Former Top Prosecutor McNally Reflects on Move to Plaintiff Work

Joseph McNally grew up as a lawyer in the Los Angeles US attorney’s office. Now he’s one of the latest career prosecutors to leave it.

Dozens have departed since Donald Trump became president and Bill Essayli was chosen to lead it. Many former prosecutors moved to work in white collar defense and Big Law. McNally, who was acting US attorney this year before Essayli was tapped, is one of a few joining niche plaintiff-side firms.

He’ll lead LA-based boutique McNicholas & McNicholas LLP’s emerging litigation department, focusing on technology-related cases.

McNally discussed his work and departure from the US attorney’s office, and the similarities he sees between the work of prosecutors and plaintiffs’ attorneys to “change institutions in a positive way.”

This interview has been edited for length and clarity.

Q: What do you consider your most significant accomplishments during your 18 years at the US attorney’s office?

JM: It was coming into the office at a relatively young age, trying cases, and learning how to do that at a very high level—against good adversaries in the federal system and judges that had incredibly high expectations.

I tried my first case in federal court at 27, 15 or 16 months out of law school, in front of US District Judge James V. Selna and against now-US District Judge Anne Hwang. It was hard fought, like all federal trials. I learned the level of preparation that’s required to be a good lawyer. If you want to succeed, being smart isn’t enough. You’ve got to be somebody that grinds, takes responsibility for your case, and knows all the facts in and out. And I always say to our newer lawyers in the office that litigation is a team sport.

I’ve been involved in a number of healthcare fraud cases recently, including a hospital CEO who paid about $50 million in kickbacks and bribes and covered them up using lawyers who wrote contracts to make them look like legitimate payments. That case resulted in the conviction of over 20 individuals, doctors, healthcare executives, and others. These doctors were taking money to steer a particular surgery—spinal surgery—to a particular hospital, and use specific medical hardware during that surgery. Rather than the doctor-patient relationship relying on the patient’s best interest, you had money and ultimately greed corrupting that relationship. When you do a case like that, you’re fighting for the integrity of the medical system.

I also prosecuted a law enforcement corruption case, probably four years ago, involving a customs and border patrol agent who was laundering money, moving large amounts of narcotics from Southern California to Chicago, and working with his wife to operate a criminal enterprise. The case was largely built on cooperator testimony, some circumstantial evidence, and lies he made to the agents investigating it. It certainly was far from a slam dunk case. But I knew if we didn’t bring it, there was a real risk that he would continue to be a federal law enforcement agent.

Q: Can you tell me about departing the US attorney’s office? What prompted the move, and how long were you considering it?

JM: I’d thought about doing something else three or four years ago, not because I didn’t love the job, but just because professional growth happens when you try new things. And then Martin Estrada became the US attorney.

Martin and I had tried cases together and worked together as trial partners. I respected him tremendously. He asked me to be the first assistant US attorney, which is the second-in-command in the office. Your role in that job is to help implement the US attorney’s priorities, but day-to-day, you’re managing the big investigations and cases and working to make sure that those cases have support and resources. It was an opportunity to have an impact on the office and the community, beyond my own casework.

But I always knew that once I felt I had accomplished what I wanted at the US attorney’s office, it would be time to move to private practice. That time was this year.

Q: Your transition from being a leader in the US attorney’s office to joining a plaintiff-focused firm is somewhat unconventional. What was the draw of McNicholas & McNicholas?

JM: I wanted to grow in terms of my ability to take on interesting complex civil cases and join a firm that really is, at its heart, a trial firm.

My background is trying cases and advocating for individuals, conducting investigations where you ultimately are vindicating their rights and trying to seek recovery. Much like as a prosecutor, in this role you can change institutions in a positive way. When plaintiffs’ lawyers—responsible, ethical plaintiffs’ lawyers—target an industry that is engaging in conduct that leads to widespread harm, you can help foster change.

Q: You’re leading emerging litigation with a tech focus. How does that dovetail with the work you’ve been doing? How will your experience as a prosecutor shape your approach?

JM: I’ll be doing a fair amount of plaintiff’s business litigation, such as disputes over business transactions and stolen ideas. If you look at where we are in AI, it’s really the equivalent of when the internet started. Arising out of that will likely be meritorious, righteous civil plaintiffs’ cases, both over entrepreneurs’ ideas and protecting users.

Technology is great, but it requires responsible use, and good corporate citizens who balance their business interests with ensuring that they uphold their obligations to protect users. I saw as a prosecutor cases where that should have happened in the social media space better than it did. There are things that industry can do to protect people who are particularly vulnerable. Bringing attention to these issues and bringing meritorious cases ultimately improves the safety of users and the public.

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