Photo by Laura Barisonzi
Barry Berke didn’t take the “tried and true” route of working as a federal prosecutor before starting a white collar criminal defense practice. But his time at the Federal Defenders’ Office in New York clearly served him well, helping to mold him into one of the nation’s leading lawyers in the white collar area.
Berke is equally adept at convincing authorities not to bring charges, as in his representation of Bear Stearns in investigations related to the subprime mortgage crisis, and at convincing juries to acquit, as in his work for Deutsche Bank’s Raymond Brubaker, who was cleared of all charges related to an abusive tax fraud scheme in 2011. The other four defendants were convicted at trial.
A 1989 graduate of Harvard Law School, Berke is co-chair of the litigation department and the white collar and SEC regulatory practices at Kramer Levin Naftalis & Frankel in New York. He also serves as chairman of the board for the Coalition for the Homeless.
Lawdragon: How did you develop an interest in having a white collar practice? Was there a course or professor at Harvard that played an important role in you deciding that’s what you wanted to do with your degree?
Barry Berke: When I decided to go to law school, I had a strong interest in being a trial lawyer and a belief that I wanted to be a criminal defense lawyer. That was reaffirmed by my experiences at Harvard, which included representing prisoners in disciplinary proceedings as part of a Harvard Law School organization known as Prisoners Legal Assistance Project, or PLAP. As part of my work with PLAP, I ended up representing an individual who had been convicted of a serious crime and had been representing himself in challenging many aspects of his trial. Under the Massachusetts student practice rules, I was able to represent him, along with a fellow student, in a series of hearings attacking his conviction. The case received a lot of attention, and the hearings were even televised.
I also had great criminal law professors, like Charles Ogeltree, who ran a criminal defense program for third-year law students. I was able to defend misdemeanor cases in Roxbury criminal courts. My first trial was defending a teenager in a disorderly conduct case. I still vividly recall visiting the “scene of the crime” and seeing discrepancies with the police report, which ultimately led to my first client’s acquittal. That was a rewarding beginning to my career. All those experiences reinforced my desire to be a criminal defense lawyer.
LD: What led to your decision to join the Federal Defenders’ Office, as opposed to taking a job at a law firm at that time?
BB: After graduating, I had a clerkship for a federal judge in the Southern District of New York. My plan upon graduating had been to try to get a position in a federal defenders’ office after my clerkship. When I arrived in New York, virtually everyone told me that if I ultimately wanted to have a white collar criminal defense practice in New York City, I had to first be a federal prosecutor, which was the tried and true route for most of the white collar defense bar in the city at the time. While I received this advice from many respected sources, I decided to keep my original plan, since I had always wanted to defend, I knew I would be doing something good for the community by being a public defender, and it would be a great way to learn how to be a trial lawyer.
LD: Can you discuss how that position benefited your career?
BB: I was lucky enough to be offered a position in the Federal Defenders’ Office for the Southern District of New York. I found it to be a transformative experience, and I loved every minute of it. It was an extraordinary place to learn how to do everything that defines being a criminal defense lawyer, from cross-examining the government’s cooperating witnesses, to speaking directly to juries, to learning the importance of having a path to victory that has to inform every aspect of a successful defense.
I was fortunate to try 19 cases involving a wide variety of alleged offenses, and had the benefit of wonderful and generous colleagues who were always willing to share their experiences, feedback and ideas. Those experiences were critical in helping me to become the lawyer that I am today.
LD: Among your best-known cases of the past few years is the Brubaker acquittal in the tax case. Can you mention a few factors that you believe were instrumental to your success in having the jury view and assess your client separately? To a lay observer, if the government is proving its case against the other defendants and also devoting a great deal of resources to prosecuting your client, avoiding a guilt by association over the course of a lengthy trial – particularly if there are multiple counts to choose from – would seem to be quite challenging.
BB: In that case, we did have to deal with the challenge of there being multiple defendants on trial and multiple counts against our client, Craig Brubaker. We had to continually reinforce for the jury that there really were five separate trials taking place simultaneously, so that every time we stood up to cross-examine a witness or address the jury, the jurors realized that it was the continuation of the trial of Mr. Brubaker. As the trial approached, we also had to contend with the unwelcome development that one of the defendants made a deal with the government to plead guilty and testify for the prosecution, but we were ultimately able to use it to our advantage.
In our lengthy cross-examination of this lawyer-defendant, we were able to show that he persuaded our client, just as he had countless taxpayers, that the tax shelters being challenged by the government were legal loopholes that he and his prestigious law firm had developed and successfully marketed.
LD: Given your experience and your work as a teacher, and as a practice leader at Kramer Levin, is there a certain part of the trial process, or other aspects of litigation, that you see more prone to costly mistakes?
BB: There are two quotes that I like to use when thinking about trials. The first is by the former basketball coach, Bobby Knight, who once said: “The key is not the will to win… everybody has that. It is the will to prepare to win that is important.” For me, I believe the key to winning at trial is to work very hard to prepare a “path to victory” that defines everything that your team must do leading up to trial to be prepared for how you expect the trial to proceed to lead you to a successful result.
The second quote I use is by the former boxer, Mike Tyson, who once said, “Everybody has a plan until they get punched in the face.” I think that is particularly apt for trial work because no matter how much you prepare, there are always surprises at trial, some of which are unwelcome, and the key to winning is being able to adapt your trial plan and successfully deal with the unexpected.
LD: What is it about trial work that you like? Why after a grueling trial would you start looking forward to the next one?
BB: I believe it is an honor and privilege to be trusted to be the gladiator for a client in what is typically the most important battle for that person where the client’s liberty, livelihood, finances and reputation often hang in the balance. Also, there is nothing that I have experienced professionally or otherwise that requires the use of a greater range of skills to figure out how to try a case in the most strategic, analytical, creative, and passionate way possible.
LD: All the proceedings involving the Double Eagle coins have also received a lot of coverage. [Berke has represented owners of the rare coin in proceedings against the U.S. government, which claimed the coins are stolen property. Parts of the legal battle were covered in the 2006 book “Double Eagle.”] That’s obviously a rare legal dispute in which to play a large role, over a number of years. How did that come about for you? Is there a part of it, a twist in the story, that stands out as particularly memorable?
BB: I always say that what makes a great case is the same thing that makes a great novel – a one of a kind story. And the long history and legal battles over the 1933 Double Eagles, the last gold coins minted that were allegedly never released into circulation because FDR took the country off the gold standard, certainly involves a great story. I’ve enjoyed the two related cases that I’m still working on, but never thought they would span nearly two decades having been retained on the initial case when I first went into private practice in 1995.
After favorably resolving the first case on the eve of trial and seeing that single coin (believed to be the only one) being auctioned for over $7 million (the most ever at the time), the part of the story that stands out for me is my great surprise when I was retained by the family that found 10 more of the same coins in a safe deposit box.
LD: What led to your interest in becoming involved in the Coalition for the Homeless? Can you offer any comment about how it is holding up, or what its additional needs might be, given Sandy’s impact and the overall increase in homelessness?
BB: The Coalition is a great organization that is really thriving in these difficult times thanks to the extraordinary people that run it and carry out its mission. I became involved a long time ago when the Coalition challenged then-Mayor Giuliani’s policies on homelessness, and he responded by opening a baseless investigation of the organization. I represented the organization on a pro bono basis and have served on the Board since then.