by Adam Mitzner
“Well … I had a college buddy who worked for them—for three weeks—before he got the hell out of there.”
I think Paul’s going to say more, but he’s uncharacteristically silent.
“And?”
“Ohlig’s a family friend, right?”
“Not really. I mean, he was a friend of my father’s, but I don’t know him at all. He’s just a client to me. And by this point, I’ve got to know whatever there is to know about him. So, if you’ve got something, let’s hear it.”
“Well, sorry to tell you, but remember what I said about these guys living in the ninth circle of hell? That wouldn’t apply to your guy—he’s pretty much the devil himself.”
“Oh c’mon. He can’t be that bad. And anyway, how can you be sure it’s OPM where this friend of yours worked? That was like fifteen years ago, right?”
“Not quite,” he says, “more like thirteen, but I remember OPM because of the whole other people’s money thing.”
“Other people’s money?”
“Yeah. What did you think OPM stood for?”
I’m embarrassed that it never occurred to me to ask. I’d rather not share with Paul that I’ve missed something so obvious, so I sidestep the question.
“Let me get this straight. You’re telling me that you’re sure my client is now guilty of securities fraud because, during the first Clinton Administration, a buddy of yours didn’t like working at OPM, so he spent less than a month there. Do I have that right?”
“Waiter,” Paul calls out, gesturing with his hands. I turn around but there’s no waiter in sight, and so I realize he’s playing with me. “We need another glass of Kool Aid over here.”
First Abby, now Paul. Of course, they’re both probably right. It’s an almost inviolate rule of criminal defense work that clients lie to you.
For reasons I can’t yet articulate, however, I believe Ohlig is innocent. It’s not that his story rings particularly true. In fact, it’s one I’ve heard dozens of times before, but I take it on faith that my father’s closest friend is not a criminal.
5
When I enter my apartment that evening, Charlotte literally leaps into my arms. I pull her close and twirl her around, as if we’re dancing in some 1940s Fred Astaire–Ginger Rogers movie, and then Elizabeth comes into view.
My father claimed that on the day he met my mother he went home and immediately told my grandmother he had met the woman he was going to marry. I had no such thunderbolt moment with Elizabeth. Rather, our relationship seemed to simply evolve until I asked her to marry me. I thought I had met the one, but I couldn’t say I really knew it, not beyond a reasonable doubt, anyway.
“Can you read me my story tonight, Daddy?” Charlotte asks, and then, playing the guilt card that children somehow learn very young, she adds, “You never do it and Mommy always does.”
I instinctively look up at Elizabeth, who narrows her eyes and purses her lips. It’s a gesture I know all too well, and it’s not one of my favorites. It says—See, even your daughter knows you’re never home.
“That sounds great, Charlotte,” I say. “I’d love to read to you tonight.”
I take Charlotte by the hand and lead her to her room, which we’ve christened the Pink Palace on account of the hot pink paint Charlotte selected. The wall opposite her bed is lined with floor-to-ceiling bookshelves that hold as many volumes as a small bookstore, but Charlotte runs directly to the other wall, where an open cube serves as her night table. Within the opening sit no more than three books, which she has decreed the nightly rotation for her bedtime stories.
Charlotte grabs the one on top, without looking at the others. “This one,” she says thrusting the book toward me.
“An excellent choice,” I say, as if I’m the sommelier at a fancy restaurant and Charlotte has just selected the finest cabernet in the cellar.
I open the first page and begin. “Mr. Brown can—”
“Mooooooooooo,” Charlotte interrupts.
“Mooooooooooo,” I say back.
It continues like this through all of Mr. Brown’s talents—from his tick-tock, to his knock-knock, to his soft, soft whisper of the butterfly.
“Good night, my sweet Charlotte bear,” I say, pulling the blanket up to her shoulders when we’re done. I kiss the top of her head, taking in the floral scent of her shampoo, and tell her that I love her.
“She loves that book,” I say to Elizabeth when I enter our bedroom.
“I know. Her favorite part is the lightning sound. I can’t tell you how often she says, ‘But Mommy, lightning doesn’t make a sound, thunder does.’”
Like most couples viewed from afar, Elizabeth and I appear to be happy. I don’t think anyone would disagree too strenuously if I were to say that we’re both attractive, have excellent pedigrees, and a beautiful child. Of course, that doesn’t differentiate us in any way from nearly all of the other parents we know, but if you asked me, I’d say that the ones who are still married are also happy, basing my opinion on exactly the same criteria.
We met at a party in Cambridge during my second year of law school. When I first laid eyes on Elizabeth, the term that popped into my mind was “stunning.” She was far more than pretty, and even beautiful was too understated. She had fiery red hair and deep green eyes that gave her something of a feline quality. But it was her aloofness, oddly enough, that drew me in. There was something about her standing there alone that conveyed she’d be fine with or without you. For whatever reason, I took it as a challenge.
In the past few years, however, the independence I once found so attractive I have come to equate with distance. I wish that I could pinpoint what’s different now, if only to prove that something is different. At times I hope that it’s only some type of romantic fatigue, a malaise that results from the sense that everything between us is as it always will be and all that there is to look forward to is more of the same, but in darker moments I fear that it’s something deeper, more fundamental than that.
Whatever the source, it often now seems that Elizabeth and I are at our best only in matters concerning Charlotte. There are moments when I think it’s still a strong enough foundation for a marriage, but at other times I fear we’re less lovers than business partners, tending to the joint venture of rearing our daughter.
“How’d it go today?” she asks when I join her in bed. “You met with your father’s friend, right?”
“Yeah. He’s paying a $2 million retainer, so that’s good.”
“He’s that guilty?” she says with a playful smile that was once a fixture in our banter, but now rarely appears.
“Not sure yet. At first I thought he was one of those pump-and-dump types who sells worthless securities to widows and retirees. But he swears he’s on the up and up.”
“And you believe him?”
“You say that like it’s unprecedented.”
“Well, isn’t it? Aren’t you the guy who had a foolproof system for figuring out which one of your clients was lying to you?” She pauses for dramatic effect, but I already know the punch line. It’s “whichever one is speaking, right?”
“That’s a joke. I’ve represented people who were innocent before.”
“Name one.”
I’m embarrassed I don’t have a name on the tip of my tongue. In fact, I’m scrolling back in my memory to before I made partner before I can recall someone who might fit the bill.
“What about that state senator? The guy who was charged in that bribery scheme. I thought he was innocent.”
She laughs. “Okay, you got me. I could, of course, point out that case was a long time ago, back before you became so cynical. And, if memory serves, you thought he was innocent, but he ended up getting convicted, right?”
I laugh with her. “All that means is that I’m due for another innocent one.”
“If it makes you happy to think he’s innocent, then by all means. I just hope your professional judgment isn’t being clouded by his almost mythica
l status in Miller family lore.”
“I’ve actually been thinking about that,” I say, taking on a more serious tone. “It’s not as if I knew him growing up or anything. Or at least I can’t remember knowing him. But when he was in my office, every time I looked at him, I couldn’t help but think about my father.”
“It’ll get easier,” she says, taking my hand. “Your father would be glad that you’re helping out his friend, and he’s very lucky to have you representing him.”
“Thanks. I appreciate the vote of confidence.”
Elizabeth keeps hold of my hand, her signal that she wants to make love. I can’t recall the last time she initiated the act, and even the last time we had sex is a bit murky. At least two weeks, but maybe it’s been a month, or longer. My failure to recall within a thirty-day time span is even more disconcerting than the drought itself. As if she senses my hesitation, Elizabeth leans into me, pressing her lips against mine.
When I was in college, my then-girlfriend claimed she could tell everything she needed to know about a guy from the first kiss. I laughed and said something about her being jaded, but she held her ground. The first kiss tells you whether they are givers or takers. “Everything else flows from that, if they’re comfortable or uptight, romantic, good in bed, everything,” she explained.
Like so much else about her, Elizabeth’s kiss has always been somewhat enigmatic to me. It is tight and off-putting at first, as if she’s not sure she is fully committed. Sometimes, but not always, it dissolves into a softness that seems that much more enjoyable because of the effort it took to get there.
Our first kiss this evening has not yielded any insight, and I move toward her again. We begin to kiss more passionately, my hands moving under her pajama top.
As I kiss Elizabeth’s neck, she whispers into my ear that she loves me. I know that my line is to repeat the sentiment back to her, but at first I say nothing, fully absorbed in trying to understand what Elizabeth means when she says it, and what I’ll mean by saying it back.
“I love you too,” I finally say.
Part 2
6
Being selected as joint defense counsel is a bit like finding a golden ticket in a Wonka Bar. It creates a scenario most lawyers can only dream about—your fee is paid by an unlimited deep pocket that is not your client’s.
The way it works is that the corporate entity—in this case OPM—provides legal counsel to its employees, at its expense. The theory is that the corporation denies wrongdoing, and therefore its employees, who also deny wrongdoing, are entitled to legal representation as part of their employment.
In reality, however, it’s little more than a legal bribe to keep employees from admitting criminal conduct because as soon as someone in the joint defense claims something illegal occurred, the company immediately stops paying for their attorney. The company justifies this conduct on the grounds that any employee admitting guilt must either be lying or a criminal, and there’s no reason for the company to pay legal bills in either case.
In the course of a year, Cromwell Altman doles out enough joint defense work to support a dozen or more lawyers. The firm keeps a roster of lawyers that are acceptable to receive this largesse, and the lucky few on that list share two main characteristics: personal connection to Cromwell Altman’s managing partner, Aaron Littman, and practices almost entirely dependent on receiving such referrals. Like any good mafia don, Aaron controls when work is being distributed so as to ensure the loyalty of the recipients. As a result, the lawyers retained view Aaron as their client much more than the person they’re actually representing.
For the Ohlig joint defense group, Aaron tapped George Eastman, an old-timer who’s seemingly known Aaron forever, to represent Ohlig’s number two, a guy named Eric Fieldston. Jason Sheffield, a former Cromwell Altman associate, was assigned Matthew Trott, OPM’s head of trading. Jane McMahan represents Ohlig’s secretary, Allison Shaw. And, in recognition that it was my case, Aaron allowed me one pick, with which I selected Joe Freeman, who was my college roommate, to represent OPM’s chief compliance officer, Mark Ruderman.
After each of the members of the joint defense team was retained, it took ten days for us to negotiate the actual agreement that would govern the terms of the joint representation. The Joint Defense Agreement turned out to be twelve single-spaced pages but said little more than that we’d keep each other’s secrets. Given that we’d all entered into dozens of such agreements before, the drafting exercise was just a reason for everyone to goose up their billable hours.
Finally, three weeks after my initial meeting with Ohlig, the first meeting of the joint defense group convenes. Every lawyer is accompanied to the meeting by an associate, all of whom are women. Quick math tells you that, with ten lawyers at a blended hourly rate north of $1,000, these meetings cost more than ten grand every sixty minutes. This meeting will last about an hour, but I’m sure everyone will bill it at two, including travel and rounding up, and then the associates will all write memos recounting what happened, which the partners will review, and then the memos will never be looked at again. All in, this meeting will cost Ohlig about $40,000.
Over the past three weeks, we (and by that I mean Abby and the temps) had begun the process of collecting OPM’s documents, uploading them on to our system, and segregating them into different piles. In litigation-speak we refer to the piles as “buckets”—one for key documents, one for documents that may become key documents, one for documents required to be produced pursuant to the grand jury subpoena, one for documents that probably aren’t important, and a final category for documents we didn’t understand. Often a single document falls into more than one bucket, which increases by a factor of two or three the total number of documents in the case.
Even without the duplication, we retrieved more than two million pages of documents from OPM. More than half are trading tickets, which, thankfully, will be analyzed by an outside support firm that will give us summary information about what they mean. As for the remaining million pages, the bucket designations will ultimately yield to a different system of classification: the key documents will be winnowed to about ten thousand and put in “hot doc” binders. In time, the hot docs will be reduced to the less than a thousand that will become our daily working file. Half of the working file will make it into the trial binders as likely exhibits, and then less than 10 percent of those will actually be introduced at trial.
The facts we’ve learned so far through the documents are not in dispute. OPM bought 185 million shares of Salminol at between a dime and a quarter a share, for a total investment of about $35 million. Before OPM started selling it, Salminol shares had dropped to ten cents, which would have resulted in a loss to OPM of more than $26 million. However, by aggressively finding buyers for the stock, OPM drove the price up, until buyers were paying just under $2 a share. The litigation support team will calculate the total profit to the penny, but my back of the envelope analysis is that Ohlig was right on—OPM earned about $150 million. When OPM was completely out of the position, no one was touting the stock any longer, and the price plummeted to zero, wiping out the investment of the poor saps who bought it from OPM.
Those facts, however, do not a crime make. The line between a bad investment and criminal fraud is breached only if Michael Ohlig knew Salminol was worthless at the time he instructed his brokers to sell it. Ohlig has assured Abby and me that was not the case, but I told him, as I have told many clients through the years, documents don’t lie, and financial fraud prosecutions are built on emails in which statements of bravado become smoking guns. Ohlig’s response was only to say that OPM employees never communicated by email.
That leaves the prosecution with two options—present a circumstantial case in which they show to the jury that Ohlig must have known that Salminol was a dog stock based on the financial statements underlying the company, a daunting prospect if ever there was one, or flip someone to testify that Ohlig said he knew Salminol was worthless.<
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Our top priority, therefore, is keeping everyone who can hurt Ohlig in line. As the saying goes, you want everyone in the tent pissing out.
Protocol for the joint defense meetings is that we can’t actually get down to business until the breakfast needs are met. The lawyers line up along the back of the conference room as if they are waiting at a buffet station at a wedding.
“Alex, who do I talk to about the bagel toppings?” asks Matthew Trott, a known schmoozer.
“It already looks like a deli counter in here,” I joke back.
“C’mon, Ohlig can afford to spring for some lox,” he says.
“Or at least some whitefish salad,” Joe Freeman adds.
“You guys and your smoked fish,” George Eastman says. “Take it from an old Irishman, we should meet later over some whiskey and we’d actually get stuff done.”
After the smoked fish discussion has been tabled and everyone is seated, I call the meeting to order. I’m at the head of the table. Abby is to my right and will be taking notes. The other associates sit beside their partners and will also serve solely as scriveners.
“Let’s get down to it,” I say. “I’m happy to report that, aside from the subpoena, we still haven’t heard anything from the U.S. Attorney’s Office. We’ll be in a position to produce our documents next week, so maybe that will cause them to contact us.”
“How do the docs look?” Jane McMahan asks.
McMahan is a former clerk for a U.S. Supreme Court Justice, which is the highest credential you can have as a practicing lawyer. It also means that she’s the smartest of the group, a fact of which we’re all well aware, I’m sure. Ironically, she’s representing the lowest-level employee, Ohlig’s secretary. Aaron Littman knows McMahan because he also clerked on the Supreme Court, and he made the call to have McMahan represent Shaw because, as he said, “It’s the secretary, and not the CFO, who can do the most damage.”