A Conflict of Interest

by Adam Mitzner

  “So far, so good,” I say. “Since it’s been radio silence from the U.S. Attorneys’ Office for us, I thought we should go around the room and see what contact any of you have had.”

  McMahan goes first. “I’m a little deeper into it than you, Alex,” she says. “The AUSA called me last week. A guy named Christopher Pavin. Anyone know him?”

  “I think I’ve heard his name before,” Sheffield says, “but I haven’t encountered him on a case yet.”

  By their silence on the issue, the others indicate that they also haven’t heard of him. This surprises me, but in a good way. I would have thought that Ohlig’s case was high profile enough to justify someone with significant tenure in the office leading the prosecution team. That no one in this group has heard of Pavin is a pretty good indicator that he’s new to the office, or at least to the securities division, which handles these types of cases.

  “I’ll tell you,” McMahan continues, “he didn’t sound too sure of himself. There was a lot of cliché talk, like he’s playing a prosecutor from the movies. When I asked him what he could tell me, he actually used the term ‘one-way street’ and said the government wasn’t going to lay out proof of anyone’s guilt until legally obligated to do so.”

  “Did you ask him about your client’s status?” Eastman asks.

  “Subject,” McMahan says, with a smile of relief.

  In Department of Justice parlance, being a subject means the government doesn’t have a present intention to indict. It’s the second best of the three designations. Defense attorneys want to hear their clients are witnesses, which means the prosecutor has no suspicion of culpability.

  “If Ohlig’s secretary is a subject, that pretty much means the rest of us are probably subjects too,” Trott says.

  “I hope that’s the case,” Eastman retorts, never one to be an optimist. “Some of our guys may be targets.”

  I know that Ohlig is a target without asking, and I’m of two minds as to how I want the others to be viewed. If they’re targets then they are, at least in the first instance, more inclined to deny any wrongdoing, or else they would be incriminating themselves. It’s a fine line, however, because targets are in greater the legal jeopardy and therefore are more incentivized to cut deals and save themselves, and I have absolutely no doubt that the prosecutor won’t give a plea deal unless it’s in exchange for testimony he can use against Ohlig.

  “Did Pavin invite your client in?” I ask McMahan.

  “No. It was a little strange, actually. I don’t really know why he called. He said he was introducing himself and that a grand jury had been convened. I already knew about the grand jury, but I wasn’t going to let him know that, so I just played dumb. And that was pretty much it. I told him I was just getting up to speed on the facts, and he said he was too, and he’d be back in touch. I haven’t heard from him since.”

  This is the dance of criminal defense, at least in the pre-indictment stage. It’s like a mini-trial except that your adversary is also the judge. The game-within-the-game involves defense counsel trying to get information from the prosecutor without giving any up, while still presenting the veneer of cooperation.

  “So, can I take it that none of you are going to let your clients talk to him?” I ask.

  I scan each lawyer’s face, looking for a clue as to whether anyone is considering a plea in exchange for leniency. It’s common knowledge that the AUSA doesn’t need more than one insider to prove the case against everyone, and it’s right out of the playbook to start at the lowest rung of the food chain and work up. I’m sure Pavin will offer Allison Shaw immunity if she has anything incriminating on Ohlig. If she’s not so inclined, he’ll go up the seniority ladder, offering a similar deal until someone bites. Investment bank or mafia family, a criminal prosecution follows the same script.

  “I think we’re all with you,” Eastman says. “My guy tells me that everything was on the up and up, and he should know, he’s the number two after all. He says that Salminol was a bad investment, but selling a dog stock isn’t a crime.”

  7

  I’ve heard airline pilots describe their jobs as hours of boredom interrupted only by moments of terror. Criminal defense fits that bill too.

  After the prosecutor served a subpoena on OPM, nothing happened for more than a month. We used the time to collect documents and meet with the joint defense group and, mainly, wait for the other shoe to drop.

  It dropped at 5:45 in the morning, and I learn about it because Ohlig is shouting something into my cell phone that I can’t quite understand, seeing as I’m still half asleep. “What?” I say, still groggy.

  “I’m standing in front of my office, and there’s a padlock on the front door. Some type of list is taped to it, I think of my files.”

  “It means that the government has executed a search warrant.”

  “Can they do that?”

  “If they got a judge to authorize it, they can,” I say, going into lawyer mode. “I’ll be on the next flight down. In the meantime, go home. Send an email to the employees telling them the office is closed and that they’ll get another email later when it opens. Michael, this is important. That’s all the email should say. No explanations. Just that the office is closed. Understand?”

  He speaks more quietly now. “There’s never going to be another email, is there?”

  “Not likely,” I say.

  “Who was that?” Elizabeth says when I roll over to return the phone to the holder.

  “Ohlig. They’ve executed a search warrant at his office in Florida. I need to get down there right away.”

  “Have you told your mother that you’re representing him?”

  “No.”

  “Don’t you think you should, especially if you’re going down there?”

  Elizabeth is an honesty-is-the-best-policy type of person. That outlook works well in her chosen vocation: Elizabeth is an artist, a talented painter, to be specific, though she hasn’t actually painted anything since Charlotte was born. I used to joke with her that I never understood how someone with her worldview could possibly have ended up married to a lawyer. Her standard response was that she didn’t marry a lawyer; she married a man who practices law when he’s at the office.

  “He’s asked me not to,” I say, and leave it at that, sparing her the blather about how my professional obligations trump any notions of honesty that exist in the non-lawyer world. “I’ll just tell my mother that I’m down there on a case. She never asks about what I’m working on.”

  “Are you leaving now?” Elizabeth asks, as I roll out of bed.

  “As soon as I can,” I say. “Go back to sleep. I’ll call you from Florida tonight.”

  I walk into the kitchen and fill the coffeemaker before dialing Abby from my BlackBerry. She answers on the third ring. I can tell that I’ve woken her.

  “Michael Ohlig just called. The FBI has apparently executed a search warrant at his office. I told him to close up shop and wait for the cavalry, and by that I mean you and me. Can you call the office and have someone book us on the earliest flight we can make to West Palm, and get us rooms at the Four Seasons?”

  “Sure,” she says, the standard associate response. “How many nights?”

  “One should do it, I think.”

  “Okay.”

  Despite the fact that we’ve already produced more than a million pages pursuant to the subpoena, the government executed a search warrant because they still think Ohlig is holding stuff back. It’s an odd anomaly about discovery in a white collar criminal prosecution—the stakes couldn’t be higher and the accused is the accused because the government believes he doesn’t follow the rules, and yet discovery is still governed, for the most part, by an honor policy. When the prosecution can persuade a judge that they have probable cause that documents have been improperly withheld, they can do the collection themselves via a search warrant.

  “Do you think there’s something we didn’t turn over?” I ask Abby.

/>   A foolish question. If she thought there was something we hadn’t turned over, she would have asked Ohlig for it and then she would have produced it to the government. In essence, I’m asking her to tell me if she knows of something she didn’t know.

  “Not unless he was holding back on us,” she says.

  “I suppose that’ll be the first question we ask once we’re down there. Email me ASAP with the flight information. I’ll meet you at the gate.”

  “Mind if I ask a stupid question?”

  “Is this when I’m supposed to say that there’s no such thing as a stupid question?”

  “What are we going to do once we’re down there? I mean, if they’ve already executed the search warrant, what can we do about that now? It’s a little like closing the barn door after the horse gets out, isn’t it?”

  “We’re putting in a personal appearance to tell Michael Ohlig that everything is going to be okay. Even though we know it’s not.”

  8

  I’ve been in more than my share of clients’ twenty-million-dollar Hamptons’ estates and duplex apartments on Park Avenue, so I’m somewhat jaded when it comes to ostentatious real estate. New York money, at least in my experience, tends either to be old money or to try to look that way. Even the guy who struck it rich yesterday more often than not ends up buying a pre-war apartment and a country home that was built by robber barons in the 1920s, or that’s brand new construction designed to look like it was built by robber barons in the 1920s.

  Ohlig’s house doesn’t fit at all within this paradigm. The exterior is starkly modern, glass and steel coming together at harsh angles. It reminds me more of an airport terminal than a residence, and Abby makes the somewhat obvious joke about whether he throws stones.

  “Welcome,” says the tall, thin man who opens the large front door. He’s dressed in what must be the tropics version of a butler’s uniform—a tan suit, white shirt, and black tie. “My name is Carlos,” he tells us. “Mr. Ohlig asked me to bring you to the study. He will join you there momentarily. Coffee is already out, but please tell me if there is anything else I can get for either of you. Some breakfast, perhaps?”

  “Thank you,” I tell him. “I’m fine.”

  “Me too,” Abby says.

  Carlos leads us past the entry hall and through the living room until we arrive at what he announces is the study. The room overlooks the Atlantic through large picture windows on two sides, while the far wall is lined with a floor-to-ceiling bookshelf. The room’s center is dominated by a long white marble table surrounded by eight black leather chairs. Like all the other rooms I’ve seen so far, this space reminds me of the lair of a Bond villain.

  I’m about to make a joke about whether the chairs are equipped to deliver electric jolts when Abby says, “Do you have a bat pole behind the bookshelves in your apartment?”

  I laugh. “I do, but when I slide down it, instead of a mask and cape, it puts me in an Armani suit.”

  She laughs too. Unlike most beautiful women I’ve encountered, including my wife, Abby has a way of making you feel as if she is happiest when in your company. Somehow she conveys that every gesture is for you, and you alone. Her laugh is no exception.

  “What’s so funny?” Ohlig says from behind me. Despite this morning’s turn of events, he looks like a man without a care in the world.

  “Nothing,” I say. “An inside joke.” I turn to Abby. “Michael, this is—”

  “The one and only Abigail Sloane,” he interrupts. He’s wearing a particularly wolfish grin. “I’m so glad to be able to put such a beautiful face to the voice.”

  For a moment I’m startled, forgetting that Abby’s been talking to Ohlig more than I have as of late. She’s been the point person haranguing him about documents or asking him what something means. Ohlig most likely looked Abby up on the Cromwell Altman website, so he knew to expect that she is attractive, but the picture is a headshot only, and it doesn’t do her justice.

  “Thank you,” Abby says, smiling broadly. She doesn’t seem offended; rather, it seems clear to me that Abby is well aware of the effect she has on men and considers Ohlig’s remark to be par for the course.

  “You seem to be holding up well,” I say. “All things considered.”

  “It’s not like you didn’t warn me this might happen.”

  “I called the guys right after your phone call.” The “guys” is the shorthand we use for the lawyers in the joint defense group. “So far, not a peep out of the U.S. Attorney’s Office. Jane McMahan said she might reach out to the Assistant U.S. Attorney handling this case, but I asked her to wait a few days to see how everything shakes out.”

  “Who do I pay her to represent?”

  “Your secretary. Allison Shaw.”

  Ohlig doesn’t show much emotion at my disclosure that Shaw may soon be breaking bread with the government. “Anything we have to worry about there?” I ask.

  “I’ve told you before, no. Allison and I are not—” he looks at Abby, and then, apparently thinking better of the term he was initially going to use, says, “we’re not romantically involved. And as for the business, she doesn’t know much, but she knows enough to know I’ve done nothing wrong.”

  “Okay, good. I expect some of the other lawyers will also go in and meet with Pavin. I’d prefer that there be a total cone of silence, but so long as it’s only the lawyers going in, we’ll be okay. Besides, it will give us some idea of what they’ve got.”

  “I want to meet with him,” Ohlig says matter-of-factly.

  “That just isn’t smart, Michael. A prosecutor ready to indict is simply not going to be persuaded by you telling him that you’re innocent. The only beneficiary of such a meeting is him—he gets to hear your defense and locks you into a story. And, to make life that much better for him, he could easily charge you with the felony of lying to him in the interview.”

  “I can explain what happened in a way no one else can,” Ohlig says, as if he hadn’t heard what I just said. “They’re not going to drop this unless they’re convinced I’m innocent. The only way that’s ever going to happen is if I do the convincing.”

  “We’ll have our opportunity to put on our defense. It’s just that now is not the right time.”

  “And when is the right time?”

  “When you take the witness stand at trial. And not a second before that.”

  Ohlig again shakes his head at me, this time seemingly more in disgust than disagreement. “So you’ve already conceded an indictment?”

  “Michael, part of my job is to be realistic about the state of play. It doesn’t mean I don’t believe in your innocence.”

  A look of utter contempt comes over him, and for a moment I actually think he might lose his temper completely. Then, as if somewhere he’s flipped an internal switch, he smiles broadly instead. “What are the odds?” he asks.

  “The what?” I say, not understanding his question.

  “You believe I’m going to get indicted, right?”

  I nod.

  “So, what are the odds I won’t be? What are the odds I walk on this? No indictment.”

  I hate giving a client odds of any potential occurrence. Odds always reflect a likelihood of an event happening or not, and in reality it happens or it doesn’t. Tell a client the odds are 90 percent of something occurring and then it happens, he says you were too conservative in your estimation. And God forbid you tell a client that there’s a 60 percent likelihood and then it doesn’t occur.

  “Haven’t we been over this already?” I say. His expression tells me that I’m not going to get off that easily, and he wants to hear it again. “As we’ve discussed, the U.S. Attorneys’ Office in New York loves to prosecute bankers. So, you’re a very attractive defendant for Pavin to go after. In addition, these things often take on a momentum of their own. Once they devote the resources to review millions of pages of documents, if they don’t indict, it’s like it was a wasted effort. All of that, I’m afraid, makes it far more
likely than not that they’re going to indict you.”

  Ohlig looks like I’ve insulted him. “I know it’s likely I’m going to be indicted, Atticus Finch. What I’m asking you is, what are the odds that I won’t be? Ten to one? Hundred to one? Million to one? Give me your best guess.”

  “Fifty to one,” I say, only fixing the odds there because I think any worse would sound as if I’d lost all hope.

  A canny smile comes to Ohlig’s face; he’s gotten from me what he wanted. “Fifty to one,” he repeats. “You and I both know you think the odds are more like fifty thousand to one, right? But you’re the house for our purposes here, and you say fifty to one, so I’ll respect that. Okay. I’ll put up ten grand that I’m not indicted. But you owe me half a million if I walk.”

  My discomfort with this line of discussion must be obvious. I want to look over at Abby to see how she’s reacting to this showdown, but I’m pretty sure I know.

  “I’d love to take your action,” I tell him, “but I don’t have that kind of money.”

  He chuckles, a condescending gesture if ever there was one. “Two minutes ago, my getting indicted was as certain as the sunrise. But now, when you’ve got something at stake, you’re suddenly not so sure.”

  “I’m sorry, Michael. I think I missed your point.”

  “It’s actually pretty simple,” he says, all evidence of good humor having vanished. “Nothing is certain when you’re the one at risk.”

  9

  My mother is waiting for me on her front lawn. The guard at the front gate must have called her when I passed that checkpoint, even though my name is on the permanent “let through” list.

  “This is such a wonderful surprise,” she calls out as I walk up to greet her.

  “I called you this morning to say I was coming,” I say, embracing her.

  “I know, but before you called, I wasn’t expecting a visit from you until Thanksgiving. So it’s still a surprise. Are you here on a case?”