GUEST BLOG [In]Securities: Bird on a Wire by Aegis Frumento Esq

June 18, 2021

a Guest Blog by

Bird on a Wire

We added to our house in 2008, when they shut down the economy just as the bills came due. So now every spring we have nestlings in the rafters of our unfinished porches. The other day a fledgling -- probably first time out of the nest -- found herself flapping in frustration behind a box on our deck. I gave her some space, and she gave me a grateful look before taking off, flying straight and true -- and smack into the side of the garage. 

There's an old joke that fish are hard to catch because, unlike fishermen, they know what they're doing. Fish gotta swim and birds gotta fly. According to Socrates and everyone since, we humans are special because we gotta think. But while I'd never before seen a bird fly into a wall, I see clients, friends and even myself think ourselves against the brick all the time. 

I had those thoughts when, a day or so after watching my young avian friend's first flight, I read that F. Lee Bailey died. I first heard of him when I was in high school, and I now can't tell you whether he or some fictional lawyer first inspired me into this profession. I would like to think it was Atticus Finch, but more likely it was Perry Mason, Clinton Judd or Owen Marshall. You'll be forgiven to ask "who?" as to the latter two. But don't be surprised that I would lump Bailey in with TV characters. In 1972, Lee Bailey was high drama personified.

Les Whitten is another about whom you might well ask, "who?" He was the kind of reporter then known as a "muckraker," before that became the norm for all reporting. Whitten was an associate of Jack Anderson, a journalistic nemesis of Richard Nixon, whom J. Edgar Hoover once called "lower than the regurgitated filth of vultures." Name-calling had a certain panache back then; today he'd just be one more enemy of the people. But I digress. Les Whitten wrote a number of books to go with his muckraking. One of them was a vampire novel that no less than Stephen King named one the essential works of American horror. Another -- his only biography -- was about F. Lee Bailey. I read it when it came out, and at the time (other than TV lawyers) that was all I knew about what lawyers did for a living.

Whitten begins his tale with Bailey flying his own Learjet over Kansas. Bailey had been a Marine fighter pilot, and flying was his first love. But law was his second. He dropped out of Harvard and finagled his way into Boston University Law School without an undergraduate degree. He graduated at the top of his class, and started right off taking the most difficult, impossible, criminal cases he could find. His breakthrough was with Dr. Sam Sheppard, convicted of killing his wife. Bailey won him a new trial, and then an acquittal, and also made new law that to this day governs pretrial publicity in criminal cases. Sheppard became the basis of the TV series and later movie, The Fugitive. Bailey became the country's premier celebrity lawyer, flamboyantly flying around the country and handling his own press -- it was no accident that Les Whitten wrote his biography even though his career had barely started. Over the years Bailey rose for the defense in most of "the trials of" the late 20th century, from the Boston Strangler, to Patty Hearst, to, finally, OJ Simpson.

According to Whitten's book, Bailey was inspired to become a lawyer by reading The Art of Advocacy" by Lloyd Paul Stryker. Who?? Forgiven, again. Stryker was one of the old-style trial lawyers who haunted the New York City courts in the first half of the 20th Century. His book was a lament, subtitled A Plea for the Renaissance of the Trial Lawyer. Stryker argued for a style of advocacy grounded principally in oral argument -- literate, elegant, incisive oratory -- that now seems deader than Latin. But even when he wrote it in 1954, Stryker knew he was up against it. In his preface, Federal Circuit Judge Harold Medina noted that "the procession of some of the ablest men [naturally] away from a career in the courtroom was already well underway." Judge Medina didn't do Stryker any favors, for he identified the reasons, still inexorable 65 years later: law schools that aim for "the development of the legal mind and the mastery of legal techniques and craftsmanship" but give short shrift to a "dedication to the cause of justice"; a need for income that renders whoever "just out of law school who has the fortitude to hang out his shingle and weather the storm alone [to be] regarded . . . as slightly out of his mind;" but mostly a growing tendency to over-try cases, so that "none but a professional racketeer will possess the funds necessary to employ a lawyer for his defense."

It was Bailey's representation, in 1994, of a professional racketeer that did him in. Bailey's flamboyance was expensive, and he was always in debt. He took possession of a block of stock owned by his client, a drug dealer, and insisted on keeping as his fee rather than turn it over to the government as a forfeiture. Then he insisted on keeping the $14 million profit it earned while he had it. When the court ordered him to turn over the stock, he couldn't because he had pledged it for loans that he couldn't repay. For that, he spent 6 month in jail for contempt, and was disbarred. He never practiced law again, but spent the rest of his days broke and bankrupt as a litigation consultant operating above his girlfriend's beauty shop in a small town in Maine. His website still boasts his laurels though: "He has been a trial lawyer and advisor to trial lawyers with respect to their trial plans and ammunition, a private investigator, a recognized expert in polygraph testing, a military and civilian pilot, an aircraft manufacturer and fleet operator, and a yacht captain and manufacturer." With all that, he still flew into a wall.

Judge Medina was foresighted. The days of Lloyd Paul Stryker, Martin Littleton, Louis Nizer, Gerry Spence, and Edward Bennett Williams may have ended with the death of F. Lee Bailey. President Trump was reported to have pined for a celebrity lawyer like Roy Cohn. They are gone. Trump had to settle for Rudy Giuliani, who embodies the celebrity lawyer refashioned as farce.

In 1985, Bailey wrote his own version of The Art of Advocacy, which he titled To Be A Trial Lawyer. By then I was a fledgling trial lawyer myself struggling to avoid flying into my own walls, so of course I read it. Its points are still valid, even to those of us who, despite being pleased to call ourselves "trial lawyers," spend most of our trial days in arbitration rooms, and not enough of them to ever let us rival the old trial lawyers. Much of the book's advice can be found in many another "how-to-try-a-case" treatise, but I credit it with imparting on me one concrete skill that none of my other mentors nor any other book said as clearly. To be a trial lawyer, Bailey wrote, you must "learn to speak without notes" [emphasis his]. This was a rare skill then, and even rarer today when every speaker's notes are shared with the audience in PowerPoint slides. But I learned to do it, it made me just a little more persuasive, and I personally owe that to Lee Bailey. So thanks for that Lee, and may you finally fly free.


Aegis J. Frumento

380 Lexington Avenue
New York, NY 10168

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 Blog.