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Lawyer Limelight: Alan Futerfas

By December 10, 2018Lawyer Limelights

Long regarded as one of the finest criminal defense lawyers in New York City, Alan S. Futerfas has become one of the most famous lawyers in the country for his role representing The Trump Organization in a variety of high-profile matters, including investigations by various congressional committees and the Office of Special Counsel (Mueller), as well as an investigation by the Southern District of New York overseen by the Hon. Kimba Wood. In addition, he is currently defending the Donald J. Trump Foundation in an action brought by the New York Attorney General.

Futerfas began building a reputation as one of New York’s savviest criminal defense lawyers three decades ago. While earlier in his career he defended high-profile organized crime cases, in the late 1990’s he transitioned to largely handling white-collar cases, SEC investigations and other regulatory matters.

We talked to him about how his training and experience have come together for what’s considered a stellar performance for The Trump Organization thus far.

An accomplished bass-trombonist who graduated from The Juilliard School, Futerfas began legal work in the 1980s, while he was still a student at the Benjamin N. Cardozo School of Law. His first law-related job, in 1985 and while a law student, was transcribing tapes of recorded conversations for a trial involving the Genovese family.

The techniques were strictly old school, preceding the era of laptops or speech-recognition software, and the environment was unorthodox: an exotic dancer talent agency. One of the charges in the case was that the defendant was skimming proceeds from his nightclubs.

Lawdragon: How did you end up there?

Alan Futerfas: No law firm had the space to have a dedicated office for me and a paralegal to sit all day listening to the tape recordings. This was not the Computer Age. We would sit there and listen to cassette tapes all day – 10 to 12 hours a day – and transcribe them by hand and give them to secretaries to type. The client, as it happened, owned a number of strip clubs, and the women for all the strip clubs were auditioned at the talent agency, which was also his company. He had an extra room there, and they cleaned it out, painted the walls and put in a large table. They brought us legal pads and pens and all the cassette tapes were sent there for our review and transcription. Needless to say, it was a scene out of the movies.

LD: That must have been quite an experience.

AF: It was. And working on that case, I had the opportunity to meet some of the best criminal defense lawyers in New York at the time: Jay Goldberg, Gerald Lefcourt (who actually got me the job), Gerald L. Shargel, Judd Burstein, Fred Hafetz, Gus Newman and others. By January 1986, when that case was proceeding to trial and my transcription work was completed, Gerald Shargel reached out to me and said he could use a paralegal or a law student. I started working for him that month.

While an undergraduate at Juilliard, I worked in construction over the summers renovating commercial space to become lofts. In law school, I considered going into real estate, but the tape transcription experience was so interesting and the defendants (and some of the lawyers) were such characters, that I found the field fascinating. Of course, working with Jerry was extraordinary.

LD: Jerry Shargel was, of course, one of the most elite criminal defense lawyers in New York and famous for his work defending Mafia characters as well as providing a training ground for star lawyers. How long did you work for him?

AF: About six or seven years. While in law school, I was working there all the time. We later became partners.

LD: Experience really is the best teacher. What was your first trial?

AF: I was very fortunate to receive experience that was almost unparalleled. In my second year of law school, I worked on Second Circuit appeals briefs as well as pretrial motions in a number of criminal cases. Before graduation from law school, I second-seated two trials. One was a three-week tax fraud trial.

The other was the “Westies” trial, a very famous case involving the Irish mob. We represented the leader of the Westies, Jimmy Coonan. I prepared the exhibits, worked on the cross-examinations, and wrote the pretrial motions, the requests to charge – everything. And, second-seated the four-month trial before the great Hon. Whitman Knapp. An unbelievable experience.

LD: Had your music fallen by the wayside at that point?

AF: Pretty much. During law school, I was working and studying. There was little time for anything else, including sleep. But I was learning so much and getting truly unique experience. One was winning an issue of first impression in the Second Circuit. In 1986 or so, the New York Attorney General brought a civil action against one of our clients under RICO. Now, I had the extraordinary Telford Taylor for constitutional law at Cardozo and he spent a lot of time on the doctrine of standing. So, when Jerry gave me the Complaint and asked my view, I said, “How does the state AG have standing under the federal RICO law to bring this case?” Jerry said, “Sounds good, write the motion.”

We wrote a motion to dismiss and won. When the Attorney General appealed, I wrote the brief to the Second Circuit and we won there as well. I was in my third year of law school and my name was on the brief.

LD: Incredible. Any other early cases come to mind?

AF: I was graduated in 1987 and admitted to the bar in 1988. One of my early trials was representing Salvatore “Sally Dogs” Lombardi, a capo in the Genovese family. That was a four-month trial before the Hon. Maryanne Trump Barry in the district court in New Jersey. Eight or nine guys were on trial and he was the lead defendant. I was all of 28, maybe, and working with eight or nine New Jersey lawyers who were very experienced. They were absolutely helpful and supportive. We obtained an excellent verdict for the defendant. While he was charged with a number of murders and murder conspiracies, he was acquitted of all such charges. As I recall, he was convicted of conspiracy to commit gambling and conspiracy to commit extortion – just those two counts and predicate acts. When the jury came back with the verdict, the prosecutor, a very nice guy, put his head down on the desk.

LD: Those were some crazy days.

AF: They were. Sally Dogs was a character. He would come to court in a white T-shirt, black shoes without socks and short pants. He had a girlfriend who would sit right behind him in the courtroom. The jury is in the box, testimony is being heard, and Sally completely ignored all of it and talked to his girlfriend the whole time.

LD: Like, “Do not make my life harder.”

AF: You know, it’s the way it is. You have just got to roll with it. The thing is, though, when you have been in the trenches with difficult people, difficult clients or difficult cases, it gives you a greater level of confidence. You are much less likely to be intimidated, whether by a client or an adversary.

LD: Any other early trials you recall?

AF: Sure. Just a year or two later, I tried the six-month long “Windows” case before the outstanding jurist, the Hon. Raymond J. Dearie, in the Eastern District of New York. I was once again fortunate to be surrounded by great trial lawyers representing other defendants – Susan Necheles, Fred Hafetz, Ben Brafman, Bruce Cutler, Peter Driscoll and Jeff Hoffman. A number of defendants were acquitted, including my client.

And in 1996, I represented an individual in a nine-month trial in state court in the famous “Carting” case. Representing another defendant was the extraordinary trial lawyer, Ronald P. Fischetti, and we were before the Hon. Leslie Crocker Snyder. Having as mentors and co-counsel some of the finest trial lawyers anywhere, and being on trial for months at a time in very complex cases, was training and experience that I doubt can be replicated today.

LD: You know, there was so much formative law and prosecution in those years, and the style and the grittiness is fascinating. What you were doing is what really attracts people to the law. You’re in a courtroom battling for people’s freedom, and you win or lose based on your skills. Are there any experiences from those years that help you out now?

AF: Experience is a very important asset, but each case is unique. Your strategy has to reflect both the person you are representing, their interests and the unique facts you have to work with. And, very important, you have to understand your adversary and the court you are before.

For example, in 2000, I argued a prisoner’s rights case before the United States Supreme Court. I spent months analyzing each of the Justice’s decisions and relevant Supreme Court cases going back decades. What was clear to me was that arguing the case as a “prisoner’s rights” case was not going to win the day. I chose to re-position the case as a state’s rights case, arguing that the new federal statute at issue was infringing on each state’s right to control its own post-conviction procedure. We won 9-0 with Justice [Antonin] Scalia writing the opinion.

One other thing that experience teaches – being the tough-guy lawyer is easy. The smarter lawyers have learned that listening is really important. Hearing what your client is saying and truly understanding their concerns is just critical. Same with your adversary. Often by understanding your adversary’s concerns and having credibility with your adversary, you can craft a resolution that obtains the very best result for your client. And, of course, if you need to litigate, we do that very, very well. But our adversary already knows that so it is an unspoken part of the equation.

LD: With such a remarkable background, what led you to transition to more white-collar matters, SEC investigations and the like? What were some of the challenges of that transition and what do you like about that type of practice?

AF: In the 1990’s, there were many securities fraud prosecutions locally based on new and evolving theories of criminal liability. I had many of those cases and enjoyed learning how the securities business worked. From those cases, I began handling all types of business crime investigations. I truly enjoyed crunching the numbers, working with financial and tax experts and one particular securities consultant (who is the best), and understanding how common practices in a financial industry could be viewed skeptically by prosecutors and agents. Sometimes, the best lawyering was simply educating prosecutors that what they were investigating was lawful and part of the practice of a particular industry.

Some years later I was hired in a very messy takeover battle involving a privately held company. The client had spent years defending motion practice and no discovery had taken place. In my first appearance, in open court, I demanded an immediate trial. When the adversary complained that no discovery had occurred, I responded by asking, “When in a criminal trial do I receive depositions and interrogatories? – I am ready to go.” Needless to say, the case advanced quickly and we obtained the desired financial resolution. Also, the client remained the CEO of the company. That experience made clear that the litigation skills of an experienced criminal lawyer who has tried large, complex criminal cases, are very powerful in a civil context.

We represented an NRSRO [nationally recognized statistical ratings organization], a ratings agency, in a multi-year litigation with the SEC and obtained an excellent result on the eve of trial. The owner of the company is a brilliant credit analyst and this litigation occurred in the aftermath of the 2008 financial crisis – which he called correctly. Learning about the ratings and credit industry, and the regulatory structure by which it is governed, particularly in the wake of the financial crisis and while Dodd-Frank was being implemented, was just fascinating. We also filed papers litigating the propriety of the SEC administrative system years before that issue became widely known.

The transition to white collar or business litigation, civil and criminal, was organic and really a function of what the government was focusing on and what cases were coming in the door. I enjoy learning how a business operates and how its economics function, and figuring out how to position the matter for the best result.

LD: Can you tell us about a few of your favorite, more recent cases other than the Trump matters?

AF: There are a lot of them. In the last few years, we represented the Associate Head of School of Poly Prep, a highly regarded private school in Brooklyn. A former administrator had made public allegations against him. We sued her for defamation and filed a 115-page complaint containing all of his many accomplishments and rebutting the allegations. This was a tumultuous time for him and his family and we guided them through it and reached an excellent resolution with everyone, including the school.

In 2015, we tried a False Claims Act case brought by the United States Attorney’s Office for the Southern District of New York, Civil Division. The government had alleged thousands of false job placements and damages in the tens of millions of dollars. In its verdict, the jury found only 13 false placements and just $13,000 in damages. This was a significant vindication for our client, the Director of the non-profit, and the organization itself.

We recently obtained a sentence of probation on a federal tax case which began as an investigative claim of $13M in unreported income. We worked with a forensic accounting team which showed that the IRS analysis was incorrect and resolved the case with an employment tax plea. Needless to say, the client was very pleased.

In another matter, we represent an individual who owned a company which provided financial and administrative services to athletes. When some of the investments cratered and the athletes lost a portion of their portfolio, he was the focus of an intensive U.S. Attorney’s Office and SEC investigation, which lasted years. We resolved the USAO investigation with no charges being filed and just recently inked a favorable SEC resolution.

We often represent officers and directors. In a typical matter, we represented the CCO (Chief Compliance Officer) of a financial institution under an intense, multi-year SEC investigation. The investigation just concluded. The company entered into a settlement with the SEC and two officers were charged in SEC public actions. No action was taken against our individual client – a very successful result.

On the offense, we sued a hedge fund which had defrauded our client, an investor in the fund. We presented a comprehensive case file to the SEC, and worked closely with them. They brought their own case and froze assets under management – assets eventually returned to our client. The SEC has used our litigation in seminars as an important example of its enforcement function.

There are others, of course, and we have many representations that remain under the radar and where the matter is quietly resolved.

LD: Skill sets are tremendously important, especially in complex cases like the Trump-related matters you are involved with now. People have to be very careful that they’re finding the right attorney.

AF: That is very true. There are strategic decisions that we have made in this case that lawyers with less experience might not have made or would not have known to consider. Sometimes you make a decision on a certain issue now because you are considering potentialities three, six or more months down the road. Nothing is done in a vacuum.

LD: Being from New York, did you feel more comfortable writing the letter to the House Intelligence Committee asking for an investigation into leaks from Donald Trump Jr.’s testimony in December 2017?

AF: Well, those on the Committees understand that I have pretty important responsibilities to fulfill and will do what is necessary and appropriate. On the other hand, I have always tried to work with them and to be very professional. I did not want that letter to sound partisan or political – and it wasn’t. The funny thing is, once it was sent, the reaction was unanimously favorable. The letter has been referred to various ethics committees, and one of the things that made it so powerful is the fact that it was measured and not partisan.

About the Author: Katrina Dewey (katrina@lawdragon.com) is the founder and CEO of Lawdragon, which she and her partners created as the new media company for the world’s lawyers. She has written about lawyers and legal affairs for 30 years, and is a noted legal editor, creator of numerous lawyer recognition guides and expert on lawyer branding. She is based in Venice, Calif., and New York. She is also the founder of Lawdragon Campus, which covers law students and law schools.