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.
______________________
Sources: New Yorker, LawNewz, Above The Law
Ethics Alarms 
Fascinating.
POWER CORRUPTS!! It is unfortunate that human behavior is such that the folks with power get away with the most egregious deeds. In a just world, Boies and Weinstein would be thrown in jail until they rot! Of course, both of them are above the law.
Is Al Gore associated with this lawyer’s misconduct? Otherwise why mention him?
Only because that’s what he’s most famous for, Bob. You know I don’t hold lawyers’ clients against them, and I certainly don’t hold anyone’s lawyer against them. For one brief shining moment, Boies was a star of sorts. I don’t think Boies or Gore are hurt by the association. Boies is still one of the 20 most generally respected lawyers in the US. He just screwed up badly.
If it was Leslie Abramson, I’d note that she is best known for defending the Menendez brothers.
IMHO you’re letting Bois off too lightly.
You know, like benefactor to orphanages and worthy causes only guilty of one tiny, negligible murder in the first degree.
However, I fully admit that it’s really easy to judge from the comfort of my armchair and even more comfortable ignorance of things concerning the legal profession, and that my ethical standards may not be practicable or even appropriate in the circumstances, that they would be ultra vires.
Good post, Jack.
Thanks. I should also mention that in the course of his mea culpa for egtiing involved in this mess, Boies was also faintly critical of Harvey Weinstein, though only by citing public information. Some are writing that this was a confidentiality breach. It wasn’t: Boies chose his words carefully. enough.It’s still bad form, though.
If one of the 20 most respected lawyers in the country can fail such a basic ethics question so badly, that’s hardly a ringing endorsement for the profession… I mean, if someone with Boies’ reputation and experience didn’t know better, what can we expect from the local guy who handles slip-and-fall cases and car accidents?
Lawyers, like most of us, don’t think about ethics constantly. So a client whose paying a huge fee asks you to do something that isn’t illegal, and it isn’t a technical ethics violation if you don’t think so hard, so you follow the money. Happens to the best of them. A cautionary tale.
Why mention him? Give me a break. These celebrity lawyers thrive on their client list. And vice versa. It’s one big ego love fest hosted by the adoring media acolytes.
Unless the political side of this scandal gets swept under the proverbial political rug, I think we are going to find some dirty politicians knowingly helping Weinstein to protect campaign contribution dollars and political influence, but that’s just an insignificant peon of a citizen peeking in the windows trying to find dirt.
Yes I think there was some political quid pro quo with politicians happening to help cover up this scandal, whether it was local, state, or federal political help I don’t know but it’s becoming pretty clear to me that Weinstein had a lot more help than we’re seeing slither out of the woodwork lately. Seriously folks, how do you think this scandal was hidden from the public eye for so long?
And wasn’t Boies also a sainted darling of the left for representing various people in the gay rights litigation before the Supremes?
Zoltar, I’ve thought all along the Clintons and the entire Democratic Party machine (but I repeat myself) were intimately involved in Weinstein’s attempts to fend off the revelation of his modus operandi. To me, the smoking gun on this front was Lanny Davis’s involvement. Davis probably got Boies involved. The big Horn Dog helping out another horn dog buddy. If it weren’t for Weinstein’s importance and virtual indispensability to the left, none of these people would have gotten anywhere near him. He’d have had to hire a run of the mill and perhaps Republican defense expert.
I wonder whether anyone told Boies to “janitor up” this mess?
I worked for one of these companies at issue in the past — although I was in a different division. When introduced to the division mentioned here, I asked the higher-ups if they thought it wise to have a cartoonishly evil name. Did I mention that I was uber popular at my old job?
I meant different sub.
“Boies Schiller Flexner” doesn’t sound cartoonishly evil.
That wasn’t my firm. 🙂
I bet.
I really wonder about a company that GIVES itself a name like that…
These companies also supply private armies — think Blackwater. They deliberately give themselves scary names.
Wouldn’t you immediately balk if a clients wanted you to be the go between with such a company?
Private eyes are hired all the time by attorneys — and they often engage in trickery. But this goes beyond that. No, I would never agree to this.
I’ve read Boies’s statement/apology but I still can’t figure out what he thinks his mistake was?
Getting caught.
I think for some of these firms, black is also a reference to isolated, hidden, black hole-ish, off limits to anyone without the credentials to view/participate. Like black ops to in some defense… black room research by defense contractors. Sill fits the concept of scary but there’s a practical side too. Good post and discussion.
See? Now your other strikes are obliterated, with a good solid swing and contact. Good at bat.
Who are you kidding? Anyone who has ever litigated against this firm, including myself, had to suffer through Boies Schiller’s press attacks and threats. They are known in the industry for hitting below the belt. Anyone who hires them does so because of their reputation for ruthlessness. Just look at the expression on Weinstein’s face in the pictures where he’s posing with Boies. It’s like he’s saying, THIS is what I can do to you if you try to fight back.
I’m not kidding anyone. Press attacks and threats are one thing, outright serious ethics violations are another. If you let them get away with it, shame on you.