What It Takes to Be a Trial Lawyer, If You Are a Woman

Portrait of a mature businesswoman taken outsideWhen I saw the title of the recent article in The Atlantic by Lara Bazelon, “What It Takes To Be a Trial Lawyer, If You’re Not a Man,” I couldn’t wait to read it. I’m a trial lawyer. I’m also a woman. Everyone loves to read about themselves, right?

Bravo to Bazelon for taking on a tough and seldom-covered topic.

My excitement, however, turned to dismay when I read the article. Bazelon’s thesis is that “the courtroom [is] merely another place where the advancement of women has been checked.”

That hasn’t been my experience, and I’ve tried cases across the country for the last 15 or so years. I’ve found courtrooms to be the great equalizer.

Do Clothes Matter?

Bazelon’s first argument is that female trial lawyers’ clothing is an issue. She posits:

Women’s clothing choices, by contrast [to men’s], were the subject of intense scrutiny from judges, clerks, marshals, jurors, other lawyers, witnesses, and clients. I had to be attractive, but not in a provocative way.

Every day I’m in trial, I wake up, pick either a dull dress and jacket or dull pants and a jacket, and start worrying about the stuff that really matters like my examinations. The only comment I ever received on my clothing was from one client who thought my clothing choices were “too boring” and urged me to wear some bright colors. I didn’t take offense, and I didn’t change my wardrobe to suit him.

We won the trial.

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Government Contractors Conducting Investigations: A New Normal?

By Dan Portnov

Here in DC, government contractors are everywhere and vital to keeping nearly all federal agencies running. Absent an Edward Snowden-level scandal, the integration of contractors and their day-to-day work in government offices largely goes unnoticed (and underappreciated).

Snowden-sized bumps in the road notwithstanding, the slow creep of outsourcing, contracting and privatization of government functions has been a predictable result of recent Republican administrations. For example, background investigations of federal employees have been privatized – routinely outsourced to private contractors – since 1996.

Recently, however, the roles of private contractors in regulatory, civil and criminal investigations have grown. Contractors, some on location with the government agencies they serve, have taken on an increased role in conducting investigations as well as making key contacts and decisions throughout the investigation’s course.

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Yes, Maybe the Government Does Hate the Attorney-Client Privilege—The Challenge of Protecting the Privilege for Civil Investigative Demands

unfair to fair on white paperWith all the talk in the media about grand jury subpoenas, it’s important to understand that subpoenas aren’t the only way that the government can demand documents and testimony.

One of the little-known but often-used methods is a Civil Investigative Demand or CID. This is a written demand by the government either for documents, for written responses to questions or for in-person testimony.

Just like in the grand jury context, it’s critical to protect the attorney-client privilege when responding to a CID. If you produce information that is privileged when responding to a CID, you will waive the privilege forever.

The government, however, cannot use a CID to demand production of privileged information. So why does the statute (and government investigators) make it nearly impossible for a company to protect its attorney-client privilege when it comes to CIDs?

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Initial Coin Offerings and SEC Enforcement: Protecting Investors (Part IA)

SEC HQ front.jpg  By Dan Portnov

Last week I had the pleasure of attending a reception featuring SEC Commissioner Robert Jackson, who spoke about FinTech, ICOs and crypto-assets. Jackson’s prepared comments and subsequent Q&A session were a rare look into one Commissioner’s concerns and hopes for cryptocurrencies as ICO quantity and investment set records each quarter. (Disclaimer: Jackson’s views did not reflect those of the Commission).

To the surprise of no one, Jackson echoed SEC Chair Jay Clayton’s views that most ICOs are securities that should be registered unless exempt and that not all ICOs are fraudulent. Among the other key takeaways:

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Prosecutors Sure Do Love the Perp Walk

Businessman is arrested and handcuffedBy Sara Kropf

I recently listened to Preet Bharara’s podcast on a long car ride. He’s the former United States Attorney for the Southern District of New York. After months of conducting interviews of government-side subjects—prosecutors, FBI agents and the like—he interviewed a person who had pleaded guilty to a crime.

What struck me was that although the interview seemed like a prime opportunity for Bharara to hear from someone on the other side of the table, Bharara clearly had no interest in really hearing what Jason Goldfarb said, at least when it came to criticizing Bharara’s practices.

In particular, Bharara declined this opportunity re-evaluate the fairness one of his former office’s pointless and cruel practices: the media-leaked perp walk.

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Supreme Court Rules SEC Administrative Judges Are Unconstitutional, But Special Counsel Mueller is Safe


By Dan Portnov

Yesterday, the Supreme Court decided Lucia v. SEC, holding that the Securities and Exchange Commission’s five-member commission must appoint the agency’s Administrative Law Judges (“ALJs”), as these in-house judges are “inferior officers” under the Constitution’s appointments clause. Justice Kagan wrote for a divided court that agency staff may not appoint ALJs, reserving that power to department heads, courts or to the president. (For those keeping score, Justices Ginsburg and Sotomayor dissented, while Justice Breyer concurred in part and dissented in part.)

As recently as 2016, the Commission had been waging a winning battle against financial advisor Raymond Lucia in the D.C. Circuit Court of Appeals, with the legal community watching closely. The Commission, represented by its trial attorneys and the Department of Justice’s appellate attorneys, had fought on behalf of itself and other federal agencies that similarly appointed and utilized ALJs. Many feared an administrative domino effect would result if the Commission’s ALJs were found unconstitutional. So what happened?

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Surviving Parallel Proceedings


judge-with-gavel-on-table-picture-id639884564.jpgBy Dan Portnov

Late last week the other shoe finally dropped for Theranos founder and ex-CEO Elizabeth Holmes, as she and fellow executive Ramesh “Sunny” Balwani were indicted on charges of wire fraud and conspiracy to commit wire fraud. Following allegations made in the Theranos investor lawsuit, the SEC charges against Balwani and settlement with Holmes, this latest and most serious development came as no surprise.

Theranos, with Holmes at the helm, had been the darling of Silicon Valley: once valued at $9 billion, touting a product that would have revolutionized blood testing technology and with investors that included well known private equity firms, media moguls, the family of the Secretary of Education. The deception and fall were also epic.

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Posted in Criminal Investigation, DOJ policy and practice, SEC Investigation, SEC policy and practice, Wiretaps | Leave a comment

The Department of Justice Should Drop the Inauguration Day Protest Cases

community initiative or concert concept, hands of group of people in the sky, silhouetteThe Department of Justice has been humiliated in its misguided prosecution of over two hundred Inauguration Day protestors.

It has lost every single case to go to trial. It has engaged in intentional violations of the rules. And it has cost taxpayers hundreds of thousands of dollars along the way.

The DOJ should cut its losses now and dismiss the rest of the cases.

On January 20, 2017, hundreds of protestors gathered at Logan Circle to protest the new administration. Along the route, a handful of the protestors engaged in property destruction ranging from exceedingly minor (dragging newspaper dispenser boxes into the street) to serious (breaking large plate-glass windows). The police eventually surrounded the protestors and arrested the remaining 234 people.

Arresting people is one thing. That’s on the police. Charging them with multiple felonies is another. That’s on the prosecutors.

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Posted in Acquittal After Jury Trial, Brady violations, Discovery/Brady, DOJ policy and practice, First Amendment | Tagged | Leave a comment

Initial Coin Offerings and SEC Enforcement: Protecting Investors (Part I)


scam-alert-picture-id918521002.jpgBy Dan Portnov

The SEC’s Office of Investor Education and Advocacy (“OIEA”) came in hot last week with its HoweyCoin initial coin offering pre-sale – a mock ICO designed to teach cryptocurrency-hungry investors the lesson that some ICOs may be scams. It’s quite clever, actually. Complete with countdown clock, tiers of discounts and a white paper (chock full of white paper confidence), the site also features Easter Eggs for securities lawyers, like the coin’s name and that its celebrity promoters feature a generic boxing champ.

(The SEC’s first foray into contemporary public service advertising was to warn March Madness fans about investment adviser fraud. It was catchy, though not as clever.)

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Posted in CFTC case, Due Diligence, Investor fraud, SEC Investigation, Securities fraud | 1 Comment

Do Prosecutors Hate the Attorney-Client Privilege?

By Sara Kropf

danger thin ice

The search of attorney Michael Cohen’s office by federal agents led to a phalanx of “former federal prosecutors” quoted by the media.

That’s not surprising. To be fair, I know a lot of great former federal prosecutors who provide informative quotes to reporters and likely share a lot of substantive information off the record that helps the media.

But what two former prosecutors recently said about the attorney-client privilege was disturbing because they show incredible disdain for it.

Liam Brennan, who used to be a federal prosecutor, wrote an op-ed in The Washington Post saying that the attorney-client privilege allows wealthy defendants “a free pass to engage in corrupt conduct.”

What, what? He couldn’t possibly have said that.

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