Vol. 76, No. 9, September
2003
Reflections of a Former Prosecutor
A former government lawyer reflects on the
similarities and differences between the public and private sectors of
law practice.
by Nathan A. Fishbach
Nathan A.
Fishbach has been a shareholder at Whyte Hirschboeck Dudek S.C.
since 1993. For more than 13 years, he litigated criminal and civil
matters in the U.S. Attorney's Office for the Eastern District of
Wisconsin, where he served as an Assistant U.S. Attorney, Civil Division
Chief, Deputy U.S. Attorney, and Interim U.S. Attorney. This article
originally appeared in the Summer 2003 Government Lawyers News,
published by the State Bar Government Lawyers Division, and was written
in response to a request by GLD president Linda U. Burke, who thought
that it would be interesting to compare public and private practice.
In 1993, after serving in the U.S. Attorney's Office for more than 13
years, I left government service to join Whyte Hirschboeck Dudek S.C. In
the years since I made the switch, I am frequently asked which sector I
prefer - the public or the private. My usual response is a punt. I state
that I have three sons and love them equally, but for different
reasons.
The reality is that the differences between the two offices are much
less than you would imagine. In both places, you litigate matters, using
the same rules of procedure and evidence, relying upon the same skill
sets, and frequently appearing before the same judges. In each office,
you work with a great group of professionals who enjoy what they are
doing. And regardless of the sector, you have the same sleepless nights,
worrying about obtaining a favorable result.
Of course, in private practice, you have to prepare daily time
sheets. But this is really not that much different than the government.
For in the public sector, to organize a heavy caseload, you have to keep
track of what you are doing - and so you might prepare a semblance of a
time sheet on a regular basis.
Having an Impact at an Early Age
Without a doubt, my service in the government was invaluable. As a
new Department of Justice attorney, even with all of the magnificent
training programs and seminars, you learn to "sink or swim" rather
quickly. Perhaps it is an exaggeration, but a former colleague told me
that he believed that in your first year of working for the government,
you obtain a decade's worth of experience. For example, as a 28-year-old
federal prosecutor, I argued before the U.S. Court of Appeals for the
Seventh Circuit that a political corruption conviction should be
affirmed and was the author of the government's appellate brief. (And
typical of the chronic support staff shortages in the public sector, I
also probably typed, copied, and bound the brief.) In private practice,
it is rare that an attorney can obtain this type of opportunity so early
in a career.
What a great experience the government offers to its attorneys - and
what an impact an attorney can have, even at a young age. In the
biography of prominent defense attorney Edward Bennett Williams, it was
noted that when Williams met with government lawyers to discuss possible
criminal charges against a client, he always paid close attention to the
reaction of the youngest prosecutor in the room. Williams believed that
this was the individual who would prepare the prosecution memorandum -
either recommending or declining the issuance of charges - that would
become "the bible" of the case as it proceeded through the Department of
Justice's approval process. How true that is.
In looking back over my government years, I am struck by the awesome
responsibility that public lawyers have. You are not just representing
an individual or a corporation. Rather, you are representing "the
people." The decision that you make in one case will have an impact upon
the determinations that will be made in other cases with similar factual
settings, many of which are not before you. For that matter, your
decision will have an impact upon the resolution of cases in which the
underlying events have not even occurred - that is, the crime has not
been committed yet.
Moreover, you have the added burden of ensuring that your decision is
consistent with the conclusions reached by your colleagues in other
cases. In essence, in every litigative decision, you are making public
policy. Even in deciding to take no action (such as in declining to
prosecute a case), you are taking a position on the government's
behalf.
The Public Lawyer's Mission
As a public lawyer, your first task is not in strategizing how to
reach the desired result. Rather, the initial step is deciding what the
appropriate result should be. And this determination is one that is
constantly evaluated and reevaluated throughout the litigative process.
The importance of making the appropriate determination was brought home
to me when then U.S. Attorney (now U.S. District Judge) J.P.
Stadtmueller presented to each of his new assistants a plaque bearing
Justice Sutherland's eloquent statement in Berger v. United
States that the government attorney does not represent "an ordinary
party to a controversy, but ... a sovereignty whose obligation to govern
impartially is as compelling as to govern at all." The quote goes on to
state that the government's interest in a prosecution is "not that it
shall win a case but that justice shall be done." What a great way to
capture the public lawyer's mission.
As a government attorney, I always took great pride in the fact that
the individuals with whom I worked - attorneys, special agents, and
agency administrators - always spoke about doing "the right thing." At
the time, I thought that my feeling might simply be hubris - after all,
these were my colleagues with whom I worked on a daily basis. However,
in the decade since I left the government, I interact regularly with
many of these same individuals and others like them from the other side
of the table. And, not surprisingly, I have found that they really are
striving to reach the appropriate result.
As I become older, I attend retirement parties for my former
colleagues on an ongoing basis. These parties bring together people who
are currently serving in the government with those who have previously
served. Sometimes, the attendees span almost three generations of public
service. Invariably, these are emotional affairs, and even the most
hardened special agent might cry. I think that the emotion comes from
the fact that the individuals know that they have something in common.
They have all worked tirelessly in pursuing the same shared mission of
doing "the right thing" on the public's behalf.
For that, they should have pride.
Wisconsin
Lawyer