Sam Bankman-Fried (SBF) has settled on a legal strategy ahead of his criminal trial this October, which is to argue that he was acting in good faith due to the advice of lawyers. According to CoinDesk’s regulatory editor Nikhilesh De, SBF’s lawyers have detailed this so-called advice of counsel strategy in a letter published Wednesday. SBF is accused of multiple schemes to defraud and faces decades in prison if found guilty.
The strategy is clever in theory, and aligns with SBF’s messaging since the collapse of FTX last November. He has been presenting himself as young and hapless, too callow to have orchestrated any great evil. He claims he was simply out of his depth, following the advice of experienced collaborators – like his lawyers at Fenwick & West.
Journalists reached out to several defense attorneys and crypto-specialist legal minds for comment. Ira Lee Sorkin, a defense lawyer best known for advising Bernie Madoff, said the advice of counsel strategy was fairly common in white-collar cases and could be productive for SBF. The prosecutors have to show that SBF intended to defraud, so a strategy to show that he acted on outside advice, rather than independently, could be useful.
Joseph Tully, a criminal defense lawyer at Tully & Weiss, believes the strategy is a good one for SBF. [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, Tully said.
Joseph Klayman, U.S. head of fintech, blockchain and digital assets at Linklaters, said the strategy’s success or otherwise would come down to whether SBF consistently followed the advice he was given. “In my view, it would be premature to take a view concerning the likelihood of success,” she said.
SBF’s trial is likely to be extensively covered in both the specialist and mainstream press. If the latest news is anything to go by, we can expect the lawyers in the case to play a pivotal role, both in directing strategy and becoming part of it.