PART B THE RELATIONSHIP OF MADISON GUARANTY, CMS, AND THE ROSE LAW FIRM Chapter 2: Aftermath of the McDougals' Involvement with Madison Guaranty -- Federal Investigations and Attempted Cover-Ups (1986 to 1999) I. INTRODUCTION This Chapter summarizes the evidence relating to events occurring after July 1986, when the federal regulators removed the McDougals as directors of Madison Guaranty. Madison Guaranty subsequently failed, costing the American taxpayers in excess of $73 million. Various federal investigators examined the causes of and responsibility for that failure. In the main, this Chapter is the story of those investigations and the evidence relating to efforts to avoid and evade the investigators' scrutiny by those suspected of responsibility for the bank's failure. It is also the story of how some members of the Rose Law Firm, particularly Webster Hubbell, concealed the firm's prior representation of Madison Guaranty from the Resolution Trust Company ("RTC"), in an effort, at a minimum, to continue to generate revenue by representing the RTC. As with all failures of financial institutions, the responsible federal agencies -- the Federal Home Loan Bank Board ("FHLBB"), Federal Deposit Insurance Corporation ("FDIC") and, later, the RTC -- examined the operations of Madison Guaranty to determine what went wrong and who was responsible. Typically, when an institution fails, the federal agencies look at the conduct of all of the professionals who had responsibility for the institution's conduct and whose action (or inaction) might have contributed to the institution's failure. For example, federal agencies typically examine the conduct of the directors and officers of the institution, to determine if the directors and officers exercised the appropriate duty of care in overseeing the institution; they examine the conduct of the institution's auditors to determine if the auditors were negligent in failing to account for the institution's books; and they examine the conduct of the attorneys who performed legal services for the institution to determine if their legal work 247 contributed to the losses by and failure of the institution. In this regard, Madison Guaranty was not appreciably different from any other savings and loan association. After the McDougals were dismissed, the board of directors hired the law firm of Borod & Huggins to conduct a thorough review of the thrift's practices. Because the review uncovered substantial evidence of criminal conduct, Madison Guaranty referred the matters to the FHLBB and the FBI, which then conducted a criminal investigation. Madison Guaranty also initiated a lawsuit against Frost & Company ("Frost"), its auditing firm, charging that Frost had been negligent in its failure to uncover Jim McDougal's frauds. Madison Guaranty was placed into a conservatorship by federal regulators in March 1989. Thereafter, managed by the FDIC and, later, the RTC, Madison Guaranty continued the lawsuit against Frost and began considering suits against other professionals -- for example, Madison Guaranty's principal outside counsel, Mitchell, Williams, Selig & Tucker. The FDIC replaced the original outside counsel with the Rose Law Firm, which handled the Frost lawsuit until its conclusion in 1991. Conduct that negligently contributes to the failure of a institution can result in civil liability. The same conduct, if knowing and deliberate, generally constitutes a federal criminal offense. Accordingly, in early 1987 the FBI began investigating Madison Guaranty. In 1989 and 1990, that investigation resulted in the guilty plea of thrift president John Latham and the indictment (and acquittal) of Jim McDougal. Following additional investigation, in September 1992, the RTC sent a criminal referral related to Madison Guaranty to the U.S. Attorney for the Eastern District of Arkansas and the FBI Little Rock field office. The referral listed the McDougals as suspects and the Clintons as witnesses. In the fall of 1993 the RTC sent nine 248 additional criminal referrals relating to Madison Guaranty to the U.S. Attorney for the Eastern District of Arkansas. These criminal referrals led to investigations by that U.S. Attorney's office, then by the Fraud Section of the Criminal Division of the U.S. Department of Justice, and then by regulatory Independent Counsel Robert Fiske, who was replaced in August 1994 by statutory Independent Counsel Kenneth Starr. In 1987 Seth Ward sued Madison Guaranty to collect on the fictitious cross-loan note issued to him, claiming that it was a valid and lawful obligation owed by Madison Guaranty. Initially, in 1988, Ward's suit was successful and he received a favorable judgment from the Court. Webb Hubbell monitored the trial proceedings and then assisted Ward in his efforts to collect the judgment. Ward and the RTC ultimately settled the matter. Thus, each of the three pending investigations -- the civil investigation of Madison's failure; the criminal investigation of the failure; and Ward's suit on the fraudulent cross-loan note -- implicated the conduct of attorneys at the Rose Law Firm. They had provided professional services to Madison Guaranty and, particularly, had provided legal counsel in connection with the cross-loan. When, as it did in 1989, the FDIC takes over a failed institution and conducts a civil lawsuit against the professionals who provided services to the bank, the FDIC does not, typically, use its own attorneys to bring the suit. Rather, the FDIC (and RTC) hire outside counsel to represent them (and the failed institution) in the suit. In choosing whom to hire, the FDIC carefully screens potential lawyers and implements certain rules, known as conflict of interest rules. These conflict of interest rules serve two functions: First, broadly and generally, the FDIC 249 only hired law firms that were representing the FDIC on behalf of other failed institutions; it rarely hired any firms that represented, for example, directors, lawyers, or accountants who had been charged with negligent conduct. Second, and more particularly, because a law firm's earlier work for an institution that failed was, itself, subject to potential examination, the FDIC generally would not hire a law firm to represent the failed institution in a suit against professionals if the law firm had, itself, provided professional services to the bank that might arguably have contributed to the institution's losses. The FDIC's conflict of interest rules also served an important function in ensuring the FDIC's success in lawsuits it brought on behalf of failed institutions. Typically, when a professional is sued by a failed institution for negligence, the professional answers by asserting that his conduct was not negligent. The professional will frequently invoke the greater negligence of other professionals as a defense of his own conduct. Thus, for example, the accountant will say (as Frost & Co. did) that the officers or directors engaged in fraud and that the lawyers were the truly negligent party. The FDIC's conflict of interest rules were, therefore, vital to insure that by hiring only law firms that had no connection to the failed institution, the FDIC's lawyers would never be the subjects of a counter-charge of negligence. The FDIC was entitled to be certain that the lawyers it hired aggressively sought recovery from any and every source responsible for causing the loss to the depositors and the American taxpayers without having to wonder if the lawyers were hesitating because of prior relationships the lawyers had with the prospective defendant. The partners at the Rose Law Firm were painfully aware of these conflict of interest rules. 250 In the mid-1980s Rose had failed to disclose a significant conflict of interest resulting from prior work done by one of its partners, Joseph Giroir, to the FHLBB, another federal regulatory agency. As a result, when the conflict was discovered Rose was denied the opportunity to work for the FHLBB. Worse yet, Giroir and Rose were threatened with suit by the federal government and ultimately paid a substantial settlement to the United States because of losses to the institution arising from loans on which Giroir and Rose had worked. In 1989, Rose (specifically Webb Hubbell) was hired to represent the FDIC's interest on behalf of Madison Guaranty in the Frost litigation. In securing the FDIC as a client, Rose and Hubbell concealed substantial conflicts of interest from the FDIC (and later the RTC). Hubbell failed to disclose: 1) Rose's and Mrs. Clinton's prior work for Madison Guaranty on Castle Grande; 2) his own representation of his father-in-law, Seth Ward, in connection with Ward's suit against Madison Guaranty; and 3) Rose's use of a Frost audit while representing Madison Guaranty before the Arkansas Securities Department ("ASD"). Rose and the RTC eventually settled the suit against Frost for $1 million. Rose's and Mrs. Clinton's connection to the failed Madison Guaranty became a matter of media interest in early 1992, as Governor Clinton was campaigning for President. Vince Foster, Webb Hubbell, and Mrs. Clinton reviewed Rose's and Mrs. Clinton's past representation of Madison Guaranty in order to respond. Rose Law Firm files and its Madison Guaranty billing records were retrieved from storage and examined by Hubbell and Foster. Foster annotated at least one copy of the billing records with some notes to Mrs. Clinton. Foster created a chronology of the representation; and Mrs. Clinton and Foster drafted a statement that ultimately 251 was not released. After Governor Clinton's election in November 1992, billing records and original files detailing Rose's and Mrs. Clinton's work for Madison Guaranty were removed from the firm. Later, in 1993 the press reported that in representing the FDIC and the RTC in the Frost litigation, Hubbell had deliberately concealed Rose's prior connection to Madison Guaranty. These allegations caused those federal agencies to examine whether Rose had violated their conflict of interest rules. The FDIC Legal Division conducted an examination, and, based upon the statements of then-Associate Attorney General Webb Hubbell, concluded that Rose's conduct was proper. At Congress's request, during 1994 and 1995, the FDIC's Office of Inspector General ("FDIC-OIG") and RTC's Office of Inspector General ("RTC-OIG") further examined Rose's representation of those agencies. Hubbell was referred for criminal prosecution for the false statements he had made to the FDIC-OIG and the RTC-OIG. Because substantial relevant evidence, particularly Rose's billing records, was not produced or provided, those agencies gave materially incomplete testimony to the United States Congress, particularly regarding Mrs. Clinton's role in the representation of Madison Guaranty, which they believed was minimal. It was not until January 1996, when Mrs. Clinton produced copies of Rose's Madison Guaranty billing records, that the investigators who had been involved in the FDIC-OIG and the RTC-OIG investigations understood the extensive legal work that she had done for Madison Guaranty. The FDIC-OIG then reopened its investigation (the RTC terminated on December 31, 1995, and its functions merged with the FDIC). The Independent Counsel ultimately prosecuted Hubbell for 252 concealing Rose's conflicts of interest and connection to Madison Guaranty, and he pleaded guilty to one felony count. This Chapter summarizes the evidence relating to these events. It begins with a summary of Hubbell's statements to the FDIC and RTC -- statements that misled those investigators. The Chapter then summarizes the evidence relating to two events occurring outside of the Rose firm between 1986 and 1992 -- the criminal investigation of Madison Guaranty and Ward's suit against Madison Guaranty. The Chapter then summarizes the evidence relating to Rose's conflict of interest dispute with the FHLBB and to Rose's representation of the FDIC and RTC in the suit against Frost. The Chapter concludes with a description of events relating to the 1992 campaign and the early months of the Clinton Administration relating to the Rose Firm's representation of Madison Guaranty. The evidence summarized in this Chapter is, in the judgment of the Independent Counsel, of dual significance. First, and most obviously, these facts are part of the historical record -- they have significance in their own right. Hubbell's conflict of interest and his concealment of those conflicts from the FDIC and RTC (both at the time Rose was retained and in his subsequent false statements to those agencies) resulted in his indictment in 1998 and his guilty plea to one felony count in 1999. Second, the historical record provides a background against which to measure subsequent claims by individuals who would be expected to have knowledge of past events that they do not recall those events. As detailed more fully in Chapter 3 of this Part, since the Department of Justice and Independent Counsel Fiske's investigations began in 1994, and continuing through 253 this Independent Counsel's investigation, many individuals, including Mrs. Clinton, testified under oath and asserted a lack of recollection of events relating to Rose's representation of Madison Guaranty. They asserted, for example, that the intervening ten years had dimmed their memories.995 Although it was true that the work had been performed ten years earlier, it was also true that these events had taken on renewed significance in the 1992 Presidential campaign, resulting in a more recent review by the participants of their previous conduct. Thus, the Independent Counsel fully considered the claims of lack of memory against the evidence of recently refreshed recollection. II. FINDINGS The Independent Counsel reports the following findings and conclusions: With respect to the initial investigations of Madison Guaranty: (cid:1)(cid:2) The FHLBB concluded that Madison Guaranty was insolvent and that Jim McDougal had diverted funds to himself and other insiders. (cid:1)(cid:2) The FHLBB concluded that the Castle Grande land transaction involved fraudulent "land flips." (cid:1)(cid:2) Madison Guaranty's outside counsel, Borod & Huggins, concluded in March 1987 that the McDougals used Madison Guaranty to benefit themselves and other insiders. (cid:1)(cid:2) Borod & Huggins also concluded that several individuals, including Seth Ward, may have engaged in criminal violations. With respect to the Rose Law Firm's solicitation of business from the FSLIC: 995 "Well, I did work. I just can't remember ten years from the work exactly what the work was." H. Clinton 4/22/95 Depo. at 43. 254 (cid:1)(cid:2) Rose asked to represent the FSLIC in the conservatorship of First South. (cid:1)(cid:2) The FHLBB asserted a malpractice claim against Rose because of Rose partner Joe Giroir's conduct. (cid:1)(cid:2) Rose partners, including Hubbell, Foster, and Mrs. Clinton, were made aware of the malpractice allegations. (cid:1)(cid:2) Rose settled the malpractice claim for $3 million, $500,000 of which was paid by Rose partners. With respect to Seth Ward's lawsuit against Madison Guaranty: (cid:1)(cid:2) In 1987, Seth Ward sued Madison Guaranty to collect on the $300,000 unfunded April 7, 1986 promissory note. (cid:1)(cid:2) Madison Guaranty counterclaimed that Ward's commissions were fraudulent. (cid:1)(cid:2) After Ward's initial victory in the trial court, Webb Hubbell assisted Ward in filing Writs of Garnishment to collect Ward's judgment. With respect to Madison Guaranty's lawsuit against Frost & Company: (cid:1)(cid:2) Madison Guaranty sued accountants Frost & Company for malpractice. (cid:1)(cid:2) The FDIC hired Rose to represent it when Madison Guaranty went into receivership. (cid:1)(cid:2) In securing the representation of Madison Guaranty from the FDIC, Hubbell failed to disclose: (cid:1)(cid:2) Rose's prior work for Madison Guaranty before the Arkansas Securities Department; (cid:1)(cid:2) Mrs. Clinton's prior legal representation of work for Madison Guaranty in the Castle Grande transaction; (cid:1)(cid:2) Hubbell's representation of Ward and POM, a Ward corporation; (cid:1)(cid:2) Hubbell's close familial relationship with Seth Ward; and 255