Melinda Haag, Co-Chair of the White Collar & Regulatory Defense group at Paul, Weiss, Rifkind, Wharton & Garrison LLP speaks with Americas Head of Research Shailyn Tirado about balancing a diverse practice, notable anti-corruption trends, and the benefits of giving back to the profession and the community.
You are widely considered to be one of the most formidable white-collar lawyers in California. How did you initially get into white-collar practice?
My path into white collar practice goes back to when I decided to become a criminal lawyer. One of my jobs in college was as an assistant to a criminal defense lawyer in San Diego. During one trial, I was surprised to see that the co-defendant’s lawyer was a young woman. In 1981 there were not very many women criminal defense lawyers, and Elisabeth Semel—now co-director of Berkeley Law’s Death Penalty Clinic—was unbelievably effective, dynamic, poised, and smart. I did not have any lawyers in my family and had never thought about going into law, but after watching her for three weeks, I decided to become a trial lawyer.
I was initially an assistant U.S. attorney in Los Angeles and requested to be assigned to the major narcotics unit because they went to trial more often than white collar prosecutors did. Then I moved to a white collar-focused private practice in San Francisco. During this time, I met Robert Mueller, who was then the U.S. attorney for the Northern District of California. He ultimately asked me to join the U.S. Attorney’s Office to prosecute white collar crimes.
What do you find are the main factors that determine whether to go all the way to trial or when to settle quietly on behalf of your clients?
As a prosecutor, you always go to trial in charged cases unless the case settles. While the client’s decision is always in consultation with us and based on our advice, it is ultimately up to them to choose whether to go to trial. It is the most important decision we make.
Every time I’ve gone to trial in a criminal case on the defense side, my clients have been individuals rather than companies, and each one has wholeheartedly believed that they did not commit a crime—a belief I shared. Companies deciding whether to go to trial make cost-benefit-analysis decisions, but individuals have a much harder time with that if they don’t believe they’ve done anything wrong. For an individual, the outcome can be personally devastating; they could go into custody and have a criminal conviction on their record, among other consequences. In every criminal case representing an individual defendant in which we’ve gone to trial, our clients have been acquitted or had the charges dismissed.
How do you best maintain a balance between the staunch criminal work you do, and the civil work, such as SEC investigations and compliance monitoring, etc. How does this differ, if at all, from balancing both a white-collar and commercial litigation practice?
The hope is always that cases ebb and flow according to immediate needs. We balance criminal and civil work in the same way, but with criminal work, there is a certain urgency around it. For example, if there is a government investigation and your client is the target, there may be a lull in the case, but the client never feels that lull because their stress level never wanes. Corporate white-collar clients tend to be very active and want frequent conversations and assurances to process what’s going on, while commercial litigation clients might be more comfortable with the occasional pauses inherent in the legal process.
What were some of your initial expectations upon joining the Paul, Weiss team as they launched the San Francisco branch of the firm in January 2021?
I knew that Paul, Weiss had a significant number of California-based clients and issues that needed attention, and that that was one of the reasons why the firm wanted to open the San Francisco office. When I started, I realized just how helpful it would be both for the firm and its clients to have a permanent California presence. We bring a deeper understanding of who the players are in terms of plaintiffs’ counsel, judges and other important parties; we tend to know them personally or at least by reputation and through connections we have with them. My other strong expectation was that I would be working with really brilliant lawyers, and that has certainly come to pass. The quality of lawyers at Paul, Weiss just blows me away, and I’m continually excited at the prospect of collaborating with them.
You are now co-chair of the White Collar & Regulatory Defense Group. With more than three decades of experience to your name, what does this new step in leadership mean for you and your team?
At this point in my career, I welcome both the formal and informal aspects of my role. I see this as an opportunity to help the firm position itself as a West Coast white collar powerhouse and to let the California market know what an extraordinary and formidable group of lawyers we have. I’m also excited to be in a position to impart any wisdom I may have picked up along the way to the younger generation—to be a mentor and a resource for others.
What do you think the legal profession needs to do to improve opportunities for women litigators?
Flexibility is essential in allowing people with families—regardless of gender—to be able to be the best lawyers they can be and be present with their families. We want people to be at the top of their profession, to be dedicated to and immersed in their careers—and offering flexibility is one of the best ways to achieve that. I have 24-year-old twin sons and have worked full time their entire lives. I was able to do both because I was given the flexibility I needed to miss certain morning meetings or leave a bit early some days to do the school run, and then catch up later. We need to trust that people who need to balance both work and family are professional and hardworking and that their choice to have a family does not mean they will be less effective. The shift to working from home during COVID forced us to realize this in a way we hadn’t before—a silver lining, if you will.
Another thing that needs to happen is continuing to give women opportunities. For example, two of our summer associates were doing a lot of research for an upcoming presentation, and I saw the opportunity to have them deliver part of the presentation to a 400-member audience. I guided them through it and helped them with talking points, and they were fabulous. We should be looking for those kinds of opportunities to put women and others front and center all the time.
With your vast experience in counseling and defending U.S. and foreign companies and individuals in matters relating to the U.S. Foreign Corrupt Practices Act and similar anti-corruption laws, what are some notable trends that you foresee in the coming years?
As many people have noted, we’re predicting a continued uptick in FCPA and other areas of enforcement by the DOJ and SEC in the Biden/Harris administration. Like the Obama Administration that I served as U.S. Attorney in the Northern District of California, the Biden/Harris Administration and the DOJ led by AG Merrick Garland, DAG Lisa Monaco and Associate AG Vanita Gupta believe in pursuing complex, national and international cases that will cause industries to notice and create deterrence. The focus is not always great news for our clients, but in our experience they want to follow the law, and we are well-positioned to help them do that, and to persuade the authorities that they have done so if there are ever any questions.
With your distinguished career in public service, how has your five-year tenure as U.S. Attorney for the Northern District of California contributed to your success in the private sector?
Serving as a U.S. attorney nominated by President Obama was an extraordinary honor. It has certainly given me visibility in a place where President Obama is widely admired, and the reputation I built as U.S. attorney has been helpful with clients.
Throughout my time with the Northern District of California, I learned how to really lead a team. I soaked up advice given by people who had been at the DOJ much longer than I had been. One person told me that as the decision maker in the room, I should be the last person to express a view about something because if I give my opinion at the beginning, nobody will want to disagree or offer other perspectives. It is important to create an environment that allows others to express their views freely so that you hear everything you need to make a good, informed decision. That is something I still do today, and sometimes my initial opinion changes based on what others have to say.
You have several public service recognitions to your name stemming from your advocacy on civil rights. What specific factors do you attribute to your passion and success in this area? What advice would you give to junior lawyers who seek to be of public service?
Growing up, I didn’t come from money or have many resources, and I’m so grateful for what I now have. I feel that I owe it to people who do not have as many resources to use my skills to help them, and I’ve always felt that way. One of the recognitions I’m most proud of is the Lawyers’ Committee for Civil Rights Public Service Award for leading the prosecution of former Pelican Bay State Prison correctional officers charged with violating the civil rights of prison inmates in their care. It is difficult to prosecute use of force cases, but it was incredibly important to push forward in that case.
Public service and pro bono work are incredibly gratifying, and if you have been lucky in your life to be where you are with the skills you have, then you might want to give back.
More broadly, is there one piece of advice you wish you had known as a junior lawyer, as you were just starting to expand your practice, that you would pass along to the upcoming generation of litigators?
One piece of advice is that the legal profession is small, and reputation is everything. You need to be doing your best work all the time. People you have worked with or worked for will often remember you for your whole career. They might not remember all of the details, but if asked for a reference, they will say one of three things: you were great, you were a disaster, or they don’t remember you (which is almost worse!). You want to make sure you’re producing excellent work no matter how small, boring or undesirable the task so when people think about you as a lawyer and as a professional, the one thing that comes to mind is that you’re a great lawyer and person.