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GUEST BLOG [In]Securities: Tell Me Lies by Aegis Frumento Esq

July 9, 2021

[In]Securities 
a Guest Blog by

Tell Me Lies

Two weeks ago, the New York State Appellate Division issued an interim suspension of Rudy Giuliani's law license. Rudy's suspension is a bookend, of sorts, to Alex Oh being forced to abandon the plum job of SEC enforcement director, of which I spoke a few weeks ago.

Good things come in threes, but so does misfortune, so it's hard to know what to make of threesomes. Suffice to say that the travails and Alex Oh and Rudy Giuliani seem to link naturally to my last column where I talked about F. Lee Bailey before his Fall, and of his inspiration, Lloyd Paul Stryker. See  "GUEST BLOG [In]Securities: Bird On A Wire By Aegis Frumento Esq (BrokeAndBroker.com Guest Blog / June 18, 2021" at http://www.brokeandbroker.com/5896/insecurities-aegis-frumento/. What links them all together is that both Oh and Giuliani were brought down for lying in their representation of a client, which both Bailey and Stryker said was the one thing that an advocate must never do.

Alex Oh had accused her adversary in a deposition of being "unhinged." The problem was that the judge had viewed the deposition video and saw with his own lyin' eyes that Oh's adversary was perfectly well behaved. In other words, Oh lied to the court about her adversary in order to gain an edge for her client. See "GUEST BLOG [In]Securities: Oh No By Aegis Frumento Esq (BrokeAndBroker.com Guest Blog / May 21, 2021" at http://www.brokeandbroker.com/5860/insecurities-aegis-frumento-alex-oh/

It's not really fair to compare Alex Oh to Rudy Giuliani. Alex was just trash-talking her adversary. Rudy was playing in a different league, if not a whole different sport. The charges against Giuliani sprang from President Trump's efforts to undo the election of Joe Biden. Rudy Giuliani set out to overturn the election in the courts of law and public opinion. In his doing so, the New York Court found

uncontroverted evidence that respondent communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump's failed effort at reelection in 2020. These false statements were made to improperly bolster respondent's narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. 

at Page 2 of  In the Matter of Rudolph W. Guiliani / Attorney Grievance Committee for the First Judicial Department, Petitioner, v. Rudolph W. Giuliani, Respondent
(Order, Supreme Court of the State of New York/ Appellate Division, First Judicial Department, Motion No. 2021-00491, Case No. 2021-00506 / June 24, 2021)
https://www.nycourts.gov/courts/ad1/calendar/List_Word/2021/06_Jun/24/PDF/Matter%20of%20Giuliani%20(2021-00506)%20PC.pdf

The Court found it easy to suspend Giuliani, even without a hearing, because all of Giuliani's statements are in court records and in public statements. There isn't even an argument that Giuliani might have in good faith believed those statements, because Giuliani himself admitted, for example, that he had no evidence of voter fraud, despite his constant declaiming that there was voter fraud. 

Perhaps the defense to these claims is the one that Giuliani's co-counsel Sidney Powell has lodged in her own defense -- that no reasonable person would have believed her. See https://www.nbcnews.com/politics/donald-trump/sidney-powell-s-legal-defense-reasonable-people-wouldn-t-believe-n1261809. But this defense poses its own problem. A lawyer who cannot be believed has squandered the single most important tool in their kit -- their credibility. An advocate who is not trusted by the courts or the public is next to useless. That's why good lawyers never lie for their clients.

F. Lee Bailey knew this. In his To Be a Trial Lawyer he wrote, "Always, always but always make sure that your word is as good as solid gold when speaking to a judge. Courts could not function at all if they could not rely on the representations of counsel. When you make a statement to a judge, consider yourself to be under oath." In The Art of Advocacy, Bailey inspiration, Lloyd Paul Stryker, wrote likewise of advocates that "They may and should fight hard for their clients, but they must fight fairly. They may and should say all that honestly and honorably can be said for them. They may say it with fervor and all the persuasion in their power; but in saying it they may not deceive, they must not lie." 

That may have been clearer in 1954 when Stryker wrote it than, perhaps, it is today. Television's Dr. House would say that "everybody lies," and of course we all do, to ourselves most of all. No one has ever successfully adopted a Kantian "categorical imperative" against all lying, no matter what. Ricky Gervais made a small but highly amusing movie about a society where no one ever lies, The Invention of Lying, that shows how absurdly impossible such a world would be. More reasonable is the Talmudic principle that a lie may be told where peace demands it. Of course, that just begs the question, whose peace?

Yes, lying is a complex field, seldom studied. When Sissela Bok wrote her seminal 1978 treatise, Lying: Moral Choice in Public and Private Life, she was astonished at the "paucity" of modern analysis; she had to go back to the Middle Ages and even further back to the Stoics to gain a foothold. In her analysis, some lies are justified to prevent greater harms. But in the most general of terms, lies told in order to injure others are bad, are never justified, whatever may be said of other kinds of lies.

Put that way, it seems clear how both Alex Oh and Rudy Giuliani went astray. They lied -- she in a petty way and he in a grand way -- not to keep the peace but to inflict harm. Oh lied to attack her adversary. Giuliani lied to promote a false narrative that helped incite an insurrectionist mob.

For her petty lie, Alex Oh got a judicial slap on the wrist and lost a dream job. For his Big Lie, Rudy Giuliani found, as Stryker put it, that "When one once thought to be an honest man turns out a rascal, he is driven from the Temple of Justice by the lawyers themselves." One can't say fairer than that.

ABOUT THE AUTHOR

Aegis J. Frumento


380 Lexington Avenue
New York, NY 10168
212-792-8979

Aegis Frumento co-heads the Financial Markets Practice of Stern Tannenbaum & Bell, New York City.  He represents persons and businesses in all aspects of commercial, corporate and securities matters and dispute resolution (including trials and arbitrations).  He has decades of experience representing SEC, CFTC and FINRA regulated firms and persons in regulatory enforcement investigations, hearings and lawsuits.  Drawing on his five years managing the Executive Financial Services Department of Morgan Stanley Smith Barney, Aegis has rare depth of experience in the securities and corporate governance laws affecting senior executives of public corporations.  When not litigating, Aegis enjoys working with new and existing broker-dealers, registered investment advisers, and private equity funds, covering all legal aspects from formation to capital raising. Those clients now include industry professionals looking to adapt blockchain technologies to finance and financial market enterprises, including the use of cryptosecurities to represent equity and debt interests. 

Aegis's long and distinguished career includes having been a Managing Director of Citigroup and Morgan Stanley, a partner and the head of the financial markets group of Duane Morris LLP, and the managing partner of Singer Frumento LLP.  He graduated from Harvard College in 1976 and New York University School of Law in 1979.  Aegis is a frequent author and speaker on securities law issues, and is often quoted in the media on current securities law developments.  He is the current Chairman of the New York City Bar Association's standing Committee on Professional Responsibility.

NOTE: The views expressed in this Guest Blog are those of the author and do not necessarily reflect those of BrokeAndBroker.com Blog.









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