By: Dan Coyle
Foreign Representatives in Chapter 15 petitions are specifically permitted to conduct discovery to locate the debtor’s assets within the United States to increase estate and creditor recoveries in the overseas proceedings and to probe the debtor’s affairs, rights, obligations or liabilities. In the U.S. ancillary proceeding, the Foreign Representative will encounter resistance and other entities may seek to propound subpoenas under Fed. R. Bankr. 2004. Sometimes, these entities are creditors who seek information relevant to their claim or assets available to pay the same. Other times, these entities are subpoena targets who seek to gain a peek into the Foreign Representative’s search, seek to distract and/or delay the Foreign Representative from the asset search, or who seek to “punish” the Foreign Representative. The Foreign Representative may be able to avoid responding to such requests by moving for protective order or to quash the subpoena based upon 11 U.S.C. 1521(a)(4) and/or Rule 2004(a). The arguments are based upon: 1) the language of 1521(a)(4) and two canons of statutory construction, or, alternatively; 2) interpretive case law under Rule 2004 as to the requirements to show a “pecuniary interest” in a case.
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By: Amanda Finley
In honor of Women’s History Month and International Women’s Day, the Business Law Section is interviewing a series of women judges to learn about their experiences, trials, tribulations, and advice for other women lawyers. I had the honor of interviewing Judge Walsh.
Rise to the Bench
Judge Walsh explained her journey as an attorney and career path to becoming a judge. She worked in the public interest as a public defender. She tried about 30 jury trial cases and in private practice, she owned her firm focusing almost exclusively on appellate work. Her appellate practice consisted of a variety of subject matters, so that gave her flexibility. She put that to use after she became a judge because she was able to adapt and transition from dependency, to criminal, to civil, back to criminal, and again to civil. This flexibility also assists her now in her position as the administrative judge in the Appellate Division. Judge Walsh’s experience and career is nothing short of remarkable.
Obstacles and Silver Linings
Judge Walsh expressed constant gratitude that her experience in the law has been a positive one. While not unruffled, she said, “there are always challenges in getting business or in handling a particularly difficult case or just in handling the burdens of the profession or running a business. But I’ve been relatively fortunate in always having work, finding success in the law, developing my craft and skills, and building a business.”
When asked about an example of a hurdle, she explained that she experienced a challenge in bringing in criminal appellate work when she was particularly qualified, knowledgeable, and experienced in that practice area. By the time she went into private practice, she had handled over 300 appeals – one all the way to the U.S. Supreme Court as well as arguing cases at the Eleventh Circuit, and a number of cases before the Supreme Court of Florida. Given her background, it would seem logical that she would be able to easily bring in criminal appellate work. However, it was not easy and the difficulty was sadly rooted in discrimination.
She stated, “I would be told to my face, we’re going to take your male partner to visit the client. We’re not going to take you. The clients just think that you’re not going to fight for them. I was judged on my appearance. That’s tied to my gender. There’s no way around that.”
However, where there is an obstacle, there is also a solution and typically a silver lining. Despite having no experience at that time handling civil appeals or marital appeals, she was able to bring in those cases with ease and was able to build her practice and develop a substantial book of business fairly easily within a year and a half. She ended up confronting this hurdle and ultimately making it work to her advantage.
National Association of Women Judges
Next, we discussed Judge Walsh’s experience with bar associations. Before she was appointed to the bench, she got involved with the Florida Association for Women Lawyers and was its president in 2007-2008.
In 2015-2016, Judge Walsh became the President of the National Association of Women Judges (“NAWJ”). She stated that she valued the platform, which provided “unbelievable opportunities for growth and development as a speaker, as a lawyer, as a judge, and as a leader. Without a doubt, that was the most extraordinary experience professionally of my life to become the president of the National Association of Women Judges. It is an incredible organization. There are judges in every state, federal, state, military, tribal, and administrative.”
She explained that “NAWJ is the U.S. chapter for the International Association of Women Judges. The year that I became president was also the year that the United States was hosting the Bi-Annual Conference of the International Association of Women Judges. I got to stand in front of a room of 1,000 women judges from all over the world, as the President of the host chapter of the U.S. chapter in Washington, DC, and welcome the world of women judiciary to the United States for a four-day conference while participating in those events.”
Judge Walsh described how amazing it was to meet and get acquainted with judges from so many other jurisdictions. The U.S. judges would describe how they practice law, manage a civil system and our business courts, while learning how judges from other jurisdictions practice law and manage their court systems. Learning from other judges “broadens your mind to the things that you can do to improve your practice here, improve your judging here.” She expressed that she is “so incredibly lucky to have had that role for that year to be their president.”
Judge Walsh explained that “our Supreme Court Justices, not only the women justices, but also Chief Justice Roberts are all members” of NAWJ. She had the opportunity to meet the late Justice Ginsburg, one of the most incredible women jurists of our time. Judge Walsh was also able to meet Justice Sotomayor, who was so “generous with her time and stood at a conference for three hours so that every person could shake her hand or take a picture with her.”
Judge Walsh most wishes that she could have met the late Justice Sandra Day O’Connor. She admired her for her philosophy, deliberateness on the Court, and fun-loving down-to-Earth nature outside of court. At the NAWJ conferences, she would lead a conga line. Justice O’Connor would wear a t-shirt that says, “I’m not Ruth,” and Justice Ginsburg would wear a t-shirt that says, “I’m not Sandra.”
Words of Wisdom and the Unforgiving Concept of “Balance”
When asked what advice she would give to her 21-year-old-self, Judge Walsh said “time passes very quickly. Try to notice each important moment. There is a tendency when you are young to script the important moments in your life and think about the details … to master every part of every equation” (the birth of your first child, setting up your home, first day of school, family vacations). Her advice to her younger self would be to “manage my professional life, while having a fulfilling personal life as well a fulfilling family life” and “to not be so sure that I understand my path that I’m not open to walking in a different direction. Looking back, I may have spent too much time in one place without being open to move or change. Because every time you take a step forward, that is a step on your path, whether that is ultimately the right direction or not, it will move you ultimately in the right direction, but standing still rarely gets you there.”
This circles back to the universal issue for every woman in law or business – how to achieve the coveted goal of work/life balance. Judge Walsh takes a unique and refreshing stance on this issue. She said “I don’t believe that there is such a thing as balance. There’s an amalgam of life, all of which is important. It’s a matter of which part of your life you are … prioritizing in a particular moment.” She explained that “oftentimes, when you’re young, you don’t get to pick your priorities. When you are a young person, you are beholden to your boss, your partner, your manager, to the concept of establishing yourself and building your business to the networking that you need to ensure … the quality of your product, which is going to take longer when you’re less experienced. This is the paradox of youth in business and family. I would personally scrap the idea of balance because I think it places additional, unneeded pressure on the shoulders of young people especially young women. This idea of balance is another opportunity to tell yourself that you’re failing at something.”
Another overarching issue is mindfulness and learning to focus on the present. Judge Walsh expressed, “I look back and wonder if I was present enough. I was so proud of myself for always physically being where I needed to be. I made professional decisions about where I worked and how I worked in order to ensure that I could always be physically present where I needed to be. I could bill frankly, as much as my husband did. I could get everything done on time. I could serve my clients. I could be available to my clients, and manage my business, and also be at every assembly, take my kids … to every pediatrician or dental appointment, every parent teacher conference, every soccer meet, every piano recital, every concert, every chess match, I could do all of that.” Being meaningfully present everywhere was understandably the difficulty.
Judge Walsh encourages everyone to “absolutely relinquish the idea of perfection. I think that in work, as well as in your home life, that perfect is the enemy of the good. Because the most important thing is that if your child wants you [to] read a book to them that you have the time and the space and the presence of mind to be able to do it and be completely meaningfully present for them. I would let go of a concept of ‘balance’ and let go of the concept of ‘perfection,’ or of really caring that other people who don’t matter to you perceive you as perfect. At the end of the day, the end of your life, what other people think right now is irrelevant. The only thing that matters to me is the quality of the childhood and the upbringing that I gave to my kids.”
The Effect of the Pandemic
Judge Walsh remarked on the effect of the pandemic – both personally and professionally. On one hand, the pandemic has successfully integrated technology into the everyday practice of law by allowing Zoom hearings, which are more efficient and cost-effective. Judge Walsh would like to see mass calendars continue virtually even after the effects of the pandemic subside. On the other hand, since most lawyers are working from home, there is less of a clearly defined boundary for personal or family time.
Judge Walsh stated that she is “very concerned about the effect that the pandemic is currently having on the profession, specifically on women – whether it’s going to send women backward. There is an existing problem in the practice of law that women in their 40s and 50s are leaving in disproportionate numbers than their male counterparts. That phenomenon has been explained in the past as some work/life balance or family issue. I don’t think that’s what drives it. I think it’s financial equality in the practice of law. That is the driving force in that issue. What’s happening right now is that children are at home virtual schooling, while women are working at home virtually. There are no demarcations right now between work and home. Work is 24 hours a day; childcare is 24 hours a day; there is no help; and you’re 100% in the house.” She continued, “women are leaving the profession or they’re leaving other professions, which means that their financial stability is going to slip. Their power is going to slip. How do you develop business under these circumstances? It depends how quickly we recover from this. I know that the practice of law generally is not suffering very much, but I do … think that women practitioners are experiencing a unique phenomenon. I just hope that it doesn’t have a semi-permanent effect on the push for equal opportunity in the practice of law.”
Judge Walsh had many mentors, who came to her very naturally. Her boss at the public defender’s office, Beth Weitzner, was the best boss she ever had and truly helped her develop as a writer. She gave her that “eureka moment to understand written persuasion – how to capture the attention of a judge; how to maintain, develop, and never lose your credibility; how to take your reader on a journey from point A to point Z, which is the conclusion you want them to reach; and how to deal with difficult people and difficult facts.” Judge Walsh’s other mentors were Lauri Waldman Ross and Pamela Perry, who were exceptional appellate lawyers that helped her immensely when she was starting out.
Judge Walsh emphasized that peers can be mentors too. Younger lawyers do not necessarily have to seek out lawyers that are a generation older to be their mentor. Finding peers with different strengths, weaknesses, and experiences is important. Judge Walsh stated, “I’m a big proponent for relying on your backup. You need your true friends – really close professional colleagues and friends where you nurture each other along the way and everyone succeeds.”
The Next Generation of Women Leaders
When asked about the next generation of women leaders, Judge Walsh stated that she is “impressed with the next generation and the current generation of women leaders because they do not wring their hands. They don’t ask for permission. When I was 25 just starting out and my superior would say to me, argue x do x, my first impulse would be – can I do that? Whether it is … okay or am I allowed never enters the minds of the women in the profession now. Now, the question in their mind is not whether, but how.” She remarked that “there’s a core strength, a self confidence that is incredibly healthy and refreshing and combined with a work ethic and a fearlessness that make for a formidable combination.”
Last Words of Advice
Judge Walsh’s last words of advice were encouragement and offering assistance. “My colleagues and my peers, we’re here for you. We want to be helpful to you. We really want to see you shine. I can’t tell you how good it makes me feel when it’s no longer an issue as to who comes to court to argue. I have really big cases where there are millions of dollars in controversy or large developments of lands. When I see that there is a young woman lawyer, who is arguing the position of their client, just as well as anyone else who’s in the case, it just gives me an extra charge. It doesn’t mean that they’re going to win their position, of course, but that just shouldn’t be an issue. It shouldn’t be an issue as to who gets to argue a point. I can’t tell you how many times in the past I’ve seen that the person who actually wrote the pleadings and signed the pleadings sitting quietly at counsel table, while their partners were arguing and didn’t know the nuance, the details, or the elements in the record to be able to argue as effectively as I know that his associate could have done the job.”
“It doesn’t matter if they’re women or men or lawyers of color or lawyers of a different ethnic background. None of it should matter. Everyone should have the same opportunity for success depending upon their qualifications, their experience, their skill, and their ability to develop business.” She reiterated “we’re here for you – if anyone wants to pick up the phone and talk or thinks that you have an issue of professional development or wants advice. Don’t cocoon. Get out there and talk to the people that care, so that you can do the best for yourself because you only have one shot at your career. You only have one shot at your life. All of us want to make sure that you take that shot and give it your best shot.”
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