It’s hard to know, based on the existing public record, whether testimony or documents from FTX’s counsel will help Bankman-Fried. His lawyers argue that the FTX lawyers’ evidence will help them show that Bankman-Fried acted in good faith, under the auspices of experienced attorneys who were involved in virtually all of the matters at issue in the government’s case.
But prosecutors have repeatedly countered that Bankman-Fried hasn’t even shown he received advice directly from FTX lawyers, let alone that he solicited and followed that advice in good faith. If Bankman-Fried deceived the company’s counsel, the government argued, their advice is irrelevant to his defense.
Right now, we have no idea what Fenwick & West or FTX in-house lawyers would say if they were called to testify. We may get a bit more insight before the trial, depending on Kaplan’s disclosure order. Or the judge may decide that Bankman-Fried’s advice-of-counsel assertions are too speculative even to justify exploring the issue in front of the jury.
It’s easy to blame your lawyers in the abstract. Less so when you have to prove it.
‘Enforcement 40’ for 2020
Join Us On LinkedIn
Join the Securities Litigation and Enforcement Group on LinkedIn