17 Corporate Crime Reporter 21(13) , May 26, 2003

INTERVIEW WITH DAN WEBB, PARTNER, WINSTON & STRAWN, CHICAGO, ILLINOIS

As a federal prosecutor, Dan Webb sent to jail judges and lawyers in the infamous Operation Greylord prosecutions in Chicago in the 1980s. And as a prosecutor in the Iran-Contra Affair, he brought down Reagan Administration official John Poindexter.

For the past sixteen years, as partner at Chicago's Winston & Strawn, he's represented Microsoft, McDonald's, Philip Morris and General Electric.

He has defended public officials like former Congressman Dan Rostenkowksi.

According to a poll conducted last week, he's considered the go to guy among his colleagues in the white collar crime defense bar. (See "Webb, Keker, Weingarten," page one)

He refuses to identify his current clients, saying that "most of the white collar crime cases I'm working on now are at the grand jury stage, and indictments have not been returned at this point."

"I'm working with several major corporations, as well as individuals," he says.

He needs to do the interview quickly, he says, because he is preparing for a trip to Alabama.

"Can you say whether you are involved in the HealthSouth matter?" we ask.

"I cannot," he responds.

We interviewed Webb on May 20, 2003.

CCR: You graduated from Loyola University School of Law in 1970. What have you been doing since?
WEBB: As soon as I graduated from law school, I immediately took a job in the U.S. Attorney's office in Chicago. I always wanted to try cases.

For the next several years, I got a chance to try a lot of big criminal cases, and gain a lot of experience. I fell in love with white collar crime practice. Six years later, I set up a boutique law firm for a couple of years.

When my friend Jim Thompson became Governor of Illinois, I left to head up a statewide law enforcement agency called the Illinois Department of Law Enforcement.

I did that for about a year, but I missed the courtroom. So, I returned to private practice, and set up another small boutique law firm to handle white collar crime work.

Then, during Ronald Reagan's first term, I was recruited to become the U.S. Attorney in Chicago. Senator Percy nominated me, President Reagan appointed me, and I became U.S. Attorney in Chicago.

That was in 1981 during the first Reagan term. I handled a number of big cases and left after one term to return to private practice. And for the last 17 years, I have been at Winston & Strawn in Chicago, where I have been doing white collar crime work and major commercial litigation.

CCR: What years were you U.S. Attorney?
WEBB: From 1981 to 1985.

CCR: While there, you prosecuted Operation Greylord.
WEBB: Yes. Operation Greylord was a major undercover project focused on uncovering and detecting judicial corruption in the Circuit Court of Cook County. Tom Sullivan, my predecessor as U.S. Attorney, started the project.

I picked up the project in mid-stream and completed it. We returned the first group of Greylord indictments. I personally tried a number of the major Greylord cases as a trial lawyer.

It eventually was billed by the FBI as their most significant undercover project ever. It led to the indictment of scores of judges, lawyers, clerks, policemen.

We had FBI agents posing as corrupt defense lawyers and criminals.

It was very controversial, but the courts upheld it. It exposed significant corruption in the Circuit Court of Cook County and led to institutional reforms that are still there today.

CCR: Looking back on that operation, do you have doubts about the way it was handled?
WEBB: Not at all. We manufactured the cases. That's the only way we could ever have detected the corruption. I am pleased with the project and pleased that it withstood all legal challenges.

CCR: You also prosecuted John Poindexter in the Iran-Contra cases.
WEBB: I had gone back into private practice, and I was recruited by Judge Walsh, who was the Independent Counsel. They had basically lost the Oliver North case.

The Poindexter case was coming to trial and Judge Walsh contacted me and said that he was looking for a top-flight trial lawyer to try the Poindexter case.

I took that case on -- I didn't leave private practice. I just took on the title of independent counsel for that one case.

CCR: How long have you been with Winston & Strawn?
WEBB: Since 1985 -- 17 years.

CCR: You have represented Microsoft, McDonald's, General Electric in beating criminal antitrust charges in Ohio. A headline in Business Week a couple of years ago asks "Can Dan Webb Pull Big Tobacco Out of the Fire?" Did you?
WEBB: I don't think so. I have done a lot of product liability trial work for Philip Morris.

I have been successful in some cases and unsuccessful in others.

CCR: What cases are you working on now?
WEBB: Most of the white collar crime cases I'm working on now are at the grand jury stage, and indictments have not been returned at this point. I'm working with several major corporations, as well as individuals.

CCR: Can you say whether you are involved in the HealthSouth matter?
WEBB: I cannot.

CCR: We did a survey this week of white collar criminal defense attorneys and asked them -- if you were the target of a criminal investigation, who would you hire to defend you? You came out on top of the list. What are the attributes of a good criminal defense attorney in the white collar area?
WEBB: A person has to be willing to spend an enormous number of hours dedicated to the client -- because that is what it takes.

Second, it takes a certain amount of judgment and experience to analyze a fact situation and find a path to follow.

I have found over the years in representing white collar defendants that it is critically important that the defense lawyer master the facts quickly and then find a strategy to follow.

That strategy might be a strategy to defeat the indictment, but you always have to be looking down the road anticipating that you will not be able to avoid the indictment.

And you have to be always thinking -- how am I going to be presenting this case to the jury?

From the day that you begin your representation until the day it is over, you can't lose the focus on that singular theme -- how am I going to sell this case to a jury?

That's the key to success of a white collar practitioner. That and a lot of hard work.

CCR: On individual clients, what was the one that stands out.
WEBB: There are two. Congressman Dan Rostenkowski. That eventually did not go to trial. We ended up agreeing to a plea deal right before trial.

Congressman Rostenkowski and I became very close friends, and it was a case that I believed in very deeply. I was looking forward to a chance of getting an acquittal at trial, but we made a decision at the last minute to accept a deal.

CCR: How much jail time did he do?
WEBB: I think it was two years.

The other representation was a case that I lost. It was the most difficult defeat in my career. I represented the Chief Judge of the Chancery Court of the Circuit Court of Cook County, David Shields in a public corruption case.

I was convinced that he was innocent. I tried the case to verdict, and I lost because of a tape recording that convinced the jury that he was guilty.

I have never quite gotten over that defeat.

It was a case that I thought I should have won, and I was very disappointed.

One of the things about trying a case as a criminal defense lawyer -- you do lose one once in a while and it is a very painful experience.

CCR: How much time did he do?
WEBB: I think it was three years.

CCR: How has the practice changed over the past 20 years or so?
WEBB: In 1970, the passage of the federal RICO law had a significant impact on the white collar crime practice. It expanded the way that the government could charge crimes.

Also, the ability to do deals in criminal cases has eroded significantly because of the federal sentencing guidelines. No longer can judges and lawyers sensibly resolve cases. This now forces cases to go to trial that should be resolved.

The third major change is that the cases are becoming more and more complex and therefore, ultimately, easier for defense lawyers to win in front of a jury, because if jurors don't understand a case, then the defense lawyer has a better chance of winning.

CCR: Were you involved at all with the defense of Arthur Andersen?
WEBB: No. I was contacted about the possibility of becoming involved, but I was just starting the Microsoft trial, and could not get involved with it.

CCR: Any judgments on the Arthur Andersen prosecution and the result?
WEBB: I questioned the wisdom of the Justice Department indicting a major accounting firm for the wrongdoing of a few people. I'm not sure what was accomplished by that. In the final analysis, a major accounting firm is now out of business, and thousands of people are out of jobs.

I'm not quite sure what the criminal justice system accomplished by indicting and convicting Arthur Andersen.

There would have been other ways to handle that case with appropriate administrative and civil penalties that would have punished the company, but not caused the destruction of a major firm because of the wrongdoing of a few people.

I personally question the wisdom of that strategy.

CCR: Is the government spending adequate resources on the fight against white collar and corporate crime? Or is much of it rhetorical?
WEBB: I believe that the Justice Department is truly committed to exposing misconduct at high levels of corporations. It's a sincere effort.

I'm pretty busy flying around the country, representing a number of people involved in allegations of wrongdoing.

The Department of Justice is clearly spending significant resources, particularly in certain key cities.

CCR: On fraud?
WEBB: On business crimes and public corruption.

CCR: Are public corruption prosecutions on the uptick?
WEBB: I'm not sure.

CCR: The Public Corruption unit at the Justice Department is one of the more secretive though.
WEBB: There are some major public corruption cases around the country that are under investigation. It appears to me that the Department of Justice is focusing heavily on major business fraud and significant public corruption cases.

CCR: Although, environmental crimes prosecutions are way down. We reported on this a couple of weeks ago.
WEBB: That could very well be as the result of the public policies of the Bush Administration. Environmental crimes were always in a special category. Those cases were almost always resolved with pleas and fines.

I don't think anyone ever viewed environmental crimes to be the in same category as major business crimes and major public corruption crimes.

There really is no comparison.

Environmental crimes are almost strict liability crimes, they are easy to prosecute, and they result in pleas of guilty.

I always questioned how much impact those prosecutions had on cleaning up the environment. Probably administrative and civil actions have had a much greater impact.

CCR: What is your sense of the balance between the civil and the criminal cases being brought in the Wall Street cases?
WEBB: The verdict is still out. Because of all the massive press involving alleged corporate wrongdoing, there is a fear that cases that should be resolved by administrative and civil penalties will be addressed criminally because of overreaction.

The fear is that too many cases will end up being prosecuted that don't meet normal federal prosecutorial guidelines.

Whether or not that is actually going to occur -- it is too early to tell.

CCR: Any insight into Michael Chertoff's tenure as head of the Criminal Division and why he left?
WEBB: I know him personally. He did a fine job, and I have a lot of respect for him. I can second guess his judgment in indicting Andersen, but I respect him and view him as an honorable prosecutor who was dedicated to his job.

CCR: Did the Justice Department prosecutors get burned by the Andersen prosecution, and perhaps are now swinging the other way -- maybe not bringing prosecutions they should be bringing?
WEBB: I don't know.

CCR: Do you miss being a prosecutor?
WEBB: I loved being a prosecutor, but I always liked the defense lawyer role a little better, simply because it is more challenging.

Many people -- when they leave the prosecutor's office -- have withdrawal pangs and sometimes don't enjoy the private sector -- that's just not the case for me.

I really enjoyed my years as a prosecutor.

They were challenging years. I really felt good about it. But the honest to God truth is that I enjoy being a criminal defense lawyer more simply because I find the challenges greater.

It is a lot easier to win cases as a prosecutor than it is as a defense lawyer in the federal criminal justice system.

CCR: Even though the federal prosecutors are outgunned in terms of resources in major corporate crime cases?
WEBB: I don't think that is accurate. The Department of Justice has enormous resources. If they want to focus resources on a given area, they have the resources to do it. I don't think the federal government is being outresourced.

On major criminal cases, white collar defendants have no choice but to hire a strong legal team.

And it takes a formidable force to go against the Department of Justice.

White collar defendants don't have any choice.

If they don't get a strong legal team, they get rolled over.

CCR: It has been said that since 9/11, resources have been stripped from the white collar crime task forces and funneled to fighting terrorism.
WEBB: Our whole nation changed as a result of September 11. I have no inside knowledge on how the Department of Justice deployed their resources, but I certainly would have expected them to focus their resources on terrorism. There are only so many resources.

There may have been a cutback in some areas, but from my practice, I didn't sense a reduction in focus on business crimes and public corruption after September 11.

I don't have the data, and I didn't notice anything significant.

CCR: You deal with corporate executives on a daily basis. Any sense as to the deterrent impact on these executives from the prosecutions and publicity surrounding the prosecutions of white collar crimes -- WorldCom, Andersen, Enron, and so on?
WEBB: Because of the publicity, as well as Sarbanes/Oxley, there clearly is a heightened sensitivity at the top levels of American corporations to dot the i's and cross the t's and make certain that judgment calls err on the side of caution.

Companies want to avoid the problems experienced by certain companies that have been damaged by internal misconduct.

CCR: When you do an corporate internal investigation, do you come across executives who don't want to cooperate with you?
WEBB: I don't face that problem. When I'm conducting a white collar crime internal investigation, and the top level executives tell other executives and employees to cooperate, they cooperate.

I've never run into a problem, unless an employee honestly believes because of advice received, that he or she should invoke the Fifth Amendment.

When you are conducting an internal investigation, you have to respect the individual's Fifth Amendment rights.

Second, the corporation then has to make a decision as to what to do with an employee who is invoking the privilege, as opposed to cooperating.

Corporations differ as to how they react to that situation.

CCR: What portion of your practice is defense, what portion is plaintiff's work? I noticed from the news reports that you are representing on the plaintiffs side one of the Pritzker children seeking to get back some of the fortune.
WEBB: I have a varied and interesting litigation practice.

My practice is split about 40 percent white collar crime, and 60 percent major commercial litigation.

That varies from year to year depending on what I'm doing.

In the area of major commercial litigation, it is about 80 percent defense and 20 percent plaintiff.

CCR: What side of the divide do corporate internal investigations fall?
WEBB: On the white collar crime side. I wrote a book, Corporate Internal Investigations, Law Journal Seminars Press, 1993-1998, with colleagues.

And I spend a lot of time doing those corporate internal investigations.

CCR: What percentage of your white collar cases are individuals compared to corporations?
WEBB: It is about 60 percent corporations and 40 percent individual.

CCR: What is it about your practice that gained you this reputation as the best white collar criminal defense attorney?
WEBB: I always thought I had a pretty good relationship with my brothers and sisters in the white collar crime bar.

They include some of the best trial lawyers in the United States, and many are close personal friends.

[Contact: Dan Webb, Winston & Strawn, 35 West Wacker, Chicago, Illinois 60601. E-mail: [email protected]. Telephone: (312) 558-5856]