When Under Investigation, Listen to Your Attorney and Just Remain Silent

Many clients seek counsel after they have been interviewed by federal agents. They spoke with the agents after the agents surprised them at home or work. When asked why they spoke to the agents without contacting counsel first, clients routinely say that they thought it would be a brief interview and that they didn’t want the agents to think that they had anything to hide. Afterwards, many clients realize that the interview was lengthy, detailed and at times confrontational.

It’s understandable that people in that situation talk with the agents – they are approached without notice, the agents are friendly and suggest that it won’t take long and that they are simply trying to gather some information. Agents count on people’s desire to be helpful and non-confrontational. What the agents get are “statements” from people who have not had time to think about their answers, review documents or emails that might refresh their recollection, let alone meet and discuss the matter with counsel to determine whether it would be beneficial or harmful to be interviewed. Those statements become memorialized in a report of interview that can later be used as potential evidence against the client. In addition, if any of the statements are materially false, the client could be separately prosecuted for false statements to a federal agent, in addition to whatever criminal conduct was originally under investigation.

While it is understandable that agents often get people to speak with them without counsel, it is unfathomable that clients would speak with the media about their cases. One such glaring example of a client not following their attorneys’ advice is the founder of the now bankrupt crypto exchange firm, FTX. Sam Bankman-Fried has been on a media tour recently sitting down with Andrew Ross Sorkin of the New York Times, as well as reporters from Vox and an appearance on Good Morning America. All this is in addition to his letters, statements and tweets where he portrays himself as a naïve kid in over his head.

FTX lost billions in investors’ monies. The court appointed liquidator has said that he has never seen such a complete failure of corporate controls and was having difficulty determining how much cash FTX has or where it could be. Recent reports indicate that Bankman-Fried and other corporate officers took “loans” in excess of $4.1 billion, with $121 million going towards 19 properties in the Bahamas, private plane trips, lavish parties and other luxuries. In the face of a bankruptcy liquidator, investigations by the SEC, law enforcement and a Senate Hearing, Bankman-Fried has publicly made material statements about the alleged facts, his knowledge and intent, and company operations. For instance, he has said that he didn’t knowingly commit fraud, that the company was disorganized and overleveraged, no one at FTX was in charge of risk management or for determining potential conflicts of interest, and that he didn’t know if funds were commingled with another one of his companies, the hedge fund Alameda Research, that may have borrowed significant sums of FTX customers’ monies.

Bankman-Fried readily admits that he is granting media interviews against the advice of his attorneys, but that staying silent it’s not who he is and that he has a duty to talk to people. Disregarding the advice of his attorneys, and likely his parents who are Stanford University law professors, will almost certainly turn out to be a huge mistake that will ultimately be used against him by the SEC, law enforcement and potential victims in a civil action. While it is human nature to want to defend one’s self and reputation, and a natural desire to try to counter bad press, with public reports of misuse of funds and potential fraud, it is reckless to talk to the media about an ongoing investigation.

Stahl Gasiorowski Criminal Defense Attorneys actively and aggressively protect clients’ rights. To contact Mr. Stahl, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rstahl@stahlesq.com.