedures, the digital systems proved to be superior to foreign analog entries. However, all the digital systems had been developed somewhat on the fly and, accordingly, I proposed merging them into a single best–of–the–best elements system that, to make a very long story short, was built, tested, and approved by our committee and ultimately endorsed by the FCC as the basis of our new U.S. video transmission standard in 1996.

During those years I probably spent 15 percent to 20 percent of my time working on what was a pro bono project. Now, when I hear my friends and neighbors extol their digital HDTV viewing experiences, it gives me a great deal of personal satisfaction. As a nonengineer, I obviously didn’t design the new standard, but it was wonderful to have been a part of the process, as well as to receive an Emmy to boot.

With the increasing interplay between television and computers, I believe that the best is yet to come with digital transmission. People around the globe are now exploring the possibility of so–called “ultra–high definition” TV. So technology continues to move on.

How did you meet your wife? And can you tell me about your family?
I was working at the Pentagon when I met my wife. One Sunday I happened to meet a young Arlington school teacher in church; it all clicked for us and we have been married for more than 50 years. She has been a wonderful partner through everything and her patience, understanding, and support have allowed me to carry out the responsibilities and commitments of the various positions that I have held.

Both of us are very interested in the activities of our children and grandchildren, all of who live in Arlington, Virginia. And with six grandsons, I find myself watching a lot of baseball, which remains my enduring passion. My wife and I also enjoy tennis, reading, and trips to Bethany Beach, Delaware, whenever time permits. The truth is that with organization, discipline, and enthusiasm, there is time for everything in life, and as long as my health allows, I intend to continue to try and do it all.

Reach D.C. Bar staff writer Kathryn Alfisi at [email protected].

Periodically Washington Lawyer features a conversation with a senior member of the District of Columbia Bar reflecting on his or her career as a lawyer. The “Legends in the Law” are selected by the District of Columbia Bar’s Publications Committee on the basis of their prominence in their profession and their individual impact on the law and the legal profession in the District of Columbia. For past interviews, visit www.dcbar.org/about-the-bar/who-we-are/legends.