A Fish Out Of Water

The New York Times calls him a minnow, swimming with the sharks of Dewey LeBoeuf.  When the indictments were announced, everyone knew who the big machers at Dewey were, but Zachary Warren?  At the time, he was a fresh-faced kid out of Stanford working as a “client relations manager,” a non-lawyer paid to do what the big fish at biglaw told him to do. Big deal.

But since then, Zachary Warren went to Georgetown Law School, made law review, clerked for District Court Judge J. Frederick Motz in Maryland, and then a clerkship on the 6th Circuit for Judge Julia Smith Gibbons, and was admitted to the California and D.C. bar.  He has a job offer from Williams & Connolly waiting for him. Not too shabby.  Still, he got burned by the basics.

Mr. Warren may have been naïve, but he thought he was being questioned as part of a civil Securities and Exchange Commission investigation. He thought he might be a witness, and thus did not need a lawyer. Only too late did it dawn on him that he might be a target of a criminal investigation.

He just wanted to help, to be cooperative.  After all, he was a good guy. No reason to be concerned.  Certainly no need to behave like he did something wrong, to lawyer up.

Mr. Warren arrived at the S.E.C. offices on Nov. 15. After the S.E.C. lawyer asked some introductory questions, Mr. Moser, the assistant district attorney, took over. An F.B.I. agent was also present, and other prosecutors were listening from New York.

By all accounts, the interview was a disaster for Mr. Warren. He had trouble remembering details from his time at the firm, which prosecutors interpreted as evasion or, worse, lying. They showed him emails and documents, most of which he did not recall. He was not prepared for the hostile tone and became defensive. Prosecutors thought that Mr. Warren was arrogant, even that he was “playing them” by trying to ferret out what they knew, rather than offering to help the investigation.

It’s easy to understand why Warren wasn’t prepared for what he was about to face.  He was misled as to the purpose of the interview, and so wasn’t prepared for the interrogation. For the non-lawyers here, he wasn’t entitled to Miranda warning as this wasn’t a custodial interrogation. He was there voluntarily, and had the right to stop or invoke his right to counsel any time he pleased.

While coming into the interview on the subterfuge that he was a witness to an SEC investigation that had nothing to do with him might seem understandable, there was a red flag that an experienced criminal defense lawyer might have picked up.

Then, in a subsequent call, an S.E.C. lawyer told him that a lawyer from the district attorney’s office would be sitting in. Did Mr. Warren mind?

They were playing the good guy curve, relying on the misperception of normal people that as weird as things get, they still rationalize how it can’t be what it clearly is because they’re the good guys, and bad things don’t happen to good guys.  So Warren went into the interrogation naked, wanting to believe that he was not in jeopardy.

Even then, this smart kid couldn’t wrap his head around what was happening in front of  him.

At one point, it occurred to Mr. Warren that he might be a target, and he asked Mr. Moser if that was the case. The prosecutor did not answer directly, but said, “This is a serious matter.”

Mr. Warren asked, “Should I hire an attorney? Maybe I shouldn’t be talking to you.”

The prosecutor said he couldn’t advise people whether they should have lawyers.

It’s painful to read, as a young lawyer worthy of a Circuit Court of Appeals clerkship and moving on to a big time D.C. law firm first failed to appreciate just how serious the matter was, and then failed to know how to properly invoke his right to counsel.  If he can’t figure out how to do it, what chance does a non-lawyer have?

Of course, Zachary Warren could have just decided to stop talking, to stop answering questions, any time he pleased.  Or as my pal Ken White prefers to put it, shut the hell up.  But that would have required him to have a firm grasp on what was happening to him. Good guys seldom do.

The Times article quotes former prosecutor Tom Curran:

This is what upsets Mr. Curran, the defense lawyer. “It puts people in a very difficult position,” he said. “You want to cooperate, you agree to a meeting, then, whoa, the district attorney is in there. They say, ‘You don’t have a problem with that, do you?’ What can you say? Many times, they don’t even tell you ahead of time a criminal investigator will be there.”

Is it trickery?  Of course it is, but that’s how they get a target to talk. They play the good guy curve, the “nothing to hide” game.  If you’ve ever had the pleasure of sitting across the table from a bevy of prosecutors and agents, you realize how intimidating and manipulative it can be to a target. With a good lawyer beside him, it can be managed.

But the target can do nothing on his own except invoke his right to remain silent and right to counsel.  Both have the “feel” of screaming “guilty,” even if you’re not sure what of.  Good guy targets just can’t seem to do it. It just feels too wrong.

So why wouldn’t a smart kid like Warren lawyer-up just for safety?  First, because it’s nearly impossible for him to interpret the signs properly, as it would require a paradigm shift in perspective from good guy to target. Good guys don’t need lawyers. At least that’s what they want to believe.

Then there is the financial piece, since a competent lawyer requires a financial outlay the people often prefer to avoid until they’re certain they are in jeopardy.  It’s not that they won’t, or can’t, pay for counsel, but they aren’t inclined to waste the money until they’re certain.  Of course, by the time they’re certain, it’s far too late.  Prosecutors are cautious not to give away too much, as they know the target will shut down and lawyer up, until it’s time to drop the bomb.

Now Zachary Warren faces two indictments, having given the prosecution a free interrogation.  The New York County District Attorney’s office ridiculed the notion that it took advantage of Warren:

A spokeswoman for the Manhattan district attorney, Erin Duggan Kramer, countered, “The facts here are incorrect.” She added, “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.”

After all, how ridiculous is it that Zachary Warren didn’t realize what he was doing or how to deal with it?  And had this not happened, Warren might have been the bright, young lawyer seated beside a target of an investigation who thought he hired the best and brightest from Williams & Connolly to make sure he was well-protected.  What could possibly go wrong?

6 comments on “A Fish Out Of Water

  1. Nigel Declan

    One might almost come to the no doubt absurd idea that taking a mandatory first-year criminal law course (in my case: “this is actus reus, this is mens rea… now let’s read seminal appellate court decisions for the rest of the year and pretend that this somehow relates to the practice of law”) does not, in fact, render one properly qualified to identify a situation where criminal liability may exist and to respond accordingly in the real world.

  2. the other rob

    Is the fact that Warren unwittingly had a fool for a client necessarily predictive of the quality of his representation of another, though?

    There’s an argument that; while in this case he was on the wrong side of the good guy curve, as you so eloquently put it, he might have a completely different and more effective mindset when representing a client.

    1. SHG Post author

      Necessarily? No. Likely? Yes. But no, he lacked the knowledge and experience to be effective, for himself or anyone else. I realize that some don’t want to believe that experience matters, but it matters.

      1. the other rob

        I’m all in favour of experience – mine is what puts food on my table. But surely you’re not arguing that all lawyers, even baby lawyers, must somehow be immune to the good guy curve?

        I hold no brief for the kid but, while a more experienced attorney might have recognized the trap, even while “off the clock”, it hardly seems fair to damn him for being tardy in clocking to the fact that he was (unexpectedly) his own client.

        1. SHG Post author

          I don’t blame the kid, as if he did something wrong as far as not realizing what he was getting into. He didn’t know better, and it’s hard to impose blame for something someone doesn’t know. Rather, the significance is that he didn’t know despite all the red flags waving in his face, which I attribute to two problems: that he had no knowledge of criminal law and no experience as a lawyer. Whether this was for his own account or a clients’, he still would have these same two problems.

          The problem is that as a lawyer admitted to practice, he should have known better.

          So I don’t so much damn him as note his glaring deficits. Of course, neither prevented him from seeking sound advice of someone who had competence and experience, and that is the one thing he was capable of recognizing, but still neglected to do.

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