How to Clean Up a Pornographer, and Other Problems of the Law

Nanci Clarence wants you to see the good she sees in people        

Published in 2008 Northern California Super Lawyers — August 2008

When attorney Nanci Clarence describes meeting her client Jim Mitchell at the Marin County Superior Court for his arraignment in the murder of his brother Artie, her voice reflects surprising fondness for the legendary porn tycoon.

"He shows up to court with long, greasy hair, wearing a sharkskin suit," she recalls. "I took one look and thought, ‘Oh my God, he looks like a f---ing pornographer.'" Unfazed, Clarence shuttled her client off to JCPenney, where she bought him some nice merino wool sweaters. "We went for the kinder, gentler pornographer look."

Hearing Clarence, a steadfast feminist, speak about her longtime client and his adult-entertainment empire without an ounce of judgment is a testament to her ability to separate a doer from his deeds. "You can disapprove of a person's conduct and still approve of them," the founding partner at Clarence & Dyer explains.

Clarence, a UC Berkeley alum who once lived in a campus co-op, is best known for her defense of corporate executives in high-profile tangles with the SEC and DOJ—including Enron's Lea Fastow, whom Clarence represented against charges of money laundering, filing false tax returns and conspiracy. Even early on in her career, Clarence was in the headlines for white-collar work, with her savings-and-loan-era defense of J. William Oldenburg, the banking and real estate magnate charged with fraud.

"These are not bad people, and it's important to humanize them," Clarence says as she discusses her long history with white-collar criminal cases. "I try to understand people's coping mechanisms, the pressures they face, and how greed manages to push in on moral righteousness."

Clarence's desire to comprehend a broad spectrum of human behavior, coupled with her notoriously fierce courtroom skills, has brought her much renown in both the criminal defense arena and beyond. She's the immediate past president of the Bar Association of San Francisco, and a fellow of the American College of Trial Lawyers. She's been elected to serve on numerous legal committees and task forces, including Barbara Boxer's 1996 Judicial Advisory Committee.

For Clarence, this range of professional engagement provides an outlet for her active analytical streak. A self-described "news and commentary junkie," she reads, at a minimum, The New York Times, The Wall Street Journal and the Chronicle every day. When she's done with the dailies, the former English literature major moves on to the New York Review of Books.

It's easy to trace her intellectual tendencies. Growing up, her father encouraged Clarence and her two siblings to engage in heady discussions about politics and global issues. "My father taught us to constantly question the world around us," she says. He even encouraged his kids to question the very rules he created. "During the '70s energy crisis, he would remind us to turn out the lights, but we believed that turning them on and off used more energy than just keeping them on," Clarence recalls. "So my dad told us to do the research, present our case and prove him wrong." In the end, the kids did not convince dad, but his willingness to hear them out provided excellent training for Clarence's future career.

In fact, when another energy crisis rolled through California in 2001, Clarence again stepped up to state her case. She represented Lisa Flowers, one of four Reliant Energy traders charged with conspiring to jack up electricity prices during the 2001 crisis. Three long years after the initial charge, Clarence wrapped up the case in 2007 with a deferred prosecution agreement. In light of the fact that prosecutors possessed audiotapes on which the traders talked about a plant shutdown strategy that would limit supply and boost profit, the success was quite a coup.

The Reliant case is just one of many white-collar successes that have made Clarence popular with the country's highest-powered executives during times of crisis. It's also the kind of case that causes Clarence to spend extra time explaining her motives to her liberal friends, in particular longtime partner Lidia Szajko. "She is always very supportive of my work, but sometimes, like with Enron, I have to really work hard to humanize the case," Clarence says.

While Clarence is an expert at unraveling the culture behind white-collar crime, she has lived in a world quite removed from the typical corporate scene. In 1977, the Riverside native began her undergraduate degree at UC Berkeley, where the budding intellectual found her version of paradise. "There were springs and screws popping out of my head, and smoke coming out of my ears," she explains, gesturing excitedly. "It was a fantastic intellectual awakening."

Clarence spent her undergraduate years editing the Berkeley Poetry Review, reading a "ridiculous" amount of literature, and working at the Berkeley Women's Health Collective, a nonprofit clinic focusing on health care for low-income women. Her time at the clinic coincided with Reagan's election to the White House, providing Clarence with front-row seats to watch the changes in public-assistance programs. "Seeing Reagan dismantle the whole social safety net blew my mind, and inspired me to go to law school," she recalls. Clarence's possible plans to pursue a Ph.D. in English and literary criticism were put aside, and the young liberal decided to add muscle to her humanist ideals with a law degree.

Clarence enrolled at Hastings College with every intention of becoming a civil rights attorney and working on Title VII-related cases. "But the minute we started doing mock trials," she explains, "I knew I had to be in the courtroom." In fact, Carol Corrigan, a close mentor to Clarence during her time at Hastings, tried to lure the budding courtroom talent to the district attorney's office. Clarence accepted Corrigan's offer to discuss the job but had no real intention of taking it. "I was this little smart-aleck second-year law student who thought that the only thing that D.A.s do is punish the poor and put black people in jail," Clarence recalls. "[But when] I arrived at Corrigan's office, she sat me down and said, ‘OK, so you have a 17-year-old girl who was brutally raped by two men in her apartment building. The girl comes into your office the day before she's set to testify and says, ‘My brothers just took care of those guys, and I don't need any white man's justice system to straighten out the scorecard, so I'm not going to come in.' How do you convince her to testify?'"

Clarence shakes her head and smiles, remembering the impact of Corrigan's multilayered scenario. "Carol Corrigan had my number. I couldn't help but question my opinions and assumptions." Ultimately, she turned down the job, but she remains grateful for the lesson. "Corrigan got me to realize that nothing is good guys and bad guys, oppressors and oppressed."

Corrigan, now a California Supreme Court justice, is a political conservative. "We are polar opposites both politically and in terms of our careers," Clarence explains. "But she remains a friend and mentor."

Clarence's ability to respect and learn from opposing views has served her well, particularly when she clerked for Reagan appointee Judge Charles Legge. "We had some knock-down, drag-out disagreements, and we still do," Clarence says, adding with a grin, "and I still think I'm right. But I always learn a lot from hearing him out." Clarence says she respects the judge's brand of conservatism—"ethical and high-minded in a very measured, careful way."

The two had a lively working relationship. "He was notorious for getting to work in the morning at 6, and I'm not a morning person," Clarence recalls. "But when he was on the brink of making some key decisions, I would get up at 4, come in before he got there, find cases that supported my view of the issue, and put them on his chair." When Judge Legge arrived, Clarence would wait eagerly outside his door for a response. "I'd hear him put on classical music, light up his pipe and start reading," Clarence recalls fondly. "Then he'd open the door and say, ‘All very good points. I'm thinking about all of them.'"

After her clerkship, Clarence wanted desperately to work at the public defender's office, but there was a hiring freeze and once again she ended up in an environment that wasn't aligned with her values. Clarence was hired at the prototypical corporate firm, Morrison & Foerster, which ultimately, she says, "was a blessing." She was assigned to work for legendary attorney Jim Brosnahan, assisting him on some substantial cases—everything from the defense of an American business executive charged with aiding and abetting anti-Marcos political activists, to the representation of an heir to Henry Ford in a civil fraud action suit against his financial adviser.

Brosnahan frequently sent the new attorney out on her own. "He would call me the night before a deposition and say, ‘You're going to have to take this one,'" Clarence recalls. "I'd remind him that I was a first-year, and he'd say, ‘So what? You can do this.'"

For Clarence, Brosnahan reinforced the importance of seeing beyond expected roles both inside and outside the courtroom. When the two traveled together to work on a case, Brosnahan often invited Clarence to play basketball in the evenings. "We were in Los Angeles one time, and he called to ask if I wanted to find a pick-up game. We head to a court in the middle of downtown, and Brosnahan just walks right up to a game of all young black males and says, ‘We're here to play.'" Clarence still laughs when she recalls the sea of confused expressions on the court when the pair arrived. "Here was this graying, older white guy and a woman, but Jim made it a non-issue, and in turn, it was a non-issue." In the end, both attorneys were able to hold their own on the court that evening.

In 1987, Clarence left the cushy offices of Morrison & Foerster, waved goodbye to the enviably close guidance of Brosnahan, took a 60 percent pay cut, and began her dream job inside the dreary walls of the San Francisco Office of the Federal Public Defender.

"I spent my first year wandering the halls and grabbing anyone who had a pulse to talk with me about my cases," Clarence recalls. The heavy consequences of the work kept the third-year attorney in a constant state of concern. "I was buzzing," she says. One evening, on her nightly round through the halls, Clarence had an epiphany. "It hit me that the people who'd been doing this for 20 years didn't know what to do either. We were all continually making judgment calls to protect our clients, and those critical decisions ultimately require a ‘gut check.' I had to learn to trust myself."

Clarence's instincts were put to the test in Oldenburg's high-profile savings and loan fraud case. After numerous "gut checks" and a successful retrial of charges, Clarence won a dismissal of the case for her client.

In 1992, after four years at the public defender's office, Clarence moved into private practice. She started with Steel, Clarence & Buckley, and began her current practice in 1996. While Clarence continues to focus on white-collar criminal cases, her work frequently extends into the civil realm. In 2005, her firm won a $1 million settlement from Santa Clara County for the Hells Angels Motorcycle Club. The lawsuit involved a 1998 police raid of club members' homes that resulted in three dead dogs, a torn-up sidewalk and very little evidence.

The case might seem far from the criminal defense of an Enron executive charged with money laundering, but for Clarence, it all comes down to keeping a watchful eye on what she refers to as "the system." "I want to make sure that an investigation into a corporation doesn't become a frothy, unchecked witch hunt, or that we don't assume what the government is doing is OK just because it's the government." For Clarence, this goal will continue to include a diverse range of cases, some of which will challenge the ideals of those around her. But maintaining her position outside of expected definitions is one of the reasons Clarence is successful. "I work in the system, but I'm not of the system."

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