Biz Van Gelder of Cozen O'Connor. Credit: Diego M. Radzinschi / ALM

Biz Van Gelder needed to head home and stay there.

It was March 10, a Tuesday, still the beginning of a week when Washington's legal community was monitoring the coronavirus outbreak but largely showing up to work. But that day, Van Gelder, a leading white-collar defense lawyer at Cozen O'Connor, learned that she might have been exposed a week earlier to someone who had previously attended a conference linked to dozens of coronavirus cases.

Within an hour, she was advised to leave the office. Her potential exposure had occurred on March 3, at a reception hosted by another Washington law firm, making March 17 the end of her 14-day quarantine period. By then her law firm had directed the rest of its staff to work from home.

"When I first came home, I thought it was only for a week, and that was problematic because I didn't really prepare for … forever," she said. "After my quarantine was over, I had to go back to the office, and my poor plant was dead."

As Van Gelder retrieved boxes and papers, she said, "it looked almost like I was burglarizing the place."

In the weeks since, Van Gelder, a senior counsel at Cozen, has grappled with the newly socially distanced world and the many questions it has raised for white-collar defense lawyers. Among the weightier considerations: Does a videoconference with the Justice Department, with the defense lawyer and client miles apart, run the risk of denying the Sixth Amendment right to adequate counsel? (She has so far rejected prosecutors' requests for virtual "proffer" sessions.)

Among the lighter fare: Whether to clean out the dishwasher during the workday.

Along the way, Van Gelder has discovered the "perfect book for the perfect time," a helpful app for focusing—and, she conceded, "how much of a couch potato I am."

The following conversation has been edited for length and clarity.

NLJ: Please paint me the scene. What's the home office looking like?

Van Gelder: Because it's hard to even get into my office now, I do most of my work where I am now, which is at the kitchen table. It overlooks the backyard. Every once in a while, I go in and try to find something in the office. And I keep telling myself that I'm going to clean the office. What else do I have to do, right? And I don't because I keep forgetting that I still have to work. All these ideas of exercise and learning to make the perfect lattice pie and cleaning the office, or even cleaning my closets … I don't seem to be doing that.

Have you learned any tricks to stay focused?

The first week was very distracting, because you do think, "Oh, maybe I should empty the dishwasher." You have to really put yourself in that mindset of having a schedule. So now I have a schedule, and I hate to even admit this, I had to download an app. It's called Focus. And Focus is an app that is a 25-minute timer, then gives you five minutes off, and after two hours it gives you a half hour. So I have to do that. I just need that kind of discipline, because there are so many delights in my house, like books and magazines and refrigerators.

And how has the firm as a whole made the transition to teleworking?

The office has been, actually, really good. I don't know if they've been planning this for a while, but between electronic timekeeping and electronic billing, everyone has been doing it. We get daily updates from Philly, from the mothership. And today, for instance, the white-collar group had a Zoom meeting. At the end of every Zoom meeting, they say, "OK, tell us something new." It's interesting to see people's houses, and I'm sure everyone's like me: I have one clean Zoom shirt that I wear to look professional. We've gotten to know that three out of, I think, 12 of us have small kids. And they've all potty-trained their kids.

Oh, that's a game changer.

That was the big news on Zoom. We're trying to keep in touch with each other. Professionally, it's very interesting. We're doing a lot of pro bono work, trying to get incarcerated people out on compassionate release. But our regular work has slowed down because the government has slowed down. They don't have virtual grand juries, thank God.

For now, at least, what have you been seeing from the enforcement agencies, such as the Justice Department?

There's some push on the criminal cases, or in some of the cases, to have like virtual depositions. And I've really been struggling with that one, because I'm not sure I am effectively representing my client if I'm not near my client. And so, I've been pushing back at prosecutors' requests for Zoom proffers or Zoom depositions in SEC cases. I am trying to deal with document productions and matters that I don't think affect my clients' Sixth Amendment rights. But I think the government is also struggling with how to do things remotely. The government is catching up. It took them a couple weeks, but we get calls every day. It's clear that they are working. It's just that I don't think they have the video capacities on their phones or their computers that we have.

Have you had any experience, before this outbreak, with virtual depositions or proffers? And is that something you'd consider?

In the past, when I've done it, I've actually still been with clients. I've gone to London, or Belgium, and I've been with the client so I can say, "Excuse me, we'll go outside and talk." You can't do that in the Zoom world. In a criminal [DOJ] matter, it's a little more difficult. I wouldn't do it with the SEC unless I could be there [in a room with the client].

U.S. Justice Department headquarters in Washington, D.C. Credit: Diego M. Radzinschi

How has the DOJ responded to you pushing back against the virtual proffer?

I think they understand. I do. What I haven't had the experience of, which I'm sure others have, is the question of whether or not there will be a waiver of the statute of limitations during the hiatus. With a case I'm working on now, I just happen to have plenty of time left in the statute. But I would think that that's probably what a lot of white-collar people are dealing with right now, requests from DOJ for extensions.

Aside from the question of having virtual meetings—whether a proffer or deposition or some other interaction with the government—have there been other points of disagreement or tension?

I think that everybody's trying to work it out. I really do. Now, as time goes on, who knows if people are going to be as civil as they are now. But I think that everybody understands there is a setup time for everyone to get their stuff. In my case, I'm able to get my files. But it's kind of hard for me to transfer files to my client, for instance, that I might want them to review. I haven't found a cynicism on behalf of the enforcement agencies or the DOJ that this period is being misused. It's only been six weeks. Ask me in six months, but I think that there's just a general feeling that we're in uncharted waters and everybody's trying to do the best they can, and that pushing things off is for solid constitutional reasons and not just for delay. There hasn't been that kind of cynicism, because everyone's been sort of in the same boat.

Where are you seeing the coronavirus outbreak and this "hiatus," as we've called it, raise the highest hurdles for interactions with the Justice Department?

It's when they want to see the whites of their eyes. They want to hear from the client before they either put them before a grand jury or they give them a cooperation agreement or they make some sort of prosecutorial decision vis-a-vis the client. So it's when you get to the end stage of the individual representation that it really comes to fruition. As I said, it's in the stage where the government wants to see the whites of my clients' eyes that this hiatus is causing a slowdown.

To wrap up on a lighter note, what have you been doing for diversion? Has there been a book, a Netflix show, a recipe?

I'm surprised at how much of a couch potato I am. I'm trying to limit my TV just to the evening—no TV on during the day, read the Post in the morning. The problem is when you get a good book, all of the sudden you have that five minutes on Focus, and I have learned I have to leave the book upstairs. Otherwise I pick it up, and then I'm in absolute recreation land instead of billable time.

What have you been reading?

A great book, you have to read it. It's called "The Splendid and the Vile." It's about Churchill, and it's really kind of interesting. Erik Larson, who wrote it, said after 9/11 that he thought, "How do people get through this?" He thought about the blitz and how people got through London during the blitz. And I thought, "Well, I'm wondering how people get through this." So it's the perfect book for the perfect time. I highly recommend it.

So with those five  minutes you have off on Focus, how have you been filling them if the book's upstairs?

In the refrigerator. And after the two hours, I get 30 minutes off, and I take a walk around the block.

 

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