SBF Quick to Point Fingers, Plays the Blame-Game Strategy

Sam Bankman-Fried (SBF) made his appearance in court recently, where he formally entered a plea of not guilty in response to the latest indictment. With a firm resolve, he aims to construct a case centred around his actions being carried out in "good faith." Central to his defense strategy are key actions such as extending loans to FTX and Alameda executives, implementing self-destructing Signal messages, and the establishment of a network of North American entities. He asserts that his decisions were meticulously shaped by the guidance of legal professionals, prominently Fenwick & West, a law firm he sought advice from.

In an effort to fortify his stance, the legal team representing the founder of FTX released a letter on Wednesday outlining the blueprint of their "advice of counsel" strategy. The letter underscores their intent to present compelling evidence attesting to the involvement of both in-house legal experts and Fenwick & West attorneys in scrutinising and greenlighting decisions related to the aforementioned actions. This strategic disclosure carries the implication that SBF operated within a framework endorsed by legal professionals.

The letter noted that, "Evidence of the defendant’s reliance on counsel is relevant to the question of intent and is not limited to situations where the defense can establish that the defendant formally sought out the advice of counsel, received legal advice, and followed the advice given.”

Moreover, the letter raises a pertinent concern regarding the Department of Justice's pursuit of additional information pertaining to the defense strategy. It calls attention to the fact that the prosecution had previously resisted efforts by the defense team to secure information from the very law firm, Fenwick & West, which is now instrumental to SBF’s argumentation.

Undoubtedly, his defensive strategy exhibits a shrewd theoretical framework, which resonates with the broader narrative that SBF has been weaving since the remarkable downfall of FTX in November. Presenting himself as one who is now humbled from his crypto prominence, SBF endeavours to portray an image of youthful inexperience, seemingly incapable of orchestrating any substantial wrongdoing.

According to his portrayal, his role was one of finding himself submerged in unfamiliar waters, shaped and guided by the counsel of more seasoned counterparts – including his legal advisors at Fenwick & West. The crux of the matter lies in the efficacy of this "shift-the-blame" move orchestrated towards his legal team.

Is the Blame-My-Lawyers Strategy Going to Work or Will it Backfire?

Ira Lee Sorkin, renowned for his defense representation of Bernie Madoff, has noted that the "advice of counsel" approach frequently finds its place in white-collar cases and holds potential value in SBF's situation. Given the burden on the prosecutors to substantiate SBF's intent to commit fraud, a strategy showcasing his reliance on external guidance rather than independent action could prove strategic.

Nevertheless, this tactic carries inherent risks for SBF's legal team. One notable concern is the potential for his former legal advisors at Fenwick & West to be summoned as witnesses by the prosecution — a scenario fraught with unpredictability. As Ira Lee observes, "It can be precarious because you are putting people who have advised you in the firing line."

In the view of Joseph Tully, a seasoned criminal defense attorney from Tully & Weiss, the "blame-the-lawyer" approach appears to be a strategic fit for SBF's circumstances.

Joseph expressed that, “[He] can’t deny that he did the actual acts that constitute the crimes [but] by saying he was just following the advice of his lawyers, he can negate the ‘intent’ element required to prove the case against him. If an accused can negate any element in a criminal case, the whole charge falls apart. The only possible issue that this brings up is that he would waive his otherwise confidential communications with his lawyers and everything, or most everything, that he and his lawyers discussed would be discoverable to prosecutors.”

An intriguing point of consideration is SBF's history of occasionally disregarding legal counsel, even in instances such as the advice to maintain silence during the pre-trial phase.

Meanwhile, SBF has been granted temporary access to his legal counsel provided he gives a 48-hour notice.