The upside of defending five former Bernard Madoff employees in a high-profile six-month trial included tremendous exposure, the opportunity to vigorously defend clients and an intense education in trial practice.
The downside—at least for four of the five counsel with small firm or solo shops—was facing a depletion of financial resources.
Nonstop trial work, the inability to take on new matters or work on existing cases and a heavily-reduced hourly rate put the four attorneys under financial and time management pressure.
Andrew Frisch, Larry Krantz, Gordon Mehler and Roland Riopelle, all former federal prosecutors, are in small firms with one or two-person partnerships. The fifth defense counsel, Eric Breslin, is a partner at 700-attorney Duane Morris.
While the financial harm was not severe enough to cause long-term damage to their practices, the experiences of the four attorneys offer lessons for small firms or solos who take on long-term cases.
“It’s a reminder of how intense trials can be, but also a cautionary tale of what one will have to face and perhaps give up,” said Mehler, principal at the Law Offices of Gordon Mehler. Financially, “I think it was the worst year I’ve ever had. Because of not being paid, and inability to kind of bring in new business, the financial hit was extreme.”
“It was very, very difficult, because I spent so much time on this case,” said Andrew Frisch, partner at the Law Offices of Andrew J. Frisch. “During the most intensive portions of my preparation for this trial, I wasn’t able to devote time to other things from which I could derive income.”
Working for reduced hourly rates added to the challenge, he said.
The five defense attorneys had been working the Madoff case for years, leading up a 24-week trial before Southern District Judge Laura Taylor Swain. On March 24, jurors found all the clients guilty of helping carry out the $65 billion Ponzi scheme.
Frisch represented Daniel Bonventre, Madoff’s director of operations; Riopelle was counsel to Annette Bongiorno, a former executive assistant to Madoff; Mehler represented one of the computer programmers Jerome O’Hara; Krantz was counsel to the other programmer, George Perez. Breslin represented account manager Joann Crupi.
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The Southern District U.S. Attorney’s Office upped the pressure before trial by notifying the four attorneys that they and their firms would be held liable if they drew down funds in their attorney escrow accounts that were tied to their clients’ acts of alleged fraud.
To stay in the case, Riopelle, Mehler, Krantz and Frisch applied for appointment under the Criminal Justice Act (CJA) to be paid by the court. Breslin was not court appointed. According to court documents, Crupi’s family had income independent of Madoff.
The lawyers were paid CJA rates of $110 an hour instead of their regular billing rates, which they said could go as high as $600 or $700 an hour.
During the Madoff trial, it was typical for each attorney to bill about 60 hours a week, earning about $6,600 per attorney per week. Mehler and Riopelle said they didn’t submit a bill until after the trial ended.
Mehler said his only income during that period was “a little bit from the few hours here and there on other cases, and my own savings” and money he borrowed.
“The government is very much aware of the economic difficulties of a prosecution like this and they often use those difficulties strategically,” said Riopelle, of Sercarz & Riopelle, adding “this is becoming more and more a common practice.”
In addition to working for lower rates, resources gradually depleted because the attorneys were too busy to take on other paying clients.
For instance, in 2010, “solely because of the limited resources of my practice and the enormity of the case against Mr. Bonventre,” Frisch said, he returned a six-figure fee to another client and withdrew from representation.
Mehler said that a few times during the trial, he had to send work to other attorneys. “If there was something that was time consuming and you had to dive right into it, there was no way you could do it,” he said.
“It was virtually impossible to take on new matters during the trial,” said Krantz, partner at Krantz & Berman. “The firm did but I didn’t personally, and I did have to turn down a couple matters that just would have needed too much immediate attention.”
The lawyers, who rely on referrals, said the legal community took notice.
“People don’t send you business because they think you can’t handle it,” Mehler said. “Things definitely get quieter. The longer you’re on trial, the less the phone rings, particularly in a trial like this that was highly publicized.”
“The phone was very quiet while I was on trial,” said Krantz, who tried the case with associate Kimberly Yuhas. “Since the new case initiation slowed down or didn’t exist for six months, there’s a gap [in business] moving forward.”
But the attorneys said the financial harm was not severe enough to create long-term danger to their practice. “I don’t think of it in terms of billable hours or in terms of financial or time break downs. I just work for my clients. I get done what needs to be done,” Frisch said.
Keeping the Door Open
For Riopelle, the financial pressure from this trial was light compared to an eight-month trial in the Eastern District in 2010, where he and his law firm partner, Maurice Sercarz, represented the former chief operating officer of a Long Island body armor company in an insider trading and fraud case. During that marathon trial, he rented a car and an apartment by the courthouse and had to turn away new business.
“We had no cash flow. We were drawing down on all our credit lines,” Riopelle said. “There was a real concern … that we might have to close our doors.”
One lesson learned from that experience, he said, is “in a very long case like that, to have both partners committed full time is a bad idea. You got to have one guy out there working on other cases to make income for the firm, and you got to have one guy dealing with the trial.”
During the Madoff trial, “we got through just fine” Riopelle said, because his partner remained active while Riopelle brought in some fees from other cases.
Krantz, who founded his firm with Marjorie Berman, also found it better to have only one partner devoted to the Madoff trial.
“We were cautious about expenses, and made sure we had enough in the bank to cover us. We also were lucky that since Margie has her own practice, we did have all of her ordinary revenues [come] into the firm and that carried us as well,” he said. “It’s certainly a lot easier to do if you have a great partner and obviously it’s tougher on your own.”
Krantz said the trial “will have a negative effect on our profitability for the firm” but, “it’s something we can weather and had anticipated.”
Mehler, whose boutique works with five of counsel attorneys, said with the help of other attorneys, he could take on a few new matters during the Madoff trial. He tried the case along with of counsel Sarah Lum.
Breslin, the Duane Morris partner, said being part of a larger firm was an advantage.
“It’s a rigorous and very pressured kind of experience, and I found it easier to have the resources around me that a big firm provides,” such as an infrastructure that can handle large document discovery, he said. “I have partners and associates … who basically I could just give other cases to on a temporary or part time business until I was free again.”
Breslin, who tried the case with associate Melissa Geller, said Duane Morris “was very understanding as to what kind of commitment this was going to be.”
Riopelle, however, said while sees the advantages of a large firm, he remains committed to small firm practice. “I would have loved to have a junior lawyer assisting me in this trial, but the way it worked out, somebody wasn’t available,” he said.
But the lead attorney still “has to know the file. You can have 100 associates working for you, doing one thing or another, but if you don’t know that file, you will not be effective,” he said.
Riopelle said he values his independence and his passion is representing “flesh and blood” persons, not corporate entities.
Frisch, a former partner at LeClairRyan whose current firm has two associates, said he doesn’t think he could have taken this case at a larger firm. Many firms represent someone or an entity connected to Madoff, raising a potential conflict, said Frisch, who tried the case with his co-counsel, solo practitioner Gary Villanueva, and associate Amanda Bassen.
Also, “the principal agenda of the conventional law firm is to make money. Getting paid CJA rates is typically not in the agenda,” he said. “Law firms might be amendable to devoting some of their resources to a case that lasts two to three weeks but half a year? It eats too much into the bottom line.”
At his firm, Frisch said, “I’m not answering to a committee, I’m not justifying myself in terms of how many dollars I bring in.”
Every Minute Counts
The attorneys, all in their 50s, said business survival depended on appropriate time management.
They said they used breaks during trial to answer client emails and spent any time they could on other matters in the evenings, on weekends and Fridays—the one day of the week they were not on trial.
“You use every hour you can,” Riopelle said.
“When you’re intensely involved in a trial,” Mehler said, “it’s hard to deliver service in other cases efficiency, even when you have other people working it. And so they have to be patient and by and large, they were, and so were judges. Everybody gave us a break.”
The trial consumed most of their lives: they woke early to prepare for that day’s trial and stayed late in the office. Working full days on the weekend was routine.
“You work around the clock and you abandon all hope of an actual life,” Frisch said. “You don’t want to leave any stone unturned. Toward the end of the trial, I think I was working on adrenaline.”
“To be honest,” Krantz said, “during the trial, I wasn’t really thinking about the finances. I was really just focused on the case, and I’d say the hardest thing was the hours required for that long period of time. The stress and pressure … was exhausting.”
At the end of the Madoff trial, “I was more tired; more beaten down physically by this case,” Riopelle said, compared with the eight-month trial. “I came in feeling like Roland Riopelle and came out feeling like Gus Newman,” he said, referring to the octogenarian defense lawyer.
“There are moments of terror in a trial, right before your opening, right before your closing,” or cross examinations, Mehler said. “There are moments you can’t sleep because you’re so keyed up and so nervous.”
Several said they felt as if they lost touch with the outside world.
“At trial’s end,” Frisch said, “I felt like Austin Powers emerging from a cryogenics sleep, finding out about Bridgegate, Duck Dynasty and twerking. On the plus side, it was a good year to miss the Knicks.”
Finally, in late March, after closing arguments by defense attorneys and Assistant U.S. Attorneys Matthew Schwartz, Randall Jackson and John Zach, jurors delivered a guilty verdict on all counts. Swain is expected to announce sentences in July.
But the work continues. The defense attorneys have moved for a new trial, arguing the evidence doesn’t support the verdict. After the sentencing comes the possibility of a marathon appeals process.
Despite the stresses, the attorneys said they don’t regret taking the case. They said their job was to defend their clients, no matter what the government threw at them, and they point to the long trial as being very educational.
“Every time you try a case, you learn something new, either from watching other people, seeing how a particular judge presides over trial, watching your adversaries. I’m a way better lawyer for having done this trial,” Frisch said.
“I learned more from this trial than from any other trial,” Mehler said. “You don’t have that many five defendant cases. You really see different styles and what works.”
“You certainly develop a little street-cred as a trial lawyer, if you’ve been on trial for six months,” Mehler said, but he added, “We took on this case because we liked the clients, we liked the case, and the rest just sort of happened.”
Breslin said he’s already gotten business leads and referrals from other lawyers. “There’s not really a shortage of lawyers, so from a purely business development point of view, anything you can do to differentiate yourself” helps, he said.
Breslin also said the trial didn’t place limits on bringing new business. It just required rearranging his schedule, he said.
“I think in a lot of ways it helped my business,” Breslin said. “There are a lot of lawyers out there that advertise themselves as trial lawyers, litigators, who don’t try cases like this for five and a half months. This kind of case, it’s part of the credentialing process.”