A Week In Review: Same Sex Marriage, Charleston, and Human Worth

Women Criminal Defense Attorneys: It’s about Worth

Recently there have been a whirlwind of monumental shifts in our country,  and although this blog is focused on the very specific goal of highlighting and promoting women in the criminal defense field, I feel compelled to discuss these events.

By far, the most powerful among them was the Supreme Court’s ruling in Obergefell vs. Hodges, and the related cases that held that same-sex marriage is a guaranteed Constitutional right.  At first glance this case appears to be about marriage, but in reality it sheds light on much deeper issues of human rights.  This case was about equality and human worth – as Frank Bruni, Op-Ed Columnist from the New York Times, so eloquently stated in Our Weddings Our Worth; “It was about worth. From the highest of this nation’s perches, in the most authoritative of this nation’s voices, a majority of justices told a minority of Americans that they’re normal and that they belong — fully, joyously and with cake.”

This was not the only significant case ruling this week. The day before the same-sex marriage ruling, the Supreme Court upheld the Affordable Care Act.  Otherwise known as Obamacare, the Affordable Care Act provides healthcare to all Americans. This is yet another huge statement about how we strive to see worth and value in every citizen, by assuring them access to medical care.

There was also the memorial for the horrific shooting in Charleston, and the video of President Obama delivering a powerful eulogy that moved our nation. Hopefully his words serve to heal some of the pain caused by the hatred and bigotry behind that senseless crime.  This event forces us to remember that prejudice and bigotry are alive and that we must continue fighting to assure that every person is treated equally and with value regardless of race, sex, or sexual orientation.

Lastly, it would be negligent to not mention that the Supreme Court also issued a ruling on Friday relevant to criminal defense in Johnson v. United States.  The case determined that imposing an increased sentence under the Armed Career Criminal Act (ACCA) residual clause was a violation of due process due to the fact the clause was unconstitutionally vague.

As criminal defense attorneys we, more than most, understand fighting and struggling for others to see the worth and value in every citizen.  Our clients are often society’s most hated and disregarded citizens.  At the core of what we do is the belief that a person is more than the worst thing that they have done in their life and that they have worth beyond a criminal act.  The theme that rings loud and clear this past week is a theme we appreciate and have to value.  When our nation demonstrates compassion and understanding in the way that it has this past week, we are all better for it.

Women Criminal Defense Attorneys: Current Happenings in Criminal Defense

Lately there seems to be a lot to talk about. For one, Loretta Lynch has hit the ground running since taking over the top spot as United States Attorney General. In late May, the Department of Justice announced the Indictment of a total of fourteen defendants which included FIFA officials and corporate executives associated with bribes. The New York Times summarized how the defendants fit into the long history of bribes associated with the World Cup. The investigation into FIFA continues as defendants have entered pleas and began cooperating with the Government. In fact it has expanded into an investigation into the involvement of Swiss banks in money laundering transactions related to the probe. All in all, the FIFA bribery case has and will continue to keep the criminal defense bar busy for a long time.

Then, just last week the Department of Justice announced the arrest of 243 people for health care fraud offenses throughout the United States. It is being called the largest crackdown on health care fraud in the history of the department. It was announced that the fraud charged resulted in $712 Million in fraudulent billing to the Medicare system. And as we can expect in any large federal indictment, when people start pleading there will be more to follow.

Clearly there is a lot of criminal defense work to go around and I hope that we will all remember to support other women in the field whenever we can. Stay tuned!

Women Criminal Defense Attorneys: What’s the Best Way to Break into White Collar Defense?

I have been meaning to address this topic for some time because I can’t even count anymore how many young lawyers ask me how to break into the white collar field. And the answer is both simple and complicated. I remember once I had a young woman fresh off law school graduation ask for guidance on the topic. She was having a hard time finding an opportunity in the white-collar field. She sat in my office and said, “I want to be a white-collar lawyer.” I told her that realistically nobody graduates from law school and specializes in white-collar defense. I advised her to focus initially on a career in criminal defense.   She landed a job shortly after in a respected criminal defense firm.

So what roads really lead to a white-collar practice? Some of the best advice I have seen written on this topic is by a fellow blogger and highly respected white-collar defense attorney, Matt Kaiser of Kaiser, LeGrand, & Dillon, PLLC in Washington D.C. His longtime partner Rebecca LeGrand is one of our own which gives him, as they say, street credibility on the WCDA blog. He addressed this topic three times in posts at Above the Law, here, here, and here. I highly recommend reading each of those posts if you’re trying to figure out how to break into white-collar practice.

From my standpoint, never forget that the heart and soul of any white-collar case is basic criminal defense. Regardless of how complicated or sophisticated a white-collar matter is, you still need to understand the basics of examining a charging document and the elements of the offense. You still need to determine if there are any legal challenges to the use of evidence and gain a command of the facts of the case. So the first answer is to master the fundamentals of defending a person accused of a crime. After you have mastered that there are unique facets to defending a white-collar matter, but without the basics of criminal defense you are missing the forest for the trees.

The best place to gain this experience is and always will be in the public sector. As either a prosecutor or public defender you get the opportunity to gain experience and critical trial skills necessary to defend a criminal matter. These are skills that simply aren’t easily obtainable in the private sector. Now, in this respect, not all roads are equal. Without question a job as an AUSA, Federal Public Defender, or an Assistant Director at the SEC are all well suited as a springboard into a white-collar practice. For the simple reason that you have more opportunities to touch white-collar matters. But even a state attorney or state public defenders’ job can be a strong stepping-stone to a federal public sector job or to develop federal experience in the private sector.

There is a belief amongst some that the golden path to a white-collar practice is an AUSA pedigree, but that mold has long been broken. Take for example Cris Arguedas from Arguedas, Cassman & Headley, LLP who is currently defending FedEx, charged in a criminal Indictment. Or Theodore Wells from Paul Weiss, and Hank Asbill from Jones Day to name just a few more well-known and successful white-collar lawyers who were either public defenders or grew up in BigLaw through the help of mentors. There are many more. And in fact there are equally successful and exceptionally qualified white-collar lawyers that were AUSA’s, many who I respect and hold in high regard.

Just don’t buy into the belief there is only one path to developing a white-collar practice. The bottom line is that focusing on white-collar defense is not something you can fall into out of law school. You have to be mindful of the paths you choose that can open doors to focusing on white-collar defense. But from where I stand it is well worth the effort.

Women Criminal Defense Attorneys: Alexandra the Great

Criminal defense heroes come in all types. There is of course the classic dramatic trial lawyer who can bring any witness to their knees with a masterful cross. Then there is the silent but deadly trial lawyer who the opponent underestimates at every turn, but in fact is nothing short of a jury whisperer. But the most unrecognized heroes among us are the appellate lawyers who yield the power to snatch a victory from the jaws of defeat. And this week one of those unsung heroines is Alexandra Shapiro.

She just won a new trial for former Deutsche Bank broker David Parse, who was convicted of tax fraud relating to a tax shelter scheme. The reversal was based on egregious juror misconduct which deprived the defendant of a fair and impartial jury. If that wasn’t enough, Alexandra Shapiro was also one of the architects behind the Unites States v. Newman appeal which has served as a game changer for insider trader prosecutions. The Second Circuit reversed and directed acquittals for both Todd Newman and Anthony Chiasson on the grounds that an insider trading offense requires that the Government prove that the tippee knew that the insider disclosed material nonpublic information in exchange for personal benefit. The Court found that the Government lacked proof on both fronts. Shapiro was involved in representing defendant Chiasson. And at the end of 2012, she obtained a reversal of the conviction of a tax lawyer and former partner of Ernst & Young arising from his work on the firm’s tax shelter practice. The Court found there was a lack of evidence to support the conviction of her client, Richard Shapiro.

Simply review the list of appellate victories on the bio section of her website and you will see that Alexandra Shapiro has been involved in the reversal of some of this country’s largest white collar prosecutions. So today in the wake of a huge victory for Alexandra Shapiro and her client I think it is time that those of us in the trial trenches pay some respect to the true appellate heroines amongst us, who honestly don’t get the glory they deserve. Let’s face it, we all agree there is nothing like walking a client out a courtroom after a Not Guilty verdict but in truth I think it must pale in many ways to unlocking the jail cell door for a convicted client. That is truly the stuff of heroes!

Women Criminal Defense Attorneys: More Action, Less Statistics

It seems that recently there have been an even greater focus on studies and statistics that tell us what we already know about the challenges women face in law. But I can’t help but wonder if this focus can actually become a distraction.

I recently had a friend tell me that initiatives and committees focused on promoting women take women away from what should be their real focus; getting business and making it rain. And the more I read these dismal statistics the more I am beginning to think she is on to something. That being said, I still believe there is value in facing the current status of women in law; the cold hard facts so to speak. And I am mindful that not all women have the opportunity to develop and learn the necessary skill set to get business. Finally I also know there are many factors that contribute to these sad statistics but I do think that we need more action and less statistics. But of course I feel compelled to share them nonetheless:

  • A recent Harvard Law School Study reveals that women lawyers work more hours than men. HLS conducted a survey of graduates of the classes of 1975, 1985, 1995 and 2000 entitled “The Women and Men of Harvard Law School” The study evaluated many differences between male and female lawyers including satisfaction, compensation, and leadership. In all the graduating classes studied, women outpaced mean in the number of hours worked while the class of 2000 women worked eight hours more per week than their male counterparts. The ABA Journal summarized the other findings from the study here.
  • The New York Times reported the findings from a recent study which revealed that some men “fake” 80 hour work weeks. In fact many news sites commented on the new study by Boston University professor Erin Reid that found that 31 percent men and only 11 percent women managed to pass as workaholics without the need to demand more flexible work environments. The takeaway being that men are doing a better job at “faking it to make it” than women are.
  • An American Lawyer Special Report about Big Law Failing Women which evaluates the status of women in big law and even contemplates the need for quotas. The articles include some pretty alarming statistics such as:
    • A $250,000 pay gap between comparable men and women Big Law partners
    • 8% female equity partners among Am Law 200 firms
    • 2181 is the year to expect gender parity among Big Law partners at the current rate of growth
    • Only 15% of Am Law 200 firms with three or more women on the compensation committee
    • Only 1 female named partner out of 258 named partners among Am Law 100 firms
    • 19 firms that hired associates from the On Ramp program that gives women who have taken a break from firms a chance to return.

So read them and weep or…let’s throw these statistics on their head by starting to concentrate on increasing our businesses and consequently our power in the field. And if you have trouble in that department find another woman in the field you can trust and ask for help. We are all in this together!

Women Criminal Defense Attorneys: Claire Rauscher and Karen Popp on Duke Energy Team

Two of our own, Claire Rauscher of Womble Carlyle and Karen Popp of Sidley Austin were part of the team that represented Duke Energy in the recent corporate plea and sentence to criminal violations under the Clean Air Act. Claire Rauscher and her partner James Cooney of Womble Carlyle represented Duke Energy from the outset. A multi-jurisdictional investigation by both state and federal agencies began after a 2014 coal ash spill into the Dan River in North Carolina. That investigation finally resulted in criminal charges being filed earlier this year.

Karen Popp was added to the team of lawyers representing Duke, and when she entered a notice of appearance, it certainly caught the media’s attention. Just this month the company entered a guilty plea to nine misdemeanor counts for ash-related violations at five power plants. Some of the counts were directly related to the Dan River spill but others were related to ash violations at other plants. The company was sentenced to five years probation and was fined $68 million, reportedly the largest fine ever imposed under the Clean Water Act. In addition the company is required to spend $34 million toward environmental projects in North Carolina and Virginia.

Duke Energy made a wise choice to assure that at least half of their team of lawyers were women. So often, as was the case here, companies are dealing with women on the prosecution side of the table, and building a diverse defense team is important. And the company couldn’t have found more experienced women in the white-collar field then Claire Rauscher and Karen Popp. Anyone that knows federal court knows that a plea to misdemeanors, regardless of whether you are an individual or a big company, means there was some fine lawyering on the defense side.

I am excited to see that women are and will continue to be involved in the biggest white-collar cases around the country. Congrats to both Claire and Karen for a job well done!

Women Criminal Defense Attorneys: Interview with Evan Jenness

EJEvan Jenness is a criminal defense attorney from Los Angeles, California. For over twenty-five years she has focused her career on defending clients and corporations accused of criminal offenses. She has extensive experience in federal court and focuses primarily on representing clients charged in white-collar matters. Before starting her own firm, she served as a deputy federal defender in Los Angeles. Evan is a past board member of NACDL and is currently co-chair of the Ethics Advisory Committee. She lectures and publishes extensively on both federal criminal defense and ethics. She has been recognized in Best Lawyers in America and Southern California Super Lawyers. Evan has earned a national reputation in the white-collar field and is known and respected as a tenacious advocate with a very strong knowledge of the law. Many years ago, I was introduced to Evan Jenness on a list serve. I remember asking a friend, “Who is that guy posting such intelligent content on the list serve, I save all his posts?” and I was thrilled to learn it was in fact a woman. And as I have been known to say when I am in the company of a true defender….she is the real deal!

What do you love most about being a criminal defense lawyer?

The challenges of taking on powerful entities and individuals in defending my clients and vindicating their rights.  Victory is easy to love, but I would be a criminal defense lawyer even if I succeeded less often.

What is the most significant shift that you have seen for women in criminal defense over the twenty-seven years you have been practicing?

There were very few women criminal defense attorneys when I started practicing, and most were junior lawyers.  The first generation of women defenders has now ascended, the second wave is coming of age professionally, and there is a large and increasing community of new female lawyers focusing on criminal defense practice.  It’s been a beautiful evolution to experience.

Do you think women bring unique skill and attributes to defending the criminally accused?

I’m not sure I could pinpoint specific skills, but I feel confident that women’s participation in the practice area has enhanced the field.

Have you had women role models? How has this impacted your career?

Women in high profile positions across the spectrum have always been a source of inspiration for me – from influential or powerful ones like Aung San Suu Kyi and Angela Merkel, to the late vocalist Miriam Makeba, who reflected the indefatigable spirit Soweto during Apartheid and thereafter. When I think about succeeding against the odds, I’m often inspired by considering the many women who have succeeded against odds greater than any I encounter. And, of course, there are the many talented women judges and defense attorneys I’ve been privileged to work over the years.

What do you think it takes for a woman to succeed in private practice in this field? 

A love of the practice and willingness to work hard.  It’s a challenging field and unpredictable circumstances are often the norm – whether it’s a client’s offices being raided in the early morning, investigation surprises, a document dump of tardy discovery right before trial, surprise witnesses, or any of the many other twists and turns of criminal matters.  It’s also still a largely male-dominated practice area.  Maybe some women can successfully transcend the gender barrier, but I’ll never make it into any boys’ club. One positive consequence is the sisterhood that has developed among many women defenders.  I’ve also found that gender is mostly a non-issue with clients, who care more about the quality of their defense than social issues.

What advice would you give a young woman who wants to specialize in white-collar defense?

Be persistent and take every opportunity that arises for getting a foot in the door. What do you see as the paths to specializing in white-collar defense? Be a public lawyer for a few years, whether a public defender or a prosecutor.

What is your proudest moment in representing a client? 

The highest profile proud moment that I’ve had was when a jury returned not guilty verdicts across the board for my client following a lengthy federal trial after his corporate employer had pled guilty.  I knew he deserved vindication, but the prosecutors and judge were formidable opponents throughout the case.

If you could go back and give yourself one piece of career advice what would it be?

I probably should have been more deferential to some of the curmudgeon judges who tried to bully me when I was a young lawyer.  Watching savvy defense lawyers like Marilyn Bednarski, with whom I was a DFPD, interfacing with those same judges showed me a more sophisticated way of not being pushed around.

What do you consider your most valuable weapon in your defense arsenal?

Courtroom experience and self-confidence based on years of practice.

Of the women criminal defense attorneys that you know and admire what made them stand out to you? What about them inspired you?

Their talents and commitment to defense practice.

Moment you knew you had made it?

I’ve made it?! I hope that day never comes, because I’ll have to head off to find a new challenge.

One thing people who know you professionally don’t know about you?

I began traveling the globe at about 6 weeks old, spent many years of my childhood living in Africa, and have a multi-racial family.  I learned early on that we are all one people, whatever our differences.  I also know, each day, how fortunate I am.

EJ2

Women Criminal Defense Attorneys: Can Women Be Partners… and Parents?

The New York Times recently highlighted a woman-led law firm that lets partners be parents. The Gellar Law Group has created an environment where lawyers can both commit to practicing law and caring for their children. The article cited an M.I.T. Workplace Center report from 2007 which found that by far the most important reason women gave for deserting the partnership track was “the difficulty of combining law firm work and caring for children in a system that requires long hours under high pressure with little or inconsistent support for flexible work arrangements.” So has the Gellar Law Group, with their focus on flexibility, found the answer to this dilemma?

In many ways I think the answer is yes. It is certainly a critical step in the right direction. The old brick and mortar law firm mentality needs to change before we will see a significant rise in the number of women staying in the field and reaching positions of power in law. Like it or not, women still largely bear the burden of child rearing and ultimately this has a devastating effect on our ability to compete on a level playing field with men who don’t equally share in child rearing. Carving out flexible work environments is a significant step in leveling the playing field.

There are so many aspects of the practice of law that are changing. Today technology allows a lawyer to expand their practice beyond the walls of their office. And in spite of the fact there are obvious pros and cons to being available to clients 24/7, the reality is that this same technology allows lawyers in general more freedom to actively participate in their children’s lives and still practice law full time. So while there seems to me to be a greater effort to provide flexible work environments for all lawyers, in my opinion, the real beneficiaries of this shift will ultimately be women.

Women Criminal Defense Attorneys: Lift Each Other Up

I just learned about a book called The Woman Code by Sophia A. Nelson that came out last year. The book advances the idea that the “code” that women function under is antiquated and no longer working. Nelson argues that creating sisterhood and concentrating on helping each other is the path to success.

CNN’s Kelly Wallace interviewed the author and asked why women too often don’t lift each other up in the workplace, but tear each other down instead. Nelson shared 5 ways women can stop tearing each other down at work:

  1. Steer clear of women who “don’t do” women friends
  2. Collaborate and share
  3. Be a mentor
  4. It’s reciprocal
  5. Be willing to have “courageous” conversations

Nelson discussed the competitive nature of women and the prevailing attitude that we are fighting for the same piece of the pie. In contrast, men often have an attitude that there is enough pie to go around and that they might even work together to get a bigger share of the pie. Nelson admits that for so long there was a very limited piece of the pie for women in business, which might account for this attitude. But now, she points out, this reality has changed and we need to start lifting each other up. Men share an attitude of lifting each other up and collaborating and we need to do the same thing for each other in business.

Nelson reinforces what I believe is the real secret to our success. We need to commit to helping one another. And we need to stop spinning our wheels trying to convince women that don’t understand this, are too afraid, or are unwilling to support other women. If you encounter a woman that won’t accept this idea, move on and find the ones that do.

This isn’t about being anti-men. The more we grow in this field by growing our businesses, the more that everyone, both male and female, benefit. I have strong business relationships with both women and men but I do prioritize supporting women in the field. That doesn’t mean I don’t support men in the field, because I do. I share business with both women and men and I benefit from business from both women and men. And as my business grows so will my ability to support other women and men in the field. But it is time that we all realize that strengthening our sisterhood with a common goal of pulling each other up, not tearing each other down, is the real secret to our success.

Women Criminal Defense Attorneys: Diversity in Action at ABA

At the recent ABA nominating committee the leadership slate shows diversity in action. During a “coffee with the candidates” session at the Midyear Meeting in Houston, six current or soon-to-be officers of the association were introduced to members. What was striking about the candidates is that there was only one man, while the other five candidates were women. This is obviously a shift in the optics alone and an important statement about the ability for women to reach positions of leadership in law. Recent statistics, which we have discussed on several occasions, show that women are still not reaching positions of leadership in law firms proportionately with the number of women in law. The diverse nature of our future ABA leaders will hopefully serve as both an example and a call for change.

Many of the women are running unopposed and although the formal election is still a year away, the Nominating Committee did formalize the selection of Linda Klein, who is a managing shareholder of a firm in Atlanta, as president-elect nominee. “It makes me proud,” said Klein of the diversity in ABA officers and candidates. “It gives me a lot of confidence in the future of our association, because diversity leads to the best decisions.” Klein will follow President-elect Paulette Brown who will become president in August.

The ABA has shown real commitment to advancing women in law with the development of initiatives such as the Commission on Women in the Profession. The increase of women in positions of leadership at the ABA demonstrates that initiatives of this nature work, and that confronting the challenges that women face in the field head-on works to open minds and doors for women.