Sixth Interview
October 22, 2018
This interview is being conducted on behalf of the Oral History Project of the
Historical Society of the D.C. Circuit. The interviewer is Elizabeth Cavanagh and the
interviewee is John W. Nields, Jr. The interview took place at the offices of Covington &
Burling on Monday, October 22, 2018. This is the sixth interview.
MS. CAVANAGH So John, you at some point in the ‘90s were on the D.C. Bar Board of
Governors. Maybe you can talk a little bit about that.
MR. NIELDS Well a very good friend and sometime colleague named Andy Marks, a
wonderful, wonderful lawyer, and someone who was a President of the
D.C. Bar at the time or maybe he was about to be, asked me if I would be
on the Board of Governors and I said yes, of course. That at least started
me in the direction of understanding what the D.C. Bar was and what it
did and eventually led to my running for and getting elected as a D.C. Bar
President for a one-year term.
MS. CAVANAGH That was in 2000 to 2001 that you became President?
MR. NIELDS Yes, and I think one got elected a year before that and served the year as
President Elect, and then I think there was a year as immediate past
President. Those two things involved not very much time. But the D.C.
Bar President duties, at least as I defined them for myself, took up over
50% of my time during the year that I was doing it.
MS. CAVANAGH Would you like to talk a little bit about the initiatives that you worked on
as President of the D.C. Bar?
MR. NIELDS Sure. I don’t any longer remember exactly how this issue came to my
attention, but there was some commotion and disagreement among law
firms as to whether…. Well, law firms were starting to define the
appropriate number of hours for associates to work.
MS. CAVANAGH I remember.
MR. NIELDS And then the question arose, because there was already a very strong and
rich pro bono culture among at least big firms and many, many small firms
in D.C. We’re unique, I think, or at least we’re at the good end of the
spectrum on the issue of pro bono culture for bars around the country.
And so the question arose, did associates who spent a lot of time on pro
bono cases, did they get credit for those hours towards their expected
hours of work for the year. And firms had inconsistent practices with
regard to that and I sort of teed that issue up as issue number one that I
would want to focus on, and I put together a committee of a lot of really
wonderful people, some of whom were kind of pro bono-y types and
worked for service providers, and some of whom were in law firms and
ran their pro bono programs, and some were managing partners in major
law firms. And the goal was to come up with a recommendation that
every firm in the city would count pro bono hours towards their goals for
their associates. It ended up doing pretty well. And I think we also
addressed what would be the expected amount of pro bono hours for an
associate to do, as a percentage of their total hourly targets. Not every law
firm signed on, but I think we approached the largest 25 law firms and I
think like 80% of them signed up for the full deal. Some firms who did a
lot of pro bono work said they didn’t want to have it be a strict rule, even
though they had a very good pro bono culture. So that was fine. Then
later, I think this happened later when I was chair of the pro bono
committee for the D.C. Bar, that we went back and approached the 15 next
largest law firms and got almost all of them to sign up for the same thing.
And the firms reported the firms’ pro bono hours at the end of every year.
All of the firms reported their pro bono numbers. I don’t know that we
made them public, but it made law firms focus on this as an issue that
MS. CAVANAGH Did the goal have to do with overall pro bono hours at firms or pro bono
by each person at each firm?
MS. CAVANAGH Interesting.
MR. NIELDS Both, but obviously there were going to be some lawyers at big law firms
who get assigned to cases that are wall-to-wall with work and they don’t
have enough time even to do what they are supposed to be doing on those.
So it wasn’t as though we said it should be mandatory that everybody do a
certain number. But there was a goal for individual lawyers and then a
goal for the firm, pro bono hours as a percentage of billable.
MS. CAVANAGH Right. At least the firm where I worked had a kind of recommended
billable number and then a recommended “other” number, which included
both pro bono and …
MR. NIELDS `Professional activities and stuff like that.
MS. CAVANAGH Is that still true at firms? Do you have a sense of if firms have kept with
those kinds of guidelines today? I don’t have a sense of how that’s
MR. NIELDS I think firms are still reporting. I haven’t checked with the recent bar
presidents but I think that they are still reporting numbers and they were
basically meeting their goals all the time I was chair of the D.C. Bar pro
bono program [which I did for six years after being Bar President], and
mostly increasing them. So last I was in the know, things were working.
MS. CAVANAGH When you were pro bono committee chair, were you engaging directly
with legal service providers as well? Were you playing some kind of in
between role with legal service providers and public interest type
organizations and law firms?
MR. NIELDS Well, it was very important that we know and be extremely friendly and
have good relationships with all of the independent pro bono legal services
providers. But the D.C. Bar pro bono program differed from all the
service provider entities that function in D.C. in that the service provider
entities, basically the lawyers who did the pro bono work were employed
by them. They were staff. Whereas the D.C. bar pro bono program was
leveraging the availability of private lawyers throughout the legal
community. We thought there were a lot of resources available there.
Also, it was very good for the culture of the legal community in this city.
MS. CAVANAGH I have to say as an associate at that time, it was valued at firms to the
extent that it gave young lawyers opportunities to be in charge of cases.
MR. NIELDS And to be trying cases in court, where they would never get into court on a
big paying case that they were working on. They got to question
witnesses, they got to write briefs, they got to meet with clients, they got
to interview them. So yes, and some of it was fairly routine and some of it
was fascinating and exciting and challenging, and winning a case for a
client just put everybody on a high. So that was good.
The second thing that I was focused on or wanted to focus on and
announced when I made my inaugural speech, not quite the right word,
was that the Superior Court in D.C. was then funded by Congress.
Congress said how much money they were going to get and Congress
authorized the release of the money. That was changed. I can’t now
remember the byzantine different structures and relationships that the D.C.
City Council and the Congress had on funding issues, but at least at that
time the D.C. courts, if they needed money, they were going to get it from
Congress. And they didn’t have a history or particular skill at lobbying
and they had real trouble. Funding came late, it was inadequate.
MS. CAVANAGH Is that separate from how the D.C. Court of Appeals was funded? You
mentioned the Superior Court.
MR. NIELDS I think the D.C. Court of Appeals was in that. And I think maybe even
Probation. Some pretrial services. But it was mainly the Superior Court,
they were the ones that were coming to the Bar and saying can you help
us. And I got — the Bar can’t help them lobby Congress unless we have a
vote of the membership that permits us to do that. You have to have a
meeting to do that and that’s a complicated thing that doesn’t amount to
much at the end of the day. You had to obey all the rules. Anyway I put
that together and had a meeting. You have to have a quorum. I got about
40 lawyers at my law firm who said if I didn’t get a quorum they would
run across the street where the meeting was and make it. Anyway we
made the quorum. We got the right to lobby. And we got a fabulous
editorial in the Washington Post at just the key moment in time. Whatever
it was, and I don’t remember how much difference it made, but the
Superior Court was very grateful to us for the efforts and the success that
we had with that.
The other main thing I did was to put on a concert at the Birchmere, which
is a major venue for folk singers and other kinds of singers down in
Alexandria, and it seats about 500 people. The featured singers were my
daughters, who, as I think I mentioned before, in fact that’s what they do
for a living.
MS. CAVANAGH Yes, The Nields.
MR. NIELDS The Nields. They came. They were just delighted to do it. They came
down. I can’t remember how we charged for seating. I think we charged
a much lower ticket fee for the people who were working for service
providers and a higher fee for people working for law firms. And we sold
MS. CAVANAGH That was the fundraiser that benefitted ….?
MR. NIELDS That benefitted the D.C. Bar’s pro bono program. But it was [a
fundraiser] and everybody knew that. I think we raised $10,000. That’s
what we cleared or something like that, which is not a huge portion of the
D.C. Bar pro bono annual budget, but having 500 people having a hell of a
good time ….
MS. CAVANAGH Community building event.
MR. NIELDS Community building. It was pretty good.
MS. CAVANAGH That’s great. Maybe you can talk a little bit about when you were on the
Board of Directors at the D.C. Appleseed Center.
MR. NIELDS Unlike many other people, and it’s a marvelous organization and there are
marvelous people that work for it, the D.C. Appleseed (and there is a
national Appleseed organization), the D.C. Appleseed organization’s
Board of Directors is peopled by folks in our legal community and nonlegal community who really really care about issues of the District of
Columbia and making it a better place. It does all manner of things. I was
on the Board only for a fairly brief period of time and only because of one
case that my friend and partner Lois Williams got me interested in. It was
a challenge to the statute passed by Congress that forbid the District of
Columbia from taxing commuters. [See D.C. Home Rule Act of 1973,
Pub. L. No. 93-198, 87 Stat. 774.] That is, taxing people who earned their
money in D.C. and lived outside of it. The first thing one has to know
before one would think that this was a sensible lawsuit to bring, is that
there is no other jurisdiction in the country, and maybe even in the world,
that does not tax all of the income earned within its borders. In other
words, it’s a taxing principle that the primary right to tax belongs to the
jurisdiction in which the money is earned. So D.C. lawyers who live in
D.C. pay taxes to New York, for their New York offices and California for
their California offices, but they don’t pay any taxes to D.C.
MS. CAVANAGH Where they work every day.
MR. NIELDS Where they work every day. And the second thing you need to know
before you will think maybe this was a good idea to bring this case, was
that — I think the GAO put out a report that explained and confirmed this
— which is that without the ability to tax income that is earned within
D.C. borders by commuters, D.C. has what they call a “structural deficit.”
What that means is that if you impose ordinary normal average tax rates
on your residents, you will not have enough money to provide ordinary
average services to the people who live and work here. So we brought an
Equal Protection Clause case. The ethos of it takes you back to the Boston
Tea Party, taxation without representation. The fact that what you have
here is a law enacted by a legislature that is elected by all the people who
live in the states and not even a single voting member of which is elected
by the people who are being disabled from taxing. So it is a law that
discriminates in favor of the voters and against people who can’t vote.
That is a predictable discrimination for a legislature to have. There’s a
case called Austin v. New Hampshire [420 U.S. 656 (1975)], I think, in
which a New Hampshire law that taxed commuters at a higher rate than
residents was struck down because it was a discrimination that favored the
people who vote for you and disfavors the people who don’t or can’t. And
so we said that worked, flipped here, but the principle was the same. If
you ever would have, if a court should lean in the direction of calling the
discrimination illegal, it would be in a case where you had this disfavoring
of people who had no representation and favoring of people that do. So
that was our theory of the case. We persuaded nobody. We lost in the
District Court and we lost in the Court of Appeals and cert was denied in
the Supreme Court. [See Banner v. United States, 303 F. Supp. 2d 1
(D.D.C. 2004), aff’d, 428 F.3d 303 (D.C. Cir. 2005), cert. denied, 547
U.S. 1143 (2006).] The reason I thought we lost and expected we were
likely to lose is the federal payment, which is something that Congress
was giving the District of Columbia extra, outside of the ability to tax
commuters. One could picture it as “in place of.” And even if we could
demonstrate that it wasn’t adequate and it didn’t fix the structural deficit,
you still ended up saying, well what’s the remedy here? They are already
giving you a federal payment. How is this different than complaining that
that isn’t big enough? Anyway, we loved working on it. We believed we
were on the side of the angels. We knew we were not likely to win. Too
MS. CAVANAGH It’s a worthy cause.
MS. CAVANAGH I believe that with your church you were engaged in a tutoring program
with D.C. students. Maybe you can talk a little bit about that.
MR. NIELDS My church was looking for something useful outside of our own walls to
do. We looked at a lot of different things. Then we heard about
something called the “I Have a Dream” program which was invented by a
man named Eugene Lang, who had gone to an inner-city school in
northern Manhattan and later become wealthy. He had come back to his
old school and made a speech to its graduating eighth graders I think, or it
may have been seventh graders, and realized in the middle of the speech
that a very small portion of the people he was talking to were going to
even graduate from high school. On the spot he told them that he would
provide college tuitions for anybody in that room who graduated from
high school. And then he hired somebody to keep track of them and help
them, and various other wealthy individuals copied him. So we heard
about that and said, well we can do that better because we have an almost
unlimited number of tutors, and we had a relationship already with a …
we were in McLean, Virginia, and we had a relationship with a church
called Garden Memorial in Anacostia and they had a nice church and good
people. Underneath their sanctuary was an enormous room where you
could set up tables for tutoring and an enormous kitchen where one could
cook food. Anyway our church decided to do this. In order to be in the “I
Have a Dream” foundation, you had to raise $300,000 as a kitty. To
ensure your ability to fulfill your promise to fund college tuitions at the
level of the University of the District of Columbia for the people who
graduated, you had to have that in the kitty before you could start. So we
got that all put together. Then we sponsored a class of 66 sixth graders at
Ketcham Elementary School and followed them all the way through 12th
grade. So for 7 years we trundled ourselves down to Anacostia at 9:00 in
the morning on Saturday and left at noon and spent three-quarters of the
time tutoring one-on-one. About 30-40 kids got involved in some way or
another and maybe for the first year or two about 30 or so showed up on a
given Sunday. The attendance went down slightly as time went by. But
none of the kids that were involved dropped out completely. They would
maybe come every other Saturday. So we tutored them and we also fed
them a delicious and enormous breakfast at about 10:30 each Saturday
morning. I think that was the significant draw. The positive energy that
came out of this enormous kitchen. And almost all the cooks were men. I
don’t know why that happened or how it happened.
MS. CAVANAGH These are fellow church members?
MR. NIELDS Fellow church members.
MS. CAVANAGH About the same number as the number of kids.
MR. NIELDS About the same number as the number of kids. That’s not counting the
cooks. It was just a wonderful experience. We got to know a number of
these kids extremely well. A lot of them went to college, not as many as
you would have hoped, but a lot of them graduated from high school and a
number of those went to college. Personally, my wife and I kept in touch
with a number of them and the same is true for other members that got
involved. Indeed, one of the Dreamers, as we called them, lived with us
for many years up until we changed houses 2 years ago. We think of him
more as a member of our family than anything else. So it was an
enriching and educational experience for every person that got involved
from the church. We loved the kids. Some of them got themselves into
trouble. It was very educational for us what life was like for the people we
were working with. That’s a snapshot of that.
MS. CAVANAGH Moving away from service-type activities, I was hoping you would talk a
little bit about a case that you worked on with Ben Kuehne that you were
involved with when you were at Howrey.
MR. NIELDS Let me lay the foundation for this. There was a very prominent lawyer in
Miami named Roy Black who was asked to represent a man named Fabio
Ochoa Vasquez who was a well-known prominent member of the
Medellín drug cartel. This would have been sometime around 2000, I
think, when the issue came up. It might have been a little later than that,
2002, 2003. So that you don’t think this is silly, I should put in that Fabio
Ochoa took advantage of a law passed by the country of Colombia that
said for the major drug offenders, if they confessed and served a
significant jail sentence, they would not be extradited to the United States.
Ochoa took advantage of that and spent about 6 years in jail and then came
MS. CAVANAGH In Colombia?
MR. NIELDS In Colombia. Then the U.S. government thought they had evidence that
he had gone back into the trade after he’d come out. That was not great if
he did that. That was not covered by the no-extradition. So extradition
proceedings were brought and he was extradited back to the United States,
claimed his innocence, and wanted to hire Roy Black as his defense
lawyer. So Roy hires Ben Kuehne, who is a Florida and Miami lawyer,
quite well-known with a very good reputation. Ben vetted the fees
received by Black. I’ll tell you more about that in a few minutes. But he
vetted the fees and he wrote careful opinions that these fees were being
paid with clean money. And he gave those opinions in writing to Roy
Black and Black took the case. Ochoa was convicted, and a few years
after that, or maybe it was a year after that, the Main Justice (Asset and
Forfeiture Section of Criminal Division) started an investigation of Ben
Kuehne for money laundering, looking into whether the money was dirty
and whether he knew the money was dirty and blessed it anyway. Ben
was in a two-person partnership and the other partner was somebody that I
had been in the U.S. Attorney’s office with in New York City, who was a
very good friend. He called me up one day and said, will you take this
case over, it’s just unbelievably important. And so I said yes. I don’t
think I’ve ever felt under the same kind of pressure on any other case that
I ever took as a private practitioner. The idea of losing the case — having
my client get indicted, losing the case — was just unthinkable. The
sentencing guidelines would have called for a sentencing close to 20 years.
My client’s entire life was at stake. It was not acceptable that that might
happen. But it was also a serious risk if he got indicted and was brought
in front of a jury with the Medellín drug cartel defendant paying $5
million in fees. You could see that case going sour very easily. I took it.
I thought I should be able to persuade the department not to indict. It was
being controlled by the Asset Forfeiture and Money Laundering Division
of the Department and they live in a hermetically sealed room, I think.
They have nothing but drug cases and they win them all and they get
unreasonable decisions in their favor in all of them because when it comes
to drugs, the courts tilt very strongly in one direction. We did not succeed
in talking them out of filing the case. I had some very nasty conversations
with higher ups in the Criminal Division. I’m not mentioning names but it
was a really cold-blooded …. Some high-up person said to me during one
of the meetings, “why don’t you just ask your client.” I mean I’m arguing
the evidence isn’t there. “Why don’t you just ask your client.” It was like
they knew and they weren’t telling me how they knew. But they knew. It
was chilling. But I had at least enough notice, and I don’t know why I tell
this part of it but, I knew when the indictment was going to come down
and be public in Miami. They were going to file it at 9:00 in the morning
or something and I had somebody waiting to find out when they filed, and
I instantly filed my own document, it was a Request for a Status
Conference, but it laid out our case. And so now I’ll tell you more or less
what that was and then I’ll tell you more. This is taking a lot of time
because it used up as much of my emotional and intellectual energy as any
case I ever worked on. The reason my client had rendered the opinions he
had is that as part of the process … well, two reasons. One is as part of
the process of Ochoa’s going through this sort of amnesty in Colombia —
confess, serve your time — he also had to, under Colombia prosecutors
supervising it, he had to turn in all of his illegally gained assets. And the
Colombian authorities had gone through a procedure that my client knew
about where they said okay, these are the assets that we are deeming to be
the fruits of drug trafficking and here are the assets which you and your
family can keep. There was a division, bad assets/good assets, that the
Colombian legal system had made and blessed. The good assets mostly
were his parents’ and his family’s. His parents had been very successful
long before Ochoa went into the drug trade. They were very successful
breeders of Paso Fino Colombiano horses. A very famous and elegant
show horse. They were also major cattle ranchers with enormous amounts
of cattle. Most of the money that had been raised to pay Ochoa’s fee had
been the fruits of the sale of Paso Fino horses at a huge auction, and cattle,
some of which were located right near where the Ochoas lived, and some
of which were pastured in other parts of Colombia. My client had been
down to Colombia several times. He hired somebody to be a monitor at
the auction. I think there was more than one auction. I laid that all out for
the judge in my short document filed the morning of the indictment. So
that the very first thing, when she read the indictment, she then also read
that. I also admit that I was at a press conference when the government
did their little thing, I was able to get up and speak from my own
document that was already on the public record and say my piece, which I
What I was most concerned about was that the Justice Department was
going to have access, almost unlimited access, to the facts almost all of
which were in Colombia, and that we were going to have none. I got my
partner Jason Raofield, who is one of the finest lawyers I’ve ever worked
with and he has got tenacity that you would not believe. We hired a
person from South Florida, an investigator whose wife was Colombian.
And so he was very familiar with that country and its language. He and
Jason went to Colombia, both to Medellín and Bogatá at least 15 times. I
went down there over 10 times. Just to give you an idea of the kind of
access we got. First is this story. A woman named Laura Shores at
Howrey was also working on the case. She came in my office one day.
We were trying to get in touch with somebody who mattered down in
Colombia. She said, look at this email that just came in from Jason — he is
having cocktails with 2 people, one of whom is the former president of
Colombia, and he’s going to help us and he is going to put us in touch
with people that can help us. Oh my God. Our investigator got us into the
files of the courthouse in Colombia and found all of the documents
relating to the Ochoa case. In all of the documents it showed how they
had gone about deciding that these assets were going to be forfeited and
these assets were going to be okay. There were proceedings regarding the
assets not only of Ochoa the defendant, but also the assets of his family.
And so you had to get those files before you really could see that the
investigation by the Colombian authorities covered what had actually been
sold to raise the fees.
We went in and had a meeting with the high-ups at DOJ. I think
the head of the Criminal Division was at the meeting and a couple of, at
least one very unpleasant person working on the case. We had this
meeting with them. They said, “we understand you’ve had unprecedented
access to information in Colombia.” It was to them like an outrage that
we had access to the same documents they did. I said yes, and we found
your fingerprints on them too, because they left their post-its on some of
the documents. But they hadn’t put post-its on any of the documents that
helped us. The bad part of the case, and the reason they indicted was, the
Colombian banks wouldn’t take the clean pesos raised by Ochoa’s family
and transmit them to the U.S. to pay the fees. And so what the Ochoa
family had to do was use what our government termed the BMPE (Black
Market Peso Exchange). This is a perfectly lawful way of exchanging
pesos in Colombia for dollars in the U.S. But the problem is that the
people who have dollars in the U.S. to sell to brokers who will take your
[clean] Colombian pesos and trade them for U.S. dollars, include not only
drug dealers who have sold Colombian drugs for cash and have suitcases
full of dirty money (in both senses of the word), but there are a lot of
undercover activities in the U.S. where undercover agents grab this money
and put it in banks. And some of the clean pesos raised by Ochoa’s family
ended up being traded for dirty drug money under the control of federal
drug enforcement agents. Not only that, but my client had made the
mistake tactically, not morally, but tactically, of having the fees put in his
bank account, so he would have a chance to vet those fees before passing
them on to Roy Black. So he ended up with dirty money in his trust
account. Of course, nobody told him it was dirty. And if you’re going to
run a sting on somebody, the whole point of running a sting is that you
make sure that the fence that you’re giving stolen property to is told that
it’s stolen. And you have that on a microphone or something.
MS. CAVANAGH Culpability.
MR. NIELDS Well, that’s the way you find out whether the person in question will
knowingly take dirty or stolen goods or not. They either take it or they
don’t take it. Well, they never told Ben and he had no idea that that had
happened. Anyway we did a lot of work on the BMPE and got experts.
We got experts from Colombia to talk about it and unravel the fact that it’s
totally lawful and widely used. Although there is some risk that you end
up with dirty dollars.
And then, maybe the most important thing that happened that we
did, and this is something I glommed onto immediately when I got the
case. There is a provision in Section 1957 of Title 18 of the United States
Code, which they ended up eventually charging him with. They charged
him with something else too, but the only thing that really might have
applied was 1957, and it basically says anybody — well it says anybody
who knowingly engages or attempts to engage in monetary transaction in
criminally derived property … shall be punished, but of course only if
they do so willfully and knowingly. And then there is the following
language that is used in this section; the term “monetary transaction”
means blah blah blah blah blah. “But such term does not include any
transaction necessary to preserve a person’s right to representation as
guaranteed by the Sixth Amendment to the United States Constitution.”
My belief, I had known about that provision for some time, and my
belief had always been that it was intended to exempt from criminal
punishment fees paid to criminal defense attorneys: The government can
forfeit a lawyer’s defense fee if he knowingly takes dirty money but it
can’t take his liberty away from him. It would be too great a chilling
effect on the ability … lawyers would never take any fee. I mean you are
dealing with a criminal class of human beings.
The Justice Department, however, had taken the position very
publicly, that there was a case that said that a defendant does not have a
constitutional right to use the proceeds of crimes to hire a lawyer and
therefore the defense fee carve out in section 1957 had no meaning. No
Court of Appeals had ever bitten into that issue. We filed a motion to
dismiss the indictment on that ground. We won in the District Court and
then the government appealed up to the 11th Circuit, and we had a very
successful argument from the 11th Circuit and got that count dismissed.
And then (I think partly because their lawyers knew we were beating them
up on the facts in Colombia thanks to Jason), the Justice Department
dropped the case. [See United States v. Velez, 586 F.3d 875 (11th Cir.
MS. CAVANAGH That was really a complete victory.
MR. NIELDS It really was.
MR. NIELDS And the judge, we had a very successful time in front of the judge.
MS. CAVANAGH In the District Court?
MR. NIELDS In the District Court.
MS. CAVANAGH Do you remember who it was? I can look it up.
MR. NIELDS It will come to me before this conversation ends and I know it perfectly
well. [Judge Marcia G. Cooke, U.S. District Court, S.D. Fla.]. She
understood the case, she understood the procedures, she understood the
time it was going to take to get testimony from far away witnesses and
how much time we all needed to do that, and then she ruled on our
motions in a very favorable way.
MR. NIELDS In Miami. Yeah. When we notified her that the Department was dropping
the case and then requested that she sign the Order of Dismissal as soon as
possible, it took about 5 minutes.
MS. CAVANAGH Eager to get rid of that case? That’s funny.
MR. NIELDS So that’s, sorry I took so long.
MS. CAVANAGH No that’s really interesting. I guess next I was going to ask you about,
let’s talk a little bit about the dissolution of the Howrey firm, if that makes
sense in terms of where we are.
MR. NIELDS Yes it would have happened ….
MS. CAVANAGH Can I maybe close this [window shade] a little bit. If I close the shades.
MR. NIELDS Oh I’m sorry, oh yes.
MS. CAVANAGH You’re getting very bright.
MR. NIELDS I totally forgot.
MS. CAVANAGH Here we go, we’re still recording. I just thought, you’re starting to get
MR. NIELDS Well now you’re getting blasted yourself. I don’t think I know how to
stop it.
MS. CAVANAGH That’s much better. Thank you. So yes, dissolution of the Howrey firm.
MR. NIELDS Yes, it was a very sad and very unnecessary thing, and it’s very hard to
understand why it happened or whether it absolutely needed to happen.
MS. CAVANAGH Is this 2011?
MR. NIELDS 2011 sounds right.
MS. CAVANAGH Or maybe ‘10.
MR. NIELDS I think it was ‘11.
MR. NIELDS It was 2011. So the firm’s earnings had been going up for quite a long
time in a more or less consistent way, and a number of groups of lawyers
from other firms wanted to come and join us because they thought they
would do better with us than wherever they were before. And some of
these groups were involved in opening new offices, long-term leases ….
By the way, the last thing I understand is how a law firm’s finances work
and what would make a good way to run a law firm. I’m the last person in
the world you would want to put in charge in your law firm. But this is
my general take on it. And then for two years the firm’s earnings were
disappointing and went down. And the people who had joined us because
they thought they were going to make more, were making less, and there
got to be some restlessness and some departures.
MS. CAVANAGH Partners?
MR. NIELDS Partner departures and maybe even some groups, I can’t quite remember,
to what degree this was worry and to what degree it was actual people
were leaving. And if it got to be like a run on a bank it would be fatal and
we would end up with long-term leases in a lot of places, and then the firm
had expanded, opened new offices quite apart from new groups coming in,
not only all over the country but all over the world, and so people got very
concerned. We were still making more money that I ever thought I would
make as a lawyer when I started practicing law, and no one was
impoverished. And I was sure we were going to turn it around, and even
if we didn’t, if we stayed at that level or even dropped further, who cared,
we were practicing law together. And if we would have just been our
Washington office, nobody would have left, not a soul that would have left
that firm. I mean, we had been together for a long time and we’d had one
other bad patch when I first joined the firm, where the firm contracted
from 125 to 78 lawyers I think, and then from that and then turned right
around and went through the roof over time. But anyway that was not the
case, we weren’t just that office, and people got very worried, and that led
us to have some conversations about merging with another firm in
Chicago (has that been publicized? I think it has ….)
MS. CAVANAGH I have that a number of partners went to Winston & Strawn, but you did
not because there were client conflicts. That’s all that I know, so I don’t
MR. NIELDS Well Winston & Strawn was the firm that we were talking about merging
with but we did not merge with them.
MR. NIELDS And I think we did not merge with them in part because I and many other
lawyers had conflicts and it didn’t seem like Winston & Strawn was going
to find a way to get them waived, and some people ended up at Winston &
Strawn but not as a result of the merger of the two firms, just because they
got to know some people as a result of the conversations and went there.
But there was a month period that people had allotted to getting the
merger done after there was an agreement that we would do it. Two and a
half, three weeks into that process it was like, I’m not sure this is going to
happen. It’s sort of looking like it isn’t. And then everybody had to go
find some other place to be a lawyer and have offices and have Xerox
machines. And so the firm broke up. As I think I mentioned to you off
the record, it was particularly part of the reason that the earnings had gone
down, it isn’t the only reason, but part of the reason is that the firm was
investing lots of resources in contingency cases that ended up being
extremely successful with nine-figure fees, that if people had just waited
around they would have been the beneficiaries of. But instead the fees
basically went, well they went either to the bankrupt estate or they went to
the groups of lawyers that were handling them who were now at some
other firm.
MS. CAVANAGH Were those antitrust cases?
MR. NIELDS Yes. They were big big antitrust cases. I certainly have no basis to
complain. My idea of my favorite firm in D.C. with the possible
exception of Howrey has always been Covington. Covington welcomed
me and the people working on cases with me and a couple of other
MS. CAVANAGH Alan Wiseman.
MR. NIELDS Alan Wiseman. By that time I had tried and worked on a number of
complex antitrust cases throughout the ‘90s and ‘00s.
MS. CAVANAGH Did you bring a whole group of antitrust lawyers here?
MR. NIELDS Sort of. I think seven, eight of us came over together.
MS. CAVANAGH Associates too?
MR. NIELDS Yes, two of whom are now partners at Covington. There is just no finer
firm in the city than Covington and its culture is just unique and special
and good. That was all a happy thing for me. But having Howrey fail, it
felt more like a death in the family than anything else.
MS. CAVANAGH Well, I have a happier topic. Why don’t you tell us about the Washington
MR. NIELDS That’s one of the best things that ever happened to me in my whole life.
It’s an organization that, what it does has grown over time. It started out
as and primarily still is an organization that puts on … you can call it a
Christmas show and we call it the Christmas Revels but it’s actually a
winter solstice show and it draws each year from a different culture.
We’ve had Russian Revels, we’ve had Scandinavian Revels, we’ve had
Gypsy Revels, I think we’ve had Bulgarian Revels, French Revels, we’ve
had Victorian Revels, Elizabethan Revels, and we’ve had Appalachian
Revels. But it’s nothing but music, dance, sort of skits. We have
professional people who come in and do like Irish step dancers and these
Norwegian people who can kick hats off a pole as they dance around. It’s
strong on audience participation and we play to an audience of
approximately 10,000 people a year. It’s put on at Lisner Auditorium over
two weekends in December. Saturday two shows, Sunday, Friday for two
weekends more or less, we move those around a little bit. I got to perform
in, that’s a little bit in quotation marks, roughly the first seventeen. I think
there were one or two years where we agreed that people who had been in
every show had to take a year off to make room for others. I basically was
in every show up until… it started in 1983 and so I must have gone toward
the end of the ‘90s until I gave my wife a veto. She has exercised it every
year since.
MS. CAVANAGH She doesn’t want you to do it.
MR. NIELDS No she doesn’t, right. Because it was Wednesday evening rehearsals
starting in mid-September, a full weekend of rehearsals in October.
Another full weekend of rehearsals in November. Then they added a third
full weekend of rehearsals. And then there’s tech week, which is before
the first show on a Friday, that the entire week is gobbled up. She said
you’re not around for the Christmas season; this is intolerable.
MS. CAVANAGH So when was the last time you performed in it? In the ‘90s, you said?
MR. NIELDS Late ‘90s. It’s conceivable I was in it in 2000, but I think I faded away.
MS. CAVANAGH And you sang and danced in it?
MR. NIELDS I sang and danced. Part of it was an amateur chorus of women and men,
four parts. The music also got more complex so probably I would have
had a harder time with it. It was nothing but joy. I didn’t understand why
people liked to come watch it, but boy did I understand why people liked
to be in it. We formed a very close-knit community of people that you
shared something with that you all just thought was wonderful. And we
thought we were giving something to the audiences too and certainly they
kept coming. Then I served two stints as chairman of the board of the
Revels. During the second one, which was for six years, and much more
recently, that was in the 2005 to 2011 period probably or maybe later.
MS. CAVANAGH You were still involved but not going to rehearsals.
MR. NIELDS Not going to rehearsals. I was allowed to go board meetings. No veto on
that. The organization had grown and we had our own building and we
had staff and we had organizational things we did. We were going to
schools and doing teaching of Revels traditions in schools and putting on
various kinds of … there is Spring Revels now. That started actually quite
a while ago. We put on pub sings. I’ll lead a song or two at a pub sing,
which are also rollicking events.
MS. CAVANAGH Are you still involved in that right at this moment?
MR. NIELDS At the moment to the degree that I’m involved is mostly going to a pub
sing and as I said leading a song or two. But we go to the Revels gala and
we contribute money to it. We go to one performance every year. It’s
part of a nationwide kind of thing that had its roots in Cambridge,
Massachusetts, under the leadership of a charismatic man who is no longer
living named Jack Langstaff. He went all around the country and started
chapters in New York City; Philadelphia; Portland, Oregon; Berkeley,
California; Houston, Texas; Dartmouth, Hanover, New Hampshire.
MS. CAVANAGH I went to Dartmouth.
MR. NIELDS Is that right.
MS. CAVANAGH And my husband. Is the Revels there? I don’t remember.
MR. NIELDS There’s Northland Rebels is what they call it and it’s Hanover. I’m pretty
sure it’s still there. For a time we went up to Cambridge, Massachusetts,
and would go to their Revels show, at least one show for about six or
seven years, and my sister-in-law is actually a percussionist who lives in
Cambridge and performs sometimes in the Cambridge Revels.
MS. CAVANAGH Was your wife involved in it as well?
MR. NIELDS Well really she was. I should say all 3 of my daughters. There are kids.
Every Revels has a group of ten year olds, which are drawn from a
different school each year. They rehearse for a long time and do little
dances and sing and add charm to the whole thing. But my wife is the one
who actually got me involved in it in the first place. She teaches at the
Potomac School. Jack Langstaff taught at the Potomac School way back
in the ‘50s and established a musical tradition there that is matchless and
part of the reason why we sent our kids there. We smelled that when we
went there.
MS. CAVANAGH At the Potomac School?
MR. NIELDS Yes. He put on a one-show benefit for the Potomac School at Lisner in
1975. It was a Spring Revels, not a Christmas Revels. And Gail, my wife,
signed up to do it and grabbed me and said you’re doing it too. I was ….
MS. CAVANAGH You were hooked.
MR. NIELDS Well, I was partly hooked. I then got a call from the person who was
running it in 1983. I knew there had been try-outs and I just didn’t have
the time for it. She called me Sunday night and said we don’t have
enough tenors, would you mind trying out? Then I said all right. I’m not
sure I can do it.
MS. CAVANAGH You weren’t busy enough in 1983. You were very busy!
MR. NIELDS So I was going over to her house to “try out,” I think in quotes, Monday
evening. I got a call from my daughter Abigail, who was ten years old, at
noon. She said, guess what Daddy, I’m in the Revels! So that was the end
of that, I was going to do it. And I want to say, so you know I’ve got my
priorities right, I never missed a show and I never missed a rehearsal.
MS. CAVANAGH That’s impressive. We can remind the listeners how busy you were in
those days. So that brings me to your daughters. Were your older
daughters involved in the Revels?
MR. NIELDS Yes. In reverse order of age, oddly enough. Abigail was the youngest and
was in at as a child. Katryna was in it the first year they had teenagers.
There were four teenagers and she was one of them in 1986. It was a
French Revels. It was just delightful having her there. And then when
Nerissa graduated, she was our oldest, she graduated from college and
came back to this area, she was in it as an adult for two years, must have
been 1991 and 1992, something like that.
MS. CAVANAGH So I know that Katryna and Nerissa have been very engaged in music and
you mentioned The Nields. Before we talk about that I wonder is Abigail
engaged in music as well?
MR. NIELDS She is very musical. She’s got a lovely singing voice and she concentrated
as a child/teenager in theater, and got under the clutches of a slightly
controlling person who we thought needed her more than she needed him,
and kind of eased off of that. She is five years younger than her sisters
and so not at an age when she could be part of them.
MS. CAVANAGH They say that if a child is five years younger than the other siblings, that’s
more like an only child. Both for the child and for the parents.
MR. NIELDS Abigail is the only one of our children who actually raised us. She taught
us how to be better parents.
MS. CAVANAGH You were burnt out by then.
MR. NIELDS She really has her act together, that child. But no, she’s never done
singing as a career.
MS. CAVANAGH Does she live in this area?
MR. NIELDS She went to Yale and she got a masters in teaching at Brown. Then she
went and taught high school history at the Newton School, Newton North
outside of Boston. Then she had twins and that was the end of teaching.
She now lives outside of Philadelphia with her husband and three children,
and she tutors and she is very good at it. She counsels people on college
applications. I listen to her stories about that. It’s just marvelous. It’s just
MS. CAVANAGH There’s a lot of demand for that.
MR. NIELDS A lot of demand for that. She says one of the most important things to be
able to do is make sure that the parent doesn’t have too much to say about
what the child writes.
MS. CAVANAGH I hear that. I have a senior in high school.
MR. NIELDS You probably aren’t that kind of parent.
MS. CAVANAGH I try not to be. It’s hard.
MR. NIELDS A lot of parents are all over their kids. They think that it’s them who are
applying and if they don’t get in they are the ones who will be
embarrassed and humiliated.
MS. CAVANAGH Yes. Boston is not that different from Washington in that regard. Okay.
So Katryna and Nerissa. Can you tell me a little bit about The Nields and
what they do today. I read that they run a music program for children in
western Massachusetts?
MR. NIELDS They do lots of things. When Katryna graduated from college, Nerissa
told her in no uncertain terms that they were going to have a singing career
and it was going to be the two of them.
MS. CAVANAGH This is in the early ‘90s.
MR. NIELDS This is in the early ‘90s, ’92 maybe. And so they did. Nerissa has written
almost all of their music. A little bit of it has been written by Katryna and
every so often they record what they call a “cover” of what somebody else
wrote. But it’s mostly what they write. They’ve got seventeen CDs out
there and maybe more than that. First there were the two of them. I went
to shows where there were two other people in the audience at various
places in D.C. And then they got known and then they got a bigger fan
base. Then they added on … well actually fairly early on, Nerissa’s
husband played the guitar and he performed with them, and then they
found a friend of Katryna’s from Trinity College, where she went. He
joined. He’s a marvelous musician, marvelous. He is now her husband.
All three were named Dave. There was a drummer who is still with them
from time to time, named Dave Hower. I knew that if Katryna ever found
a man and wanted to marry him and he wasn’t interested in music, Nerissa
would die. So I figured she had actually only two people in the world that
she would be allowed to marry. [This is not to be taken seriously.] And
they were the two other men in the band already.
MR. NIELDS So she married one of them.
MS. CAVANAGH The Nields and the Daves.
MR. NIELDS Now they perform mostly just the two of them, but for major events they
often get the band together and perform with them. So they do a lot of
writing, composing and recording and performing, mostly in New England
now. They did tour before they had children, they toured around the
country. They had a van or two vans and they grossed a lot of money.
MS. CAVANAGH A colleague of mine at work mentioned she saw them in the late ‘90s.
MR. NIELDS Is that right?
MS. CAVANAGH Yes. Because I mentioned that I see you and she said, I saw The Nields.
They did sort of alt-rock, kind of folk?
MR. NIELDS It’s closer to folk music than anything else. But when they were with the
guys and they were touring everywhere, then it was rockier. It was
significantly rockier at that point in time. They were pretty successful.
But they had a lot of mouths to feed because they had five musicians, they
had a booking agent, they had a lawyer, they had a sound person that
traveled with them. So life has gotten saner. I’ve always loved their
music but I love it more every year, what Nerissa writes and Katryna
contributes to that, too. They are just delightful to listen to on stage. They
are friendly and funny and warm and they are very politically aware at this
point. Nerissa has started what she calls her local chorus, which are
children from the age of eight to fourteen or so. They were asked fairly
recently to perform at a Town Hall that was done in Northampton,
Massachusetts by one of the Senators from Massachusetts. I can’t
remember anybody’s name any more. Markey.
MS. CAVANAGH It’s [Ed] Markey.
MR. NIELDS So he was coming and he called up and said, Nerissa and Katryna, would
you sing at my Town Hall, and they said sure. How would you feel if we
brought our local chorus of kids? Yes, bring them. They are delightful.
They counsel, Nerissa teaches writing, she also has written a couple of
books and she holds classes on writing and …
MS. CAVANAGH They have a great website and they have a blog. There is a lot of
interesting discussion about how they basically learned music at the feet of
their parents, and growing up never listening really to the radio or
anything like that but listening to performances from you and Gail and
your music that you played for them. So they were clearly inspired. You
played guitar?
MR. NIELDS Yes. You might not say so if you heard me. But yeah I play chords. I can
play a lot of songs strumming. That’s about it. I actually keep thinking in
retirement I’m going to learn how to play the guitar a little more properly.
Anyway I get a lot of pleasure out of it.
MS. CAVANAGH I’m supposed to ask you about that too. In terms of your plans for the
future. Might you retire? You’re not really retired.
MR. NIELDS First of all I will answer that question. But I won’t do it until I first say,
and my daughters have children.
MS. CAVANAGH Yes, well you mentioned that Abigail has twins. And Katryna and
MR. NIELDS They’ve each got two. Each has a boy and girl. And they are to die for. I
had no idea this was in my future. I knew I wanted grandchildren. But no
MS. CAVANAGH You have six.
MR. NIELDS I have seven. Because Abigail has twins and then one five years younger.
MS. CAVANAGH Nice! So they are how old?
MR. NIELDS The oldest is seventeen and just applying to college. The youngest is I
think eight.
MS. CAVANAGH Oh nice. Wide range.
MR. NIELDS There is what Gail calls a cohort between … there is a ten year old,
Nerissa’s son Johnny. There are four of them that are clustered around
thirteen to eleven or something like that.
MS. CAVANAGH Do you get to see them a lot?
MR. NIELDS We make sure we see them a lot. We go up there and my thirteen year old
has become a rabid baseball fan, as is my ten year old, oh my God.
Nerissa and Katryna now live two blocks from each other. And their
children are besotted with each other.
MS. CAVANAGH That’s so nice for everyone. Are you a baseball fan?
MS. CAVANAGH Which team?
MR. NIELDS At varying degrees of passion. Probably my maximum passion was as a
child, I was a New York Giant baseball fan. Willie Mays was my
childhood hero and Willie Mays was my wife’s childhood hero. And then
they sold my childhood to the West Coast for cash.
MS. CAVANAGH That happened to my father. He was a Dodgers fan. It’s a heartbreaker.
MR. NIELDS Oh gosh. So we still lasted, for Willie Mays’ baseball life we were Giants
fans. But not as passionate as when he was in New York. Our first date
was going to the Giants’ first baseball game in New York since they left
for San Francisco in 1961. There was an exhibition game at Yankee
Stadium against the Yankees. That was our first date.
MS. CAVANAGH Nice. So you couldn’t become a Yankees fan. Did you become a Mets
MR. NIELDS Oh never a Yankee fan. I became a Mets fan, especially in 1969, and I’ll
never forget watching Al Weis, who batted .211 I think, hit a ground ball
single between first and second against the Chicago Cubs in early
September, in the bottom of the 12P
thP, and it scored a run that won the
game and the Mets were in first place for the first moment in their lives.
They’d never won the first game of any season. So they weren’t even tied
for first after opening day.
MS. CAVANAGH I grew up in a Mets household. Now you probably have Red Sox
MR. NIELDS Not only that, but in 1999, and this gets to my — then we were kind of
Orioles fans — barely. But the next passion, the high passion level was
started in 1999, maybe it wasn’t in ’99. I think it was but I’m not sure, but
my daughters were asked to sing the national anthem at Fenway Park.
MS. CAVANAGH That’s amazing.
MR. NIELDS And I have a picture of them doing that down at my office and in our
home. Katryna was the baseball fan and she kind of arranged it, which is
very rare. Nerissa is mostly the arranger of things. She might not have
been interested in it. Katryna says I’m singing the national anthem —
“well me too.” So anyway they sang it together of course. And we went
there. And then we stayed for the game and I saw somebody putting up
Ks in deep right field — you know those huge Ks. I’d never seen that
MS. CAVANAGH They have that at Nats Park.
MR. NIELDS Yes I’ve seen it. And I said what’s that? Oh that’s a strike out, and I said,
well maybe this pitcher must be a strikeout pitcher. Well it was Pedro
Martinez. I really didn’t even know who he was at that point. Anyway,
we both became rabid Red Sox baseball fans. And I have — hey were my
American League team from the time I went to school in Massachusetts.
We became rabid fans and we lived through the agony of 2003 and then
we lived through the glory of 2004.
MS. CAVANAGH And again this year.
MR. NIELDS And again this year. We’ve watched all the games. Last year we were up
with our daughters in Massachusetts during the playoff season and we
watched game after game on their big screen TV in one of their houses
with all the grandkids, and one of them spouting statistics and telling us
everything about every player on either team.
MS. CAVANAGH Not very DC-courts related here.
MR. NIELDS No it’s not. Sorry about that. We may have to wipe this whole section
MS. CAVANAGH No, no it’s okay. I started asking about plans for the future besides sports
rooting, grandchildren visiting.
MR. NIELDS So apparently I haven’t communicated this to you. I am officially retired.
MS. CAVANAGH You know you said that to me, but I didn’t entirely believe it.
MR. NIELDS Well I’m completely retired from practicing law for money.
MS. CAVANAGH OK. But you’re still working on pro bono cases.
MR. NIELDS I work on pro bono cases. I’m working on a …
MS. CAVANAGH With people here at Covington.
MR. NIELDS Yes. And they’re Covington cases. I mean they are not John Nields
MS. CAVANAGH So you are not really retired then.
MR. NIELDS Well but I’m not doing that much and I’m also writing an article — did I
mention this to you before?
MS. CAVANAGH You mentioned that you were working on it. But mention it again.
MR. NIELDS So it’s on the Fifth Amendment privilege against self-incrimination and I
actually just delivered what may be the first draft — I mean I’ve done
many drafts of it — but it’s actually — I mean I’ve done the whole thing
now and I’m going to need to work on it some more. But I’ve actually got
something that I’m about ready to show somebody. It’s on the Fifth
Amendment’s privilege against self-incrimination. It is a subject that I
became very interested in in the following context, and that’s how it
applies to document subpoenas.
MS. CAVANAGH With Webb Hubbell.
MR. NIELDS With Webb Hubbell, which was a case I argued, and Fisher was the case
that Justice White decided in one of the years that I was clerking.
MS. CAVANAGH Right. We’ve talked about this.
MS. CAVANAGH Well that’s great.
MR. NIELDS But it goes beyond that.
MS. CAVANAGH Sure. Is it like a law review?
MR. NIELDS Yes it’s a law review type thing. I don’t even know what people take
these days but I have sort of at least know who I am going to be calling on
the phone and saying, would you be interested in this. It’s about — it’s
forty pages, I guess, in normal typewriting.
MS. CAVANAGH That’s about article length.
MR. NIELDS I’m very comfortable with everything I’ve written about how it should
apply and hopefully will apply to document subpoenas.
MS. CAVANAGH Interesting.
MR. NIELDS But there is an intriguing — maybe not, maybe it’s just simple and
obvious, but the Fifth Amendment document jurisprudence all turns on
whether you’re compelling testimony, whether a document subpoena
compels testimony, and the court cases are clear that the Fifth Amendment
privilege only applies if you are compelling testimony. If it is something
else, like a fingerprint or a blood sample or even a handwriting exemplar,
you are deemed not to be compelled to give testimony and therefore the
Fifth Amendment does not apply. But the Court has never said why. So I
thought it would kind of be helpful for somebody to at least try to say
why. Once you answer that question, then you get a little window into
what the Fifth Amendment is actually all about, and so that’s the last part.
MS. CAVANAGH Advice for young lawyers?
MR. NIELDS Do something that you love. Find something that you love. A lot of
things you can do. Maybe you can love to make money and maybe you
can love to be a really top-notch legal practitioner, maybe you like to
please clients, maybe you like to attract them. But if you like to do things
that help people then do that, and look for jobs where you’re going to get
an opportunity to do things that you love, and it might be teaching and it
might be working for the government and it might be working for a big
firm or it might be working for a tiny firm. It might be working for clients
that are people, it might be working for clients that are corporations, and
then maybe you want to — but anyway that’s my only thing I can think of.
MS. CAVANAGH Washington has a lot of opportunities for all of those things. It’s a nice
place to be a lawyer in that sense.
MR. NIELDS And I don’t want to sound negative because I’m mainly positive, but I
think I started practicing law at a time that was really good for lawyers.
Supreme Court decisions were coming down, whether you agreed with
them or not, and some of them I didn’t even though I thought they were
doing good things, I didn’t think they were what necessarily the courts
ought to be deciding. But it was just full of new principles and new ideas
and lots of jobs in government where government was doing good things
with the law and lawyers could play a big role in that. And law firms
hadn’t turned quite as much into mandatory maximize-your-profit
machines, and I more or less somehow, I don’t quite know how, but I sort
of escaped all that culture.
MS. CAVANAGH Might be harder to do today.
MR. NIELDS I don’t think it would be possible. I think I was a little clueless.
MS. CAVANAGH It worked.
MR. NIELDS It worked. So that’s it. So we’re done.
MS. CAVANAGH Yes we’ll wrap it up. Thank you.
MR. NIELDS That is great.
MS. CAVANAGH Thank you so much.
MR. NIELDS Thank you.