September 15, 2022

Podcast: A Conversation with Former Florida Solicitor General Amit Agarwal

Florida Capital Conversations Podcast Series

In the 13th episode of our "Florida Capital Conversations" podcast series, Amit Agarwal, co-chair of the firm's Appellate Litigation Team, joins the conversation to discuss his legal career path and time serving as Florida Solicitor General (SG). He shares details about his time working in the public sector, including positions at the U.S. Attorney's Office for the Southern District of Florida, the Office of Legal Counsel at the U.S. Department of Justice (DOJ), the U.S. Court of Appeals for the D.C. Circuit and the U.S. Supreme Court. The conversation focuses primarily on Mr. Agarwal's experience as the Florida SG. He explains the purpose of the office and highlights memorable cases he handled during his five-year tenure. He also provides insight on the office's relationship with the Florida Attorney General and discusses some of the challenges he encountered while serving as SG. Lastly, Mr. Agarwal shares how he has translated his experience in government, specifically as Florida SG, into his appellate practice at Holland & Knight.

This Tallahassee-based podcast series takes a look at the many different aspects of state and local government through the lens of experienced legal professionals. Hosted by attorneys Nate Adams and Mia McKown, these candid conversations offer a seat at the table to everyone who listens.


Podcast transcript:

Nate Adams: Welcome to our Florida Capital Conversations podcast series. Today, our guest is Amit Agarwal, a partner and the former Florida solicitor general who is going to recount some of his experiences. My name is Nathan Adams. My co-host is Mia McKown. We are so pleased that you have joined us today to consider an important office in state government and how it affects you and the business community. Mia, why don't you kick us off with the first question?

Mia McKown: Good afternoon. It's nice to be here today. Amit, I'm glad you were able to join us. You have had such an interesting career and have done so many different things that we hear about in the talking heads shows and things about at the top levels. Can you kind of share with us a little bit and our audience a little bit about your background because it's really unique.

Professional Background

Amit Agarwal: Sure. Thank you so much and thank you so much for having me on this podcast. I have been really fortunate to have a number of great legal jobs and I'd say some of them before I served, as SG, like Nate mentioned, I had the opportunity to serve in the U.S. Attorney's Office for the Southern District of Florida, first as an AUSA and then as deputy chief of the appellate division. I did two years at the Office of Legal Counsel at the U.S. Department of Justice, much to the distress of my Indian parents I clerked or interned for five judges over the course of my career, including Justice Alito at the Supreme Court, and then Judge Kavanaugh to the U.S. Court of Appeals for the D.C. Circuit. And I did one year at private practice immediately after law school.

Nate Adams: Great. Well, Amit a lot of our folks, some of the anachronisms you've used, like SG and AUSA and they may not be so familiar with. SG, solicitor general, you've served in that role for the state of Florida. AUSA, that sounds like an assistant U.S. attorney in the Southern District of Florida. And you mentioned working as a Supreme Court justice clerk. Just give us a just a brief look at what it was like to work in the U.S. Supreme Court.

Clerkship at U.S. Supreme Court

Amit Agarwal: It was a dream come true. It was really just an absolutely phenomenal experience. And in part, that's because of the kinds of cases that you get exposed to and the quality of the advocacy that you see. For me, like a huge thrill of the job was just working with a Supreme Court justice, in my case Justice Alito, and having the opportunity to learn from him on a day to day basis and to talk about cases that were pending in the U.S. Supreme Court with him and to get his perspective on them. So that was an enormously enlightening experience for me. And I learned so much just by having the chance to work and talk with him. And then there's the people that you get to meet too, the law clerk community at the U.S. Supreme Court. It's a really tight knit community. You got to know the other clerks really well. And there's actually kind of a weekly happy hour that you have with the clerks in a courtyard at the court. So it's a pretty phenomenal experience. And I'd say on top of that, there's just the kind of thrill walking around the court. And you really, for me, I really sort of felt like, what people call the majesty of the law. And I just felt kind of privileged and honored to be there every day.

It was a dream come true. It was really just an absolutely phenomenal experience. And in part, that's because of the kinds of cases that you get exposed to and the quality of the advocacy that you see.

Mia McKown: I often tell my daughter that when a lot of things about the Supreme Court and the Supreme Court clerks have been in the press lately, and I tell her what a unique, every time a Supreme Court justice has been up for confirmation that, what a unique experience it is. And that with the clerks and even with the justices, there's just really a small world of people that are really fortunate enough to experience that. But I understand I had a little bit of background information that despite how prestigious this is and what a unique club it is, it's my understanding your parents weren't that thrilled. Is that right when you got the appointment?

Amit Agarwal: Yeah, that is true. So I come from an Indian family. My parents were disappointed enough that I didn't go to medical school. That was the first blow. And then after that, I did a series of clerkships and internships and they, you know, they were not particularly thrilled about that. It didn't sound like anything that was all that prestigious. But at the end of that, there was the moment when I found out that I'd have a chance to clerked for Justice Alito, and he was kind enough to call me and to let me know that he was inviting me to join their chambers for a year. And the first thing I did after I got that offer was to hang up the phone and immediately call my parents because I felt like I owed so much of this to them and to everything that they had done for me over the years. And I wanted to share that moment with them. So I called them up and I tell them, you know, Justice Alito offered me a clerkship and I accepted and there was just dead silence on the other end of the phone. Nobody said anything. It must have been like 30 seconds. And then I was like, "Are you there, Mom? Dad? Are you there?" And so finally my mom said, "Amit, do you mean to say that you're going to be an intern again?" And I said, yes Mom it's not an internship. It's a clerkship. And I am going to do it again. And please don't ruin this for me. This is a good moment in my career. I'm really happy about it. And so then there was silence for another 10 seconds or so. And then my dad asked, "Well, did you get it in writing?" And so then I had to have the conversation of the Supreme Court justice, that's not exactly how it works. So that conversation did not go as I had expected. But I will say that they came around and they had a chance to tour the court. I think that was maybe the point at which they thought, okay, this is a pretty cool thing.

So that conversation did not go as I had expected. But I will say that they came around and they had a chance to tour the court. I think that was maybe the point at which they thought, okay, this is a pretty cool thing.

Mia McKown: Yeah, he has arrived despite our wish for him to be the surgeon general of the United States. We're okay with this gig.

Amit Agarwal: I'm pretty sure the surgeon general would have been preferred.

Office of Legal Counsel at the U.S. Department of Justice

Nate Adams: Well, you know, it's the same thing, SG: Surgeon General, Solicitor General, which we're really going to focus on here a little bit. But before we get to that, one other well, you've held several very interesting offices, but you don't hear a lot about the Office of Legal Counsel at the Department of Justice. Tell us a little bit about what that was like.

Amit Agarwal: That was a fantastic experience. The Office of Legal Counsel is a really small and I would say not very well known office, that's a part of the U.S. Department of Justice. It basically serves one of two functions that's been delegated to the Attorney General. So one big function that everybody knows about is that the attorney general represents the United States in judicial proceedings. But the other big function is that the attorney general is tasked with providing legal advice to the president of the United States and to all different components of the executive branch. That latter function, the advice giving function and especially the formal part of it, has been delegated to the Office of Legal Counsel. So it's kind of like, you know, a small office of lawyers that provides authoritative legal advice both to the president of the United States and the different components of the executive branch. And those opinions are binding within the executive branch unless they're overruled, either by the attorney general or by the president. So it was a pretty unbelievable job for me as a young attorney. I was just a humble attorney advisor serving in the Office of Legal Counsel. But you get to work on all kinds of just unbelievable issues, including a lot of separation of powers issues and a lot of issues that actually never make it to the courts. Because just in the nature of things, they don't give rise to justiciable controversies, but they tend to have a pretty significant practical impact on what the government can do.

It was a pretty unbelievable job for me as a young attorney. I was just a humble attorney advisor serving in the Office of Legal Counsel. But you get to work on all kinds of just unbelievable issues, including a lot of separation of powers issues and a lot of issues that actually never make it to the courts.

Florida Office of Solicitor General

Nate Adams: Well, that's all so fascinating. And I suppose we could probably spend the full podcast talking about either your clerkship or OLC, certainly both of those offices have been in the news a lot over the last six months and continue to be today. But well, today, what we really wanted to focus on, since we're focused here in the state capitol, is the Office of Solicitor General. Just for those who are listening today, who may be not familiar with what that office is all about, what it does, can you give us just a brief, a summary sketch of what that office is all about?

Amit Agarwal: Sure. The Office of the Solicitor General is part of the Florida Office of the Attorney General. The solicitor general often referred to as the SG, is appointed by and serves at the pleasure of the Attorney General. And the job is basically to supervise appellate litigation for the state and to represent the state, especially in the U.S. Supreme Court, and the Florida Supreme Court. So the SG serves, if you had to put it in one sentence, you'd say that the SG serves as the chief appellate litigator for the state of Florida.

So the SG serves, if you had to put it in one sentence, you'd say that the SG serves as the chief appellate litigator for the state of Florida.

Memorable Cases Handled as Florida SG

Mia McKown: I would assume that Florida is pretty robust. Seems like in recent times, with a lot of litigation that's going on not just within the state, but on behalf of the state. What were some of the most interesting cases that you handled while you were there?

Amit Agarwal: It was an unbelievably broad range of cases, and from my point of view, they were almost all interesting. So it's kind of hard to choose. But some of the ones that really stand out for me, I would say first is R.J. Reynolds v. State of Florida, which was in some ways just a case about routine contract interpretation. But it was actually about what we call the Florida settlement agreement, which was kind of a global resolution of claims between the state and tobacco companies. And this case, although in some ways it just like I said, it was dealing with how do you interpret this contract? But it really had to do with the continued vitality of the Florida settlement agreement and whether it would be, as a practical matter, enforceable on an ongoing basis. And it involved a one-time payment of an excess of $100 million, and then continuing payments on an annual basis that were very substantial from the state budget point of view. So that was a really fun and interesting case to work on. And I got to argue that case and the fourth DCA and then to represent the state in the briefing that was submitted to the Florida Supreme Court, that was one. Another one that kind of comes to mind is something that's pretty unique to Florida, and that's something called the Constitution Revision Commission, which is once every 20 years the Commission comes together and will come up with proposed constitutional amendments to the state constitution. The idea is that every once in a while you want people who are sort of learned in the law and who are coming from all kinds of different backgrounds to take a look at the fundamental charter of our state government and to see are there ways, as a practical matter, that we can learn from experience and do things differently? And it involves kind of, on the one hand, some elites weighing in on the nature of the state constitution. But then at the end of the day, it's submitted to the people for a vote. So it's kind of a, it's a really interesting process. And the SG's office had the privilege of representing the commission and the Secretary of State. In terms of, there was a whole wave of litigation about whether those proposed constitutional amendments would make it to the ballot. And that was a series of litigation, both in state trial courts and intermediate appellate courts and ultimately in the Florida Supreme Court. It was kind of intense over a period of a few months, but I would say that was one of the more interesting experiences that I had during my tenure as SG.

Interaction with Florida Attorney General

Mia McKown: A lot of people probably think that the attorney general for the state of Florida does a lot of this work, and it's very different. Was there any interaction or did you ever work hand in hand or work on cases together with the attorney general or are they two separate things?

Amit Agarwal: So the solicitor general, the office of the solicitor general have a lot of interaction with the attorney general because we serve under the attorney general. The attorney general picks the solicitor general. She supervises our work on a day to day basis. And so there was, I'd say, a lot of interaction with the attorney general. And ultimately it would be the AG's call with respect to any important litigation about what position the state would take. One of the interesting aspects of the SG's office and of state practice, this is kind of a big difference between the state and federal government is that we have a plural executive in the state. So we would have a lot of cases that were under the supervision of the governor's office or that involved agencies that have independent litigating authority. And in those cases, if there were matters of state significance, the attorney general's office and the solicitor general would be communicating with state agencies, but we wouldn't necessarily have decision making authority. So those were decisions that needed to be made by persuasion. And I would say that was one of the more interesting aspects of the job.

The office of the solicitor general have a lot of interaction with the attorney general because we serve under the attorney general. The attorney general picks the solicitor general. She supervises our work on a day to day basis... And ultimately it would be the AG's call with respect to any important litigation about what position the state would take.

Appellate Structure in Florida

Nate Adams: So some of our listeners will not even be familiar with the appellate structure in the state of Florida. You mentioned arguing before the fourth DCA and then you mentioned the Florida Supreme Court just for the for those who maybe are not experts in what the appellate procedure looks like in the state. Help us out a little bit with that.

Amit Agarwal: Sure. So in the state system of our state trial courts, which are called state circuit courts, then you have the next level of intermediate appellate state courts, which are referred to as the district courts of appeal. And we have five of those right now, although that's in the process of changing. And now there's at the very top of the Florida Supreme Court. And so the SG's responsibility, the solicitor general's responsibility, is to supervise all appellate litigation for the state, and particularly the litigation that's being handled by the office of the attorney general. And that includes appellate litigation in the state court system, as well as the federal court system. And so on the federal side, you have the entire state split up into three federal districts, the northern district, the southern district and the middle district. And all of those cases will go up to the U.S. Court of Appeals for the 11th Circuit, then up to the U.S. Supreme Court. So for me, part of the great fun of working in the Solicitor General's Office is that we did we would get to work on cases pretty much in every single kind of court, state trial courts, federal trial courts, state and intermediate, state and federal, intermediate appellate courts. And then especially one of the best parts of the job is getting to do litigation in courts of last resort.

For me, part of the great fun of working in the Solicitor General's Office is that we did we would get to work on cases pretty much in every single kind of court, state trial courts, federal trial courts, state and intermediate, state and federal, intermediate appellate courts. And then especially one of the best parts of the job is getting to do litigation in courts of last resort.

Challenges While Serving as SG

Nate Adams: Amit, so how long did you do that for the state of Florida? And during that time, I'm just curious what the biggest challenges maybe that you confronted as solicitor general.

Amit Agarwal: So I served as solicitor general for a little bit more than five years. I don't know this for a fact, but I have been told that I am the longest serving solicitor general in Florida history. I think, Judge Makar might be close.

Mia McKown: That sounded like a long time.

Amit Agarwal: It is. It was a long time. Although I'll tell you, it went by fast. And in terms of some of the challenges that we dealt with during my tenure, one of them was obviously COVID. COVID was a huge challenge for the state and for the solicitor general's office, although we actually instituted a number of changes, partly in response to COVID, that I think made a substantial contribution to the growth and the evolution of the State Solicitor General's Office, including hiring attorneys from all over the state who are able to work remotely for the state solicitor general's office. And not just in Tallahassee, which was one of the big changes that came out during my tenure. And in addition to COVID, there was staffing was always a big challenge. Whenever you're talking about state practice, we have unbelievably talented attorneys. But they were attorneys who could earn a lot more money than they would not only in the private sector, but also in comparable public interest jobs, including the federal government. So just finding attorneys who would be able to relocate initially to Tallahassee and who were willing to take a pay cut was definitely a challenge. Now it's especially true during my tenure because we doubled the size of the Solicitor General's office, so we had to do a lot of hiring during those years. And then I would say another big challenge was putting in place procedures. So the state was a lot less structured, I would say, than practice in the federal government. And as I mentioned, I came to the state SG's office from the federal government. I spent six years at the U.S. Attorney's Office. I'll just give you one example of what I'm talking about. If you're working as part of the United States government, when you get an adverse decision and you want to take an appeal, you have got to jump through so many bureaucratic hoops in order to get authorization to take an appeal. So every single, it ultimately has to go all the way up to the solicitor general of the United States. And the SG has to personally sign off on any kind of appeal from any adverse decision, no matter how mundane it might be. You're talking about as a practical matter, that's like five or six different levels of review. We would have U.S. attorney's office, criminal appellate division, you'd have an assistant to the solicitor general, the deputy SG and then the SG would personally see the actual memorandum where they would write their authorization to take the appeal. In the state, it was a completely different practice. When I started as SG, there were times when I would find out about an attorney for the state who was seeking to get the U.S. Supreme Court to take a case on behalf of the state. And I would learn about that in the New York Times or The Washington Post. So it was a completely different model of practice and just putting in place procedures that would make the state system kind of more analogous to the federal solicitor general's office was something that I found enormously gratifying, but it also took a lot of time and work.

Whenever you're talking about state practice, we have unbelievably talented attorneys. But they were attorneys who could earn a lot more money than they would not only in the private sector, but also in comparable public interest jobs, including the federal government. So just finding attorneys who would be able to relocate initially to Tallahassee and who were willing to take a pay cut was definitely a challenge.

Utilizing Experience as SG in Private Sector Practice

Mia McKown: Seems like there you had some really interesting cases and frankly, the fact that you were able to be there for five years, which is longer than a lot of the solicitor general's that I know of, that have served in that position since I've been in Tallahassee. Do you find that your challenges and your accomplishments there as a solicitor general, have they helped you transition to the private sector and how you serve your clients?

Amit Agarwal: Yeah, absolutely. It's been, I think, an enormous asset for me for a couple of reasons. First, to be SG is to be dealing with thousands and thousands of cases simultaneously because there's so much litigation to which the state is a party. And so you really do get a kind of holistic view of litigation. Not only that the state is a party too, but also that impacts the state. And to develop that kind of holistic view of the law. For the third largest state in the country is something that has obvious practical implications for any kind of litigation, not just Florida-centered litigation. So I would say that was one kind of big thing that I took away from my experience as SG. Another thing is the opportunity to do specialized kinds of work, including litigating in courts of last resort and by a court of last resort I mean, the U.S. Supreme Court or the Florida Supreme Court and for that matter, dealing with any kind of litigation that potentially could go up to the U.S. Supreme Court or Florida Supreme Court. And you want to be keeping that in mind that this is a possibility. Because in my view, appellate litigation is its own specialty. But litigating in a court of last resort is really a qualitatively different exercise for among other reasons, because the court of last resort is not necessarily bound by its own thrust. So you can come in and you can start out the litigation and you think you have a precedent that's directly on point and you're good to go. And it turns out you go up to the state Supreme Court or the U.S. Supreme Court and it's a completely different ballgame. So you really have to keep in mind a much broader set of considerations. And that's not even just because the precedent can be overruled, but the precedent can be distinguished. It can be narrowed in ways that can have enormous practical consequences for the conduct of litigation. So I would say those were two of the big ways that I came out of my experience as SG, and that has very significant implications for client service in the private sector.

To be SG is to be dealing with thousands and thousands of cases simultaneously because there's so much litigation to which the state is a party. And so you really do get a kind of holistic view of litigation. Not only that the state is a party too, but also that impacts the state. And to develop that kind of holistic view of the law.

Inspiring the Next Generation

Nate Adams: Well, I understand on a more banal level that at some point one of your kids expressed an interest in serving as solicitor general. Tell us about that.

Amit Agarwal: That's right. So that was pretty early on. And that was, I'd say, maybe 2016. I'd started as solicitor general and I walk into my study and I find my six year old son sitting at my desk and he looks like he's really focused on writing something. Like a lot of concentration. And so I go up to them and I said, Well, what are you doing? And he said, I'm writing my list for Santa. So I said, Can I see it? And he gave it to me. And it was a pretty long list. But number one was some kind of obscure toy that I had never heard of. Number two was solicitor general. And I asked him, what do you mean about solicitor general? Like, why is that on your list of things that you want from Santa? And he said to me, Well, because I want to be solicitor general when I grow up. And it left me with this feeling of, wow, my son wants to be like me. He respects and admires what I do. And so I'd say there was a period of about ten or 15 seconds where I felt really good about that. And then I made the mistake of asking him, why? Why do you want to be solicitor general? Which was an unforced error on my part. But he said, Because you're the boss and you get to tell people what to do. And so at that point, I had to correct him. I said, you know, I do I do serve as a supervisor within the office of the attorney general. But I have a boss, two of my bosses, the attorney general. And she is ultimately the one who calls the shots. And I could see that my son was so disappointed he didn't say anything, but he was really quiet about it. And he didn't say anything. So I just let it go and I didn't think anything of it. So I came back to my study a little bit later and my son was not there, but his list was still on the desk. And for number two, he had crossed out solicitor general and written attorney general.

Mia McKown: He apparently is a little bit different, but had a similar take about your career as your parents, did, you know? I mean, he sees it in a different, you know, maybe not as excited about it. I think all of our kids feel that way. Well, Nate, I don't know about you, but I'm certainly excited that we have someone like Amit with his expertise and experience here at Holland & Knight and what he can offer to our clients. I think it's really amazing the things that you have accomplished in the positions that you have held. And I've enjoyed learning a little bit more about it today.

Amit Agarwal: It's been a pleasure for me. Thank you so much for having me.

Current Practice at Holland & Knight

Nate Adams: Yeah, we're so excited to have you as a colleague. Just give us a thumbnail sketch. So what do you do here at Holland & Knight that your background has a bearing on?

Amit Agarwal: So I serve as the co-chair of the appellate team at Holland & Knight, along with my wonderful colleague Stacy Blank. And my practice has been focused, as you might imagine, on a appellate litigation, although I do a lot of work also in federal and in state trial courts providing litigation support and especially dealing with maybe case dispositive motions and also providing support in cases that are expected to go up on appeal. And it's been a very broad range of matters that I've been working on within those areas. I've had a chance to work on that I'd say maybe five cert stage matters at the U.S. Supreme Court in one capacity or another, and then working on some arguments in the 11th Circuit, and the Third Circuit. So it's been great experience for me, getting to work with such a phenomenally talented team on such a broad range of matters.

Nate Adams: All right. Well, I guess it's that time to thank my co-host, Mia McKown, also to thank Amit Agarwal for this informative and interesting discussion about, well, a variety of things to include the Office of the Florida Solicitor General. Most of all, thanks to you for joining us today, and please plan to join us for our next Florida Capital Conversations podcast. Have a great day.

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