Washington Lawyer

A Conversation With Abbe Lowell

From Washington Lawyer, December 2013

By Kathryn Alfisi

Abbe Lowell is one of the country’s leading white collar defense and trial attorneys. A graduate of Columbia College and Columbia Law School, Lowell got his start at the U.S. Department of Justice where he eventually became special assistant to the attorney general. He was a founding and managing partner at Brand & Lowell, and he also has been a partner at Manatt, Phelps & Phillips, LLP and at McDermott Will & Emery LLP.
Some of his most notable clients have included former Nevada governor Jim Gibbons; former U.S. senator Robert Torricelli; former U.S. Reps. Gary Condit, Walter Fauntroy, and Charlie Wilson; and lobbyist Jack Abramoff. Today, Lowell is a partner at Chadbourne & Parke LLP where he heads the firm’s litigation department and serves as chair of its white collar defense, regulatory investigations, and litigation group. Washington Lawyer recently sat down with Lowell to discuss his life in the law.  

Where did you grow up?
I was born in the Bronx, and then moved to the suburbs in Long Island. It was a fairly typical childhood for that era in that many people started out in the city and wound up in the suburbs. The story my dad told about where we wound up living is that he got on the Long Island Express Way and stopped when he could afford the mortgage. My dad was a World War II veteran; my mom was unconventional for that era in that she was not a stay-at-home mom, she ran the office of a medical doctor. I have an older sister. I was educated in public schools; neither of my parents went to college.

Was it important for your parents that you attend college?
I think for that generation it was the unspoken assumption that you’d go to college. In a lot of immigrant communities, it’s the idea that your children will go a step further than the generation before.

Why did you decide to attend Columbia?
The reason I went to Columbia for college is partly because I wanted to go to the best school I could get into, and Columbia was and is one of the best schools you could get into. I’m still very active in Columbia; I interview people who want to go there and I do other things to support the college and the law school.

The second reason I went to Columbia was that there was a premium on me going to school in New York—I had been awarded a scholarship and that was very important to my being able to go to college. I loved New York, but I wasn’t wedded to the city as the only place to go to school. I did apply to other Ivy League and non-Ivy League schools and was accepted by some and not by others.

Also, Columbia has a unique program called the core curriculum where all first-year students take a bunch of required courses, and it is very oriented on the arts, sciences, and humanities and that was very appealing to me.

How did your interest in the civil rights movement steer you toward a career in law?
My foundation for understanding lawyers was the civil rights movement leading into the anti-war movement, both of which had serious and profound effects on me. I can’t really say why they did affect me; it’s not obvious or intuitive why they were important to me at the time (I was 12 and 13 years old). My father was a war veteran and a very strong supporter of government, without question, as well as military efforts. The people who led those movements were lawyers, and that was one of the foundations for me thinking about the law.

I had a run-in with a teacher when I was 12 or 13. We were talking about current events and I took a very strong (and probably disrespectful) anti-war position that he was not appreciative of. I did my first anti-war protest, which I helped coordinate, when I was 14 years old.

The career trajectory from the age of 15 on was that I wanted to be a lawyer. It was the vehicle to create social change, political change, and equal the power between the government and the individual. The only time I went off track was [when I followed the] core curriculum at Columbia. It was such a life-changing event for me, especially the literature program, that I gave serious thought to studying literature (e.g., taking a fellowship to study in England) and not going to law school.

What was your time at college and law school like?
College was an awakening to me; it taught me how to read and write, which are skills I should have been better at by then. It was also an awakening to the world of literature and to New York and all it had to offer. As I had been in high school, I became very politically involved in college. I became the youngest person elected to the new university senate.

Law school was a whole different intellectual enterprise than college; it was more focused and disciplined, more regimented, and at first more stress and pressure. But, I liked law school in a whole different way, except for the first semester until I could figure out the system or the way to understand classes and professors.

While in law school, did you know what type of law you wanted to practice and where you wanted to go?

By then I knew that lawyering for me meant big category litigator, subset something to do with the government, subset trial law. I had no interest in law other than those categories. I knew I was going to be a litigator and either be in or fighting the government.

I remember sometime during the third year of law school, the professor took a hand tally of who was going to do what after graduating, and there were very few who were leaving New York, going to Washington, and/or wanting to be part of the government. I wanted to do that—go into government, be in D.C., and avoid the routine New York law firm route.

What did you do after graduating from law school?
I went straight to the Justice Department. I applied the normal way, but I had been very active in politics and one of the things I had done was to work for the Carter presidential campaign. I met him and his family and was, in fact, one of the advance people who got to travel with his family during his campaign and got to attend inaugural events. As soon as I finished law school, I was excited to be a part of the administration. I came out of law school, joined the Justice Department, and worked my way up with a combination of hard work and luck, which is the formula, I think, for everything I’ve ever done—certainly as much luck as anything else.

I worked on a project at the Justice Department and got recognized by the deputy attorney general and the attorney general, who knew who I was anyway because of the Carter connection, and so I was chosen when there was an opportunity to join the front office. At the end of that time, I went to the U.S. Attorney’s Office in D.C. where the attorney at that time was Chuck Ruff, who had been chief of staff to the deputy attorney general when I was there. He had encouraged me to come to the office, to start the process of learning to be a trial lawyer. So if you count that time, I was in the Justice Department from 1977 to 1981, about five years.

Was this an important period in your life?
That was an absolutely important period in my life on many levels. For one, it cemented the notion that I would have a legal career that interacted with the government. It also provided me with the experience and credentials I needed to pursue that practice; having a combination of policy and trial work allowed me to start the process of learning how to be a trial lawyer. Finally, it created my relationship with Washington, D.C., where I stayed. Before that, I imagined I would return to New York, but my time here showed a better practice, and also I had started a family here.

Why did you stay in Washington?
There was a combination of professional and personal reasons for staying in Washington. On the professional side, being in Washington confirmed that it was the place to be if you wanted to have the practice that I wanted to have. That practice included the interaction between government and the law and individuals and trying to do things that might affect public policy. If that was your focus and your passion, there was no better place to do it than Washington, D.C. Also, by that time I had established a family and Washington was a very approachable place for that.

Did you find it difficult to manage family time when you had a busy legal career?
These issues keep coming up in the legal profession for anyone. I bridged that part of the trajectory in which it was not quite the traditional one person stays at home all the time, but by the same token, you have to have a good understanding with your spouse or partner, you have to figure out what’s going to work in your house, and it’s always going to be a struggle. It became more of a struggle when I started my own law firm and when my first marriage was ending because of my desire to be an important part of my children’s lives.

And you do little things. When you get to the end of an intensive trial, you don’t just get up the next day and go back to your office. You take more time off. My children also have traveled with me to places and trials and events. Before the days of iPhones and FaceTime, I did this thing where my child and I would have two copies of the same book so that when I was out of the city, I could still read to them at bedtime. Now I have an 11-year-old and it’s different in that even when I am on the road, I can be in touch with her in many different ways than I could when my older children were young.

How far did you rise at the Justice Department and when did you decide to leave?
I ended as a special assistant to the attorney general at the Justice Department. I started off as a line attorney doing litigation, and then became special assistant to the deputy attorney general, and then special assistant to the attorney general. After that, I went to be special assistant U.S. attorney at the U.S. Attorney’s Office and did that for a while until some people in personnel found out I was using up a political slot that the new administration wanted to have back. Finally, I left to figure out what I was going to do with the rest of my legal career.

It was a very difficult period. First of all, I was neither fish nor fowl. I was a little too senior to be a junior associate, and I wasn’t senior enough to be a partner. My experience at large law firms had been very little. I had worked at a district attorney’s office during the summer when I was in law school, and I spent a summer working at a firm while I was working on the Carter campaign. Also, that struggle whether to be in New York or Washington was playing itself out at that point in time. So there were a lot of difficulties in figuring out what to do next and taking that concept of why I wanted to be a lawyer to its next place. Ultimately, I went to work for a firm for a short period of time, but I don’t think it was a great match for either of us. Then, without a lot of wisdom and knowledge, I started my own law firm at a ridiculously young age with all of the risks and none of the security.

What made you decide to start your own law firm?
Having law firms say to me, “I’d love you to work for us, but you’ll have to start as a two- or three-year associate,” when I felt like my experience level was more than that. Wanting to still be in charge of the type of law I practiced and seeing that there weren’t a lot of options that seemed better. And partially a complete and utter lack of understanding of what starting a law firm would entail. If I had known then all the things I had to learn thereafter, it might have been a different decision. On some levels it was a completely ridiculous decision to make as a 31-year-old with a mortgage and a child.

Was it successful?
Like all starting ventures, it had its ups and downs, but its trajectory was mostly good. I started this firm with a really terrific man and attorney named Stan Brand who was leaving the House of Representatives as the general counsel. We started it with a couple of other people, but it turned into mostly his and my law firm. He had the same goals as I did—dealing with law as it interfaces with the government, being in the world of litigation, trying to be involved in hot topics. Case by case, slowly but surely, we cobbled together a practice that realized those goals.

It was not a straight line, it was not an upward trajectory all the time, but from 1983 to 1999 it worked, it succeeded. We had a high of 12 attorneys at one point. We were doing some really terrific things in both litigation and working with the House of Representatives, being hired by local governments, having private cases that paid the bills. I think Stan said it was like being one of those early settlers who went and staked out a claim in the Yukon during the frontier era and seeing if you could mine it for any gold or silver.

It wasn’t the most trodden path. Like that day in law school when most of the people in my class were going to New York law firms, very few were going to D.C., and fewer were going into the government. Very few people enter the government, then start their own law firm at 31 years old, and then use that law firm to go in and out of government. It’s been the farthest thing from a straight line that you can think of, but it’s been adventurous and rewarding. There are very few things in my professional life I would change even with all the hindsight; the difficulties and adventures are a part of it.

Do you think that sentiment is something that younger lawyers can learn from?
I think that in some ways it was easier for me and my colleagues to take risks than it is today. The financial burdens have gotten harder, and I think the mindset of people, both as to why they become lawyers and as to those kinds of pressures, in some ways dictates the choices they make or the choices that they think they had. I thought I had the choice, and I think young lawyers today feel more constrained.

One of my great memories is the conversation I had with my mom and dad when I chose to go to the Justice Department as opposed to the firm in New York that had offered me a job after law school. When I started at the Justice Department, my salary was $17,056 and law firms were offering me three and a half, four times that amount. And my parents just couldn’t understand that, it made no sense to them. I felt like I had more choices and I could take more risks. I think people today, because of the finances, because of the competition within the law, the overabundance of lawyers, the cutting back at law firms, the redefining of the legal industry, don’t feel like they have those choices.

How did you build your client base when you had your own firm?
One way was we all came to the firm with some degree of contacts. I had left the firm I was at and I brought with me a couple of matters, and luckily our first endeavors were successful. And so consequently those clients, like the City of Alexandria, Virginia, gave us more work. Stan had left the House of Representatives with a contract to work with the House on certain issues, and we did a good enough job that they gave us additional work. Our first two pieces of private litigation were very successful for our clients, and those clients beget other clients for us. Then you had the old, traditional standby of going around and begging people for work. The third is you have friends and contacts and you capitalize on conflicts; somebody is representing a company and they need somebody to represent the individual. And the fourth way is that ingredient I keep coming back to, which you can’t really quantify, and that’s just luck.

When and why did you leave the firm?
In 1998 the Clinton–Lewinsky scandal happened. I got calls from leadership in the House of Representatives that there was likely to be an impeachment, and if so, they would like to find a lawyer who litigated and understood the government. So I was involved in that from the summer of 1998 through the spring of 1999, and I took sort of a leave from the firm to do that.

I had actually taken a leave from the firm prior to that. I mentioned that one of the reasons I wanted to have my own firm was that I wanted an opportunity not only to define my practice but to use the firm as a vehicle to do other things. In 1994 and 1995 I left the United States and worked for the newly formed United Nations High Commissioner for Human Rights, which was an office that had not existed when the United Nations was first formed. This was right after the civil war in Rwanda in which there was a tremendous need for resources, and the UN was really being taxed and they didn’t have enough staff. I worked in Geneva but I took trips to Rwanda, Burundi, Tanzania, and then wound up working on issues concerning the former Yugoslavia.

When the impeachment was over, I realized that our firm had pretty much done what it could do as a 10-person firm. Stan had succeeded in lots of terrific ways and become the general counsel to Minor League Baseball; he was teaching, he was doing his type of legal work. The firm was working well as a platform for him, and I wanted to see if there was a firm that could do that for me more than our firm could do.

How would you describe the Clinton impeachment trial experience?
It was so amazingly important because it will probably be the only time in my life when the opportunity to be a single sentence in a single footnote of something that is history [comes up]. That did, and does still, feel big to me. The work involved was very challenging. It was trying to figure out this thing called impeachment, which is a misunderstood and not well-defined thing in American law and constitutional law. It was dealing with what was the profound politics of the event because that was a political impeachment; it was not a constitutional impeachment. It was trying to deal with what was, in effect, the number of bosses I had; theoretically every Democratic member of Congress was a boss of mine. It was trying to figure out where the interests of Congress, which was my client, stood—either the same or different from the president of the United States. It was figuring out the whole public part of it; it was performing on a grand stage. It was all that, plus relentless hours. It was very hard, very interesting, rewarding, and troubling.

I’m still troubled by it to this day that the House of Representatives impeached the president of the United States. It was a tragedy. Luckily, I’m sure history will recall it for what it was—a political and not a constitutional event. Remember, there have only been two presidents in the history of America who have been impeached: President [Andrew] Johnson and President Clinton. President Nixon was never impeached, he resigned before that happened. My view is that a president who deserves it will never actually be impeached. [Impeachment] will only be used as a political tool because if the president really deserved it, the people of the United States would demand that person’s resignation, which they never did with Clinton and they did with Nixon.

Was that the first time you had to deal with the media’s glare?
Actually, it was not. One of the things that’s interesting, or annoying, or fun about the practice of law is that it always has a public element to it. When I was at the Justice Department, for example, I remember that on one of the cases I worked, I was to provide advice to the attorney general concerning whether we should sue the state of South Carolina over voting rights. I wrote a memo and opined on what I thought, somebody leaked the memo, and it became a big deal at the time. A senator from South Carolina called the attorney general and me together for a meeting.

The first case we did when we started our law firm was representing the City of Alexandria, Virginia, which was suing the Federal Aviation Administration to stop the change of flight paths over National Airport. It was a huge media issue locally.

So I was tested by fire in terms of the confluence of law, politics, and media right from the beginning. By the time I got to the impeachment and was sitting in a hearing room, addressing the committee with 50 people around snapping photos constantly and I could see my face on the television screen, that’s about as intense as it gets. When I tried the John Edwards case last summer, I would walk into the courthouse every day and there’d be seven satellite trucks and 42 people with cameras and people with boom microphones yelling at me, but that’s not a strange event for me anymore.

What’s your strategy for dealing with the media?
I am a big believer in that there’s not one formula for any situation in anything, so you deal with it differently depending on the situation. During impeachment, it was very important that the point of view that this was not an impeachable offense be understood by the public, and so the media part of it was very important. In fact, it was the court of public opinion that informed the acquittal of President Clinton in the Senate, and consequently you needed to deal with the media. When you’re dealing with what 12 people in a jury box are going to think, if they have been picked in a proper way so that they don’t have any media understanding, then what’s going on outside the courtroom matters much less. I could have been part of an effort to convince the country that John Edwards was not the bad guy that he thought he was, but if the 12 people on the jury thought that he was a bad guy, then that’s not much of a victory. So sometimes you tune it out, sometimes you channel it. Sometimes you try to make it your friend, sometimes it’s good when it’s your enemy.

What did you do after you left the firm you started?
After that, I searched for someplace other than my own firm that would allow me to do what it was I wanted to do. I went to Manatt, Phelps & Phillips, then I came to Chadbourne, then I left to go to McDermott Will & Emery, and then I came back to Chadbourne. So that’s not been a straight line either. This is because I’ve had to formulate what I could do at a firm and what a firm could do with my practice and try to make the right match, which is why I call it the search for the Holy Grail. It’s not really good to pick your career path by trial and error, but I think I made a good match finally.

You’ve had some pretty unpopular clients. How do you feel about that?
Every criminal defense attorney faces the issue that some segment of the population believes a client to be very bad and not worthy of representation, of an acquittal, of rights, whatever. I’m not unique in that way at all. The second part is that I have a strong feeling that the people in the center of the public eye, captains of business, high-level officials, actually have it worse in some ways than average people facing charges. As an example, public officials and captains of industry have less ability to not address the public part of their case, maybe can’t avoid going to a grand jury, and can’t take the Fifth Amendment. They don’t have the opportunity of a prosecutor deciding that the case is not a strong case and deciding they’re going to drop it because the public eye is looking at them and [the prosecutors] don’t feel like they can drop the case against a high-profile person.

As to some of the people I represented who have been vilified or distained, I think it’s always important to understand that it’s a dangerous slope to allow public opinion to determine the outcome of legal matters because that’s when people rush the jail, grab the guy out of the cell, and hang him up on the closest tree. Our rights require a whole lot more than that. Finally, I’d like to think that the efforts on the part of some of these clients have proven them right, whether you’re talking about John Edwards, who may not get the award for husband of the year but who certainly didn’t violate the federal criminal laws, or former congressman Gary Condit, who also may not get the husband of the year award but everybody now realizes he had nothing to do with the disappearance of Chandra Levy. That’s part of the effort, to separate public opinion from the reality of the facts in the law. But I’m not unique and I’m not noble for representing unpopular people. Every day, in hundreds of courtrooms in America, criminal defense attorneys do it and it’s in part what makes America great.

You’ve written about what you see as prosecutorial misconduct. Can you talk about that?
I think that from the time I was at the Justice Department to today, the system has changed. I think there is less accountability and more delegation to the line attorneys in the prosecutorial work, and I think there is less oversight of them. For example, in the John Edwards case, how do you have a holdover U.S. attorney from the opposite party who was a political opponent of the defendant drive the investigation and make the decision on the case? And not being able to move it up the chain at the Justice Department because this Justice Department, filled with Democratic appointees, wasn’t going to be the one that would quash the indictment of the Democratic nominee for president of the United States. I remember clearly sitting in the office of the deputy attorney general and the attorney general where cases and their merits were discussed and prosecutors were told, “You cannot bring that case.” I don’t think that happens as much anymore. People in America have no idea how much of their tax money was used to prosecute John Edwards or Roger Clemens at a time when there’s not a lot of tax dollars to use. They should be outraged.

You also have represented high-profile entertainers. Isn’t that a stretch from representing politicians?
It makes a lot of sense when you think about it. [Hip-hop mogul] Sean Combs was fighting the Federal Election Commission. He had done this wonderful thing by trying to register people to vote and people said he was violating the Federal Election Campaign Act. I fight the [FEC] all the time as part of my practice, and an entertainment lawyer friend of mine knew Mr. Combs had an issue in Washington, D.C., so that’s how that came about. I also represented actor Steven Segal. Again, it’s not off the charts if you think about it. He was involved in litigation with an investigation involving a former business partner of his. It was out of New York and it had to do with allegations of this guy potentially being involved in organized crime, and there was civil litigation as well between Steven Segal and this guy. I know a lot of lawyers on the West Coast, particularly in entertainment. It’s not as random as it might look like if you didn’t know the backstory.

There are obvious similarities between people who are that high-profile in entertainment, elected officials, and captains of Wall Street. They’re at the top of the game, they’re used to having total control of the situation around them, they’re at least achievers if not overachievers, and now they’re thrust into a position where they don’t know what the rules are and how they work. They’re in a situation where they cannot be in control, and that’s the same whether you’re talking about the head of a hedge fund, the head of a studio, a person who goes on stage, or a person who is on the floor of the Senate. But they also have different personalities, like going into Steven Segal’s house and having him sort of jamming with 27 people on guitars or seeing his Buddhist temple on his front lawn.

What are the pluses and minuses of having a high-profile client?
On one side it’s disadvantageous to be high-profile because people who make the charging decisions feel like they have less room to decline the case. President Clinton went into a grand jury when he was under investigation; there’s not a private citizen similarly situated whose lawyer would let them go before a grand jury in a similar case. The president of the United States had no choice but to do it.

It’s an advantage after the person is sued or charged. These are people of intelligence, ability, means, and resources, so they can bring those attributes to the litigation equation. These are accomplished people and they’re very talented. For example, in the case of Senator Edwards, he had been a trial lawyer of great note in his own area. Plus, they’re people who know how to talk publically and they’re not shy about saying they have good ideas. So it’s more challenging than representing a person who is not like this and is more willing to let you lead. My joke is that being a surgeon is a preferable profession because they anesthetize the patient, we don’t. Imagine being the doctor who is operating on someone who is telling you what cut to make, what to clamp, and how to proceed. Senator Edwards and I joke that during the course of our representation together, he probably had 15 or 16 ideas every day and one or two of them were pretty good. On the other side you have a very thoughtful, resourceful, intelligent, capable person teaming up with you to come up with good strategy. Two brains are always better than one.

What are some of the cases you handled that really stand out to you?
There are cases that stand out to me because they were incredibly difficult and the results that we were able to achieve made it feel like we did something different than somebody else may have been able to. I represented a trial attorney in Mississippi in his first case who was charged with bribing three judges. It was a very difficult case that lasted more than three months during the summer, and by the end of that case he was both acquitted and had hung counts. That was very difficult to achieve and under bad odds, so I feel like that’s an example of a case that you can feel good about because you can see how your hard work did something.

I represented a man who was and still is my friend who was a real estate developer in the South and one of the pillars of his community. He was a great family man, a community-minded person, a sweet man. He got caught up in the savings and loan era and a project he was working on went bad, the bank failed, and he was blamed for all of that. This was outside of where he lived and people didn’t know this was happening to him. I was able to be involved in trying the case and he was totally acquitted and was able to go on with his life, and people in his community aren’t even aware that this happened to him. It’s one of my most satisfying cases because it affected a real person with a real family who had the right things going for him.

When I am being glib and somebody asks me what I or other defense attorneys do for a living, my answer is “We keep families together,” and that is something that criminal defense attorneys especially have to deal with. And how can I tell you that being involved in the impeachment of the president of the United States wasn’t a memorable or significant event? It certainly was both of those things.

So on one hand you have the most public-oriented representation a person could have, and on the other is probably the quietest I ever had, and they’re both equally satisfying to me for different reasons.

What are your interests outside of the legal profession?
My family has always been the most important priority and I have devoted a lot of my time to raising my kids. I have been their soccer coach, I’d drive them to their recitals, and I tried to be there for them in all possible ways. I don’t think I’m unique in that regard.

Then I do a lot of other things and I have my passions like everyone. I’ve been very active in the Shakespeare Theater in Washington, D.C., and I’m on its development committee and on the board of trustees. I’ve been vice president and general counsel for the Jewish Community Center of Greater Washington and very active in Jewish causes in the community. I love the theater and performing arts, and I participate in sports. I also teach. I’ve taught virtually every year for the last 20 years, either at Georgetown or Columbia. So I try to do a lot outside of this office.

What would you like to see happen in the future?
I’m playing a larger role in the direction of my law firm. Last fall, I took over as head of litigation and became more involved in management issues, and I like that. I think helping this firm get to its next spot, wherever that is, is an important priority. I like having cases that stretch my mental muscles; I don’t need as many (for example, quite as many trials) of them as before, so I’m happy to find fewer that actually do that. I am sure there will be another stint of some public-oriented service, as in going back to the United Nations, becoming a special counsel to a government organization, not a full-time job but like I’ve done it, which is having the platform of private practice allow me to do something else. Also, I’d like to teach as long as I’m capable of teaching. And most important, I want to be there for my kids at all their ages (now 32 to 11) to help them be all that they can and want to be.

Reach D.C. Bar staff writer Kathryn Alfisi at [email protected].