openpolitics.com

Did the superstar lawyer cross ethical lines in his representation of Harvey Weinstein?

“Lawyers are not permitted to engage in dishonesty or deceit,” Kathleen Clark, a Washington University law professor who specializes in legal ethics, told me. “Black Cube seems to make its living by engaging in dishonesty and deceit, at least in part.”

.. he hired several other lawyers to represent him,” he wrote. Those lawyers then sought out Black Cube and other investigators and wrote up a contract for their services. Boies, by his own telling, then returned to sign a contract drafted by other lawyers between a client he wasn’t representing and private investigators he didn’t choose or oversee in a matter he says he had declined to take part.

.. He and his firm have a long relationship with Weinstein. In 2015, the Hollywood producer hired Boies to represent him in contract negotiations with the Weinstein Company

.. During those negotiations, the company’s board of directors learned of confidential settlements between Weinstein and three or four accusers. Boies told the Times he had given some legal advice to Weinstein for one of those settlements but did not specify which.

.. The New Yorker speculated that Boies’s involvement with the Black Cube letter may have been an effort to keep secret the investigators’ activities through attorney-client privilege. But that privilege would only exist between Weinstein and Boies, not between Boies and a third party, Clark said. “There’s another privilege that’s less powerful called work-product privilege, which can apply if information is developed in anticipation of litigation,” she explained. The first paragraph of the contract between Boies Schiller and Black Cube asserts that the work was for “litigation-support services,”

.. Stephen Gillers, a New York University law professor who focuses on legal ethics, said it’s not unusual for law firms to hire private investigators, especially for corporations and wealthy clients. But he noted that firms are obligated to ensure those investigators abide by the same ethical boundaries as the lawyers themselves. “Most prominently, a lawyer cannot contact an opposing client whom he knows is represented by counsel,” Gillers pointed out. “You can’t go talk to an opponent. You have to go through his lawyer.”

.. The New York State Bar Association’s rules of professional conduct instruct lawyers and law firms to “[not] engage in any conduct involving dishonesty, fraud, deceit, or misrepresentation.” Those rules also forbid lawyers from taking adverse action against a current client by negotiating against them or representing an opponent in litigation. But state disciplinary bodies, which are often underfunded, typically only enforce these rules against the worst offenders in the legal community, Gillers said.

.. law firms usually try to avoid conflict-of-interest situations because of the potential financial impact.

.. The fear of lawsuits also acts as a deterrent. “Firms worry about civil liability, malpractice liability, breach-of-fiduciary-duty liability, they worry about disqualification from a matter,” Gillers said. “And they worry about adverse publicity.”