Steven Harper
Steven Harper (Karen Hoyt)

Back in March, I wrote about Zachary Warren. In 200 his first job out of college was as client relations coordinator at Dewey & LeBoeuf. In July 2009 he left the firm to attend law school. Unfortunately, his brief tenure was sufficient, years later, for the Manhattan district attorney to name him as one of four undifferentiated “Schemers” in a 106-count criminal indictment.

When he joined the firm, Warren was a generation younger than his fellow alleged “Schemers”: former chairman Steven Davis, former executive director Stephen DiCarmine and former chief financial officer Joel Sanders. Understandably, Warren would prefer not to be tried with his codefendants, so he has moved to sever his trial.

Timing Is Everything

In its latest filing, the Manhattan district attorney acknowledges that Warren “was not the mastermind of the Dewey fraud scheme.” However, the government’s objection to Warren’s motion adds, “He certainly was a willing foot soldier.” We learn some other things from the filing, too.

For example, it turns out that Warren was the first “Schemer” to be indicted. In December 2013, the grand jury charged him alone with six counts of “Falsifying Business Records in the First Degree.” But Warren first learned of the charges two months later, when a broader indictment named him along with Davis, DiCarmine and Sanders.

Presumably, the timing of Warren’s indictment related to the five-year statute of limitations governing the claims against him. The government relies heavily on a handful of December 2008 events to make the case.

December 2008

According to the district attorney, on Dec. 30, 2008, Warren had dinner with two of his superiors, Sanders and then-Dewey finance director Frank Canellas. To satisfy its year-end bank loan covenants, Dewey needed another $50 million by the end of the following day. Allegedly, Sanders and Canellas had developed a contingency plan of potential financial adjustments that Warren helped to implement.

The district attorney emphasizes Warren’s supposed sophistication regarding accounting issues. But that’s a far cry from proving his competence to challenge directives from superiors holding CPAs and MBAs. In fact, the propriety of whatever transpired on Dec. 31, 2008, with respect to Dewey & LeBoeuf’s financial statements is likely to become the subject of battling expert accounting witnesses at trial. Dive into those weeds at your peril.

Motive?

As for the aftermath of the alleged New Year’s Eve scheme, the Manhattan district attorney cites Warren’s “$115,000 in bonus compensation in 2009” as evidence of something sinister. The government claims that the amount exceeded bonuses paid to all but five other Dewey employees. At best, that argument is disingenuous.

Warren received his $75,000 bonus for 2008 in early 2009, as expected. When he left Dewey in July 2009, Sanders promised Warren a $40,000 bonus for his half-year of service, payable in the fall.

Three months later, Warren was at Georgetown Law and still waiting for his final bonus. He left messages for Sanders, who eventually wrote, “If you’re wondering about your bonus, I have you down to receive $40k right after our year-end close.”

Warren replied, “I didn’t take out any student loans this semester because I was anticipating the bonus to be paid in the fall as we discussed before I left.” (For unknown reasons, the district attorney’s brief italicizes for emphasis the last phrase “as we discussed before I left.”) When Warren still hadn’t received the bonus In November, he tried again, and shortly thereafter, the firm sent him $20,000— almost the entire net amount. He received the final installment of $1,400 in April 2010.

For the district attorney, Warren’s requests of his former employer are proof of his ongoing involvement in the original scheme: “In September 2009, he began chasing down the additional bonus that defendant Sanders had promised him.”

Seriously?

The Continuing Mystery

A fundamental question still begs for an answer: How does whatever happened in the presence of Zach Warren during December 2008 relate to the demise of a storied law firm in May 2012?

So far, it doesn’t. Unless the prosecution develops that connection, something will remain terribly wrong with this picture—and with the effort to put Zachary Warren in prison.

Steven J. Harper is an adjunct professor at Northwestern University and author of “The Lawyer Bubble: A Profession in Crisis” (Basic Books, April 2013) and other books. He retired as a partner at Kirkland & Ellis in 2008, after 30 years in private practice. His blog about the legal profession, The Belly of the Beast, can be found at http://thebellyofthebeast.wordpress.com/. A version of the column above was first published on The Belly of the Beast.