Ms. McPhee is the 2019 inaugural recipient of the Women’s White Collar Defense Association (WWCDA) Laurie A. Miller Leadership Award for the Advancement of Women in White Collar Defense.
The Record: What led you to pursue a career in white-collar defense?
Joan McPhee: After I graduated from Harvard Law School in 1984, I wanted to pursue a clerkship at the federal court level. Specifically, I decided to clerk in the district court so that I could take part in actual cases being tried in the courtroom. I had an incredible experience clerking for Judge Abe Sofaer in the Southern District of New York. At the time, Judge Sofaer had a major civil trial unfolding in his courtroom, the Ariel Sharon v. Time Magazine libel suit. He also had a major criminal case involving organized crime pending in pre-trial proceedings, United States v. Castellano. In and around these major cases, there were also smaller matters that were being tried by young lawyers, including young women in the U.S. Attorney’s Office.
Clerking in Judge Sofaer’s courtroom, as a very young lawyer watching other young women AUSAs trying cases, led me to consider whether trying cases was something I might do — whether it was something I could actually enjoy doing. Intrigued, when I finished up my clerkship with Judge Sofaer, I applied for a position as an Assistant United States Attorney for the Southern District of New York. After I got the job and was admitted to the bar and ready to start, there was a hiring freeze in place; when I started some months later, there was already a backlog of cases that needed to be worked on. When I walked into the office, I immediately inherited a more-than-full case load of roughly 40 active criminal cases. I tried my first case, to my astonishment, in my third week in the office. That first trial was then followed in close succession by nearly half a dozen cases in my first year alone. It was trial by fire, with a hugely steep learning curve, and when it wasn’t terrifying it was utterly exhilarating.
After that, I continued working on additional investigations and trials. In this way, I was able to get an early immersion in trial work and litigation. It also informed what would later become my career in white-collar defense, even though I had not intentionally sought to pursue this particular field upon leaving HLS.
The Record: Your clients tend to be people as well as corporate entities. Do you encounter any challenges as a result of the people-intensive nature of your practice?
Joan McPhee: I do think you’re right that a practice in white-collar defense — both on the prosecution side and the defense side — is a very people-intensive area of work. That’s because it requires you to interview witnesses when you’re getting ready for trial and then also to put those witnesses on the stand. As a white-collar defense lawyer, you’re helping individuals navigate what is almost always the most harrowing experience of their lives. As a result, in addition to legal research and analysis, the practice of law in this area requires interpersonal skills that allow you to connect with individuals, in order to build trust and confidence. This is true whether the individual is a client who you’re helping to see through a very difficult time or a witness who may have a lot of anxiety about taking the stand in a courtroom.
While these challenges exist, I also think they are the very things that make this work so important and engaging. I remember that what I loved most about my job in the U.S. Attorney’s Office was the degree to which it required me to interact with people from all walks of life. The diversity of experience was extraordinary, from conducting investigations to trying cases in the district court, to preparing appellate briefs, to conducting oral argument in the Second Circuit. At the same time, part of the job was covering an array of cases in Magistrate’s Court, hashing things out such as conditions of release or detention, and then meeting with a broad array of people in the office — these are all steps along the way as one looks to manage a busy docket of cases while also piecing together big and complex cases. So, I think it’s true that it is indeed an unusual practice in the “people” aspects of the role.
The Record: Did you also encounter any unique challenges or opportunities specific to being a woman?
Joan McPhee: I don’t think I experienced any particular challenges as a woman in the U.S. Attorney’s Office. One of the great things about that role is that I started with maybe six or eight other individuals, most of whom were men. However, at least one of my contemporaries was a woman, who had been a classmate at HLS and went on to become a federal judge. We were all simply thrown in together, and we each had our own set of cases. Despite that, we all compared notes and collaborated with one another as we together learned to become trial lawyers. In the office, we were not differentiated by gender at all.
The first time I can recall paying attention to gender was upon leaving the U.S. Attorney’s Office and switching to private practice. I had an early white-collar defense practice and began attending the annual ABA White Collar Crime Conferences. At the time, there were very few women in attendance, none of whom were speaking on the panels or participating in any particularly visible way.
That is what began a series of informal, fledgling efforts among the women white collar practitioners to get to know one another, and to learn about each other’s practices and areas of expertise. Over time, these early efforts led to strong and supportive relationships, and ultimately fed into the evolution of what has become the Women’s White Collar Defense Association. This association has now grown to approximately 40 chapters worldwide, consisting of 1,700 members, all of whom are women white-collar defense lawyers. In this way, the world has changed quite dramatically over the last 30 years.
The Record: What role did mentorship play in your career?
Joan McPhee: Mentorship is a critical part of the development for any young lawyer. Most of my mentors, just by virtue of the landscape and the practice at the time, were men, and they were tremendously good mentors. I tried my first case with Michael Chertoff as my second seat and my second trial with Louis Freeh as my second seat. They were each there to guide and help me along the way as I learned how to try a case. Then in my early years at Ropes and Gray, I again had very strong mentorship — almost all men at the time.
Thinking back, one of the most important contributions of the WWCDA is in the area of mentoring; the early bonds forged among the women as we were building practices in white-collar defense filled in for the predecessor generation of women white-collar lawyers that we did not have to guide us in our work. Those relationships provided critical mentorship and support back and forth, though not always in the traditional construct of a significantly more senior lawyer supporting a significantly more junior lawyer.
Today, those relationships have fostered an environment of mentorship, with senior female leadership in the bar looking to mentor, support and sponsor talented young women lawyers who, in turn, mentor younger lawyers coming along behind. I see this culture of mentorship here at my own firm and also across practices, through the window of the WWCDA.
The Record: Do you have any advice for law school students or young lawyers trying to find these kinds of mentorship opportunities?
Joan McPhee: I think it’s something absolutely worth seeking out. I think that if a younger lawyer identifies someone who can help them think through the critical milestones and decisions in their career, then they should ask that person if they have time for coffee or lunch to help them think through a decision, whether the issue is related to a particular case, a career move, or simply an opportunity for professional development. In my experience, the more senior lawyers — those who have benefited from mentorship themselves and who understand how critically important it was in their own lives and in their own career progression — are flattered to be asked and are more than happy to help.
The Record: The WWCDA seems to have filled a mentorship gap that existed in the legal community. What kind of big project do you think ought to be undertaken next?
Joan McPhee: Despite all that we have accomplished, I do think that we still have a long way to go. For instance, Mary Jo White, former U.S. Attorney for the Southern District of New York and former Chair of the SEC, who spoke at the WWCDA Gala as the recipient of the Champion Award, observed that, even with all of the talent among the women in the bar, we still need to be more intentional when seeking out women to serve in the most significant leadership roles.
I agree that this kind of focus is critical going forward. I also think that the work the WWCDA has been doing, under the leadership of Karen Popp, is an important part of what’s needed: a multifaceted approach to supporting, recognizing, and advancing women that will encourage women to join the practice and help to ensure that they get the opportunities and experiences that will allow them to flourish in the practice and make meaningful contributions to the profession.
In addition, there are efforts underway in our Association to make sure not only that women lawyers become acquainted with one another and are in a position to support and mentor one another, but also that we, as an Association, are actively getting people to consider the strong women in the bar when deciding, for example, who should be on the next panel at the ABA White Collar Crime Conference. Who should be recognized for their accomplishments? Who should be at the top of the list for a referral when a particular area of expertise is required? How do the organizations that rank practitioners go about their review and evaluation process? We want to make sure that such organizations are focused on the accomplishments of women as well as those of men. It is important to monitor and attend to how these processes are being conducted and are playing out if we are to advance gender diversity in the bar.
The Record: What suggestions would you give to law schools on how they can help with this process?
Joan McPhee: My experience at HLS was a very positive one, in which I felt no constraints based on gender. The law school does a tremendous job of helping to prepare young talented men and women to step into the bar and make their way as practitioners. I think all of that is very positive. I also understand that there are many avenues through which practitioners in the bar are interacting with HLS and other law schools to make sure that there is attention to gender diversity and to diversity more generally. For instance, there are symposia, collaborations, and other mutual efforts through which we can further the goals of diversity by working together to create opportunity for individuals who have been historically under-represented in the practice of law. Those efforts need to continue.
The Record: What advice would you give to current female HLS students or recent female graduates who want to pursue either a career in white-collar defense or another area of the law?
Joan McPhee: I think it’s hard for many people graduating from law school to know exactly what it is they want to do. For me, that was certainly the case. I knew I wanted to be in litigation, but, as I mentioned earlier, I did not know that I wanted to have a career in criminal defense. Regardless, I zeroed in on my interest enough to know that I wanted to be a litigator. That meant that I then needed to figure out whether I would be comfortable in the courtroom, and that led me directly to the U.S. Attorney’s Office, where I knew I’d have the opportunity to try a lot of cases as a young lawyer. Overall, if you can make early judgments about what it is you think you want to do in general, then my advice is to dive in as deeply and as completely as you can. Get absolutely immersed. The sooner you can get yourself into a position where you are the one who is thinking through the strategies, exercising your judgment, and making decisions, the sooner you can start to really grow as a lawyer. The learning curve is steep, but you can climb it much more quickly if you can find a way to really throw yourself into the deep end of the pool. It can be a little scary, but it will have tremendous rewards. Quickly getting up a learning curve, and quickly figuring out whether this is something you love and want to do, is thrilling, and best attended to when you still have time to change your mind. If you hit it, you’re on your way; if you miss the mark on your first try, no worries — abundant opportunity will still await your next move.