Interview with Jodi Avergun - Fighting for the Incarcerated in a Pandemic

This fascinating sit-down with Jodi Avergun took us through her many years of passionate legal practice, from her time with the Eastern District of New York to becoming Chief of Staff of the DEA, to transitioning out of government to become a formidable private sector attorney grappling with issues like the national opioid crisis.

I would for love for our readers to learn more about your background and how you transitioned into becoming a defense attorney. 

I graduated from law school decades ago, in 1987, and I began my legal career at a boutique litigation firm in Manhattan. Most of the litigation partners there were former federal prosecutors from the Southern District of New York, and I learned from them very early on that being a federal prosecutor was the best job in the world. I knew I wanted to be in court more than I was in private practice, and I applied to both the Southern and the Eastern Districts of New York. I got the Eastern District job first.  Brooklyn was sort of home for me because I lived there (before it was popular), I went to Brooklyn Law School and a number of my former professors were on the bench in Brooklyn. I was delighted to go there. Despite the fact that the Southern District of New York is such a fine office, I don't regret my choice for a second.

I spent 12 years working in the Eastern District.  The Eastern District had a large docket of narcotics cases and high-level international drug and money laundering cases–what then counted as terrorism cases.  This was all prior to 9/11.  I had a very sophisticated investigations and trial docket in the Eastern District, and I rose through the ranks and became chief.  I then moved over to our Long Island branch, where the docket was mostly comprised of white collar cases, and I became the chief there as well.  While I had said throughout my federal career that I had no interest in white collar cases, I found that I loved them.  I would have left the U.S. Attorney's Office sooner and gone into private practice, but for 9/11.  After 9/11, a lot of doors opened in Washington, D.C.  The position of Narcotics and Dangerous Drug (“NDD”) Chief opened up in the Criminal Division at Main Justice.  A lot of people moved into national security after 9/11, and NDD needed an experienced prosecutor who could be trusted to run things on their own without much supervision because so much attention needed to be paid to enacting the Patriot Act and standing up the National Security Division.  I was lucky enough to get that job, and I stayed there for three years.  After that, I landed the position of chief of staff for the Drug Enforcement Administration (“DEA”). This was right about the time that prescription pills were becoming as big of an issue as the more traditional drug trafficking and narcotics cases that federal prosecutors had previously focused on.

In my role as chief of staff of the DEA, I was very involved in determining how the DEA and federal prosecutors could tackle prescription drug cases and make a real difference.  For example, drugs were being sold over the internet, and we pursued an internet drug strategy and got statutes changed.  It became a crime to prescribe controlled substances over the internet unless the internet website was a DEA registrant.  As part of that process, I was communicating with a lot of pharma company lawyers, who would have really been considered members of the white collar bar.  When I left the DEA, I went to Cadwalader, where I had the opportunity to build a practice that combined my prior lengthy experience as a drug prosecutor and policy specialist with my white collar experience.  I have been very fortunate to have built a practice at Cadwalader that draws from my diverse experience, and that is where I am today.

Working as Chief of Staff at the DEA is not the typical path for a white collar attorney in private practice. What impact did your experience at DEA have on your practice?  

I learned more in my two short years at the DEA than in any other professional experience.  I obviously learned the inner workings of the DEA and how all of the drug statutes and regulations work, but I also learned how to work with Congress, and how crises are managed. At the time, the DEA was in eighty-three (83) foreign countries and throughout the United States; there was a crisis a week at a minimum.  One of the most significant aspects of the job involved diplomacy, because we worked with foreign leaders all the time.  The DEA had a large role in funding and supporting foreign law enforcement efforts, so there was quite a bit of international travel and liaison with the intelligence community (the DEA reincorporated into the intelligence community after 9/11).  The DEA also had to liaise with other agencies like the State Department, the drug czar’s office, OFAC, the FBI and ICE.  Most things in Washington involve an interagency decision-making process, and I had to represent my agency, but also work with other agencies that had anything to do with narcotics, the drug industry and money laundering.  In sum, everything I learned at the DEA helps me be the lawyer I am today. It was a priceless training ground.

If my numbers are right, you went back into private practice around 2007. Where did you land, and can you tell us more about your practice today?

I went to Cadwalader, which was a law firm that I really wanted to work at right out of law school. They had this iconic, beautiful, light blue stationery. I knew nothing about law firms or private practice when I was in law school. I was incredibly naïve and uneducated about business. I was a top student, but I really knew nothing, and I shudder to think of how naïve I was. But I loved Cadwalader’s stationery, so I applied, and I was told that they didn’t accept applications from Brooklyn Law School, where I was a student.  Years later, Michael Horowitz, the current Inspector General of DOJ, who was an early mentor of mine and in fact still is, was on the Sentencing Commission. He was also a partner in Cadwalader’s D.C. office.  I had to testify before the Commission on an issue of some consequence to the DEA.  After my testimony, he called me and said, “I want you to come and talk to us.” And that was it. I never looked back.

Back in those days, in the middle of 2007, firms didn't bring as many government people in as partners as they do now.  So, I was not a partner coming in.  I had to earn my way to a partner position.  I was very fortunate to have had a lot of prior exposure to building and developing relationships and networks from my previous government roles.  While at the DEA, I worked with many different stakeholders that the DEA had to manage and persuade of the need for their involvement.  For example, there were multiple foreign governments vying for the DEA’s expertise and that had to be managed.  Another constituency, clearly, was Congress because they appropriated a budget to the agency.  I also had the government equivalent of client development experience from back in my days as an AUSA.  Within a three-mile radius of my office in downtown Brooklyn, there were two federal prosecutors’ offices, two outstanding district attorneys and an office called the Special Narcotics Prosecutor’s office.  In other words, there were five sophisticated and committed offices to service the needs of law enforcement – and everyone in those offices wanted the best, most important, most meaningful cases.  We needed to offer excellent client service to make sure that we continuously got the best cases and that the agents and police officers felt like justice would be best served by bringing their cases to the EDNY.  There was nothing untoward that was ever done, but unlike many former AUSAs, I had early and extensive exposure to the need for excellent client relations and service.  So, my government experience helped me develop a lot of the skills necessary for client development, marketing and communication with the leadership of an organization. I received this both via my work at the DOJ over the years and by watching Karen Tandy, who is a master of it.  She was the Administrator of the DEA when I was there and was the first woman to hold that role.

I want to go back to something that you said about not entering private practice as a partner from government. At that time, you were 20 years out of law school and had left three senior positions in government. Why didn’t you enter as a partner?  

That was not uncommon at that time.  It doesn’t seem that long ago, but it was.  Women were not coming out of government and being offered partnerships like they are today.  First of all, I don't think it was personal.  Second, I think there was some skepticism about how I could translate what was largely a life of prosecuting drug cases into a profitable practice at an old school, white shoe, Wall Street firm.  I think that was really the main thing.  Of course, they knew I could service their existing clients, having been a trial lawyer for so long with extensive courtroom experience, having taken lots of testimony and written briefs in the circuit courts of appeals.  They figured, let's test it out, we won't lose that much if it doesn't work.  Developing business is the coin of the realm for making partner and I think they never really expected, at the time, that I would build a practice on my own.  My experience, in the view of most law firms at the time, was a bit niche and they weren't sure how that experience segued into a white collar practice.  Also, it wasn't commonplace back then that just because you walked out of a government position at EDNY or SDNY or the Criminal Division at DOJ that you walked into a partnership position in a law firm.

What was the makeup of women partners at the firm at the time? 

There were a couple of women partners at the time.  There were maybe a few women partners in litigation.  The firm was a much larger firm back then.  There was one woman who was partner in the D.C. office and maybe ten out of a hundred and fifty partners.  It was a different time.  Back then, no one was talking about diversity, I’ll tell you that, or issues relating to women’s leadership.

Can you describe your current practice more and what does your ideal case look like?

Our firm has a lot of financial institution clients, so much of my practice involves servicing our clients’ needs.  I specialize in international corruption and money laundering cases for financial institutions.  I do a lot of government investigations on the defense side.  It involves a lot of government interaction, investigation and interviews.  Those cases rarely go to trial.  The other half of my practice involves representing mostly companies (but sometimes individuals) in Controlled Substances Act cases.  For example, as the opioid crisis has blossomed, or burgeoned, federal prosecutors have begun to consider whether criminal charges might be brought against companies that manufacture, distribute and dispense controlled substances.  When I started out, defending companies in Controlled Substances Act cases largely involved DEA administrative matters.  There were internal investigations and there was usually a settlement.  Sometimes things got a little bit more aggressive, but largely the cases settled.  The DEA would take a more aggressive posture in their initial interactions with the company, but it was generally manageable.

Now, with the opioid crisis and the opioid MDL, and people realizing all the facts that have come out in those cases, every entity in the government takes a much harder stance.  There is less of an ability to negotiate through.  There are more trials and adversarial hearings.  There are way higher settlement numbers in terms of dollars and there are criminal investigations of individuals, which has never happened before in this space.  And, until April of 2018, when the Government filed indictments against Rochester Drug Company, its chief compliance officer and its former chief executive, followed shortly thereafter by a similar case with Miami-Luken – both of which are wholesale drug distributors – no one had ever taken the position that failing to comply with all of your DEA compliance obligations was a crime.  But the Controlled Substances Act arguably allows compliance failure to be considered a crime, and industry professionals were being indicted for narcotics conspiracies as if they were Pablo Escobar or Chapo Guzman.

My practice involves quite a lot of those cases.  I represent individuals and companies, I have been appointed as a monitor and I have served as an expert witness to companies involved in civil litigation.  Anything around the Controlled Substances Act is my niche practice.  But my ideal case, just because it is more squarely within everything that Cadwalader does, is an international financial institution matter involving money laundering sanctions and/or an FCPA case.

I want to shift and talk about the Women’s White Collar Defense Association (WWCDA).  You have a leadership position in the association. Can you tell us more about that role and how it has helped or advanced your practice?

My role is as a co-chair of the WWCDA Awards Gala, which is something that we started just last year.  It took 18 months of planning to organize the inaugural gala and it was a lot of work, which I shared with my co-chair Lynn Neils.  As a result of this role, I participate in Executive Committee meetings with the WWCDA leadership.  What has that done for my practice?  First of all, it has given me the opportunity to develop fantastic relationships with so many people.  I pride myself on being savvy about networking.  I knew early on in my career not to burn bridges, that the boss today will be your subordinate tomorrow and that your subordinate today will be your boss tomorrow.  I have been savvy about that, but still, this organization has exposed me to so many areas of the law, so many parts of the country, and so many more people than those that I worked with directly in government.  I have met people who are not just committed to their law practices but also are committed to advancing other women in the law.  The opportunity to meet all those people has opened up lots of relationships I wouldn’t have had exposure to otherwise.  That’s how I met you – we were playing an icebreaker game at an annual WWCDA meeting in New Orleans – and you had me at hello!

You really stepped up with some other women from WWCDA to help organize COVID-19 resources for our members. What inspired you to do this and can you describe the effort more?

From the very first, I was touched by the fact that people in prison are at particularly high risk for contracting COVID-19 and have a higher risk of negative health consequences than the general population, because of the restrictions in prison (close quarters, the lack of sanitation facilities, etc.).  So, I thought, first and foremost, what are people doing in connection with their clients who might be in jail?  I, personally, was thinking of one of my clients who is incarcerated on a very old anti-trust violation, and what I could do for her.  I reached out to the WWCDA network immediately to see what others were doing.  Justine Harris quickly responded to my first email and I said, “We should try to do something through the WWCDA.”  I was hoping that we would be able to set up a database within our network where people could just pull out resources, so Justine and I and several other women had a conference call about this.  We began collecting COVID-related resources to support bail arguments, sentencing delays for client’s post-plea, and compassionate release for sentenced defendants.  We also started to collect data.  I made a few phone calls, and collected some documents, but Justine had an amazing assistant at her firm who started uploading and organizing material, and Justine, being a member of the CJA panel and a former federal defender, had access to all these amazing listservs.  Justine has become really the clearing house for everything and an expert in compassionate release.  Whenever she gets resources from other groups, they come right into in the WWCDA Box storage.  It’s an amazing thing to know that the resource is available to our members.  I knew we would all have these kinds of cases.  I’m a big proponent of not reinventing the wheel and benefiting from the group think of a lot of smart people.

What kinds of COVID-19 work or issues are you dealing with yourself?

The incarcerated client I described above is the main one but, of course, I have many clients who qualify for the small business loans.  We have been working with clients to determine, for example, whether they qualify, how affiliated businesses qualify, what employees count, whether foreign employees count, and whether part-time employees count.  From the moment it came out, I have had to advise clients on a lot of issues related to the CARES Act.  And those questions, you know, have come fast and furious.  But as much as I like helping my other clients, filing a compassionate release petition for my incarcerated client was the most meaningful thing that I have done related to COVID-19.  We’re waiting to see what will happen.  It's just been filed this week.

How has social distancing affected your practice? Do you believe that it will create lasting changes for lawyers and law firms moving forward?

From a very practical standpoint, there's no more traveling, interviews, meetings with prosecutors, or in-person representation while this is going on.  That is a huge change for my practice.  A lot of my work involves traveling to the clients and meeting people at the clients’ businesses outside of Washington, D.C., and since travel has stopped, I have had a lot more time.   But, social distancing has benefited me in a couple different ways.  One way is that I have found different ways to connect with people.  We currently have a common pain that we are sharing and that has opened up a lot of doors and conversations that people might have been reticent to have before the crisis.  For a white collar lawyer, that's a good thing, because there's a lot to say for having personal relationships in this field.  Also, I am talking to a wider variety of colleagues and I have more time to do that.  Defaulting to Webex instead of telephone conference calls has also been great for developing relationships.  So, I think that's sort of one benefit.  Relationships seem more meaningful.

The second is that it's really forced me to think about the following question: What do our clients need now and what should they be thinking about in the days ahead in the white collar realm? I have been brainstorming and discussing this topic with my fellow partners and associates.  How can we better serve our clients during this time?  Do we want to tell them that now is a good time to consider focusing on compliance?  You could explain, here is what happened after the financial crisis when there were all these inspectors general overseeing how the government was giving out money.  Maybe we should look at that to see where inspector generals are going to focus their attention with respect to the CARES Act’s funds.  Let’s write something about that.  Let’s do some thought leadership on, for example, how do you accomplish due diligence in an AML space when you can't send the sales executive out to meet the client, to know your customer.  So, we've been trying to think of practical ways to do more meaningful marketing that is attuned to client needs.  That has been really freeing and has allowed for some creativity.  And just to go back to another practical impact, I've become really good at using all this technology that allows people to communicate, either with a U.S. Attorney's Office to conduct a meeting over Webex or with other lawyers.  I even taught some skeptical prosecutors how to do it and we had practice sessions with them before conducting the meeting.

I have been wondering if one of the positive outcomes from lawyers working from home might be a leveling of the playing field with respect to the rate at which women advance in law firms compared to men?

That’s a great point.  Firms are experiencing firsthand that lawyers can be productive from home.  No one can really now turn around and say, working from home doesn’t work.  Of course, it works, it worked when we had to make it work.

I always ask the women I interview to tell me one thing about themselves that few people know. 

I am fluent in Spanish.  Most people are surprised when they learn that someone with the stereotypical Long Island suburban upbringing of the 1970s speaks Spanish.  I minored in Spanish at Brown and studied in Madrid my junior year of college.  But where I really became fluent was in EDNY where many, many of our wiretaps were in Spanish, and many witnesses in cases were native Spanish speakers.  I heard Spanish spoken nearly every day of my 12 years there and was able to become a fluent speaker by listening to and speaking with my witnesses and their families over those years.  When I started at Cadwalader, I was often called upon to travel to Central and Latin America to work on FCPA investigations in places where my skills were put to very good use.