Sam Bankman-Fried and his legal team cannot blame FTX company lawyers for allegedly reviewing and approving decisions that he made as CEO, according to a weekend ruling by the judge presiding over the disgraced founder's upcoming criminal trial—at least not at first.
In a 10-page memo released on Sunday, Judge Lewis Kaplan ruled that any “advice of counsel” defense cannot be included in the defense’s opening remarks, granting a request made by the prosecution to block such a move. To make his decision, Kaplan wrote that allowing the argument would risk prejudicing the jury from the start.
“In light of the foregoing, the risk of confusion and unfair prejudice to the government were defendant to focus on the presence or involvement of lawyers at or for FTX and Alameda... is palpable,” said Kaplan.
Prosecutors first moved to bar SBF from using the “advice of counsel” strategy in an August 29 filing, arguing that the defense should not be allowed without establishing a clear connection to the alleged wrongdoing. The move followed indications that SBF may pass the blame onto the Fenwick & West law firm that advised FTX during his tenure.
Under an “advice of counsel” defense, SBF’s attorney would argue that he had not intended to break any laws as his lawyers at the time assured him that he was within legal bounds during the rise of FTX.
Legal experts previously told Decrypt that any “advice of counsel” argument would require a lot of documentation in order to be successful. However, Judge Kaplan issued an order barring SBF from getting access to those documents in June.
With another line of defense constricted, the once-feted mogul’s options for defending himself at trial have become even more limited. If convicted, SBF faces the possibility of decades in prison on charges of wire fraud, money laundering, and making illegal political donations.