Should I take a defensive civil AUSA position if I'm a white collar practitioner? Forum

[Anonymous User]

I'm a counsel/senior associate/nonequity partner. I work at a big law firm doing government investigations and litigation.

I have a chance to join my big city USAO as an AUSA. A former mentor of mine joined this office and recently got promoted to the front office and basically extended an invite to me.

This would be a no-brainer if it was a criminal position or an offensive civil enforcement position but this particular AUSA position is in the civil division doing defensive work. It would be defending individuals and agencies against private lawsuits (e.g., federal agents for excessive force or the Department of Defense for contract breach).

Any thoughts?

My dream end goal is to become equity partner at a big law firm doing white collar investigations/government enforcement.

[Anonymous User]

Don't do it.

[Anonymous User]

I don’t know what your current chances of making equity partner are, or what your backup plans are for if that doesn’t happen, so can’t say whether this position could make sense in that respect. But I don’t think the civil position would advance your current goals particularly. The work is completely different and there’s very little interaction with the criminal side of the house, or even affirmative civil (though potentially more than with criminal).

And unless your mentor is willing to promise that you can transfer to criminal at the first opportunity or something, it’s not worth taking the job in the hopes of switching sides once you’re in. That does happen occasionally, but not regularly enough to count on.

Getting the opportunity to do some affirmative civil might be more realistic, depending on the office caseload/priorities and staffing levels, but that’s still a crapshoot. (I also see ACE attorneys roped into doing defensive work if the caseload requires, though that’s probably more office-specific - the ACE practice in my office is very small.)

I could be wrong, but I don’t think having the AUSA title and “government” experience is going to help you make equity partner in your current field, without having the experience that’s actually relevant.

(Caveat: although I’ve worked as both a criminal and a civil AUSA, I haven’t worked in a major metro office, so that context could be different, but I don’t think it would be reliably different enough to change this advice.)

All that said, defensive civil AUSA is a good gig for a lot of people, if not as glamorous as criminal or ACE, but probably not you in this scenario.

Does your mentor know what your goals are? Do they think this job advances those goals, or did they reach out because they have to fill a position and liked working with you? Because they may have insights about how the job would benefit you that we’re lacking (or they might just be trying to solve a staffing problem). Can you talk to them about whether there might be a criminal/ACE position coming up and whether you might be a good candidate for it? Since it’s not like you formally applied for a defensive civil position I think that’s a fair conversation to have.

(If you’re in danger of getting pushed out of your current gig and don’t feel good about finding a new one, my advice might change, but I don’t get that impression from your post.)

[Anonymous User]

First, thanks so much for the thoughtful reply.

Re: my mentor:
Unfortunately, it’s hard for me to say explicitly that I want to be an equity white collar defense partner someday, our relationship just isn’t there.

What I’ve said is that I’m interested in going to the government and developing new skills but that I don’t want to rule out returning to private practice at some point.

We haven’t had a conversation about criminal but I've been told that after five years, it's very normal to switch sections so it is a possibility but five years also seems like a long time and is potentially two adminstration changes away given that its 2023 already.

What about doing asset recovery? I think the office has an opening in that space too.

At my current firm, I will never make equity partner without going to the government at some point first. I’m liked here and things are good but senior folks here have told me it’s basically impossible to develop my own book without that experience. So, I need to leave but the question is just when and for what.

edit: actually two openings in asset recovery. One doing forfeiture and one doing financial litigation.

[Anonymous User]

Hmmm. I don’t have a lot of experience with asset recovery (and my district doesn’t have a ton of big white collar defendants), so my understanding is limited and I’d check with people local to you.

With that caveat, my sense is that financial litigation, while extremely important for the government, is primarily chasing defendants down to pay fines/restitution. I suppose that could be relevant if that office has lots of the kinds of white collar defendants who hire biglaw firms who are working out payments, but it’s still fairly attenuated. (In my district a lot of the people paying committed child sex abuse material crimes, or bank robberies.) Any litigation is going to be limited to getting people to pay up; that could include trial work, but I’ve never seen such a trial (though again, that will vary by office so don’t let me be the last word).

I also have the impression that a lot of FLU work is conducted by paralegals and investigators, with attorneys more supervising and doing any parts that an attorney is required to do.

Asset forfeiture would, I think, be a bit more relevant, again especially in an office prosecuting a lot of sophisticated white collar. But it’s still quite niche, specialized, and doesn’t quite train you in the substantive criminal law and investigations. There can be litigation (and court hearings) involved, where the recovery is contested, but you’re not likely to be doing trials. A possible exception is if there’s going to be a forfeiture phase of a larger trial, but that’s rare enough in my district that I can’t say much more about how realistic that is elsewhere. And a lot of asset recovery is guns and drug proceeds, so less pertinent to you.

The people I know who do asset recovery have generally moved into it after doing traditional criminal for a time - it has a little better work-life balance and fewer of the stressors of straight criminal. And the people who teach about it are doing cool stuff like forfeiting race horses from criminal cartels; I think it can be very satisfying for someone who likes to connect the dots and do the research to show the connections btw a given offense and a given asset.

I guess the other thing I’d suggest would be to talk to the people who tell you that you need government experience to make equity partner about what exactly that means to them. What have they seen work in selling yourself to clients in developing a book of business? How much experience do they expect you to get?

My sense is that for a short government stint you’d need to be able to point to a bunch of actual white collar work prosecuting the kind of people who would be hiring you as a partner, or if you had reasonably long enough tenure in the office (including possibly leadership experience) you could pitch yourself as a more general government expert, but the people who would be making you partner will have much more helpful info than my gut reaction.

Especially depending how many years of experience you have, I would think you’d have a good shot at a regular criminal position. The problem is that you’d probably have to be willing to move since it doesn’t sound like there’s an appropriate position locally.

(Also, what you’ve said to your mentor could have very well signaled “I am sick of biglaw and I want to get out,” for which a defensive civil position might be a great option. So the position you’re in with this offer kind of makes sense. I’d encourage you to go back to them and explain more specifically, but of course you know that relationship and I don’t.)

[Anonymous User]

I suppose that could be relevant if that office has lots of the kinds of white collar defendants who hire biglaw firms who are working out payments, but it’s still fairly attenuated. (In my district a lot of the people paying committed child sex abuse material crimes, or bank robberies.) Any litigation is going to be limited to getting people to pay up; that could include trial work, but I’ve never seen such a trial (though again, that will vary by office so don’t let me be the last word).

I also have the impression that a lot of FLU work is conducted by paralegals and investigators, with attorneys more supervising and doing any parts that an attorney is required to do.

Thank you again. After speaking to some folks in my office per your advice + my mentor, I'm going to be targeting the fin lit position. Came down to a few reasons and would appreciate a common sense check on this: (1) I'd have the chance to second chair criminal trials. (2) there's a new effort from the AG's office to have fin lit lawyers involved early as possible in all criminal cases. (3) If my experieince isn't panning out the way I want it to, it's apparently much easier to transfer to another usao office as an existing ausa, even if its from a different section.

[Anonymous User]

I suppose that could be relevant if that office has lots of the kinds of white collar defendants who hire biglaw firms who are working out payments, but it’s still fairly attenuated. (In my district a lot of the people paying committed child sex abuse material crimes, or bank robberies.) Any litigation is going to be limited to getting people to pay up; that could include trial work, but I’ve never seen such a trial (though again, that will vary by office so don’t let me be the last word).

I also have the impression that a lot of FLU work is conducted by paralegals and investigators, with attorneys more supervising and doing any parts that an attorney is required to do.

Thank you again. After speaking to some folks in my office per your advice + my mentor, I'm going to be targeting the fin lit position. Came down to a few reasons and would appreciate a common sense check on this: (1) I'd have the chance to second chair criminal trials. (2) there's a new effort from the AG's office to have fin lit lawyers involved early as possible in all criminal cases. (3) If my experieince isn't panning out the way I want it to, it's apparently much easier to transfer to another usao office as an existing ausa, even if its from a different section.

I think that makes sense, and if the AG wants fin lit involved earlier in the cases, that will be a good way to get more exposure to investigations and ideally trials. Plus if people like working with you that’s a big plus for moving sections in that office. And I agree it is easier to move offices once you have a foot in the door. (It’s not really a transfer process - you will need to apply for an opening along with the rest of the public - but it’s definitely a plus to have that familiarity with DOJ and their policies, and to have AUSAs/management who can speak highly of you.)

I think if you’re not committed to some kind of short timeline back to partnership and are willing to be flexible and genuinely interested in the experience for its own sake (rather than a means to an end), it’s a great option to explore. (Not saying there’s anything wrong with using government work as a means to an end, just that it might not be a very sustainable motivation for long if there isn’t a clear end in sight.)