Biglaw, Crime, Dewey & LeBoeuf, White-Collar Crime

Should Zachary Warren Have Hired A Lawyer Sooner?

So, what are the odds that a good lawyer could have made a difference?

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Recently, Lat suggested that it wouldn’t have been worth it for Zachary Warren to hire a lawyer early in the Dewey investigation. As Lat frames the question, “How much could a lawyer have helped?”

Now that we know a little more about the case — especially the identities of the Secret Seven — let’s think about whether Warren could have benefited from hiring counsel early. And, more generally, what benefit anyone gets who is in a white-collar investigation from hiring a lawyer early.

We know that Warren was concerned about money (as most folks are). The reasonable question is what Warren would get with the money he’d spend on a lawyer.

Of course, there are no certainties — hiring a lawyer in a white-collar case, like in most litigation matters, is a little like buying a lottery ticket. How much does your spend on counsel change the odds in your favor?

So, what are the odds that a good lawyer could have made a difference?

Lat suggested a few reasons that the likelihood that a lawyer would do any good was low:

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I dealt with many excellent defense lawyers when I worked as a prosecutor, but there’s only so much a defense lawyer can do if the prosecution holds a tough line. I previously wondered whether Zachary Warren was given the opportunity to cooperate with the Manhattan DA’s office on the Dewey investigation in exchange for more lenient treatment for himself, like the Dewey secret seven. What we’ve been hearing lately is that there were some vague and preliminary discussions between Zachary Warren and Cyrus Vance’s office about a negotiated resolution, but they didn’t get very far because the kind of plea the DA’s office required would have wiped out Warren’s professional future.

I disagree with Lat here for a few reasons.

First, and most obviously, if Warren had a lawyer, he wouldn’t have talked to the S.E.C. with a D.A. in the room. He likely wouldn’t have talked to them at all unless he was getting either cooperation credit (in the same way the Secret Seven did) or in exchange for a decision not to go after him at all — which I think might have been possible. It’s hard to say at this point how much damage his statements will do at trial, but statements of a person accused are frequently recounted by an investigator in a way that the person who made the statement doesn’t recognize. As I wrote about here before, talking to law enforcement is just really dangerous.

Second, I think Lat is right that there are some prosecutors who will dig in on a case and they won’t listen. In my experience, that happens when either (a) the case is a slam-dunk, or (b) the prosecutor not a good prosecutor. Maybe the folks at the Manhattan D.A. were so eager to bring down a guy who was “a low-level paralegal” that they’d refuse to let this guy out of the case regardless of what they learned, but that seems really strange. Especially when there’s reason to think he didn’t know about the point of the alleged book-cooking.

Normally, if a lawyer comes in during the investigation, you can start a conversation with the prosecutor about what’s going on. Most prosecutors, I find, don’t actually want to make dumb or weird charging decisions — so they listen. Maybe a defense lawyer wouldn’t have anything to say because the facts are bad. But there’s at least a conversation and a way to try to get the prosecutor to think about the case from your client’s perspective.

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Third, Lat rightly points out that Warren will have a hard time practicing as a lawyer with a conviction for a fraud scheme. The finance folks who are the Dewey Secret Seven don’t have the same professional bar Warren would have faced (though, of course, a conviction never looks great on your LinkedIn profile).

While it’s true that a conviction would be more professionally debilitating for Warren than the others, I think there are some meaningful differences between Warren and the Secret Seven that a lawyer could have worked with. Those folks looked both more senior, more experienced, and more intimately related to the alleged fraud scheme. Warren’s job, basically, was to harass partners to get their clients to pay the bills. That Warren’s role was different than others is a meaningful thing for his lawyer to have pointed out to the prosecutor. And, again, it may not have mattered, but depending on the facts, it also may have mattered a lot.

I can see a few ways a lawyer could have played this that could have helped Warren. My read is that the prosecutors wanted to build their case against the top folks — Davis, DiCarmine, and Sanders. Warren was on the bubble, and may have given some bad answers to questions. Snatching up Warren seems like it could have gone either way.

When it’s a close call, a good lawyer can matter. Warren should have hired a lawyer sooner.

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.

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