An Ethics Lesson from the Big Boys

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.

--Bernie

Comments

[Scott Boone]

If we are looking at the ethical side of it, as opposed to the disqualification side, then this would seem to fall under the prospective client rules (1.18). The conflict standard is the same, but, at least under the ABA Model Rules, screening is a possible solution to a conflict. Of course, the standards to meet to make screening available may not have been met ("reasonable measures to avoid exposure" and "timely screened").

That is just looking at it from an ethical point of view under the ABA rules. Whatever state's rules apply may not include the screening provision, though Utah's rules do adopt ABA Model Rule 1.18 pretty much word for word.

Disqualification is, of course, a slightly different beast. I do not know off the top of my head whether any courts have explicitly made a distinction between a client (present or former) and a prospective client for purposes of disqualification.

[Bernie Burk]

Scott: A good point. You're right that ABA Model Rule 1.18 allows confidences imparted by a prospective client to be screened, at least for the purpose of avoiding professional discipline, and also right that authority about whether screening will be permitted in this context to avoid disqualification (rather than discipline) is sparse. I didn't mention it because I assumed that the Boies firm would have raised the issue in their public statements if they intended to rely on it. Their position seems to be staked elsewhere. But thanks for the friendly amendment, and for proving once again that nothing beats a subtle conflicts issue.

--Bernie

[SL]

This is a great post; certainly no need for the apologies about the intricacies of legal ethics.

[anon]

Apologies, but what are the "intricacies" in this fact pattern.

Firm received confidential information from D.

Firm now wishes to represent D's adversary with respect to the same subject matter (albeit in a different, but related proceeding in which the information provided by D might be useful).

It isn't clear the reasons and pursuant to what understandings D provided the information to Firm.

Is this a really, really subtle, unusual and difficult issue?

I'm sorry. I agree there is an issue here. Perhaps even a serious issue, worthy of discussion and dissection. But, can we elevate this one to the level of unusually perplexing complexity?

Or, is it just because the "big boys" are involved?

[Orin Kerr]

Great post.

[tadzio308]

The judge who struck the allegations against Prince Andrew and Dershowitz did so on his own motion and made a point of saying that it was not a response to Dershowitz's motion. He was explicit in denying Dershowitz a procedural 'victory'. Further he stated that the allegations could be brought up later. Do not believe all of Dershowitz's headline grabing claims. What are the ethical implications of an attorney publicly lying about a decision of a court?

In the plea bargain deal subject such as the present lawsuit, what are the ethical implications for an attorney devising a no prosecution arrangement for not only his client [Epstein], witnesses [e.g., Prince Andrew], and himself [Dershowitz]?

There is indeed a lot to chew on for an ethics nerd.

[[M][@][c][K]]

There is a version of this story I remember from the past.

Very slick and large Dublin firm is approached by managers of a major company for advice regarding the possibility that they had engaged in certain activities including ones that could be considered insider trading. Lawyers hear the managers through, then inform them that as a matter of fact they work for their employer, not the managers and cannot represent them. Large firm then is counsel for corporation in subsequent law suit. Large firm is astonished when they are disqualified by the court - but no one is disbarred.

Sometime back in the 90s if I recall correctly.

[EthicsProf]

The relationship between disqualification and the ethics rules is made explicit under MR 1.18(c) in that screening is tied to whether the lawyer who obtained confidential information from the prospective client is disqualified. Presumably, the rules are referring to the Law Governing Lawyers here in determining the standards for disqualification. Another wrinkle: MR 1.18(d)(2) allows screening only if the lawyer who received disqualifying information "took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client." In other words, the lawyer at BSF who engaged in the communications with Dershowitz needed to take affirmative steps to limit disclosure of confidential information. A key question, therefore, will be whether the lawyers at BSF warned Dershowitz to tell them nothing more than was necessary to determine if there was a conflict of interest. Failure to do so will probably prevent screening.

[Scott Boone]

Yep, EthicsProf lays it out in a more straight-forward way as to why it seems unlikely screening would be an option under 1.18.

Great example, Bernie. I'm going to steal it for my PR class next fall.

[Bernie Burk]

Actually, I read the Model Rules somewhat differently from EthicsProf. "Disqualified" is a term that is used elsewhere in the Rules as well, not apparently with any intention to prescribe the standards for civil disqualification, but rather as a shorthand describing a lawyer who is forbidden to undertake an engagement ("shall not represent") on account of a conflict of interest. See, e.g., Rule 1.10(a). Many jurisdictions rely on their Rules of Professional Conduct to inform civil standards for malpractice liability and disqualification, but the use of the term "disqualified" implies no discernible pretention on the part of the Rules to prescribe civil standards.

--Bernie

[EthicsProf]

Interesting point -- you are probably right that there are some lawyers who, having obtained disqualifying information under MR 1.18(c), will themselves decide that they cannot represent the client whose interests are materially adverse to a prospective client, in which case the only relevant law will be the ethics rules. But in the vast majority of cases, I suspect, this scenario will arise in the context of a disqualification motion, in which case the LGL will apply.