by Ben Vernia | May 24th, 2012
Michael F. Hertz, who was the Director of the Fraud Section of the Department of Justice’s Civil Division from 1984 to 2007, and thereafter a Deputy Assistant Attorney General in the Civil Division, died on May 4. If you are reading this blog, then you probably fall into one of two categories. You are either: A) someone who has worked with the False Claims Act for several years, and so knows the debt of gratitude the nation owes to Mike Hertz; or B) someone who is interested in the False Claims Act, and so would do well to learn of Mike’s enormous contributions to fraud enforcement.
I was fortunate to serve as a Trial Attorney under Mike’s leadership from 1994 to 2002. I was two years out of law school, and came to the Department following a District Court clerkship and a year as an associate at a D.C. firm.
The Fraud Section then was far smaller than it is today. We were housed in the headquarters building on Pennsylvania Avenue, and totaled probably about 30-40 attorneys, including several supervisory attorneys (reviewers) and Mike. It was a large enough group to have a wide range of personalities and experience levels, yet small enough to fit holiday and going-away parties in a conference room.
Mike’s management style drew heavily on his own experiences in the Department, where he spent his entire career. He provided opportunities – in the form of case assignments and the limited resources he could directly command – and he was always willing to listen to a problem and offer advice. But Mike trusted the attorneys in the section to use their skill, imagination, and experience to guide them in handling their cases. The Fraud Section’s accomplishments over the 25 years since the 1986 amendments to the False Claims Act – including billions of dollars in recoveries – speak volumes about Mike’s leadership.
Mike is often described as taciturn, but I think it’s not an apt description. Mike was quiet, but not aloof or unsociable. He enjoyed jokes and the camaraderie of his fellow attorneys. Rather than being standoffish, Mike was calm because he understood how to listen, and he knew that in the heat of litigation, there was real value in being the coolest head in the room.
Throughout his career, he provided a clear vision of the importance of fraud enforcement and of the government’s interests in the False Claims Act’s interpretation. Every aspect of the government’s handling of False Claims Act cases – from investigation to settlement or litigation – reflects Mike’s wise counsel. I did not always agree with Mike regarding policy or specific case decisions, but more than anyone else I’ve known in my career, when I have found myself disagreeing with Mike, I really have to question my own judgment: the odds were heavily in favor of Mike being right. Mike also possessed the invaluable skill of seeing through a thicket of complications and identifying the one or two key questions on which the solution to a problem sometimes depends.
But perhaps his most lasting legacy is the people of the Department. In addition to his many qualities of leadership, MIke shaped the Fraud Section by choosing its leaders and letting attorneys innovate (even if he frequently joked that he didn’t understand new areas of fraud enforcement). Mike took pride in his efforts to select and train new attorneys, traveling for many years to law schools around the country to interview candidates for the Honors Program, where he got his start. After I had left the Fraud Section, and was working in the Criminal Division during the administration of George W. Bush, I saw Mike and asked him whether he was still doing interviews for the program. He said that he was not, because the administration had taken over its handling (handling which would later be roundly criticized for its politicization). He did not complain about being excluded from the process, but it clearly saddened him to have lost the ability to meet the next generation of lawyers and introduce them to the Department he loved so well.
There is a lot that is wrong with the practice of law these days. Law firms have placed ever-increasing demands on young attorneys, many of whom leave the profession out of boredom and frustration. In some cases, games lawyers play make it hard to describe the process as a “justice system.” Anyone who actually enjoys practicing law, as I do, can almost certainly name the handful of attorneys who inspired them to view law as a source of challenge and to take pride in their efforts. For me – and so many others – Mike will always be one of those lawyers.
