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.”
David Boies: I Didn’t Betray The New York Times for Harvey Weinstein
“because I perceived the investigators’ work as trying to ascertain the exact charges against Mr. Weinstein and to develop facts that would prove the charges untrue, I thought at the time that was an appropriate endeavor.”
.. Boies told his colleagues: “Had I known at the time that this contract would have been used for the services that I now understand it was used for, I would never have signed it or been associated in any way with this effort.
.. Boies had few defenders in the legal community Tuesday. Two of his prominent friends, famed First Amendment lawyer Floyd Abrams and former Solicitor General Ted Olson (who, along with Boies, helped win the Supreme Court’s legalization of same-sex marriage), both declined interview requests.
.. “On the other hand,” he added, “I think in the main, the media is focusing on an entirely legitimate problem—what is the right role for investigators so they don’t cross the line…I think most people say it’s not appropriate to try to intimidate or pressure people, although that happens both from time to time by investigators and by reporters, for that matter.”
.. Boies said, “it was absolutely clear that we had to be free to continue to represent people who the New York Times was investigating or reporting about.”
.. Boies said that as of Monday, he had only billed five hours, at his usual rate of $1,650 per hour, to help the disgraced movie mogul counter the mushrooming accusations, which now reportedly include the likelihood that he will soon be indicted by Manhattan D.A. Cyrus Vance in two alleged 2010 rapes of Boardwalk Empire actress Paz de la Huerta.
.. Boies complained that no one at the Times, notably McCraw, bothered to contact him for his explanation of his conduct before issuing their harsh statement
.. response to the paper’s refusal to interview him—not as Weinstein’s attorney but as someone familiar with the facts—for its investigation of the mogul’s abuses.
“It was the first time I ever experienced the situation in which [there was] the person with knowledge, and they had no interest in talking to them,” Boies said, noting that he received several letters from the Times declining his interview offer
Bad Boies
The renowned liberal attorney threw ethics out the window to help Harvey Weinstein.
Boies told Farrow that he didn’t think this was a conflict, explaining that he was doing the Times a favor by pushing the newspaper to vet its Weinstein coverage carefully. “If evidence could be uncovered to convince the Times the charges should not be published, I did not believe, and do not believe, that that would be averse to the Times’ interest,” he told the New Yorker.
.. In the Trump era, we often measure justice along one simple axis, one that pits the president and his bullying New York attack dogs against legal rules and norms. But there is and has always been a second axis, one populated by respectable, principled attorneys who will work against the rule of law when they are working for the extremely wealthy. Consider Jamie Gorelick, the longtime Democratic activist and deputy attorney general under Bill Clinton, who represented Jared Kushner and Ivanka Trump in their business affairs. While Gorelick stepped back in July from handling anything related to Kushner and the Russia probe, her view has always been that everyone deserves quality representation.It is a long-standing American legal tradition dating back to John Adams that even contemptible people deserve good representation. The problem comes when counsel for the 1 percent finds themselves helping their clients contract out of, or bully their way around, the legal rules imposed upon the rest of us.wealthy to fail.What Boies seems to have done here is the very opposite of fighting for the rule of law. Rather, it looks an awful lot like aiding and abetting a man determined to bypass legal sanctions with money, privilege, and terror. At the very least, he created an attorney-client bubble around grotesque abuse. But Boies also should have known what lawyers and investigators were doing to vulnerable women in the interest of protecting Weinstein. In conceding that he failed to supervise or manage a raft of outside investigators, Boies was also admitting that Weinstein essentially bought his way around his legal relationship with his lawyer, then deployed that same legal relationship for cover.
There are many, many legal stratagems that allow society’s wealthiest to buy their way out of criminal and civil sanctions. In Weinstein’s case, those stratagems have included oppressive nondisclosure agreements and legal threats and attempts to confuse and harass witnesses. Anyone who has watched Donald Trump ooze his way out from under oodles of lawsuits knows that there have always been Platinum Elite workarounds for the rule of law—and lawyers willing to fly you there. This week we learned that Boies may very well be one of them.
David Boies’s Egregious Involvement With Harvey Weinstein
“If evidence could be uncovered to convince The Times the charges should not be published, I did not believe, and do not believe, that that would be adverse to The Times’s interests.”
.. But as The Times’s leadership pointed out in its own statement, it never contemplated that the firm would contract with investigators to do opposition research on its own reporters. Unsurprisingly, The Times considered this conduct to be a “grave betrayal of trust,” and grounds to terminate the firm. It is hard to imagine how a lawyer of Mr. Boies’s caliber would not have anticipated this reaction.
It gets worse. Bar ethical rules prohibit lawyers not only from engaging in fraud, deceit or misrepresentation, but also from inducing others to do so. They also specifically forbid lawyers from directing non-lawyers to engage in prohibited conduct. Black Cube employees were in fact involved in such deceit; investigators misrepresented their identities in order to gain confidences from women whom Mr. Weinstein had harassed or assaulted.
Although Mr. Boies now claims that he had no knowledge of such practices, he surely was in a position to have such knowledge and had reason to suspect them. He had hired an organization known for hardball tactics and reportedly received reports of their findings.
.. Mr. Boies stated: “Mr. Weinstein has himself recognized that his contact with women was indefensible and incredible hurtful. In retrospect, I knew enough in 2015 that I believe I should have been on notice of a problem and done something about it.”
.. When leaders with such high visibility cut ethical corners, it sends a powerful and corrosive message.