The Alan Dershowitz-Paul Cassell-David Boies imbroglio is every gossip columnist’s dream. But I am not a gossip columnist. Dershowitz and Boies are, of course, two of the most prominent and accomplished lawyers of their generation. And there is no indication that they do not fully understand the contours of the latest issue they are fighting about. But public commentary on the latest wrinkle in the story does elicit a sigh from me in my capacity as a teacher of legal ethics.
For those of my faithful readers living under a rock, here’s the background: Lawyers Paul Cassell and Brad Edwards represent Virginia Roberts in a lawsuit against the federal government. The lawsuit challenges a criminal plea agreement the government reached with billionaire Jeffrey Epstein back in 2008 involving Epstein’s proclivities for sex with underage girls. Ms. Roberts asserts she was a victim of Epstein’s and that the plea deal violated the Crime Victims’ Rights Act. The lawsuit included inflammatory allegations that Dershowitz also did bad things to Ms. Roberts when she was a minor. (Dershowitz was never accused of any wrongdoing at the time; in fact, he was one of Epstein’s lawyers in connection with Epstein’s plea deal.) Dershowitz vehemently denies these allegations, says he can prove he’s right, and has accused lawyers Cassell and Edwards of misconduct. Cassell and Edwards have responded by suing Dershowitz for defamation. (Full disclosure: I went to law school with Paul Cassell, who is currently on the law faculty at the University of Utah, and used to be a federal judge. We have not discussed these events, and have talked only a few times in the last 30 years.)
Who’s right? I have no idea. I don’t want to discuss any of that.
What I do want to discuss is the latest turn of events. Superstar trial lawyer David Boies and his firm, Boies Schiller & Flexner, have entered the fray to represent Ms. Roberts. This has prompted a fair amount of posturing by both Dershowitz and Boies about whether Boies and his firm can or should be involved. Specifically, Dershowitz has asserted that lawyers with whom he is acquainted at Boies’ firm reached out to him when the dispute originally broke, expressed sympathy, and raised the possibility of representing him. In the course of these communications, Dershowitz says, the Boies Schiller lawyers elicited, or at least received, confidential information from him—including a memo that Dershowitz had shared with his own lawyers labelled “lawyer-client confidential”—that creates a conflict of interest precluding Boies and his firm from representing Ms. Roberts. Boies and his firm disagree both legally and factually. You can see the parties’ public statements on the issue here.
Nothing improves a juicy sex scandal like a legal ethics issue, not least because it gives me this opportunity to redirect your gaze to the professional strait and narrow. American Lawyer columnist Vivia Chen observes that “there's a meaty legal issue at stake: Was there a client/lawyer relationship between Dershowitz and Boies Schiller?” While Ms. Chen is ordinarily an acute and thoughtful observer of the legal scene, and interesting issues are presented here (at least if you’re an ethics geek like me), that’s not the issue at all: No one contends an attorney-client relationship was actually formed, and no attorney-client relationship need have been formed for Boies Schiller to be disqualified.
Confidential communications with a lawyer in contemplation of possible representation are both attorney-client privileged and subject to the lawyer’s duty of confidentiality whether or not an attorney-client relationship is ever formed, and under appropriate circumstances can disqualify the lawyer from a matter adverse to the prospective client. (I can feel your eyes glazing over. Bear with me.) The parties’ public statements (here) appear to disagree about whether they had communications in contemplation of possible representation, and about whether Dershowitz imparted genuinely confidential information sufficient to disqualify Boies Schiller. (The fact that a memo is legended “lawyer-client confidential” doesn’t necessarily mean that it is. Obviously it doesn’t mean that it isn’t either.) The parties also may disagree about whether the Boies Schiller lawyers elicited any confidential information that Dershowitz did impart, or whether he just delivered it unrequested and unexpectedly, which could affect the disqualification issue. Those are interesting and potentially challenging issues, but so far as I can tell no one contends that Boies Schiller actually undertook to represent Dershowitz, or that Dershowitz thought they did.
But wait, there’s more. (I know; I know—isn’t Professional Responsibility fantastic?) Even assuming that Dershowitz supplied Boies Schiller with confidential information, the law firm still needs to be in a position to misuse those confidences in a manner that is sufficiently “adverse” to the confiding party (Dershowitz) in the engagement the lawyers are taking on for the confidences to be disqualifying. This is a considerably more unusual and difficult issue. Remember, the only party Ms. Roberts is suing is the federal government; there is no current indication that Boies intends to take any part in defending Dershowitz’s defamation case against lawyers Edwards and Cassell. And Dershowitz recently won a procedural victory in persuading the court handling the Crime Victims’ Rights Act case to strike the allegations concerning him. Now, that doesn’t mean that Ms. Roberts won’t try to raise issues regarding Dershowitz’s alleged conduct in the course of the Crime Victims’ Rights Act litigation (the link, if there is one, appears to be that Dershowitz was one the lawyers who advised Jeffrey Epstein in reaching the plea deal back in 2008 that is the subject of the case). But it’s no longer clear that she will try to inject those issues into the case, that Boies Schiller would be involved in any effort to do so, or that the court will allow her to raise those issues if she tries. So we might expect to see Boies Schiller argue that, in addition to and regardless of anything else, they don’t propose to act “adversely” to Dershowitz. Will it work? We’ll see.
Now those are some genuinely interesting Professional Responsibility questions. Given the quality of the lawyers involved, we can expect to see them addressed with verve and skill. I’ll take that over a sex scandal any day.