There are a lot of ethics issues, legal and otherwise, flying around in the shocking—this really is shocking—revelation that lawyer Al Gore’s Supreme Court lawyer (and loser) David Boies was working to help Harvey Weinstein intimidate and discredit the women who were preparing to accuse him of sexual harassment, sexual assault, and rape.
The New Yorker reports in an investigative reporting piece that the Boies firm was retained by Weinstein, and on his behalf hired Black Cube, an investigative company run by former Israeli intelligence agents to prevent the publication of abuse allegations by creating profiles on the targeted accusers, often using pretexting–that is, lies— to gain access to proprietary information. Black Cube’s work included psychological profiles and sexual histories of the potential Weinstein accusers. The engagement with Black Cube was presumably run through Boies Schiller Flexner to place the shady matter under attorney-client privilege.
David Boies personally signed the contract with Black Cube, which, according to the New Yorker, was to obtain ” intelligence which will help the Client’s—that is, Weinstein’s— efforts to completely stop the publication of a new negative article in a leading NY newspaper” and to “obtain additional content of a book currently being written [that] includes harmful negative information on and about the Client.”
Did you see “Michel Clayton,” where George Clooney played a law firm’s “fixer”? That’s what Boies was doing here. “Fixing.” And fixing is a dirty business.
That “leading NY newspaper” was and is the New York Times, which, as we now know, was readying its own sensational story regarding the accusations against Weinstein.The New York Times was also a client of Boies Schiller Flexner, though on unrelated matters, hence the statement above. Unsurprisingly, the Times has sacked Boies and his boys.
[Aside: Here’s a lawyer ethics practice tip. If a client asks you to contract with a company called “Black Cube,” “CHAOS,’ “The Legion of Evil,” “The Black Hand,” or “Murder, Inc.”, just say no.]
Some ethics questions and answers:
QUESTION: Was it ethical for Boies to represent one client who was trying to interfere with the work of another?
No. Of course not. It’s a breach of loyalty and trust. When you pay a lawyer, you assume that the lawyer is not secretly working with someone else who paying is paying to harm you.
QUESTION: Was this a breach of the Florida of New York Rules of Professional Conduct. meaning that David Boies could face professional discipline?
Tougher question. Boies denies the engagement of Black Rock created a conflict of interest with the representation of the Times. This is a classic compliance vs ethics situation. Rule 1.7, Conflicts of Interest (Current Clients) in both of the likely jurisdictions whose rules would be in play prohibits representations “directly adverse” to a current client. The Florida comments to this rule note,
As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client’s or another client’s interests without the affected client’s consent…Thus, a lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not require consent of the respective clients. [The prohibition] applies only when the representation of 1 client would be directly adverse to the other and where the lawyer’s responsibilities of loyalty and confidentiality of the other client might be compromised.
In legal conflicts of interest, the best and most ethical practice is to not get too close to one, especially one that will look, feel and smell like a conflict even if it technically may not be. Boies wasn’t just close to a conflict, he was metaphorically naked and rolling in the hay with one. Why? I assume it was because of lots and lots of money. Yes, Bois has a strong argument that personally contracting with a bunch of spies to sabotage a major story of his own newspaper client wasn’t “directly adverse.” It was just a slimy, venal, disloyal thing to do that no lawyer should ever do to a client. That’s all.
QUESTION: You mean no jurisdiction would find what Boies did to the Times unethical?
I didn’t say that. In fact, one of my own jurisdictions, the District of Columbia, has a unique version of Rule 1.3, Diligence and Zeal, that says in part,
A lawyer shall not intentionally:
(2) Prejudice or damage a client during the course of the professional relationship.
So this would be a potential disciplinary matter in D.C. What Boies did is unethical anywhere, but just not a rules violation everywhere.
QUESTION: Are there any other potential ethics breaches here?
Glad you asked! YES! When Boies hired Black Cube, they became his agents. Under Rule 5.3, Non Lawyer Assistants, a lawyer has certain responsibilities. From the Florida version of the rule:
With respect to a nonlawyer employed or retained by or associated with a lawyer or an authorized business entity as defined elsewhere in these Rules Regulating The Florida Bar:
(1) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(2) a lawyer having direct supervisory authority over the nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(3) a lawyer is responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer: (A) orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (B) is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Boies had to know, based on who he was hiring, that what they did involved conduct a lawyer cannot engage in, like using false pretenses to acquire information.
Now, Boies is regretting his involvement, saying,
“We should not have been contracting with and paying investigators that we did not select and direct. At the time, it seemed a reasonable accommodation for a client, but it was not thought through, and that was my mistake. It was a mistake at the time.”
It wasn’t just a mistake. It was unethical.