Meet the lawyers behind high-profile investigations
He always seemed to cry whenever his perennially highly ranked University of Kansas teams came up short in the NCAA tournament. When he finally won his first national championship in 2005 after leaving Kansas for his alma mater, the University of North Carolina, the waterworks were out in full force—this time for joy and relief instead of frustration and failure.
But he choked up again in late October after UNC won a meaningless preseason exhibition game against lower-division school Fayetteville State. And this time his reasons had nothing to do with what happened on the basketball court: Williams was publicly responding to a report from former U.S. homeland security adviser and current Washington, D.C.-based Cadwalader, Wickersham & Taft partner Kenneth Wainstein detailing rampant academic fraud at UNC involving numerous football and basketball players.
“There hasn’t been a day in my life that I haven’t been extremely concerned about doing things the right way academically,” Williams said, fighting back tears during his press conference. Williams said he was “dumbfounded” by Wainstein’s findings and stressed that he disagreed with the former Bush administration official’s findings.
“It’s very disappointing,” Williams said, “and we’re all extremely sad about it.” Williams has reason to be concerned. All he has to do is look at what happened to Pennsylvania State University to see how much power an independent investigator such as Wainstein can wield.
Wainstein’s report found there was a scheme in place within what was then called UNC’s African and Afro-American Studies Department in which athletes would take a bunch of no-show “paper classes” and get high grades regardless of whether or not their papers were any good or even original. Wainstein also found there were academic counselors who steered many players toward these classes, and some tutors wrote the papers for the players.
Wainstein’s report largely cleared UNC officials, as well as Williams and several former football and basketball coaches, of having knowledge of the academic fraud.
“We found no evidence that the higher levels of the university tried in any way to obscure the facts or the magnitude of this situation,” Wainstein wrote in his report. “To the extent there were times of delay or equivocation in their response to this controversy, we largely attribute that to insufficient appreciation of the scale of the problem, an understandable lack of experience with this sort of institutional crisis and some lingering disbelief that such misconduct could have occurred at Chapel Hill.”
But Williams and UNC aren’t out of the woods yet. After all, the National Collegiate Athletic Association has been known to vacate wins and even championships from schools found to have broken the rules.
Until they were restored in January, the Jerry Sandusky child-molestation scandal cost Penn State 112 victories, including two Big Ten titles, and dropped former head coach Joe Paterno from first to 12th on the all-time NCAA victories list. And the University of Southern California saw its 2004-05 national championship erased from the record books due to a scandal involving allegations of improper payments to star running back Reggie Bush.
In college basketball, scandals have erased the accomplishments of several great teams, including Final Four appearances by the University of Michigan in 1992 and 1993 and two trips to the Final Four by renowned basketball coach John Calipari (with the University of Massachusetts in 1996 and the University of Memphis in 2008).
Williams’ national titles in 2005 and 2009 could be taken away, leaving him back where he started: the coach without a championship.
THE INVESTIGATOR GAME
Several high-profile scandals over the past few years have resulted in an influx of work for investigatory lawyers, most notably former prosecutors, to act as finders of fact rather than advocates for clients. These investigatory lawyers have broad discretion and virtually zero oversight, and their findings can have a wide-ranging impact—and can even force some of the most powerful entities to change their ways.
Often the best-known probes involve sports, both because of high public interest and the lack of confidentiality that private enterprises demand of their investigators. These are also cases investigatory lawyers willingly discuss, not incidentally because they can enhance prestige for the lawyers and law firms.
Additionally, for every major university or megacorporate investigation where so much plays out in the media, there are likely dozens—if not hundreds—of investigations that take place away from the public eye. These investigations are often performed at the behest of private companies and can cover a broad range of issues, including labor and employment, regulatory and even criminal law.
Most importantly, it’s up to the lawyer to figure out how to balance the client’s interests with the commitment to follow the facts wherever they might lead—especially when it might hurt the client. Lawyers must make sure their investigations are as thorough and fair as possible, since skeptics will assume that these probes are merely vehicles for companies and organizations to whitewash away their wrongdoing.
Government agencies and legislative bodies are also among the many institutions that will call on attorneys to conduct independent investigations. The law firm of Jenner & Block has taken part in some of the biggest and most famous investigations of all time. During its centennial celebration last June, the firm trumpeted its role in several, including name partner Albert Jenner’s role as senior counsel to the Warren commission, which investigated John F. Kennedy’s assassination, and as counsel to the House Judiciary Committee that weighed whether to impeach President Richard M. Nixon.
The firm’s current top investigator, Anton Valukas, is continuing in that tradition. Valukas, who is also the Chicago-based chairman of the firm, is perhaps best known for serving as examiner in the Lehman Brothers Holdings bankruptcy from 2009 to 2010. Most recently, Valukas conducted a high-profile probe for longtime client General Motors about its faulty ignition system that led to the deaths of 13 people. Among investigations the firm recently undertook was one led by partner Reid Schar, a former assistant U.S. attorney for the Northern District of Illinois, on behalf of the New Jersey joint legislative committee investigating the so-called Bridgegate lane closures on the George Washington Bridge.
Valukas is quick to distinguish between what he sees as two types of investigations. On the one hand, there are high-profile public investigations like the Lehman Brothers probe.
“In Lehman, I knew that there were tens of billions of dollars on the table and the best lawyers in the world were going to be litigating over those tens of billions of dollars, and my report was going to outline my views on what the facts were,” Valukas says. “I knew that would have an impact on how the litigation took place.”
Figuring out how Lehman, which filed the largest bankruptcy case in U.S. history, went bust was a monumental undertaking. Valukas recalls he had to amass a team of more than 100 attorneys, including about 75 contract attorneys, just to sift through some 350 billion pages of emails, documents and reports.
On the other hand, most investigations that Valukas and his group handle aren’t intended for public consumption. They are done at the behest of individual clients, and the lawyers’ findings never see the light of day. For instance, if the firm is investigating an alleged error or misdeed by the client, an internal investigation can serve as a guide for establishing best practices, as well as safeguards to prevent the same sort of activity from happening again.
“If we do our jobs right, no one will hear about what we do, but the company will get what it needs,” Valukas says.
These types of private investigations are typically conducted on a very tight time frame. “That requires a very specialized type of skill set,” Valukas says. “Not only do you need to know how to gather information quickly; you need to know where to look and how to interview people.”
As such, when it comes time to conduct an independent investigation, Valukas says he values attorneys who have extensive trial experience.
“Our associates are very much encouraged to learn how to try cases,” Valukas says. “You want to learn how to interview a witness? Put a witness on the stand that you didn’t adequately prepare and watch him get torn apart by opposing counsel.”
Furthermore, trial lawyers are trained to back up all their theories with cold, hard facts. “You are trained as a litigator to seek out the facts,” he says. “That’s the key to an investigation. You must put your cards face up on the table and let the conclusions be drawn from those facts.”
Schar agrees, adding that every finding in an investigation has to be supported by evidence. “Whether you’re in front of a jury or you’ve put together a report for a client, you’ve got to have the facts right,” says Schar, who successfully prosecuted former Illinois Gov. Rod Blagojevich in 2010. “Otherwise you lose credibility, and it only takes a momentary lapse to do that. Once you’ve lost your credibility, it’s very difficult to get it back.”
Valukas won’t comment on how doing independent investigations has helped boost his firm’s bottom line. However, based on court filings, the Lehman Brothers report cost $38 million to complete. Likewise, Schar wouldn’t comment on the Bridgegate investigation; however, the New Jersey Star-Ledger reported in December that Jenner had billed the state more than $1 million for its work. Instead, Valukas emphasizes the nonmonetary benefits to his firm. “I don’t think we could have begun to hire a person of Reid’s caliber if we didn’t present him the types of challenges and opportunities he has here,” Valukas says. In fact, Schar is one of many former prosecutors in Jenner’s white-collar and internal investigations team. According to the firm, the team includes two former U.S. attorneys (Valukas and Tom Sullivan), nine former AUSAs and several U.S. Department of Justice officials.
Jenner is hardly the only firm to handle governmental investigations. When the U.S. Department of Homeland Security needed to conduct a probe of the Secret Service over a recent breach in security at the White House, the agency called on former Obama adviser and current O’Melveny & Myers partner Danielle Gray. Gray is also working alongside O’Melveny partner Walter Dellinger to investigate the University of Virginia’s sexual assault policies in light of a now-discredited story in Rolling Stone magazine about an alleged 2012 gang rape. According to the Roanoke Times, the firm will be paid $500,000 for the UVA probe.
INDEPENDENCE IS CRUCIAL
George Mitchell has no need for a resumé, which is good since he couldn’t fit everything on one page anyway.
A former U.S. attorney and federal judge, Mitchell represented Maine in the U.S. Senate for 15 years, during which time he played a pivotal role in the Iran-Contra hearings and was Democratic Senate majority leader from 1989 to 1995. Mitchell helped broker the Good Friday peace agreement in Northern Ireland and served as special envoy to the Middle East under President Barack Obama. He turned down a U.S. Supreme Court nomination from President Bill Clinton and has served as a director for some of the biggest companies and brands in the U.S., including Walt Disney, Federal Express and the Boston Red Sox. He also joined DLA Piper as a partner in 2003 before resigning in 2009 to serve as Obama’s Middle East envoy. He rejoined the firm in 2011.
However, he’s perhaps best known these days for his independent investigation into performance-enhancing drug use in Major League Baseball. In 2006, Mitchell was hired by MLB Commissioner Bud Selig to conduct the probe and was promised complete independence.
“In all of the cases I’ve taken, I make absolutely clear from the outset that if they are asking for an independent investigation, then they must guarantee, from the outset, my complete independence,” Mitchell says. “They must also guarantee that I and my team will be allowed to follow the evidence where it leads and report as our judgment and conscience inform us.” Otherwise, Mitchell says, he doesn’t take the case. “I raised it during my first call with Selig, and to his credit, he promised me that independence and he kept his promise,” he says.
Christopher Madel, chair of the business litigation group at Robins Kaplan in Minneapolis, agrees that independence is key. Madel recently completed a probe for the Minnesota Vikings into allegations from former punter Chris Kluwe that he was cut from the team because of his outspoken views in favor of marriage equality. Madel also had to investigate claims from Kluwe that members of the coaching staff made homophobic and anti-gay remarks.
“I make it very clear at the outset that I’m doing an independent investigation,” says Madel. “I’m not hired to do a professional hatchet job on someone. I’m just reporting the facts.”
Madel’s investigation found that while the Vikings’ special teams coach did say some homophobic things, Kluwe was cut because of his poor performance as a punter. Madel even spoke with independent experts, including a retired All-Pro punter, to evaluate Kluwe’s punting skills and his performance during the season.
Another thing Madel says he does to ensure his independence is refuse to represent his client on any litigation that might turn up as a result of his report.
“I didn’t want Kluwe, his lawyer or anyone else saying that I’m biased,” Madel says. “Even though my team and I knew the facts better than anyone, we were the absolute wrong people to represent them in any litigation, and I was adamant about that.”
Nevertheless, Madel acknowledges that there can be some “difficult conversations” if an investigation turns up evidence that the client did something wrong, followed incorrect procedures or said something that was found to be false.
NO CONFLICT FOR TRUTH
NFL Commissioner Roger Goodell has had a tough year. First, he turned to Robert Mueller, former FBI director and current partner at Wilmer Cutler Pickering Hale & Dorr, to conduct an independent investigation of how Goodell and the NFL handled a February 2014 domestic abuse incident involving then-Baltimore Ravens running back Ray Rice. One of the major sticking points was whether or not Goodell and other NFL officials had lied about viewing a surveillance video of Rice striking Janay Palmer, now his wife, in an elevator in Atlantic City before the video was publicly released by TMZ seven months later.
Then, during Super Bowl week, he had to call on Ted Wells—a partner at Paul, Weiss, Rifkind, Wharton & Garrison—to lead an investigation into allegations that the New England Patriots illegally deflated several footballs during the team’s AFC Championship victory over the Indianapolis Colts. Wells is a familiar figure to Goodell, having previously conducted an internal investigation during the 2013-2014 season into allegations that former Miami Dolphins offensive lineman Jonathan Martin had been bullied by several teammates.
At the time Mueller was appointed, many sports reporters and commentators cried foul and pointed out that WilmerHale had worked on prior matters for the NFL, including two multimillion-dollar TV rights deals. When Mueller issued his report in January and cleared Goodell and the NFL of wrongdoing, the recriminations only grew louder.
“When you do something like hire an outside investigator like Ted Wells into the Patriots investigation, you’re still paying him—and Robert Kraft, who owns the Patriots, is still paying you,” said CNN journalist Rachel Nichols to Goodell during a press conference before the Super Bowl. “So even when you do everything right in one of those situations, it opens you guys up to a credibility gap with some of the public and even with some of your most high-profile players. What steps can you guys take in the future to mitigate some of those conflict-of-interest issues?”
Goodell replied that Wells and Mueller have impeccable credentials and credibility and opined that “someone has to pay them.” “These are professionals that bring an outside expertise and an outside perspective, and their conclusions are drawn only by the evidence and only by the attempt to try and identify that truth,” Goodell said. Wainstein notes that there really shouldn’t be any conflict between the duty to client and the duty to find the truth.
“The premise of an independent investigation is that those two interests are aligned—it’s in the client’s interest that the investigation be perceived as, and is, completely independent and uninfluenced by the client,” says Wainstein, who joined Cadwalader in March 2012.
Of course, the reality is that negative information can have major implications for the client. “How you balance that is you go into it with a clear understanding that your job is to find the facts wherever they may lead,” Wainstein says.
In the initial public announcement of his appointment, he says, the university stated clearly that he was independent; and during a public meeting in June with the UNC board of governors to go over some of his preliminary findings, the university reiterated his independence. “That gave me comfort,” he says. “There was no ambiguity as to what my mandate was.”
However, Monroe Freedman, a legal ethics expert and professor at the Maurice A. Deane School of Law at Hofstra University, questions how independent these types of investigations can truly be. For one thing, Freedman says, a lawyer who has history with a client before undertaking an independent investigation could well be in violation of Rule 1.7 of the ABA Model Rules of Professional Conduct.
“If there’s a significant risk that the lawyer’s personal interest might be affected by what the lawyer is investigating, then you have a conflict at that point,” says Freedman, who specifically referred to Jenner & Block’s representation of GM. Jenner has represented the company for more than a decade, most notably on its 2010 initial public offering. Valukas declined to comment on his investigation of GM’s ignition systems. Instead, Freedman says, having neutral third parties perform independent investigations would be the ideal scenario. “It’s certainly possible that a client really doesn’t want a legitimate investigation,” he says with a laugh.
Penn State football is basically back to where it was prior to Sandusky becoming a national name for all the wrong reasons. The 112 victories stricken from the school’s record have been restored. The sanctions imposed on Penn State in the wake of the scandal have, more or less, been lifted.
But the scandal continues to follow the university, and many Penn State officials feel the school has been irreparably damaged by the findings of the Freeh report, an independent investigation conducted by former FBI Director Louis Freeh in 2012 at the behest of the school—and at a cost of $8.1 million. Nowhere was that more apparent than on the morning of Oct. 28, 2014, when the Penn State board of trustees got together for a long-overdue discussion about the events that brought disgrace upon the once-proud university, its football team and its legendary coach. The focus of the meeting, however, was not on Sandusky and what went wrong with the school’s handling of the scandal. Rather, the meeting was held to determine whether the school would challenge the findings of the Freeh report.
Several board members (and many alumni) were angry that the report was so critical of Penn State, and they questioned Freeh’s methodology, techniques and conclusions. Many more were upset that it had taken so long to raise issues with the report and were critical of Freeh for being judge, jury and executioner of the school’s academic and athletic reputation. Ultimately, the trustees voted not to challenge the findings at this time, but they could in the future.
Trustee Robert Jubelirer pointed the finger squarely at Freeh, demanding to know why the investigator, who served as 2013-2014 chairman of Pepper Hamilton, hadn’t made any public statements about his report in months and wasn’t present at the meeting. “We’ve watched ourselves be belittled and be labeled,” Jubelirer said. “Where is Louis Freeh? Why hasn’t he come in to explain himself? His report is controversial and has damaged this university.”
Indeed, one recent high-profile investigation ended in disharmony after the investigating attorney felt his independence had been compromised by the organization that hired him. In 2012, Kirkland & Ellis partner Michael Garcia was hired by FIFA, the international governing body for soccer, to investigate allegations of bribery and corruption relating to FIFA’s decision to locate the 2018 World Cup in Russia and the 2022 World Cup in Qatar.
Garcia completed his report in September 2014, but FIFA decided not to release it. Instead, FIFA’s head of the adjudicatory arm of the ethics committee, Hans-Joachim Eckert, released a summary of Garcia’s findings and largely cleared Qatar and Russia of wrongdoing.
Garcia publicly criticized the summary as a misrepresentation of his report and appealed Eckert’s decision to the FIFA appeal committee. “Today’s decision by [Eckert] contains numerous materially incomplete and erroneous representations of the facts and conclusions detailed in the investigatory chamber’s report,” Garcia said in a statement released by Kirkland & Ellis. After the appeal committee declined to release his report, Garcia resigned as investigator.
“It is the lack of leadership on these issues within FIFA that leads me to conclude that my role in this process is at an end,” Garcia said in a statement.
A LEGAL GIANT DISAGREES
One of the most prominent critics of Freeh’s report is a fellow giant in the legal profession. Now of counsel at K&L Gates in Washington, D.C., Richard Thornburgh formerly served as governor of Pennsylvania as well as U.S. attorney general under Presidents Ronald Reagan and George H.W. Bush.
In the Penn State case, Thornburgh was retained by Paterno’s family to do an independent investigation of Freeh’s report. In his findings, Thornburgh argued that Freeh unfairly lumped Paterno in with other Penn State officials to make it seem like there was a grand conspiracy to cover up Sandusky’s actions.
“In my opinion, the Freeh report is seriously flawed, both with respect to the process of [Freeh and his law firm’s] investigation and its findings related to Mr. Paterno,” Thornburgh wrote. “The lack of factual support for [Freeh’s] inaccurate and unfounded findings related to Mr. Paterno and its numerous process-oriented deficiencies was a rush to injustice and calls into question the credibility of the entire report.”
Thornburgh maintains that the fact he was hired by the Paterno family had no bearing on his report. For his most well-known investigations, including the WorldCom bankruptcy in 2002 and news commentator Dan Rather’s use of later-discredited documents on President George W. Bush’s military service for a 60 Minutes Wednesday report in 2004, Thornburgh says he made sure he and his firm had not previously worked for the companies in question before taking on the investigation.
“To be truly independent, you have to have no knowledge of the enterprise’s operations,” Thornburgh says. “That’s not to say you have no idea, but a report would lose credibility if it were carried out by a firm that had long-term connections with the organization in question.”
He also states that his objective was not to find flaws in the Freeh report, but to determine if there were flaws in the report pertaining to the former PSU head coach. “Our engagement was to critique the Freeh report strictly from the basis of Mr. Paterno’s alleged involvement,” Thornburgh says. “Our critique found some gaping holes and conclusions we felt weren’t justified.”
Freeh, who was involved in a serious car accident last August, declined to comment for this article. However, in a statement released in February 2013 following Thornburgh’s report, Freeh called the report self-serving and maintained that it did not change the facts established in his own report.
Citing emails, news reports, grand jury transcripts and other documents, Freeh doubled down on his conclusions. He pointed out that Paterno refused to speak with him. And Freeh mentioned that he included in his report documents that were turned over to him by Paterno’s lawyers.
“I stand by our conclusion that four of the most powerful people at Penn State failed to protect against a child sexual predator harming children for over a decade,” Freeh’s statement reads. “These men exhibited a striking lack of empathy for Sandusky’s victims by failing to inquire as to their safety and well-being.”
Freeh also couldn’t resist including this little factoid: In 1989, then-Attorney General Thornburgh personally selected Freeh to investigate the bombing murders of a federal judge and a civil rights leader in Georgia, and Thornburgh repeatedly praised Freeh’s investigative skills.
BASEBALL AND DRUGS
This level of criticism goes with the territory. Mitchell certainly took a lot of flak after releasing his report on performance-enhancing drugs in Major League Baseball. The former senator was accused of a conflict of interest due to his position as a director with the Boston Red Sox.
The report, which named 89 former or active ballplayers in its probe of the hidden use of steroids and other performance enhancers, named 12 who were current or former members of the Red Sox organization, compared to 22 for the team’s hated rivals, the New York Yankees. In subsequent years, Red Sox sluggers Manny Ramirez and David Ortiz were both linked to performance-enhancing drug use, but neither was named in the Mitchell report.
Mitchell disputes any notion of a conflict of interest. “[During the investigation] I withdrew from any participation with the Red Sox. There was no communication of any kind with them while it was going on,” says Mitchell, who notes that he resumed his relationship with the team once the investigation was over.
“It’s always the case that someone will be critical.” Mitchell, however, argues that there has been virtually no valid criticism of his methods or his findings.
In the meantime, Mitchell will keep himself busy with another investigation relating to Penn State. The DLA Piper partner, who works out of both D.C. and New York City, has been hired by the NCAA to monitor Penn State’s compliance with sanctions imposed in the wake of the Sandusky scandal.
“When [NCAA President] Mark Emmert first called me, I was still sitting as President Obama’s special envoy to the Middle East,” says Mitchell. “He needed someone right away and I told him I couldn’t do it. When I became available, he then asked me to serve as independent monitor.”
In 2012, the NCAA not only vacated 112 Penn State victories; it also imposed additional sanctions. The NCAA cut Penn State’s football scholarships from 25 per season to 15 and banned the school from postseason play until 2017.
Mitchell’s report, released independent of the NCAA’s decision to restore those 112 wins, praised PSU for its compliance and recommended the scholarships be restored and the postseason ban be lifted, recommendations that the NCAA accepted. He even suggested that his monitorship be cut short provided that Penn State continues to demonstrate its compliance.
UNC’s fate remains in the hands of the NCAA. However, if the Penn State sanctions are any indication, then Chapel Hill can prepare itself for more independent investigations. In the meantime, Wainstein says he’s looking forward to the next investigation that comes across his desk.
“There’s probably going to be an increasing demand by universities for outside parties to come in and investigate allegations of misconduct,” he says. “That work is right in our strike zone.”
This article originally appeared in the May 2015 issue of the ABA Journal with this headline: “The Probers: These lawyers find fame and flak running high-profile investigations.”