Lawyers tell CoinDesk the tactic could be effective for FTX founder Sam Bankman-Fried’s defense, but it comes with risks.
De reports on a letter from SBF’s lawyers, published Wednesday, that details this so-called"advice of counsel" strategy. SBF is accused by federal prosecutors of “multiple schemes to defraud,” including wire, commodities and securities fraud, and he faces decades in prison if found guilty.
But it comes with risks for SBF’s team. For one, his former lawyers at Fenwick & West could well be called upon as witnesses by the prosecution, an eventuality with an uncertain outcome. “It can be precarious because you are putting people who have advised you in the firing line,” Sorkin told CoinDesk.
“[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 told CoinDesk via email.
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 told CoinDesk in an email response.
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