A Conflict of Interest

by Adam Mitzner

  “I thought Salminol was the real thing,” he says without emotion. “That’s why I bought it for myself, and that’s why my company was selling it.” His words get stronger, picking up some speed as he works his way through a speech I get the sense he’s delivered before. “My business is not selling blue chip stocks, it’s finding the next big thing. We were selling Microsoft before anybody. I remember the questions. ‘Windows?’ How can a computer have windows in it, so you can reach inside?’ That is actually what they would say, no joke. You want to know how many of them retired early because we sold them Microsoft? Okay, so I was wrong on Salminol. I never claimed to be able to predict the future.”

  “Michael, with all due respect, your company bought Salminol at a dime and was selling it at ten times that much. Then when the position was completely sold, the market dried up, and the stock crashed to zero.”

  “Ah, now that sounds like the government talking, not my lawyer. What actually happened is that the price kept going up, and we sold at the ask. I know we were a large seller of the stock, but that’s not unprecedented for us. You forget, I was still personally holding four million bucks of the stuff. I was waiting like all the investors for the secondary. Then, literally out of nowhere, the company files for bankruptcy. Everyone tried to get out, which is why we couldn’t sell the clients out of it. We tried. There were just no buyers. I went down the tubes with every other investor.”

  I’ll say this, Michael Ohlig can sell it. He looks as sincere as I can imagine a person could be. It reinforces just how strong he’d be as a witness in his own defense.

  “A jury is not going to be sympathetic. It’s going to look to them like you’re just fulfilling the company’s motto—getting rich on other’s people money.”

  “Motto? Where’d you get that from? OPM stands for Ohlig, Pamela and Michael.”

  I don’t say anything. I’ve believed in Ohlig’s innocence when no else did, and I’m wondering if my suspicions now are a fleeting lack of faith or the moment when I come to realize what Abby has thought now for weeks.

  “Hey, I need you to level with me, Alex. Your father knew me for more than forty years, and never once questioned my honesty. You and I have been working together for what, three months? Have I ever said anything that turned out not to be true?” I still don’t answer. “Answer me, goddammit. The tapes all show I’m telling the truth.”

  “Not all of them.”

  “Popowski? C’mon, you know that’s bullshit.”

  “And now Eric Fieldston.”

  “More bullshit. Fieldston is lying to save his own ass.”

  “At this point, Michael, only you and God know for sure whether you’re innocent. Besides which, the truth doesn’t really matter anyway. A trial isn’t about whether you’re actually innocent or guilty, but about what twelve people who aren’t smart enough to get out of jury duty believe. And trust me, the two are not the same thing by any stretch of the imagination. Even before Fieldston flipped, an acquittal was, at best, a fifty-fifty shot, and that might have been too generous in our favor. Now with Fieldston against us, the reality is that our odds of an acquittal are considerably longer.” I pause, allowing this to sink in, before hitting him with the stuff that’s really going to sting. “I’ve never dwelled on the worst-case scenario with you because, frankly, you never ask, and I’ve always thought you’d consider my bringing it up as a sign that I lacked faith.”

  “Just spit it out, Alex,” he says, looking as if the last thing he wants to hear is any more of this speech.

  “Okay … here it comes. If you’re convicted, given the amount of money involved and our misfortune in pulling Judge Sullivan, who’s nothing if not tough on white collar crime, you’ll probably get at least twenty years. Even if by some stroke of luck Judge Sullivan takes pity on you, she’s still going to sentence you to somewhere between seven and ten years. Either way, it would feel like a life sentence.”

  I expect him to say something. Another protestation of innocence, or maybe that he intends to live much longer than ten years. Anything. But he’s silent. It’s as if he wants me to say everything I have prepared before he commits to a position.

  “Pavin doesn’t have a whole lot of experience in front of a jury,” I continue, “and he’s never been in a high-profile case before. That leads me to believe that he’d be more than happy to have you take a plea rather than run the risk of losing his first big case. I think I’ll be able to get him to go down to five years, maybe four. The bottom line is that you can either spend three years in prison and then some time in a halfway house, and then enjoy your retirement, or run the risk you’ll very likely die in jail.”

  I’ve had more than a few clients cry at this point, the moment when they realize it’s all over and they’re going away, thoughts of rampant sodomy filling their heads. Some start talking about suicide and one or two have fired me on the spot. I have no doubt Ohlig will not fall into any of these groups.

  “That’s what you’d do? You’d plead guilty to something you didn’t do?” His voice is calm, as if he’s conducting a survey.

  “Let me start a discussion so we can see where Pavin’s bottom line is on this.”

  “Answer my question, Alex,” he says with insistence. “Would you plead guilty to something knowing you’re innocent?”

  It’s an occupational hazard of a criminal defense lawyer to put yourself in your client’s shoes. Every client’s knee-jerk reaction is to claim that he would never—never—falsely admit guilt, even if it meant avoiding jail. The wisdom of adhering to that principle is reinforced by the movies and on television because when it’s scripted, justice always prevails. Real life, unfortunately, has a way of sometimes ending the other way around. As a result, I’ve long ago considered the practice of criminal law to be less about the pursuit of justice, and more about risk management.

  “If it were me, I’d plead,” I tell him. “I don’t see how anyone can rationally risk spending the rest of their life in jail when the alternative, although certainly difficult, is doable. It’s just that simple. It’s too risky to go to trial, even if you’re innocent.”

  He nods while I say this, as if he’s actually considering my analysis. Then, with a particularly heavy voice, he says, “You disappoint me, Alex. I thought we were more alike than that.”

  I have no earthly idea why he thinks we share any similarities. We have disagreed on most every decision I’ve made so far. If anything, he should be surprised if we were in accord about his decision to head to trial, despite its risks.

  “I don’t want to have this discussion again,” Ohlig says. “I’m innocent and I’m not going to admit to something I didn’t do.”

  “Okay,” I say.

  “No, not okay, Alex. Call me old-fashioned, but I need to know that my lawyer believes in my innocence. So, tell me, straight out. Do you?”

  “I do,” I say, and much to my own surprise, I actually still believe it.

  23

  I had been hoping to sleep in a little on Sunday, but wasn’t too surprised when that didn’t happen. I try to get out of bed without waking Elizabeth, but she stirs, and then realizing that I’m awake, she becomes concerned that I’m going back on my promise to spend the day with her.

  “You’re not going to work,” she says, “right?”

  “I told you that I wouldn’t. I’m just going to make some coffee.”

  “Stay in bed. It’s your birthday. I’ll make breakfast. Or we can go out.”

  “It’s still early, Elizabeth. You sleep. I can make coffee myself. And I promise, I’ll still be here when you get up.”

  “Happy birthday, sweetheart,” she says, and then turns to go back to sleep.

  As soon as I’m out of the bedroom, I reach for my BlackBerry. I don’t have any emails, but I have a voicemail. I can feel myself smile and my heart rate picks up. I speed-dial my voicemail, cursing to myself when I can’t get a signal and the call fails. On the second try, I’m in, and after typing
in my PIN, I hear the electronic voice confirm that the unlistened-to message is from Abby’s extension.

  She actually sings “Happy Birthday,” the full song. When she’s finished, she says in a serious voice, “Alex, I really hope you have a great birthday. I also hope that I get to see you today sometime. I understand if you decide to take the day off, but that doesn’t mean that I’m not going to try to bribe you. I have a little present for you and brought in some candles and two white-and-white cookies, which I know are your favorite. If you can’t come in, at least give me a call so I can wish you a happy birthday in person,” she chuckled. “Or at least over the phone in person. Guess where I’ll be. Bye.”

  White-and-white cookies have become just one of many inside jokes Abby and I now share. They are the classic black and whites, made famous by that Seinfeld episode, but without the chocolate side. Abby and I have gone to the coffee shop downstairs so often that she claims she’s going to need to schedule an intervention to get me to kick the habit.

  I listen to the message a second time, and then press the prompt to allow me to leave a return message. “Hi,” I whisper, so Elizabeth won’t hear, even though I’m certain she wouldn’t be able to hear even if I spoke in my normal voice. “Thanks so much for your message. I’m definitely going to try to come in today. Probably before dinner, maybe four-ish. I won’t be able to stay long, but, as you know all too well, I can’t resist a white-and-white cookie. Bye.”

  I make coffee and read the paper, enjoying the quiet at home, which I rarely experience. It is somewhat short-lived, however. Even though Charlotte went to bed late last night, she’s up by a quarter after eight. Thankfully, she goes straight into our bedroom to crawl into bed with Elizabeth.

  At eight-thirty, Charlotte comes bounding out of the bedroom screaming “Happy birthday, Daddy!” Elizabeth is a few steps behind her, undoubtedly having just reminded Charlotte.

  “Can I give you your present now, Daddy?”

  “Let’s do this, Charlotte,” Elizabeth answers, “why don’t you watch some television in Mommy’s room, while Daddy and I have coffee. Then, when it’s time for breakfast, we’ll do presents.”

  This is more than a fair compromise for Charlotte and she runs into the bedroom. Elizabeth and I share a laugh, and then Elizabeth goes to the coffeepot.

  “Can I warm yours up?” she asks.

  “Sure.”

  When Elizabeth walks over to pour my cup, she kisses me on the top of my head. “Happy birthday, Alex. I’m so glad we’re going to spend the day together.”

  I take a deep breath, which Elizabeth knows is a non-verbal cue that I’m withholding. I’m sure she also knows that it means I’m considering going into the office, but she pretends otherwise.

  “What?” she asks.

  “Nothing. We’re going to spend today together, but I’m going to have to go into the office for a little bit. That’s all.”

  “You promised, Alex.”

  “I promised that I’d spend the day with you and Charlotte, and I will. It’s not going to matter if I show up at the office for an hour. I’ll meet with the team, make sure that they’re not doing anything that’s a waste of time, and then I’ll come right home.”

  Now it’s her turn to sigh deeply. I understand what she means, just as clearly as she did with me. She can’t believe that I’m going to go into the office today, and she knows that she’s not going to be able to change my mind.

  I take advantage of the momentary silence to change the subject. “Last week, it was James Winters’s fiftieth birthday,” I say. “He’s a partner in the real estate group, and the firm had a little party for him. When I wished him a happy birthday, I told him that it was my birthday in a week, but it wasn’t a big birthday like fifty—instead I was only turning thirty-five. He looked at me and said, ‘I’ll let you in on a little secret. Thirty-five is the only birthday that really matters.’ I laughed and asked him why, and he said, ‘Because after you’re thirty-five, people expect you to know what you’re doing.’”

  Elizabeth smiles politely at the punch line, which I’m sure she anticipated from the beginning of the story. “So, do you think what he said is true?” I ask.

  “I don’t know, Alex. I guess I’ll find out in two years if people expect me to know what I’m doing.”

  “Fair enough.”

  “I’ll tell you one thing, though.”

  I know by the fact that she’s requiring me to ask her what the one thing is that I’m not going to like the answer.

  “What?”

  “If the first few hours of your thirty-sixth year are any indication, I don’t think you know what you’re doing yet.”

  When the phone rings, Elizabeth says I should let it go to voicemail. I check the caller ID before answering. It’s not Abby, but it’s still a call I need to take.

  “It’s my mother,” I say to Elizabeth, and then, after picking it up, “Hi Mom.”

  “Happy birthday.”

  “Thanks. How are you?”

  “Not so good.”

  “What’s wrong?”

  “Well, I just heard some very disturbing news.”

  “What?”

  “I just heard from a friend that Michael Ohlig is about to go on trial for securities fraud, and that you’re his lawyer. Alex, how could you keep something like that from me?”

  “I’m sorry, Mom. He asked me not to tell you.”

  “Alex, I’m your mother.”

  “I know. But I’ve got professional obligations, and one of them is that I can’t break a client’s confidences. I thought about turning the case down, just so I wouldn’t have any secrets from you, but I thought you’d be more upset if I did that. And, even if I didn’t represent him, I still wouldn’t be able to tell you about his situation. Besides, I thought that it would make Dad happy that I was doing it and, in a weird way, it makes me feel closer to Dad when I’m with Michael.”

  “I’m very hurt that you didn’t tell me, Alex.”

  “I’m sorry. Please don’t be mad at me about this.”

  “When my friend told me about it, she was just flabbergasted that I didn’t already know. I felt like such a fool.”

  I wonder how many times I can say “I’m sorry” in one conversation, but I do it again.

  There’s enough silence for her to get her point across that she’s still upset, and then she says, “I don’t want to fight with you, Alex. Especially on your birthday. I can’t believe it’s been thirty-five years. When did that happen?”

  “It certainly goes by quickly. I can’t believe Charlotte’s in kindergarten already.”

  “How is she?”

  “She’s great. She just gave me a bunch of pictures she drew as my gift.”

  “That’s nice. What did Elizabeth give you?”

  “Nothing yet. We’re going to lunch today at this place we all like, especially Charlotte. It’s kind of a birthday tradition and we all order milk shakes. And then we may go to the movies or something. There’s a new Disney movie Charlotte wants to see.” I chuckle. “It actually won’t be that different than Charlotte’s birthday, come to think of it.”

  My mother doesn’t say anything in response and so there’s another long period of silence. “I miss Dad,” I say. “I miss him every day, but it’s sad not being able to talk to him on my birthday, you know?”

  “I know. I get so mad at him sometimes because he should have taken better care of himself. I begged him to see a doctor and he just never would.”

  “I’m not sure it mattered in the end. I mean, what could an annual physical have done for him anyway?”

  “I know. That’s what I tell myself too. That once someone’s gone, it really doesn’t matter why, right?”

  “Right,” I say. “So, have you reconsidered about Thanksgiving? You can still come up. It’s not too late, although by Thursday it will be.”

  “No …” and then her tone changes, back to anger. “You know, Alex, I’m such an idiot. I just put
it together. It’s Michael Ohlig’s case that’s keeping you in New York, isn’t it?”

  “It is,” I say with a sigh. “The trial starts a week from Tuesday. He’s going to be in New York on Monday to work with us this week, but we’re definitely going to take off Thanksgiving.”

  “Is Michael going to be with you for Thanksgiving?”

  “No. It’s just Elizabeth’s family. And you, of course. Anyway, I think he’s going back to Florida to spend it with his family.”

  “Can you do me a favor, please?”

  “Sure, Mom.”

  “Don’t tell him that I know. He obviously didn’t want me to know, so I don’t want to upset him. I imagine he’s got a lot on his mind right now.”

  “Okay. I won’t tell him. We’ll invoke mother-son privilege.”

  “Thanks,” she says with a weak chuckle. “Do you think he’s going to go to jail?”

  Most people ask if my clients are innocent. My mother is much more practical, I guess.

  “I hope not,” I say. “It’s my job to make sure he doesn’t.”

  “No, really. Do you think he will?”

  “Really, I don’t know, Mom. I think he’s innocent though, if that matters.”

  “If he’s convicted, will he go to jail?”

  There’s no reason to lie to her. “Yes,” I say flatly.

  “For how long?”

  “I don’t know.”

  “Will it be like a year or a long time?”

  “A long time.”

  The day plays out almost exactly as I told my mother. We go out to lunch to EJ’s, a diner (although it proclaims itself a luncheonette) near our apartment that Charlotte calls her favorite restaurant in the entire world. And we all order milk shakes—black and white for Charlotte, peanut butter and jelly for me (which actually isn’t as bad as it sounds), and strawberry for Elizabeth.

  Then on to the Disney movie, which turns out to be a Pixar film. I doze off slightly in the middle without missing any of the story, which has something to do with secret agent rodents and a plot to destroy all the cheese in France.