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November 09, 2017

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Deep State Special Legal Counsel

Must not be a good lawyer either. "Superstar litigator?" Really now. Even a low level bottom feeder lawyer like me would have purchased him a Gillette disposable and ordered his client to shave. He looks guilty. I once persuaded a client to turn his Budweiser frogs T-shirt inside out immediately prior to his DUI probation revocation hearing...

[M][a][c][K]

These types of conflict waivers pop up from time to time in IP and Competition/Antitrust law and international commercial a technology law - but I have always understood them to deal with the problem that a matter the firm is working on may set a precedent that is adverse to the interests of an existing client. So for example, a dispute around what is say FRAND licensing may result in a decision that impacts what existing clients who own Standards Essential Patents may do with those SEPs. A decision in employment law over the difference between a contractor and an employee may run contrary to the interests of a client that using a lot of contractors, etc. I could be asked to negotiate a contract between a client and a customer, where that client has beaten out another client for the deal, or handle an acquisition where the acquirer is buying a business another client might covet. Because certain areas of practice are a 'small world' it is not unusual for a firm to have two tech clients that are in certain respects rivals.

I have never understood this language as saying I can actually advise one client as to how to directly legally attack in any way the other client's business or activities, which seems to be exactly what Boies agreed to do.

[M][a][c][K]

Boies seems to me to have been engaging in "privilege washing," which in the past was how the Tobacco Institute worked to do studies of the [non]-harmfulness of cigarettes, i.e., the lawyers directed study after study, discarding any privilege studies that showed cigarettes to be bad for you, and only keeping the small population studies where perverse outcomes were observed. My recollection is that this collapsed when an Australian court refused to accept the assertion of privilege.

In this situation it seems the motivation for have Boies retain Black Cube and others was to ensure that the instructions to those PIs would be privileged in the event that the targets sued - it was not legal work.

Befuddled

1. I was surprised by the defensive statement Boies issued about his firm's work on the Weinstein matter. The statement described in some detail the advice Boies had given Weinstein, apparently in an effort to mitigate the PR damage to Boies's firm.

Under the NY rules, a lawyer may permissibly disclose confidential information to the extent necessary to defend himself, but I don't believe the rule does anything to preserve the attorney-client privilege. I.e., Boies's disclosures may be consistent with his duty of confidentiality, but they still appear to effect a waiver of the privilege. They may even effect a subject-matter waiver, which would permit inquiry into all advice Boies gave Weinstein on the matter. While it is conceivable Weinstein gave informed consent to the disclosures (the privilege belongs to him, after all, and he can waive it if he wants), that seems unlikely under the circumstances.

That is my off-the-cuff analysis of the issue anyway. Anyone with more expertise care to weigh in on whether the privilege was waived?

2. What exactly are Boies's major accomplishments as an advocate? The two cases I associate with him most are (1) the Microsoft antitrust case and (2) his work for Al Gorge during the 2001 recount. I don't see much evidence of brilliant advocacy in either case, especially the recount. He seems overrated, and the Weinstein case is not rehabilitating him in my eyes.

Bernie Burk

Befuddled,

As the post explains, the application of the lawyer-self-defense exception to the duty of confidentiality is doubtful in this case. If Boies just disclosed client confidences to defend his reputation without the client's permission or possibly some other properly applicable exception to the duty, it's not a waiver at all. Lawyers don't have the power to unilaterally waive their clients' privileges. (The waivers found by inadvertent disclosures in discovery are justified by the fiction that the client authorized the lawyer to respond to the discovery, when they are justified at all.)

I'll let other interested readers enlighten you on Boies' history as a leading advocate. It is worth noting that he was instrumental in litigating the marriage-equality issues that led to the United States Supreme Court's decision in Obergefell.

--Bernie

r

With respect to the actual conflict of interest, I think it goes much deeper than "trying to persuade someone of something arguable." Boies knew that, if the story ran despite his best efforts to stop it, the information found by his employed investigators would very likely be used against the NY Times in civil litigation - litigation that, in fact, has been threatened by Weinstein. The work product doctrine - work for an attorney in anticipation of litigation - is presumably the very reason why the law firm hired the investigators in the first place.

Boies laid the ground work for this potential lawsuit; he does not get off the hook just because a different lawyer is hired to file the complaint. In my mind, there is no question that the representation was directly adverse.

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