Editor: Please describe Weil’s Boston office, its practice groups, and in particular, your practice.
O’Toole: This past fall, Weil’s Boston office celebrated its tenth anniversary. Our office has been a tremendous success, and we remain confident for the years ahead knowing that Weil’s platform fits well with the evolving New England economy. Although we are a Boston firm in all respects, we also offer access to the vast array of capabilities from Weil’s international platform.
Our practice in Boston is concentrated in two principal areas: corporate and litigation. Our vibrant corporate practice represents many of the leading private equity funds, both nationally and internationally, as well as corporations that are engaging in, or considering entering into, strategic transactions. Our litigation team is active in both state and federal courts in Massachusetts and the New England area, and we are part of Weil’s international complex commercial litigation and white collar defense and investigation practices. As a partner in both these practices, I assist clients in addressing complex business problems and advise domestic and international companies regarding commercial disputes, business torts, misappropriation and unfair business practice claims, corporate control and governance, internal and regulatory investigations, compliance programs, and white collar criminal matters. I also have substantial appellate practice experience.
Editor: You started your career as a law clerk. How has that experience benefited you?
O’Toole: I consider myself extremely fortunate to have been able to participate in both a state and federal clerkship, at both trial and appellate levels. Both were tremendous experiences that gave me invaluable insight into the practice of law.
I first clerked for the Honorable Francis J. Boyle, then-Chief Judge of the U.S. District Court for the District of Rhode Island. Judge Boyle maintained an active trial and motion docket, and I was exposed to a wide variety of civil and criminal issues at a rapid pace. He held attorneys to very high standards. I saw first-hand what a trial judge needed from attorneys to help make the correct decisions. I then clerked with the Honorable Neil L. Lynch on the Massachusetts Supreme Judicial Court, the highest court in the Commonwealth of Massachusetts. Because the SJC is an appellate court, my focus on this clerkship was on writing, legal analysis, and oral advocacy. Justice Lynch taught me the importance of precise analysis and clear writing as tools for persuasive advocacy at the appellate level.
In addition to learning substantive skills that would serve me well in my career as a litigator and counselor, I also cherished my time as a clerk because the collegial environment fostered a team approach to complex problems and encouraged collaborative discussions, exchanges and hard work to arrive at the right answer. Both Judge Boyle and Justice Lynch, as well as my co-clerks and all of the court personnel, were great mentors and confidants and wonderful to work with.
Looking back, both experiences have been invaluable to me as an attorney: my clerkships were essentially two-year, hands-on clinics on how to be a lawyer. I know that these experiences gave me a great start in the practice of law. Although I have been practicing for more than 20 years now, I still rely on the many lessons I learned during my clerkships: one of the most important being the need to be a precise and credible advocate, both orally and in writing.
Another invaluable lesson for me was realizing that different attorneys can have very different styles and still be highly effective advocates and trial lawyers: the key is that an attorney must be comfortable with himself or herself and be authentic. I am a believer that judges and juries have a great ability to determine whether someone is being straight with them or not. The first step in gaining their trust is to be yourself.
Editor: You have been with other law firms prior to joining Weil Gotshal. What attracted you to Weil Gotshal’s Boston office?
O’Toole: In some respects I am like a bad penny that keeps showing up. After my clerkships, I started my legal career as a litigator at the former Boston firm Hutchins Wheeler & Dittmar. From Hutchins, I went to another local firm for a short period of time, and it was during that time that a small group of attorneys from Hutchins left and started Weil Boston. The new Weil office needed litigators, and my colleagues offered me an opportunity to join them in this new venture. Having started my career at Hutchins, I knew that, in addition to the depth and quality of their legal practice, the people who were starting Weil Boston were a great group of individuals, and I was glad to have the opportunity to join them. Weil also has a great standing in the international community, and I knew that the Weil platform would allow me to continue to develop my practice through participating in some of the most complex and challenging matters available in the market.
Editor: What areas are you seeing as areas of concern for New England business?
O’Toole: Several areas of concern I have seen that directly affect industries in our region include increased risk of trade secret theft and increased regulatory burdens and government enforcement efforts. First, protecting valuable data, including trade secrets and other proprietary business information has been a challenge for businesses for a long time. There has been a surge in international trade secret theft and cyber attacks aimed at U.S. companies. Threats to proprietary and confidential information by foreign governments and companies have escalated to the point that the Justice Department has announced that it will be making prosecution of trade secrets a top priority and the White House has released a report detailing many policy and regulatory strategies for prevention and enforcement, both nationally and internationally.
Companies, similarly, must be prepared to address these complex and evolving risks. In February 2013, the White House issued The Administration’s Strategy on Mitigating Theft of U.S. Trade Secrets, which shows the scope of the issue on which we have been advising clients for some time. To give some sense of the risk to U.S. businesses – and New England regional businesses in particular – since 2009, the Department of Justice has prosecuted myriad cases involving theft of trade secrets for technologies such as hybrid technology, military secrets, drug development, communications, financial trading, and chemical and advanced material manufacturing, all involving foreign competitors or governments. Given that the New England area – especially Massachusetts – has such a wealth of innovative and entrepreneurial companies in areas such as pharmaceutical, biotech, financial services, defense, clean energy, and high tech, it is clear that we need to be proactive in order to defend against these attempts to steal confidential and proprietary information. Although the White House report suggests that there have been some government efforts to help U.S. businesses, those efforts are far from comprehensive. Because of the significant limitations on what the government can do, the bottom line is that it is up to businesses to protect themselves by applying best practices and making use of evolving technologies.
Related to the theft of trade secrets is another area of risk that is particularly important to New England businesses: data security and risks of cyber attacks. Hackers, competitors, and perhaps even foreign governments are constantly seeking new ways to breach and attack the data security of companies, sometimes just to disrupt or disable the company itself. Needless to say, these attacks, if successful, can have a catastrophic impact on companies. Companies need to act proactively to guard against these threats and effectively defend themselves.
Another area where we have focused significant energy in counseling our clients is on increased regulatory efforts by the government. Due to recent high profile events, we have seen a substantial movement and uptick in government regulation in the key industries for our region, such as the pharmaceutical, financial services and medical device industries. Government enforcement has also stepped up in intensity, which in turn gives rise to an increase in whistleblower activity, illustrating the importance for businesses to monitor compliance and conduct internal investigations where necessary.
Editor: Which of your court victories has given you the greatest satisfaction?
O’Toole: It is always gratifying to achieve a positive result for a client. Many times, however, some of the best results for clients occur not in the courtroom, but in keeping the case out of the courtroom in the first place through good counseling and advice. For instance, the ideal outcome in the vast majority of internal investigations or investigations by government agencies is to achieve a rapid resolution of the matter so that the client avoids the costs, disruption, and uncertainty of litigation.
In terms of trial victories, however, it is hard to beat our complete victory in United States v. W.R. Grace et al. In this case, we represented a former senior executive of W.R. Grace who was charged with conspiracy and criminal violations of the Clean Air Act in connection with asbestos contamination in Libby, Montana. At the time, environmental experts described the case as one of the largest and most important criminal environmental cases ever prosecuted by the U.S. government. After a three-month trial in Missoula, Montana, the jury acquitted our client of all charges. The allegations the government brought against our client and his co-defendants were, as you can imagine, highly charged. So the Grace win was particularly gratifying because we went into Missoula with heavy concerns about whether a local jury would be open-minded about the evidence we had, and moreover have the courage to ultimately exonerate our client and the other defendants. The not guilty verdict felt like a vindication of our judicial system: the trial process truly worked as intended and, in the end, the law was applied as it ought to have been, despite the strong emotions and passions that underscored the case.
Editor: Please describe the firm’s activities in pro bono in the Boston area.
O’Toole: As with the rest of Weil, community service and pro bono work is deeply ingrained in the culture of Weil’s Boston office, and our lawyers are closely involved with local charities, community groups, and legal aid organizations. Not only do we represent our pro bono clients in the courtroom, but our strong corporate practice means that we have been very successful in counseling a broad range of nonprofit organizations on their corporate issues as well. Thus, our pro bono clients include many small, innovative nonprofits and NGOs in the New England area, as well as referrals from organizations such as the Political Asylum/Immigration Representation Project and Kids In Need of Defense. I am most involved with our work as outside general counsel for the Massachusetts Legal Assistance Corporation, the John F. Kennedy Library Foundation and the Middlesex District Attorney’s Office, which sends us referrals of domestic violence victims seeking abuse prevention orders. Other Weil attorneys serve on boards and committees of many local non-profit organizations, including The United Way of Massachusetts Bay, City Year, the Make-A-Wish Foundation of Massachusetts and Rhode Island, The American Red Cross of Massachusetts Bay, and Stonehill College. It is a point of pride that our attorneys here at Weil Boston dedicate an enormous number of hours to pro bono: 70 percent of attorneys logged more than 50 hours of pro bono work in 2012; several of us served over 200 hours. We are committed to giving back to the community in which we practice and we are always searching for ways to expand on this commitment to serve.
Published February 25, 2013.