The name Harris Weinstein strikes fear in the hearts of many savings and loan lawyers. The reason: The headstrong chief counsel at the Office of Thrift Supervision has been belting their colleagues with tough enforcement actions.
Some lawyers think he is unfairly holding them to standards stricter than had been considered the norm.
In fact, Mr. Weinstein's tactics have generated so much controversy that the American Bar Association has convened a task force to look into his handling of receivership cases. The legal group forms task forces only in cases of extreme controversy, like the beating of Rodney King by the Los Angeles Police Department.
Sparking the professional outcry was Mr. Weinstein's $275 million action March 3 against Kaye, Scholer, Fierman, Hayes & Handler, a prominent New York firm that had represented Charles Keating's Lincoln Savings and Loan Association.
Mr. Weinstein accused the 350-partner law firm of playing a role in Lincoln's failure, expected to cost the government $2.9 billion, by conduct that included lying to federal regulators. He brought Kaye Scholer to its knees by using a regulatory cease-and-desist order to freeze its assets and those of three partners. Five days later, the firm settled for $41 million.
In May, Mr. Weinstein struck another raw nerve when James S. Fleischer, a thrift attorney for the Washington firm of Silver, Freedman & Taft, consented to pay $600,000 in restitution for rendering an unqualified legal opinion in 1985 for Lincoln. Mr. Fleischer's only alternative to paying would have been to take on the powerful agency in an expensive and protracted court fight. He neither admitted nor denied wrongdoing.
In rendering an opinion, "Fleischer was doing something thousands of attorneys do every day," said Keith Fisher, chairman of the American Bar Association's task force on liability counsel representing depository institutions.
Lawyers fear that the agency's suits establish a precedent that would create a fiduciary duty to the government for lawyers representing insured depository institutions. "What they are trying to do is turn attorneys into auditors and investigators," said one Washington lawyer, who requested anonymity.
The Debate Gets Personal
"It's impossible for lawyers to do what he [Mr. Weinstein] would like them to do," said John Deal, a savings and loan attorney in Columbus, Ohio, with the law firm of Emens, Kegler, Brown, Hill & Ritter. "A lawyer does not sit in the meeting and discuss the financial ratios with people who make loans."
The debate, once purely intellectual, has become acutely, sometimes humorously, personal.
Addressing a professional group, Mr. Weinstein, 57, a man of modest height, said he had met at the door a man who greeted him, "I didn't realize that Darth Vader was so short."
Still, the regulator said, his relationship with fellow lawyer is cordial overall. "My old friends continue to be my old friends," he said. "My sense is most people understand what I'm saying. It is a professional discussion."
Mr. Weinstein, who left a 28-year career as a litigator with Covington & Burling to join the agency in 1990, denies he has changed the rules. "There are a couple of lawyers out there who try to trot out statements they know I haven't made and wouldn't make," he said. "I want lawyers to generally do what all of us do -- give our clients solid, objective advice."
He is trying to hammer home three basic principles: S&L lawyers should not help clients do anything illegal, should not mislead regulators, and must bring matters up the corporate ladder to the top if they think the thrift is involved in an activity that could jeopardize its safety and soundness. (If the people at the top don't listen, Mr. Weinstein said, the firm should consider dropping the institution.)
One lawyer who represents a thrift trade group said he had heard Mr. Weinstein discuss these points and the demands on lawyers seemed reasonable.
Lawyers who disagreed said that they could not argue with the first two principles, but that the idea of bringing questionable matters to the board made them uneasy.
"A number of his interpretations of ethical responsibility are novel," said the bar group's Mr. Fisher. "I don't know anyone of note in the private bar who endorses Mr. Weinstein's ideas. His theories are protean; the details change every time you try to pin him down."