A Conflict of Interest (12 page)

“My company has permitted me to offer to a select few qualified investors a stock called Salminol at a very attractive price. Salminol is a publicly traded security, and the company holds a certified United States patent for completely eliminating salmonella in eggs. Now I’m sure you’re aware that salmonella is one of the leading causes of death in certain parts of the world, and a major problem here at home too. And you must have heard about the dangers of eggs. I mean, it was all over the news; about a billion of them had to be recalled. Well,
this company is going to make all of that a thing of the past. Imagine, you go into your grocery store and sitting there on the shelf are two boxes of eggs. One is the regular kind, you have no idea where it comes from, and right next to it is a box that says right on the box, in big bold letters,
100% salmonella-free—guaranteed
. I mean, it’s a no-brainer, right? Everyone’s going to buy the salmonella-free one.

“I know what you’re thinking. There’s a catch, right? Like my daddy always told me, if it sounds too good to be true, it is. So, here’s the catch. These eggs are being sold in parts of Canada and sales there are through the roof. But the company needs to expand its distribution and its market penetration. They’ve got to be global, right? It’s a global economy out there. So here’s why their problem is good news for you. To raise money so they can go global, the company is selling—for a short time only—a limited amount of its stock in a private offering. Now, I’m sure you’ve heard of IPOs and you know that usually only the big shots get in on them—CEOs, hedge fund managers, Hollywood types—and they clean up. But my company does its bread and butter with sophisticated but lower net-worth investors such as yourself, and so this time we decided to share the wealth a little and let our investors get in on something big. I mean, the stock’s gotta go to the moon, between the product being can’t-miss and with the company likely going to buy back some stock at a premium—hold on, I’m not sure I’m allowed to say that, so forget I said that, okay?

“Anyway, the bottom line is, I can put aside seven thousand shares. The current ask is a buck, but it might end up being a little more because this thing is on the uptick even as we speak. But if you put up, let’s say, ten grand, I guarantee you triple it in less than a month.”

During this pitch, for the most part, Abby, Ohlig, and I have been staring at the computer, as if there was a person actually inside it delivering these words. Hearing Gates make a guarantee—which results in an immediate license revocation by the SEC—causes me to look up at Ohlig. His expression back doesn’t contain even the slightest bit of concern.

“What’s your name again?” the old man on the tape asks.

“It’s Kevin, Kevin Gates. Hey, hold on for a second, I’m on an
important call with Mr. Rudnitsky, the man I told you about.” Gates must have said this pulling his mouth away from the phone, as if he’s talking to someone else, because this part sounds more muted. “Yes, yes, I’ll call him right back. I understand he’s about to get on the jet, but I have another client on the phone now. I promise, three minutes. No, I can’t guarantee it’s going to be the same price as I quoted this morning. Yes, I know he wants to buy a million shares, but it’s going up every minute. I’m very sorry about that, Mr. Rudnitsky,” Gates says, now more loudly. “Can I put you down for fifteen thousand?”

“I don’t know. I normally discuss any type of investment with my wife. You know, we’re on a fixed budget and—”

“I totally understand where you’re coming from, and if your wife makes all the decisions in your house, that’s fine. But here’s the thing. When you call back, I’m not going to be able to offer you the same deal. Look, even though I shouldn’t be telling you this, I’m sure you’ve already figured it out. My other client is going to buy a million shares as soon as I get off the phone with you. That’s going to move the price at least a buck. So, you can pretty much double your money just by getting in ahead of him. If after that your wife wants to sell, God bless, and you’ll have enough in profits to take her on a cruise around the world. Not bad for ten minutes’ work, right? And, if you want to keep going, who knows how much you’ll make. Imagine if I was calling you about Microsoft before anybody had heard of it. What would your wife be saying if you told her you passed?”

“Well—”

“Yes, yes, I know,” Gates says to whom I imagine to be the pretend person standing in his office. “I’m going to do this right now. Tell Mr. Windsor to hold. I’m sorry, Mr. Rudnitsky, I have to take this other call. The guy simply can’t wait when money’s on the line, and he’s afraid it’s going to cost him another million because it’s ticking up. But, look, I live by the credo that a client is a client, and I’m not judging based on how fat their wallets are. So, you’re the client I have on the phone now, and if you give me the go-ahead, you’re in.”

“Okay, I suppose I can swing—”

“Great, I’m going to transfer you to one of my assistants, and she’ll do the paper work. For twenty thou. If you have any questions, just give me a call. You’ve made a great decision. Gotta run now—”

The tape goes silent.

I’m about to say something, when Abby interrupts. “Hold on, this is the part I really wanted you to hear.”

Gates’s voice comes back on the tape. “Thanks B-man, I thought he was going to croak before I could wrest the fucking twenty grand out of his hand. Wait till he tells the wife he invested twenty grand in a steaming pile of dog shit. Ohlig better give me that bonus he promised for selling out of this mofo before it hits zero.”

“Gates apparently didn’t realize he hadn’t disconnected the line after transferring the client to ops,” Abby says, stating the obvious.

She and I now wait, looking at Ohlig to provide some explanation. Apparently, Ohlig doesn’t think he has to add anything to what we’ve heard, even though he’s smart enough to know that this is a major problem.

“We need to find Gates,” I say when it’s clear Ohlig isn’t going to say anything.

“Gates isn’t even the guy’s real name,” Ohlig says. “It’s Popowski. He thought customers would be more trusting if they thought he was rich, so the idiot decided to call himself Gates. Anyway, the guy worked for me for less than three weeks. I found out that he was pulling this crap and he was out on his ass.”

“That makes it pretty clear he’s not going to be helpful to us on the stand,” I say.

“Look, I can see that you’re troubled by this, so let me put you at ease. I never said that I thought it was going to zero. That’s just him blowing smoke.” Ohlig shakes his head. “But it’s all beside the point because there’s no way they’re going to put him on the stand.” Ohlig says this with an authoritative air, as if he’s fully versed in prosecutorial decision making. “The guy’s a known liar. At least ten people will testify to that.”

“They’ve got to put him on the stand,” Abby responds. “Without
Gates, or Popowski, or whoever he is, they won’t be able to get the tape into evidence.”

“Really?” Ohlig asks.

“Don’t kill him yet,” I joke, “but Abby’s right. The tape would be inadmissible. They might be able to figure out some other way to authenticate it, but usually you do it by having the person on the tape testify.”

“What about the FBI guy?” he asks.

“That wouldn’t work. Maybe Judge Sullivan lets in the sales pitch through the agent, but she’d never allow him to testify about the part where he says you knew it would go to zero. That’s Hearsay 101.” I turn toward Abby. “Have you heard any other pitches like this?”

“No,” she says.

“Like I’ve been telling you guys,” Ohlig says, “it’s all legit. You know, we’re salesmen, so we sell. That’s what we do all day. But I tell my guys, it’s got to be the truth, and if I find out differently, you’re gone. No second chance. Zero tolerance. I mean, how many calls did they tape and all they got is this one guy. Doesn’t that say something?”

He has a point, but I know that it will be lost on the jury. “It doesn’t work like that, I’m afraid,” I tell him. “Unfortunately, for most jurors, a single incriminating statement on a thousand hours of tape isn’t much different than if the statement stood alone. Either way, it shows a crime has been committed.”

He shakes his head, as if the act itself repudiates my opinion. “Abby,” he says with the lascivious cadence that usually accompanies his invocation of her name, “did they tape any of my phones?”

“No. Just the salesmen.”

“Are you sure my office wasn’t taped?”

Abby looks in my direction. I know what she’s thinking, but she’s waiting for me to confront him about it.

“Michael, is there something we should know? Any discussions you’re concerned about?”

“No. Nothing like that. I just wanted to be sure I’m safe making my heavy breathing calls to Abby.”

Whatever concerns he had moments before about his private conversations being served up for public consumption have apparently been assuaged. He flashes the smile he has come to rely on when the pressure mounts.

The one that says things couldn’t be going any better.

I
’m already wearing my coat when the phone rings. If it were any number other than Aaron Littman’s I’d ignore it.

“Hi Aaron,” I say, picking up the phone.

“It’s actually Kathleen, Alex.” Kathleen is one of Aaron’s two secretaries. “He wants to see you. Now, if you can.”

The timing couldn’t be worse. Charlotte’s autumn concert is tonight. For some reason they start these things at 5:30, even though I’m sure that no one who can afford private school tuition has the kind of job that they can comfortably leave by five. I promised Elizabeth that I’d be at Charlotte’s school concert no later than 5:15, but that was going to be doubtful even if I left this minute, and a detour to Aaron’s, no matter how brief, means I’ll miss the beginning of the concert. On the other hand, an invitation to see Aaron Littman isn’t really a request.

“I’ll be right up,” I say.

If I did a year-by-year analysis of who in the world I wanted to be, the eighties would have been dominated by Bruce Springsteen, the nineties by Jerry Seinfeld, and the last ten years or so by Aaron Littman. It’s not that I think Aaron’s life is better than, say, George Clooney’s; it’s just that it makes more sense to wish you could be someone you may have a chance of actually being some day. And, ever since I was in law school, Aaron Littman has been universally regarded as the finest trial lawyer of his generation. He has a client list that reads like a virtual who’s-who of billionaires, high-ranking government officials, and movie stars. On top of that, he looks the part: six foot two, same weight as he was when he rowed crew at Yale, dark hair speckled with grey, and always attired in five-thousand-dollar custom suits.

When I arrive, Kathleen is nowhere to be found. “Is the great man around?” I ask Regina, Aaron’s other secretary.

Regina is in her mid-fifties, and on the dowdy side. Most people would say she has a pretty face, but beyond that she does little to
attract men, which might be the reason she’s never been married. She’s been with Aaron since the day he joined the firm, and I’ve been told by more than one person that she didn’t always look the way she does now. As one of the senior partners once told me, “Back in the day, we would come to Aaron’s office just to look at her. Imagine the same size breasts as now, but fifty pounds less everywhere else.”

“He’s here somewhere,” she tells me. “He’s in about three different meetings at the moment. Your best bet is probably Conference Room B, but he might be in with David Bloom down on 52. He also said something about stepping into that takeover Jim Martin is handling. You’re welcome to wait here if you’d like.”

This is typical Aaron. At any given time he is shuttling between various crises. More than once I’ve seen him walk into the middle of a meeting in which twenty lawyers have been negotiating for hours, offer a resolution to the impasse in about three minutes, and then leave to let everyone else iron out the details.

Aaron isn’t gone long. “Sorry I’m late,” he says a few moments later, making me wonder how many times a day he must utter that phrase. He asks Regina if anyone’s been looking for him and she playfully rolls her eyes. “Anyone looking for me who I need to call back before I talk with Alex,” he clarifies.

The answer, for the moment, is no.

Aaron leads me into his office, directing me to take a seat on his sofa. His office has always seemed to me more of a museum than a place from which to practice law. It’s enormous—three times the size of mine and that of every other partner (except for Sam Rosenthal, whose name is on the letterhead and who has an office of equal size), and the walls are lined with pictures of Aaron standing with a litany of A-listers. My favorite was taken at
Time
magazine’s gathering of the most influential people of the twentieth century, in which Aaron is sandwiched between Muhammad Ali and Mikhail Gorbachev.

“Thanks for coming by,” Aaron says, acting as if I had an option not to answer his invitation. “I just thought we’d chat about how your case is shaping up.”

Since I’d already anticipated that this was the reason I was being
summoned, I was ready with a response. My thought was that short, without too much detail, was the way to go, peppering my conclusions with plenty of caveats, in case things ultimately turned out differently than I was reporting now.

“It’s still early,” I begin, “and we just got in some tapes that I haven’t heard yet, so things could change, but so far I think we’re in pretty good shape. It’s largely going to be a state-of-mind case—did Ohlig know Salminol was worthless when he sold it to investors? The experts will cancel each other out and the case will boil down to whether the jury believes Ohlig or not.”

“I take that to mean you plan to have him testify?”

Whether the defendant is going to take the stand is the key strategy decision in any case, as well as the best indicator to whether the lawyer thinks the client is innocent. Most lawyers will tell you that no matter how gifted a liar a client may be, the lie can’t be sustained against a good cross-examiner. Something inevitably trips them up.