Dershowitz to Wall Street Whiz Kids: Lawyer Up

Via Ken Lammers, former CLTV star and now LX star (whatever that is) at CrimLaw, this Forbes article by reformed lefty lawprof Alan Dershowitz (of the Harvard Dershowitzes).  It’s enough to make one think that there’s a silver lining to this dark fiscal cloud hovering over the nation.  Well, almost.

The biggest growth industry on Wall Street these days is the white collar criminal law firm. As Wall Street financial firms crumble, Wall Street law firms–especially those with litigation departments populated by former U.S. attorneys–will prosper.

Now some might find the latter half of the second sentence somewhat curious.  Why, you wonder, would the Big-D write such a thing?  What is it about former AUSAs at Biglaw that he finds so enticing?   Glad you asked.

Dershowitz, after explaining how white collar criminal law is largely about scapegoating when the feces hits the fan, offers Dershowitz’s First Rule of Criminality:


That is why white collar criminal lawyers are busy preparing their clients for investigations, subpoenas and flipping witnesses. The race to the courthouse has already begun, with lawyers trying to be the first to offer up their clients as witnesses against former friends and colleagues, instead of themselves becoming defendants. The race, however, is not always to the swiftest but rather to the lowest on the totem pole–the underling who can provide evidence or testimony against the higher ups. The first rule of criminality in the U.S. is “always commit crimes with people more important than you are, so that you can turn them in rather than having them turn you in!”

Apparently, the Dershowitz approach to criminal defense differs from mine in a very significant way.  When in doubt, rat. 

Much of what Dershowitz has to say in this article is quite true, particularly the parts about how the public demands someone face criminal accountability whenever things to south, and how federal law is so elastic and vague as to cover pretty much any circumstance where the politicians demand heads on a stake to deflect attention from their own incompetence and failures. 

But rat?  Is that the only possible strategy (not tactic) that Dershowitz sees available from our criminal justice system, or more specifically, from criminal defense lawyers?  Well, apparently so, at least when the cadre of defense lawyers he suggests are those who stepped out of the U.S Attorneys office and into the Biglaw office.  After all, they know all the good restaurants to get lunch in the area.  Those of us not blessed with obsequious desire to continue to curry favor with the government only know the restaurants around the courthouse. 

Bear in mind that this article is in Forbes magazine, subheading “capitalist tool.”  This is what those Wall Street Whiz Kidz, with their ten million (or more) dollar bonuses, read.  This is the message that they are getting from one of the best known Harvard Law Professors cum criminal defense lawyers in the nation.  You have no hope.  No matter what you did or didn’t do, you are dead meat.  Your only option is to cut a deal, plea to the information and rat against someone higher up than you.

This isn’t exactly the message that some, hopefully most, criminal defense lawyers would send.  As we know all too well, the strategy of picking off the low-lying fruit, the young, scared, overly-monied masters of the universe who may have done nothing wrong at all because they were just highly-paid foot soldiers in the Capitalist Army, serves one purpose only:  To get these scared little bunnies to flip on their bosses, and ultimately work their way up the ladder to the Big Guys, the ones who bring positive headlines to the DOJ to prove how well they are protecting America. 

So why does Dershowitz feed into the government’s strategy?  Is he just being pragmatic?  Does he want to be the next Ramsey Clark?  Who knows?  But to the youth of Wall Street, there is another option.  If you didn’t commit a crime, don’t bend your knee to pray to the government gods.  Sure, your buddies who go to Dershowitz’s suggested Biglaw “criminal defense experts” will have them seated in the US Attorney’s waiting room within minutes, but not everybody goes down.  They will lose their fortunes, spend a relaxing 24 months at Club Fed, all for giving it up right away.  They won’t get a free ride, no matter what sales pitch is used.

There is an alternative to following Dershowitz’s advice.  Consider it.

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9 thoughts on “Dershowitz to Wall Street Whiz Kids: Lawyer Up”

  2. Joel Rosenberg

    If you didn’t commit a crime, don’t bend your knee to pray to the government gods.

    Which sounds reasonable. The problem I see — from this remove (and it’s a pretty darned far remove) — is that, as Dershowitz points out, what in practice constitutes a “crime” in this sort of thing is kind of, well, flexible.

    In the stuff I follow closely, it’s relatively straightforward: you whipped out a gun and threatened a guy who then ran away, say. Either you weren’t looking for trouble, had no better alternative, and were reasonably afraid that he was going to do real bad stuff to you right then and there, or you screwed up, bigtime, and your only hope is that your lawyer can help generate some reasonable doubt about the crime that you just committed.

    Pretty straightforward, at least in theory.

    But imagine that you’re almost any of the guys involved in this”>http://docs.google.com/TeamPresent?docid=ddp4zq7n_0cdjsr4fn&skipauth=true&pli=1>this documentary (okay, I lied; it’s not really a documentary). I’m no law-talking guy, but it looks to me like there’s a strong argument that lots of them committed a crime, given what “mail fraud” is, and the lynch — err, the jury is not likely to be overly sympathetic, starting out.

    Fortunately for them, the worst they’ve got to worry about is Stick Figure Jail . . .

    This whole thing does feed back to your ongoing theme about picking a good criminal defense lawyer. For somebody not in the relevant trades, I think I’m likely to be able to do decently around here; I think (rightly or wrongly) that I know enough folks who know enough to have a good chance.

    But one those not overly-bright Wall Street Whiz Kids you describe? What are their chances of getting somebody who not only comes across as competent (and the two ex-US Attorneys I’ve met — Lillehaug and Heffelfinger ooze competence*; that may not be unusual) but actually is?

    __________________
    *Partly, I think, because they actually are pretty good at what they do, but also because they present themselves very, very well — if David “Darth” Lillehaug says, “these aren’t the droids you want,” you won’t want those droids.

  3. SHG

    Don’t buy into the argument that the government can pluck anybody on the face of the earth and convict them under mail fraud.  It’s not quite that bad, and it’s definitely not a lost cause.  The law is ridiculously broad and vague, but that’s where having a good lawyer comes in.

    The point is that there are top quality criminal defense lawyers out there who can successfully fight these charges, but the suggestion that whiz kids drop a few mil on a Biglaw former AUSA as their only hope is what confuses people.  If they want to be a rat, then that’s the place to go.  If they want to win, then they need to look for quality rather than expediency.

    The never-ending debate over whether people are capable of finding a top quality criminal defense lawyer continues, and “coming across as competent” is certainly one measure.  Kids with cash tend to feel a great level of comfort with Biglaw, because “they have all the resources.”  I’ve busted this myth many times, but it remains one of the critical flaws in the understanding of how real criminal defense works. Still, I have yet to find a way to explain how to avoid ending up in the wrong hands, or how to determine whether that sweet-talking lawyer is really the one to save your life.

    It is a conundrum.

  4. Joel Rosenberg

    Honest, I’m not advocating preemptive surrender. I don’t know enough about the subject to advocate general strategy, much less tactics.

    You’ve repeatedly described a subset of former AUSAs as, basically, specialists in lazy, strategic surrender; sort of the French military of the crimlaw world. Are there any former AUSAs that you know of who are actually into — and good at — defending clients and trying to get them, well, acquitted when that’s possible? Or is joining the US Attorney’s office sort of like turning to the Dark Side of the Force — try as you hard, you can never go back?

  5. SHG

    Yes, there are many former AUSAs who turned out to be superb criminal defense lawyers, and are not merely skilled at defending the accused, but are extraordinary fighters in their own right.  But I’m not saying who they are, so don’t ask.  I may be foolish, but I’m not suicidal.

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