The indictment of Zachary Warren is troubling for a lot of lawyers because, well, he seems like one of us. His post-Dewey path to a great law school, two cool clerkships, and an offer from a great law firm, is something we, as lawyers, can identify with.
What’s most frustrating about Zachary Warren’s situation is that it looks like he was charged largely because he decided to talk to law enforcement without hiring a lawyer first.
Most of us would like to think that, as lawyers, we’re smart enough to make the right legal moves if we’re in a place where we need to. Yet Warren talked to law enforcement, when most of us know that’s the wrong move (and, if you don’t know that’s the wrong move, there’s a short video on my firm’s webpage explaining how we look at it). What’s up with that?
As Lat mentioned earlier this week, there’s a dispute about what happened. Some of Warren’s friends say he was essentially duped about his status or the nature of the interview he participated in. The Manhattan D.A. has pushed back, through spokeswoman Erin Duggan Kramer: “The facts [in this New York Times piece] are incorrect. The claim that an attorney with a federal clerkship could have any misunderstanding of what it means to speak with and agree to meet with the D.A.’s office is preposterous.”
Kramer’s point makes seems intuitively compelling. Why would a smart lawyer talk?
A lot of the people I’ve represented have been sophisticated professionals — lawyers, doctors, stockbrokers, lobbyists, and such — and, nonetheless, they’ve talked to law enforcement. Why?
I know nothing about Warren’s case other than what I’ve read on the fine pages of this blog (and other media sources). But, based on representing folks in similar situations in the past, I think there are three main reasons folks talk when they shouldn’t, and thinking through these can shed light on why Warren talked.
Good cops, good federal agents, and good prosecutors doing an investigation know how to make someone feel that they ought to be talking. It’s a little like the way a good salesman can steer a sale just by acting certain that a sale is going to happen.
Sure, you normally see this work better when the feds surprise someone, just showing up at their office unannounced. Warren, apparently, went to an interview that was prescheduled at the SEC (though whether he knew the extent of the DA’s involvement is in dispute). But I think it’s hard to underestimate how much sales pressure law enforcement exercises to get people to talk when they know they shouldn’t.
2. People Really Think The Legal System Will Work.
Many people — even many lawyers who should know better — think that our legal processes work well at figuring out what happened. They just don’t feel very guilty, so they think they must not be guilty, so they really don’t see any harm in talking. If they simply explain what happened, law enforcement will believe them, and they’ll see that there’s really no wrongdoing.
So, maybe Zach Warren really thought he didn’t do anything wrong, and that it’s absurd to think that a guy working in the lowest rungs of Dewey doing client collections could be a co-conspirator with the firm’s leadership (for more on this, see Jim Stewart’s article in the New York Times). Maybe Warren naively thought that the legal system he’d been preparing to participate in would work.
Of course this is folly. As Brendan Sullivan likes to say, “The Constitution is not self-executing.” But it still can be a comforting idea for someone caught up in something large and seemingly beyond his or her control.
3. People Think They Can Talk Their Way Out of It.
The AUSAs who I know would say the main reason people talk — especially in fraud cases — is because they think they can talk their way out of it. If you start with the premise that a person is a fraudster, their explanation for what they did will necessarily be further evidence of their fraudster-ism.
In the end, there may not be a whole lot of difference between options (2) and (3). As I wrote in a prior column, a lot of people come to believe the best things about themselves for reasons having more to do with human psychology and memory rather than a malicious intent to obstruct justice.
For Warren, I think he’s a reminder of why it’s often a very very bad idea to talk to law enforcement without a lawyer. And, without diminishing how bad a decision that was, I can still understand why he’d do it.
Matt Kaiser is a partner at The Kaiser Law Firm PLLC, a boutique litigation firm in Washington DC, which handles government investigations, white-collar criminal cases, federal criminal appeals, and complex civil litigation. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.