In Rusty's Shadow

August 20, 2002
Reprinted with permission from The American Lawyer, August 2002

There was no doubt during the six-week trial in steamy Houston who was the public face of the defense of Arthur Andersen LLP. The charismatic Russell "Rusty" Hardin, Jr., of Houston 's five-lawyer Rusty Hardin & Associates, seemingly handled everything, alternately charming the jury and irritating the judge. And even though the jury convicted his client and doomed its business, Hardin got the credit for making the trial less lopsided in the government 's favor than originally assumed.

But behind the scenes, of course, it wasn't just the Rusty Hardin show. Rarely has a small-firm trial lawyer had this kind of supporting crew. Besides two lawyers from his own firm, Hardin was backed by a team of more than a dozen partners and associates from Andersen 's heavyweight outside counsel team at three firms: New York's Davis Polk & Ward-well; Chicago 's Mayer, Brown, Rowe & Maw; and New Haven's Wiggin & Dana.

The division of labor was fairly standard for a show trial. While Hardin took the public role, others on the team handled appellate issues, along with briefing and witness preparation. Davis Polk 's Denis McInerney sat second chair, taking the lead on law arguments during trial, along with Lee Rubin and Charles Rothfeld, partners in Mayer, Brown 's Washington, D.C., office. The team also included one in-house lawyer from Andersen, Kerry Miller, but no trial consultants. "It was sort of a virtual law firm from three different firms, plus Rusty's," says Richard Favretto, a partner in Mayer, Brown.

As far as the jury was concerned, though, it was all Hardin, all of the time. And Hardin says that he never had to watch his back. "They totally submerged their ego," he says of the others on the defense team.

Andersen needed local counsel after it was named in numerous Enron-related shareholder and securities fraud suits being filed in state and federal courts in Houston. Davis Polk's McInerney suggested Hardin, a friend since 1994, when they both worked on the Whitewater prosecution. As the Enron situation worsened over the next few weeks, McInerney says, the firm also brought in lawyers from Wiggin & Dana and Mayer, Brown to assist. After Andersen was indicted on March 14 on a charge of obstruction of justice for destroying Enron documents -- and after Mayer, Brown 's role had eclipsed Davis Polk 's amid questions about Andersen's preindictment strategy -- Hardin took the lead on the criminal defense.

During the trial, the lawyers met each morning in a war room in Arthur Andersen's offices, located two blocks from the federal courthouse in downtown Houston. At lunch, McInerney says, they would go back to the Mayer, Brown offices in Houston. After court, the lawyers would return to the war room, where Hardin and McInerney would update the team on the day 's proceedings. The lawyers would break off into groups each evening to get ready for the next day, part of an intense ritual that began after the indictment on March 14, when Andersen demanded a speedy trial.