Robert Fiske’s “Prosecutor, Defender, Counselor” is a must-read for lawyers, critics of the legal profession, and anyone looking for an uplifting narrative of a life exceptionally well-lived by an individual of extraordinary talents and uncommon virtue.
For me personally, Bob Fiske’s memoirs—describing his professional arc, his esteemed careers in private practice and in public service, as well as revealing his grace, humility and abiding love for the law, his country, his law firm and his family—serve as a useful reminder of why the practice of law, if done well, can be a most noble calling and why so many of us were attracted to the law as a profession.
Let me begin with a confession: like so many in our community, I have been a Bob Fiske admirer for decades. Our profession has had a handful of icons in my lifetime, individuals who both have practiced law at the highest level and, through their public service, have made enormous contributions to our country.
A few instantly come to mind: Judge Simon Rifkind and Arthur Liman, my two mentors at Paul Weiss; Dick Beattie, Whitney North Seymour and Cy Vance at Simpson Thacher; Lloyd Cutler at Wilmer Cutler; Lawrence Walsh at Davis Polk. Bob Fiske surely belongs in this elite group.
I think often about whether our profession can produce another Rifkind, Liman, Beattie, Seymour, Vance, Cutler, Walsh or Fiske—or whether the profession, and the practice of law, have changed too dramatically over the decades so that the days of larger-than-life practice leaders/public servants are consigned to nostalgia.
Just as there may never be another Babe Ruth, Lou Gehrig, Joe DiMaggio or Ted Williams—not because players today are any less skilled, but because the nature of sports and the focus of our society have changed—I fear that there may never be another Bob Fiske, due to seismic changes in both the profession and our society. For me, at least, Mr. Fiske represents the end of a glorious era.
I do not make this observation to be depressing or provocative. Quite the contrary: I found Mr. Fiske’s memoirs to be uplifting and inspiring. His life should serve as an aspirational ideal for every lawyer or wannabe lawyer—and we should celebrate his achievements and take stock of the richness and breadth of his life. But we should recognize that, try as we might, we will fall short of the Fiske benchmark.
In his memoirs, Fiske walks us through his remarkable life, dominated (though not entirely) by a dizzying array of professional achievements. His writing is breezy; his recall is extraordinary; his stories are gripping and accessible; his humility and grace are old-fashioned and welcome; his sense of humor is refreshing.
By the end, one is left humbled, in awe of Fiske—an individual who at once seems mythical and accessible, uber-accomplished and disarmingly self-deprecating, driven to make a difference yet committed to enjoying friends and family, and, above all else, someone who is innately likeable, unswervingly ethical and deserving of the utmost respect and admiration. Like the man himself, Fiske’s memoirs do not disappoint.
Fiske’s start is not especially unusual. He grew up in a family of means—his dad was a successful big-firm lawyer, whose friends included giants of the bench and bar; he lived comfortably in Connecticut; he was a star athlete; he attended Yale College and Michigan Law School; and he pursued a career in private practice at one of Manhattan’s elite law firms, Davis, Polk & Wardwell. So far, this is a path recognizable to readers of this publication.
But it is in his earliest years at Davis Polk when Fiske first reveals some of the traits—especially his commitment to justice, his good humor, his fierce determination, and his courage—that, combined with extraordinary good fortune, led to his iconic success.
Doing even minimal justice to his extraordinary life would fill multiple editions of the Law Journal. Suffice it to note that the book’s title, “Prosecutor, Defender, Counselor,” provides an apt organizational framework for the professional side of Fiske’s life.
Let me provide a chronological overview of his career(s). He joined Davis Polk upon his graduation from the University of Michigan Law School in 1955 and was an associate at the firm between 1955 and 1957, when he left to become an Assistant U.S. Attorney in the Southern District. Fiske returned to Davis Polk in 1961, was elected partner in 1964 and remained at the firm until 1976, when he left to become the U.S. Attorney for the Southern District, a position he held until 1980. He then returned to Davis Polk, where he practiced law for 30 years until he stepped down as an active partner in 2010.
It was during this 30-year stint that Fiske took on high-profile independent investigations, including his role as the Whitewater Independent Counsel in 1994, and many of the most high-profile litigations and white-collar defense assignments of the era.
It is not surprising that Fiske excelled in every aspect of his professional life. What readers may find surprising is the sheer joy and unbridled delight he seems to have derived from all aspects of his work. Anyone can hold a reader’s attention by describing a riveting, Perry Mason-esque cross examination of a star witness, but Fiske breathes life and excitement into document review and the day-to-day, mundane happenings of a lawyer.
Even his stories of life as a first-year associate in 1955 are embroidered with tales of harrowing near-disasters and a vivid, almost visceral, recall of what it was like to be a baby associate at an elite law firm, with no apparent skills, even less practical experience, and surrounded at all times by towering and demanding leaders of the bar. These stories, and Fiske’s humility, ring true for me—and likely for everyone who began their career in Big Law.
Much of his professional success stems from his willingness to take chances, his uncanny ability to capitalize fully on every opportunity with which he was presented, and his courage to follow his instincts—not to mention his formidable IQ, his even more formidable EQ and his wise selection of mentors.
Fiske’s memoirs are sprinkled with thousands of stories, anecdotes and revelations. To be sure, he covers the glamorous and not-so-glamorous trials he led as an Assistant U.S. Attorney and as the U.S. Attorney (including the successful prosecution of “Mr. Untouchable,” the drug lord Nicky Barnes).
He explains why he prosecuted these cases and why he passed on others; even more important, he describes the lessons he learned from these matters. Fiske was a traditional, old-school Southern District U.S. Attorney—he prosecuted only those cases he believed ought to be prosecuted on the merits; he hired the best and the brightest AUSAs and supported them completely; he did his job professionally; and he was not motivated by the prospect of public acclaim or political office.
In private practice, Fiske catalogs many of the memorable matters he has handled—including the Texas Gulf Sulphur insider trading investigation, the defense of the Thalidomide product liability lawsuits, the product liability defense of the Three Mile Island nuclear disaster, the NFL-USFL antitrust lawsuit, the contentious lawsuit surrounding the 1991 America’s Cup yacht race, white-collar investigations involving E.F. Hutton, Paul Thayer (the CEO of LTV Corporation), Clark Clifford in connection with the BCCI matter, Pete Nicholas in connection with the Boston Scientific FDA inquiry, the defense of the Suzuki product liability matter, the Sotheby’s-Christies price-fixing investigation, Fred Wilpon’s purchase of the New York Mets, his formation of the SNY sports network and, on behalf of the Wilpons, the resolution of the Bernard Madoff Trustee’s lawsuit, among many other matters.
Fiske was not successful in each representation. But even those in which he did not prevail, indeed, especially in those in which he did not prevail, he drew important lessons, which he generously shares. Some of these lessons are tactical, some pragmatic, others interpersonal—and all are incisive.
He also provides insight into his most high-profile “legal” assignment—his selection in 1994 as the Whitewater Independent Counsel. It is in this portion of the memoirs that Fiske’s true character emerges. Excruciating political pressure notwithstanding, Fiske at every turn focused on providing fair process, making the right calls on the merits, following the evidentiary trail wherever it led, preserving his independence, safeguarding the rights of those under investigation, and assembling, leading and supporting a team of unmatched talent.
While politics ultimately suffocated the investigation, Fiske rose above the political maelstrom and emerged with his already-platinum reputation burnished even further.
I do not want to give the appearance that Fiske is all about work or that his memoirs focus exclusively on his professional life. As he makes clear in each of the book’s 60 chapters, family, friends, travel, sports and outdoor adventure play an enormous role in his life.
Fiske achieved something all too elusive in today’s 24/7 world: a sense of balance and perspective. He spent his life doing justice, fighting unfairness, standing up for what is right. He served as a role model not only for generations of lawyers, but also for his extended family and friends. He has lived several exemplary and extraordinary lives.
In the end, Bob Fiske’s memoirs serve as inspiration of what we as lawyers should strive to achieve in our professional and private lives. We will all come up short, but we will be better for having tried. And so will the profession. There likely will never be another Robert B. Fiske, Jr.—and that is a shame.