When I first started doing white-collar criminal defense work as an associate at a big firm, I noticed that the partner always seemed to know the other lawyers on the case. They had been AUSAs together, or worked at Main Justice at the same time, or toiled in the trenches as federal public defenders.
Sometimes they had only a connection forged through a night of drinking at some conference somewhere.
At the time, I wondered how even tenuous connections led to a tremendous amount of professional trust among these lawyers—the kind of trust that you wouldn’t normally place in someone you only knew for a little while. White-collar criminal defense lawyers regularly participate in joint defense arrangements with other lawyers. To make a joint defense agreement work, you must trust that the other lawyer won’t turn around the tell the government what you have just shared with the group.
Now that I’m approaching two decades doing this work, I’ve come to realize why such trust exists: Mostly because the community of white-collar defense lawyers is a close group. That doesn’t mean everyone is a wonderful human being (not even close), but it is an amazing community. Heck, I’m proud to be part of it.
Why is it such a close group?
A Tough Job
Let’s start with the basics. This job is tough—intellectually and psychologically.
First, we lose. When do we lose? All. The. Damn. Time. Even the best lawyers in this profession regularly lose cases. Sometimes it feels like we are professional losers. [Go ahead, insert lawyer joke here.] It’s exhausting to lose more than you win. We lose motion after motion before trial. Our objections are overruled over and over at trial. Then we lose at trial. Then sometimes we lose on appeal.
We do all this losing even when we often have the better argument, because the deck is stacked against our clients (yes, even the rich ones).
All this losing can be tough. It’s a lot more fun to win, of course. None of us got into the law game thinking, “you know how I’d like to spend my days? Losing most of my cases.” But the fact is, those of us who stick with white-collar work know that’s what we signed up for.
Second, we help our clients through panicky and wrenching times. We explain the criminal justice process to them honestly, only to watch it dawn on them just how unfair the system is. We represent some clients who come into the judicial system convinced it is fair and that they will be exonerated early in the case. Then we see them realize that isn’t going to happen quickly (and may never happen). We represent some clients who come into the judicial system convinced it isn’t fair and then have every fear come to pass.
There’s a lot of hand holding in this job. I consider that as much of my job as winning the legal arguments, but it can be exhausting to support clients who are regularly suffering the worst time of their otherwise-successful life.
The recent apparent suicide of Jeffrey Epstein brings to mind every lawyer’s worst fear: that a client will one day take such a drastic step because of the heavy burden of an indictment. We bear that burden as well.
Third, at least in the small-firm world, we are often David fighting Goliath. This is not just a matter of financial resources—though that often plays a big role. More than that, criminal defense lawyers are constantly battling an objectively more powerful opponent. The government has the upper hand throughout the case. It has the FBI to interview witnesses and has grand jury subpoenas to gather documents. Plus, it has a head start timing-wise and a ton of case law in its favor.
It’s important to keep the “difficult” nature of white-collar work in perspective. There are other types of criminal defense work that I personally believe are much more challenging. I’ve only handled one death penalty case, and that was beyond-the-pale difficult. I honestly don’t know how capital defense lawyers regularly face that kind of possible outcome and the pressure of having someone’s life literally in their hands. My clients usually have somewhat stable families and at least some financial resources to retain a lawyer or get mental health help. So my practice differs from some criminal defense work where the clients are swimming in a sea all alone and need a social worker as much as a lawyer.
What We Get from the Community
That’s all the tough stuff that we get to share with other white-collar lawyers. Just having other people to talk to who understand this practice is critical to managing this type of practice. Other lawyers in this practice area “get it.”
But we get lots of other good stuff from our community.
Other white-collar defense lawyers understand what a “win” is. Sure, an acquittal is a win. But we all understand that a hung jury is also a win. Keeping our clients from being convicted on all counts is a win. Keeping our clients out of jail after a conviction is a win. Sometimes, just convincing a judge at sentencing not to hand down the sentence the government recommends is a win.
When I finish a trial, I know my fellow white-collar lawyers will be there to celebrate the wins, no matter how small they are.
I have a friend who worked on a very high-profile trial recently. If you read the media coverage, the defense lost. The client ended up with a substantial jail term. But when we had lunch and talked about the case, I congratulated him. The defense team had won acquittals on several counts—it was a huge win for the defense even though no layperson would have seen it that way.
When I lose a case, I know I can tell my white-collar defense friends all about it without fearing they will conclude that I stink as a lawyer. I don’t have to sugar coat it or pretend it turned out better than it did to save face.
If we win a case outright—well, Katy bar the door. That will result in lots of handshakes and hugs. No one minds someone bragging about a big trial win.
Beyond the support team, there are also more practical benefits to being part of this community. We share information on judges and prosecutors. We trade motions that we’ve filed and describe strategies that worked and didn’t work at trial. There’s no holding back information to help someone else; it’s not a zero-sum game. When one criminal defense lawyer wins on behalf of her client, we all win.
We also manage to have a hell a lot of fun together. The NACDL annual white-collar defense conference in DC is filled with amazing, fun folks. (It’s in October this year, so go ahead and sign up.) The ABA white-collar conference in March is a bit stuffier (and much too expensive) but the parties can be fun. Heck, you may bond with someone who will be in your next joint defense group.
To all the folks in this community: thank you for being so great. I love you guys (even if you are a bunch of lawyers who lose all the time).