Susan Ervin has worked in both private and public law within the futures and OTC derivatives industry. Ms. Ervin, who is currently a partner in Davis Polk’s Financial Institutions Group, discusses her experiences working in private law and within the CFTC, and how these experiences have shaped her career.
Q. Why did you go into law (and finance)? What events, people or experiences influenced you to pursue law and specifically financial law?
As an undergraduate, I had competing interests in continuing on to graduate school in history or working in the “real world.” Law school seemed to satisfy both objectives, at least to some extent.
Q. Why did you choose to work in public law and with the CFTC?
Like many of my peers at the time, after spending a number of years as a law firm associate, I reached a point at which I was eager to do something quite different. I was attracted by the idea of representing the public interest and explored a number of opportunities in government. Ultimately, I chose the CFTC because it provided me an opportunity to try my hand at being a regulatory lawyer while also keeping a hand in litigation. I also looked forward to the challenge of learning about a new field of law that seemed to connect well with my background in securities litigation, and also to be somewhat fascinating, arcane and difficult.
Q. Can you briefly describe your responsibilities when working at the CFTC? What was the biggest challenge or lesson learned during your time at the CFTC?
I was an Assistant General Counsel early on, defending the CFTC in litigation and arguing appeals relating to CFTC adjudications, while also developing expertise in some key substantive areas of futures regulation, particularly clearing and bankruptcy. After a few years, I became Deputy Director and Chief Counsel of the Division of Trading and Markets, which at the time was responsible for the regulation of futures exchanges, clearing houses, brokers, advisors and commodity pool operators. I also served on the Task Force on Off-Exchange Instruments, a group of senior staff who reviewed all new derivative products and offerings. The single biggest challenge during my tenure was helping to develop the CFTC’s regulatory approach to over-the-counter derivative products – dealing with issues that remain with us nearly twenty years later.
Q. Why did you decide to move from public to private law? What was the biggest challenge you faced in making this transition? Is there an example of how your experiences or skills gained while working in the public sector aiding your work in the private sector?
I decided to move back to the private sector when I reached the highest level that I could reach at the CFTC, short of becoming a political appointee; and after many years at the CFTC, I was interested in taking on new challenges and professional roles. I found the transition to the private sector relatively easy, in part because of my prior law firm experience and in part because my derivatives and futures expertise provided an excellent foundation for building a practice. One of my most challenging and exciting projects was assisting NASDAQ in creating and obtaining regulatory approval for an innovative new futures exchange. The project drew upon my extensive CFTC experience with regulation of futures exchanges, my knowledge of the futures industry generally, and my deep familiarity with CFTC processes and personnel – all of which helped me in navigating the sometimes mysterious route to exchange approval.
Q. Can you briefly describe your role with Davis Polk? What is the biggest challenge you face currently in this role?
I am a partner in Davis Polk’s Financial Institutions Group, specializing in derivatives and futures regulatory matters. I came to Davis Polk in July 2011, following a two-year stint at the SEC as a senior derivatives adviser and attorney fellow. While at the SEC, I was involved in the development of what became the Dodd-Frank Act,and in the subsequent rulemaking initiatives required by the Act. At Davis Polk, I continue to focus on many of the same issues, counseling clients on implementation issues arising from Dodd Frank and related agency rulemakings, as well as on other futures and derivatives matters. Given the vast regulatory transformation underway, our clients have a great need for expert advice on the rulemaking initiatives of the CFTC, SEC and other federal financial regulators. At Davis Polk, I work with other former regulators, like former SEC Commissioner Annette Nazareth, in advising clients about the many complex, interrelated demands of the new regulatory framework. I recently took on a related professional role, as Chair of the American Bar Association’s Derivatives and Futures Committee, which sponsors important professional conferences, writes comment letters and is a voice for many of the leading practitioners in this field of law.
Q. What advice would you give other lawyers looking to progress their careers? Are there any lessons learned that you find particularly useful or inspiring?
My advice is fairly simple: everything you do as a lawyer is a learning experience and much of it, if not most of it — even embarrassing failures — will be valuable sometime later.
Q. What would you do professionally if you hadn’t become a lawyer?
Based on my academic interests, I would likely have become a professor of English or history, but if I were to fantasize about an ideal career, I might choose to be a writer in the mold of Geoff Dyer, one of the great prose stylists of our time, who writes wittily about everything from D.H. Lawrence to jazz to Hinduism, and seems to have a very good time along the way.
