I recently came across an NPR series called The Changing Lives of Women which addresses the gains that women have made in the workforce, and the challenges that remain, through stories and interviews from around the world.  One of the interviews was with longtime NPR legal affairs correspondent Nina Totenberg  who was asked “When have you been the only woman in the room?” Her answer was “are you kidding me? Like the first 20 years of my career.”  Totenberg covered the Supreme Court, the White House, and Congress, and says she was either the only woman or one of very few for much of her career. But she added that this isn’t the case anymore, and if you just look around, there are simply more of us.

Totenberg thinks the most important component to ensure change for women is to first increase our numbers.  She used Justice Ruth Bader Ginsburg as an example, who became the only woman in the room after Justice Sandra Day O’Connor retired from the Supreme Court.  According to Totenberg, Justice Ginsburg kept saying “I’m the only woman here; I sometimes get treated in a way I haven’t been treated in years; people go around the table and I have something to say, and nobody reacts, and then a half-hour later some man says the same thing and everybody says, ‘Oh what a good idea.’” Obviously that has changed with three women now on the Supreme Court.

Totenberg gives advice that definitely applies to women criminal defense attorneys: “My first piece of advice is get another woman in the room. And my second is demand respect. You should get it. You don’t have to be a man to get it. You don’t have to be a flirt to get it. Just be yourself and if it’s not working for some reason, just say so.”

I think if we asked veteran women criminal defense attorneys these questions, their answers would be very much the same.  Today, we might ask, “When have you been the only woman at the defense table?” and I can tell you from personal experience that, even today, the answer is “many times.” I think as more women find themselves interested in criminal defense, that answer will change. But it is incumbent upon all of us still in the trenches to see that our numbers continue to increase.  How do we do that? By making sure that we continue our efforts to reach out, up, and back to women in the field.

Judy Clarke is one of this country’s most prominent and recognized women criminal defense attorneys.  She was president of NACDL from 1996 to 1997 and has been the subject of media attention in the last couple of years as it relates to her representation of defendants facing the death penalty in some of this country’s most well known criminal cases.  Her list of past clients includes Susan Smith, the South Carolina mother accused of murdering her three children, Unabomber Ted Kacynski, Atlanta Olympic bomber Eric Rudolph, Tucson shooter Jared Loughner,  and now Dzhokhar Tsarnaev who is charged in connection with the Boston Marathon bombing.  She was appointed last week in federal court by U.S. Magistrate Judge Marianne Bowler, at the request of the Federal Public Defender Miriam Conrad, to join the defense team based on her experience representing clients facing the federal death penalty.

USA Today referred to Clarke as “the One-Woman Dream Team” and “the patron saint of criminal defense attorneys” when she was appointed to represent Jared Loughner.   U.S. News titled their article discussing Clarke’s appointment “Tsarnaev’s best defense: Judy Clarke, who keeps clients off death row.”   The accolades couldn’t be more deserved considering that the one important thing her clients share is having resolved their cases with a life sentence.  Representing clients facing the death penalty is not for the faint of heart; it requires incredible resilience and strength. It remains the most challenging work in our field and takes a huge toll on the lawyers committed to defending these clients.

In the same week Clarke was appointed to represent Tsarnaev, she was scheduled to speak at a legal conference where she shared some of her thoughts on her work… and as you can imagine, the media was paying close attention to her words.  The Huffington Post along with many media organizations covered the speech.  She made several memorable statements that really resonated with me. “Our job is to provide them a reason to live” and “Our clients are different,” she said. “We should enjoy the opportunity to step into their lives. It can be chaotic. But it’s a privilege to be there as a lawyer.”

What is so inspiring about her words is that they demonstrate her ability to see beyond the horrific acts of her clients and see them as human beings first.  Her words make it clear that she knows what I and many criminal defense lawyers know, that a person is more than the worst thing that they have ever done in their life… no matter how terrible.

I have represented a few clients facing the death penalty, and it is a humbling experience to be with a human being during their darkest hour, when they are facing the judgment and wrath of an entire world.  The sentiment in Judy Clarke’s statements may not be popular, but for me they are inspiring.  Many of us have represented clients who are charged with heinous crimes, but I don’t think there is anyone out there quite like Judy Clarke.  She is willing to stand up and defend the most hated criminals in the nation and she does it again and again.

Recently, the New York Times Dealbook published an article in which they noted the trailblazing role women have played in the area of research and study for white-collar crime.  They note that “[i]t’s still a man’s world in many sectors of the legal profession, as it is in much of corporate America. It’s true for prosecutors, for white-collar defense partners at major firms and in executive suites.  But when it comes to researching and being an authoritative voice of study about white-collar crime, women are taking the lead.”

The article goes on to explain how women developed a powerful foothold in the field of white-collar legal studies.  Many of the women who are leaders in this area of study attended law school at a time when the enrollment of women was increasing rapidly, and the number of women being hired as federal prosecutors after graduation was on the rise as well.  When these women left their practices to concentrate on teaching, many law schools still viewed white-collar crime as a minor subset of criminal law.  The author explains that “because white-collar crime didn’t really exist as an area of study when they started teaching and writing, the women had no glass ceiling to break through. Instead, they set the standard, and their influence on the white-collar bar continues to be significant.”

Today, everything has changed and white-collar crime is recognized as one of the major fields of criminal law, as well as a major area of study and research.

Among the noted women who are considered leaders in the area of study and research for white-collar law are:

- Kathleen F. Brickey of Washington University in St. Louis
- Sara Sun Beale of Duke University
- Sandra D. Jordan of the Charlotte School of Law
- Julie Rose O’Sullivan of Georgetown
- Pamela Bucy Pierson  of the University of Alabama
- Ellen S. Podgor of Stetson University

Many of these women have written extensively about white-collar crime and authored what are considered the authoritative textbooks in the field.  What I find so interesting is that, despite the leading roles that these women have played in white-collar legal research and study, the white-collar bar remains largely male dominated.  How do we reconcile this contradiction?

My hope is that the role these women play as authoritative voices in white-collar law, and in shaping the future of lawyers entering the field, will ultimately have an effect on the number of women in the field and in private practice.  It all comes back to the importance of reaching a “critical mass” and it seems that, in white-collar law, women have taken a powerful step in that direction. These women are not only trailblazers when it comes to academics, but for all women in the trenches of white-collar defense.

Over the past few months, the conversations regarding the challenges that women face in the workplace have been loud… but maybe not so clear. Articles like… Atlantic Magazine’s “Can Women Have It All?“ and The Wall Street Journal’s “The Tyranny of the Queen Bee“, seemed like the opening act for the launch of Sheryl Sandberg’s well-publicized book, “Lean In“.

Unfortunately, Sandberg’s message is often lost on those complaining and whining – and even her encouragement is perceived by some as a criticism of women.

An Atlantic Magazine headline reads… “Sheryl Sandberg Gives American Women A Performance Review.”  

Is the media fueling this fire? Or are they clearing the air? In small type the subhead of that article states… “Many of the people trashing this book weren’t the ones it was written for.”

Sandberg writes…

“In addition to the external barriers erected by society, women are hindered by barriers within themselves. We hold ourselves back in ways both big and small by lacking self-confidence, by not raising our hands, and by pulling back when we should be leaning in. We internalize the negative messages we get throughout our lives… messages that say it’s wrong to be outspoken, aggressive, more powerful than men. We lower our own expectations of what we can achieve…. Compared to our male colleagues, fewer of us aspire to senior positions.”

This is true… I see it every day in my practice. Smart, accomplished women not owning how incredible they are. I don’t mean communicating in a bragging way… but in a matter of FACT way. If I were to tell you, “I won the business breakthrough book of the year,” is that bragging or simply stating a fact?

Complaining and whining may force small steps… but stepping up to the plate, doing great work, being a colleague everyone can count on and giving every deserving soul a hand up… now that will produce giant leaps.

Own your accomplishments and your expertise. Stand up and lead… lead in your way. I’m with Sandberg, when enough of us are in powerful positions there will be no need for this conversation. In my lifetime… that is MY hope!

On April 8, 2013 the Justice Ministry of Saudi Arabia registered the nation’s first woman lawyer as a legal trainee.  Under Saudi Arabian law a trainee lawyer must work for a lawyer who has been practicing for at least five years, for up to a three-year period, before being allowed to plead a case in court. This monumental change for women is the result of women law graduates initiating a campaign in 2011 to fight for the ability to practice.  However, huge obstacles remain in the path for these women lawyers– such as the fact that there are still judges who segregate men and women in the courtroom.

The first woman trainee is Arwa Al-Hujaili, and the fact that she was able to register marks a significant step forward for women’s rights in Saudi Arabia. Of course, it is uncertain where this first step will lead, and if women will be allowed to practice in areas such as criminal defense.  Sabria Jawhar for Arab News believes it is unlikely that Saudi Arabian women lawyers will be permitted to practice in the criminal defense arena, noting that “issues include whether a woman who specializes in criminal law will be able to represent criminal defendants. The courts may adopt the Ministry of Labor’s policy that women can work as long as the job is suitable for her gender. It then may open the possibility of systemic abuses of banning women from practicing criminal law because a male-dominated oversight committee may determine that type of legal work does not suit her. Imagine the obstacles a female criminal defense lawyer will face if she represents a man accused of child molestation or a gruesome homicide. Whether she is free to defend whom she pleases has not been outlined by the government.”

I stopped in my tracks when I came upon the news that, just over a week ago, women lawyers in Saudi Arabia were granted the right to practice for the first time.  And the thought that these courageous women might never share the title women criminal defense attorneys was shocking.  I love practicing law in general, but being a criminal defense attorney is very much a part of who I am.  If I were not permitted to practice criminal defense for whatever reason, it would be an unimaginable loss. We take for granted what women in other parts of the world are still struggling to achieve.

Clearly, women lawyers in the United States are light years ahead of our counterparts in Saudi Arabia, nonetheless we still have not reached full equality.  The 2012 statistics about practicing women lawyers in the United States are troubling.  What this story about Saudi Arabian women reminds me is that with our freedom comes huge responsibility.  We have a responsibility to other women lawyers and to women from other parts of the world that may never have the ability to call themselves women criminal defense attorneys.  When we see the obstacles that women are fighting to overcome in Saudi Arabia, the least we can do here in the US is to continue to fight for one another and for full equality.

This week, I had a conversation with Ellen Brotman, who is without question one of Philadelphia’s top criminal defense attorneys.  Ellen has over 20 years of experience defending clients in the areas of white-collar crime and government investigations.  She was an assistant federal defender with the Defender Association of Philadelphia before she left, opened up her own firm, and later joined Montgomery McCracken as a partner.  Ellen serves on the board of directors for the National Association of Criminal Defense Lawyers and on the editorial advisory board for the Champion magazine. She serves on the Executive Committee of the Federal Bar Association’s Criminal Law Committee and co-chairs the ABA White Collar Crime Subcommittee on Tax Fraud.  Ellen has been recognized in Best Lawyer every year consistently since 2007 and in Pennsylvania’s Super Lawyers every year since 2008.  She is a regular lecturer on white-collar defense and ethics all over the country.  Ellen’s passion for her clients and their cause comes through loud and clear. She is the very kind of champion of justice that any client would be lucky to have.

What is the most significant change that you have seen for women in criminal defense? And what changes do you think still need to occur for women in this field?

The most significant change is the number of women who are entering the field.  We are starting to have a critical mass that makes practicing in this field more enjoyable and more profitable.  More enjoyable because we feel less isolated and marginalized, and more profitable in that we are able to be a referral pool for each other.  Also, as more women gain prominence, it’s easy to see the different attitudes and strengths that a woman can bring to a case and that expands our opportunities also.

What do you consider the most important attributes for any great criminal lawyer?

Imagination, tenacity, and the ability to communicate with a wide range of actors: judges, prosecutors, clients, investigators, witnesses, and family members.

What advice would you give to a young attorney considering a career in criminal defense?

It’s not for everyone.  You have to believe in the primacy of your client’s rights even when you don’t believe in his innocence.  I’m personally driven by a healthy skepticism of the government and a philosophical position that imprisonment is inherently evil and vastly overused in this country.  Also, you have to feel comfortable taking the unpopular position and willing to fight the judge, the prosecutor, the press and the jury.

Do you think women bring something unique to the representation of criminal clients?

On a macro level, I think women and men are different and have different strengths and skill sets. On a micro level, I think each lawyer has to decide who they are and where their convictions lie and practice from there.

Do you think there are cases where having a woman criminal defense attorney is an advantage for a client?

Yes. For violent or sexual offenses, a woman is a comforting presence for a jury.  But I think the credibility of the lawyer is the most important thing when trying to persuade the jury to see your client as a human being.

When did you realize that you were a successful criminal defense attorney? And what does it mean to you to find success as a criminal defense attorney?

Early on in my career I was very lucky to work in a boutique litigation firm where I was given the opportunity to argue in appellate courts and try cases.  I was terrified all the time until I started to get good results and I realized that my boss knew I could handle the work and I was pretty good at what I was doing.  I measure my success in terms of the gratitude of my clients and the respect of my peers.  I feel very blessed to have earned both over the course of my career.

What do you find most challenging about representing clients charged in white-collar criminal cases?

What people don’t realize is that federal judges don’t generally sentence white-collar cases.  Instead, they sentence drugs and gun cases, young men and women who come from terrible circumstances with few life options facing terrible sentences. It’s hard to get a judge to sympathize with our educated, well-off clients who’ve hurt other people out of greed.

Of the women criminal defense attorneys that you know and admire, what made them stand out to you? Why did they inspire you?

I’m inspired by all my criminal defense brothers and sisters, but I know my sisters had to work harder to get where they are!

What specific representation of a client has most stayed with you through the years and why?

In 2011, in a court appointed case, I won a reversal of a conviction and judgment of acquittal for a young woman who was dating a drug dealer and was convicted of money laundering.  She was prosecuted only because she wouldn’t cooperate.  Calling her to tell her that her conviction had been reversed and knowing that she was walking out of prison that day will carry me through to the end of my career!

If you could go back and give one piece of career or trial advice to your 30-year old self what would it be?

Believe in yourself and don’t try to be anyone but yourself in the courtroom.

Just last month, the United States Supreme Court granted writ of certiorari in U.S. v Kaley, an important case out of the United States Court of Appeals for the Eleventh Circuit relating to pretrial seizure of assets.  It will be argued by one of our colleagues here in Miami, Howard Srebnick, who has championed this client’s cause from the outset.  Howard Srebnick and Richard Strafer filed the brief.

This is a significant case from many perspectives.  The case involves a challenge to the pretrial seizure of assets by the Government that prevents a defendant from being able to hire counsel of choice.  At the heart of the case is whether or not a defendant is entitled to challenge the merits of the evidence supporting a seizure of assets before trial and post-Indictment.

There is a split in the Circuits regarding whether allowing a post-restraint of assets hearing creates an undue burden on the Government after the grand jury has already made a probable cause determination.  The Eleventh Circuit found that it does place an undue burden on the Government’s interests, because they have to choose between prematurely revealing their evidence when a grand jury has already found probable cause, or foregoing a right created by Congress to seek pretrial restraint of assets. Other Circuits such as the Second Circuit have found that this imposes no real burden on the Government, because they can simply decide to forgo pretrial restraint and seek forfeiture after conviction, thereby alleviating any such burden.

Pretrial restraint of assets can have a devastating effect on a client’s ability to defend against a Government Indictment.  Having access to funds to quickly hire counsel of choice, as well as investigators, paralegals, or experts is vital when you’re up against an opponent like the U.S. Government.  The Government has endless resources in manpower and funds, which makes this kind of restraint that much more harmful if left unchecked.  The grand jury process, as we all know, is one sided– and an adversarial challenge to evidence relied upon to restrain assets pretrial should be a fundamental right.

The criminal defense bar is skittish, rightfully so, about money… especially when the Government is taking the position that the money is tainted.  But we must remember that these kinds of seizures are as much a violation of our clients’ rights as any other seizure; with sometimes far more devastating consequences.  The unchecked power of the Government to restrain assets pretrial can effectively cut a client off at the knees.  It is hard to fight Goliath when you are fatally injured before the fight begins.  I will certainly be watching the Kaley case. It’s a reminder that as criminal defense attorneys, men and women alike, we cannot give up on any fight that affects our clients’ rights.

Just last week, on March 21, 2013, the Government unsealed an Indictment against Raj Rajaratnam’s younger brother, Rengan Rajaratnam, filed in the United States District Court for the Southern District of New York. He is being charged with one count of conspiracy to commit insider trading and six counts of securities fraud.

This prosecution is part of the same probe that led to the conviction of his brother and Rajat Gupta. We highlighted Raj Rajaratnam’s case and his appellate lawyer, Patricia Millett, last week. Currently, 77 individuals have been charged as a result of this probe and 71 of them have been convicted.  Rengan also appears on the same wiretaps that were used in the prosecution of his brother and are the central issue in his appeal.  The wiretaps are being challenged based on the fact that the application omitted critical details about an on-going SEC investigation in violation of the necessity standard.  Rengan has not been arrested and the media reports suggest he is outside the United States.

I reviewed the Indictment and it appears that it was returned near the expiration of the Statute of Limitations, but my question is why unseal the Indictment, one day after filing it, when the defendant is still out of custody?

My concern is that it is intended to drive the point home to the appellate court what has been a theme championed by the Government in this case; that the “proof is in the pudding.”  When you read the Government’s brief in the Rajaratnam appeal, there are multiple ways that they make the point that traditional investigative techniques into insider trading violations typically led to dead ends.

At the heart of the Government’s rebuttal against what are obvious errors and blatant omissions in the wiretap application is that these wiretaps led to an unprecedented number of insider trading prosecutions and convictions.  This is a slippery slope and sets a dangerous tone to a dialogue that should remain focused only on the facts known at the time of the application.  A wiretap is the ultimate intrusion because it allows the Government to eavesdrop on a citizen’s private conversations and it should always be an act of last resort.

With the announcement that there is yet another Indictment resulting from these wiretaps, the stakes are even higher for the Rajaratnam family… and more importantly, for every one of us.  This ruling has the ability to open or close the floodgates of future relaxed wiretap applications in cases where they have never been used before.  The notion that the ends justify the means is a dangerous argument that serves only to threaten our constitutional rights.

Attorney Patricia Millett, a partner and head of the Supreme Court practice and national appellate practice for Akin Gump in Washington, D.C., took center stage in one of this country’s most significant white-collar criminal cases.  Millett has extensive appellate experience and has argued before the United States Supreme Court 31 times, in addition to 36 times in courts of appeal across the county. These are impressive stats for any lawyer.  Just last year, Millett spearheaded the appeal of the conviction and sentence of Raj Rajaratnam of the Galleon Group in the United States Court of Appeal for the Second Circuit.  United States v. Rajaratnam is one of this country’s most recognizable insider trading cases out of the United States District Court for the Southern District of New York. The issues in the Rajaratnam appeal will likely have a significant impact on white-collar prosecutions to come– which had rarely involved wiretap evidence until recently. In the Rajaratnam trial the wiretap evidence played a major role in the Government’s case which ultimately ended in conviction. Rajaratnam received an 11-year sentence, the longest sentence ever imposed in an insider trading case.

One of the most important issues in the appeal relates to the introduction of wiretap evidence during the trial.  Critical information was withheld from the district judge during the wiretap application process, specifically the existence of a parallel civil investigation that was being conducted by the SEC, which is at the heart of the challenge. One of the key questions is whether or not the wiretap application met the necessity standard required by the federal wire tap act which demands that the Government provide a complete and full statement demonstrating that other investigative avenues have been exhausted or unlikely to succeed.  Wiretaps are traditionally used in organized crime and drug cases.  This case marked one of the rare circumstances that wiretaps were used in a white-collar investigation. Typically white-collar cases have other civil enforcement actions that can be used to advance criminal investigations, which otherwise would not be available– for example, in a drug offense.  If standards are loosened to allow the Government to freely obtain wiretaps, a dangerous floodgate will open for future white-collar investigations and prosecutions.

In addition to the Rajaratnam case, this specific wiretap led to many other prosecutions, including Rajat Gupta of Goldman Sachs, and resulted in countless guilty pleas that will remain unchallenged thanks to the typical appellate waiver contained in a Government plea agreement.  One of the challenges in the Rajat Gupta appeal is not surprisingly the introduction of the wiretap evidence during his trial that ultimately ended in conviction. In an unexpected turn of events, the United Court of Appeals for the Second Circuit granted Gupta a bond pending appeal, in spite of the fact that the trial court denied his request for bond. In order for the appellate court to grant bond they must find that a meritorious and non-frivolous appellate issue exists that could possibly result in the conviction being overturned.  It is unclear whether this foreshadows the appellate court’s potential ruling.  It is clear that any ruling in Rajaratnam will have a direct bearing on the Gupta appeal.

During argument before the Second Circuit panel, Patricia Millett pointed out that Rajaratnam’s case was the first time a wiretap was used in an insider trading investigation during the 75 year history of securities laws and denounced the wiretap as being riddled with error.  The Second Circuit has yet to rule but that ruling will serve to send a clear message about the use of wiretaps in future white-collar investigations and prosecutions.  More importantly, this case has a direct impact on the constitutional rights of every citizen of this country.  Patricia Millett acts as a critical voice against Government intrusion into our private conversations and is a true champion of our constitutional rights. Stay tuned!

Success. How do you define it? Some lawyers just want to make a nice living. Some want celebrity status. Others want to make incredible amounts of money. And yes others are driven to make a difference in this world. Those that achieve success do so because they have defined it for themselves. And their definition of success is not always what others around them define as success. They listen to their inner voice and they know what they want. What do YOU want? How would YOU define success?

Jeff Haden an author, speaker and columnist for Inc.com and CBS MoneyWatch.com, has ghostwritten nearly forty non-fiction books. Four of them are Amazon Business & Investing books that have become #1 bestsellers. His ghostwriting has put him shoulder to shoulder with some of this country’s most successful business people. In his article on Inc.com… “8 Things Remarkably Successful People Do,”  he provides lessons lawyers can learn from. I warn you… it’s not easy, it’s not quick and it’s not what you want to hear. But, if being remarkably successful were easy EVERYONE would be there. So… listen to Jeff’s words and take them to heart, let them rattle around in your head and then think about how YOU define success… and GO FOR IT! Jeff writes…

“I’m fortunate to know a number of remarkably successful people. I’ve described how these people share a set of specific perspectives and beliefs. They also share a number of habits:

1. They don’t create back-up plans. Back-up plans can help you sleep easier at night. Back-up plans can also create an easy out when times get tough.

2. They do the work… You can be good with a little effort. You can be really good with a little more effort. But you can’t be great–at anything–unless you put in an incredible amount of focused effort.

3. …and they work a lot more. Every extremely successful entrepreneur I know (personally) works more hours than the average person–a lot more. They have long lists of things they want to get done. So they have to put in lots of time. Better yet, they want to put in lots of time.

4. They avoid the crowds. Conventional wisdom yields conventional results. Joining the crowd–no matter how trendy the crowd or “hot” the opportunity–is a recipe for mediocrity.

5. They start at the end… Decide what you really want: to be the best, the fastest, the cheapest, the biggest, whatever. Aim for the ultimate. Decide where you want to end up. That is your goal. Then you can work backwards and lay out every step along the way.

6. … and they don’t stop there. Achieving a goal–no matter how huge–isn’t the finish line for highly successful people. Achieving one huge goal just creates a launching pad for achieving another huge goal.

7. They sell. I once asked a number of business owners and CEOs to name the one skill they felt contributed the most to their success. Each said the ability to sell.

Keep in mind selling isn’t manipulating, pressuring, or cajoling. Selling is explaining the logic and benefits of a decision or position. Selling is convincing other people to work with you. Selling is overcoming objections and roadblocks.

Selling is the foundation of business and personal success: knowing how to negotiate, to deal with “no,” to maintain confidence and self-esteem in the face of rejection, to communicate effectively with a wide range of people, to build long-term relationships…

When you truly believe in your idea, or your company, or yourself then you don’t need to have a huge ego or a huge personality. You don’t need to “sell.”  You just need to communicate.

8. They are never too proud. To admit they made a mistake. To say they are sorry. To have big dreams. To admit they owe their success to others. To poke fun at themselves. To ask for help. To fail. And to try again.”

Each step is hard, but not insurmountable. Each step is important. One big take-away I want you to focus on is the BAD word in the legal profession… selling. Remember his words, “You don’t need to ‘sell.’  You just need to communicate.”

Read the entire article for even more inspiration… and then go for it!