Meet the lawyer defending ex-cop Jason Van Dyke
By CLAIRE BUSHEY
Chicago lawyer Daniel Herbert doesn’t accept every cop who comes to him as a client. But he did take the toughest case to come along in years—the murder rap against Jason Van Dyke, the defendant in a 2014 police shooting that made both the officer and the shooting victim, Laquan McDonald, household names.
For Herbert, the calculation wasn’t simple. Yes, the fees for what would undoubtedly be a challenging case would be covered by Van Dyke’s union, the Fraternal Order of Police; and the national exposure would raise the profile of his six-year-old law firm, which specializes in representing police officers in civil, criminal and administrative matters. But the video-fueled passions surrounding the McDonald case were considerable, the defendant was by no means a universally sympathetic one and the charges—six counts of first-degree murder and one of official misconduct—were significant.
Still, Herbert thought the case against Van Dyke smacked of prosecutorial overreach and that the Chicago police officer was caught in the crosscurrents of politics, as Mayor Rahm Emanuel and State’s Attorney Anita Alvarez battled for re-election.
Mostly, though, he believed Van Dyke’s story: that he made a split-second decision in what he perceived was a life-or-death situation. Herbert says he believed it because, as a former cop himself, it echoed his own perceptions from the night he drew a gun and fired on a suspect.
“When I first saw the same video, I had the same reaction most people had: bad,” he says. “Then after finding out all the facts, I found my client acted the way he believed he needed to act.”
Not every lawyer knows what it’s like to walk a beat—and Thomas Needham, a criminal defense attorney who worked in the Daley administration and as chief of staff to former Chicago Police Superintendent Terry Hillard, says this is a plus for Herbert.
“The policing profession is somewhat insular. The clients gravitate to where they feel a real comfort level and simpatico,” Needham says. “But having said that, that only gets you the client. That doesn’t help someone sustain a practice. You have to be good with what you do.”
Herbert, who at 47 still looks like the wrestler and football player he once was, runs a small practice that employs three other lawyers and signs about 60 clients a month. There’s plenty of work; at any given time, Herbert’s team has about 30 open cases. Revenue hovered between $600,000 and $700,000 annually until last year, Herbert says, when it rose considerably.
Chicago attorney James Montgomery, no stranger to high-profile cases, having represented police shooting victim LaTanya Haggerty’s estate in 1999, says the risk and potential payoff of such jobs are extreme: “You could get a bad name by being a loser, or you could get a good name by being a winner.”
Herbert wasn’t exactly born into the Chicago Police Department, but he’s not far removed. His father, Mike Herbert Sr., was an officer, eventually heading the security detail for Cook County State’s Attorney Dick Devine. (Devine, who calls Herbert “Danny,” has known him since he was 4.) Though the family lived in Rogers Park, his parents raised him and his siblings as Sox fans, as the South Sider paraphernalia that decorate his office attest.
‘A TOUGH ADVOCATE’
Herbert joined the police force after college, then got his law degree at DePaul University College of Law and joined the Cook County state’s attorney’s office. During four years there, he rose to the felony trial division, prosecuting armed robberies, rapes and murders. That experience benefits Herbert in private practice, Devine says, because he’s comfortable in the courtroom. “He’s not going to plea bargain something away just because he’s afraid to go to trial,” Devine says.
Herbert left the state’s attorney’s office to become an in-house lawyer at the Fraternal Order of Police Lodge 7. While there, he realized many of the cops he represented weren’t happy with their lawyers. He thought he could do better, and he knew his union background would channel some referrals his way. In 2010, he decided to try.
“A lot of people were like, ‘What are you doing? It’s not a really good time to be opening a law firm,’ “ he recalls. “It probably shows the business sense in me. It was really the first time that I had thought about it. . . .I knew that I would do well, and I did.”
These days the FOP is his biggest client; the union’s legal defense web page links to Herbert’s site. He also represents the Police Benevolent and Protective Association and does some work for Chicago firefighters, Teamsters and members of the International Brotherhood of Electrical Workers. He’s a natural at shaking hands, Needham says: “You see him at wakes, he goes to retirement parties.”
The firm’s bread and butter is representing officers in mundane affairs—from DUI to employment discrimination, disability hearings to giving statements to internal investigators. Herbert has branched out into personal injury and family law to accommodate officers who seek the firm’s counsel for car accidents, dog bites or divorces. His rate runs between $250 and $350 an hour, while he charges a flat fee for certain routine matters, such as $10,000 to argue a case before the police board.
But the big cases involve police misconduct. Most recently Herbert represented Aldo Brown, an officer convicted in October of using excessive force who is now appealing. He was the lawyer for Juan Vasquez, one of two police officers who pleaded guilty to felony official misconduct after first being indicted on sexual assault charges; the city settled the civil case for $415,000.
Jon Loevy, a lawyer for plaintiffs in police misconduct cases, calls Herbert “a tough advocate for his clients,” often in cases with considerable evidence against them. But the potential downside to defending Van Dyke, says Loevy, is that “some subset of the population is not going to hire the firm that represented the guy who shot Laquan McDonald.”
Herbert knows that. Van Dyke’s case likely will generate $300,000 to $400,000 for the firm, but Herbert still thought hard before taking the 38-year-old officer’s case. “My primary concern was that it was going to kill my criminal business,” he says. While cops do make up the bulk of his work, about 30 percent of it is criminal defense unconnected to law enforcement. He worried that black clients “would look at me as somebody that’s supporting a menace and a terror to their community.”
He senses disapproval from white acquaintances who, likely never having faced a criminal charge themselves, speak as though the Constitution makes exceptions to the right to a zealous defense. He also has received death threats, one serious enough to prompt him to briefly move his wife and four children out of their North Side home.
Long term, representing Van Dyke may give him a platform as an expert in the use of force, Herbert says. The subject fascinates him, and he has trained with the Mankato, Minn.-based Force Science Institute, which critics have faulted for its near universal support of police. He has already received calls from officers outside Illinois seeking representation and from media outlets wanting to quote him on the subject.
In the meantime, he continues to face challenges similar to those of any entrepreneur, like deciding when to hire staff or how best to foster other lawyers’ rainmaking talents. He isn’t targeting a specific revenue goal or number of attorneys. He’s chasing wins; and, if he gets them, he figures the clients will follow.