Vol. 76, No. 9, September 2003

Reflections of a Former Prosecutor

by Nathan A. Fishbach

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