More Adventures In Ethics: Did David Boies Cross Any Ethical Lines In His Work For Harvey Weinstein?

Another legal ethics issue in the headlines!  This one has everything—a rich and powerful sexual predator, secret agents, the New York Times and, most exhilarating of all, nuanced conflict of interest, confidentiality, and ethical supervision questions.  I am agog.

Some background.  At this point, we’ve all heard a great deal of horrific stuff about Harvey Weinstein, the prominent film producer to whom dozens of women have now ascribed countless acts of sexual harassment, sexual assault, and outright rape over decades.  Weinstein had a broad armamentarium he reportedly deployed to intimidate and silence his victims, from power and influence in the entertainment industry to teams of skilled and well-connected lawyers who would litigate or threaten legal action, and then document tightly drawn settlements buying peace and a whole lot of quiet.  Weinstein’s tactics worked:  Despite industry winks and whispers, the dam he built held back most of the accumulating waves of accusation for some thirty years, until the New York Times and The New Yorker broke the story last month, and years of pent-up bilge flooded out to drown Weinstein’s public image and career.

Now Ronan Farrow’s continuing investigative coverage in The New Yorker (Times story here) reports that another of Weinstein’s tools of coercion was high-powered private investigators.  These investigators were paid large sums to ascertain potential accusers’ intentions, catch them in infelicities or inconsistencies, and just plain dig up dirt that could be used to discredit them if they came forward.  Sometimes the investigators plied their trade by lying to their targets about who they were and what they were doing, and ingratiating themselves to reap or record unguarded emails or statements.  Kroll International and smaller organizations called Black Cube and PSOPS were agencies Weinstein and his lawyers used on more than one occasion.

Superstar litigator David Boies now finds himself sweating uncomfortably in a spotlight he shares with Weinstein, having been what law.com calls his “longtime legal adviser.”  Exactly what Boies and his firm have done over the years for Weinstein is not clear.  The contract by which the Boies Firm engaged Black Cube for Weinstein’s benefit earlier this year (available on The New Yorker website here) specifically states that it supersedes a 2014 written agreement between Black Cube and the Boies Firm, “acting on behalf of the [same] Client,” so it appears that the Boies Firm has engaged Black Cube for Weinstein’s benefit before.  Whether that prior engagement concerned other predations on Weinstein’s part is uncertain, but Boies reportedly donated $10,000 to Manhattan DA Cyrus Vance’s re-election campaign in 2015 shortly after Vance decided not to prosecute Weinstein on sexual assault charges then being asserted by an Italian model.  (Both Boies and Vance deny any connection between the two events.) 

More recently, as the turbid waters of accusation spread, Boies represented Weinstein in negotiations to keep his job and board seat at The Weinstein Company.  (The Board removed him.)   At the time (last month), Boies publicly described the scope of his engagement, asserting that he would not be representing Weinstein in any litigation against The Weinstein Company (which he also represented), or assisting celebrity trial lawyer Charles Harder (who represented Hulk Hogan in the invasion of privacy case that broke Gawker) in a $50 million libel case Weinstein was threatening against the New York Times for reporting the first wave of harassment and assault accusations.  (That case was never filed.)  Nor, he added, would he be involved in addressing “the subject matter of various news stories,” apparently referring to articles published after the Times’ ground-breaking story in early October.

In retrospect, that last qualification appears carefully formulated.  For as the Times is now reporting (here), in July of this year Boies’ firm had retained Black Cube on Weinstein’s behalf, hiring them for what the contract Boies signed stated were the “primary objectives” of providing “intelligence which will help the client’s efforts to completely stop the publication of a new negative article in a leading NY Newspaper” (which Farrow identifies as the Times) and obtaining content from a book that was to include “harmful, negative information on and about the client” (which Farrow identifies as being written by actress Rose McGowan, who has accused Weinstein of raping her).  Even more surprising, Boies and his firm were representing the Times in another, unrelated matter at the time.

Upon learning of the Boies Firm’s role, the Times quickly and summarily terminated them, issuing a strikingly strong statement accusing the firm of “secretly work[ing] to stop our reporting on Harvey Weinstein at the same time as the firm’s lawyers were representing us in other matters.”  The Times asserted that it “considered this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe.”  It vowed to “pursue appropriate remedies.”  Ouch.

It’s not hard to see how the Times would consider secret machinations by the paper’s own outside counsel to “stop our reporting” on a front-page story “intolerable conduct” and a “grave betrayal of trust.”  But is it, as the Times also asserted, “a breach of the basic professional standards that all lawyers are required to observe”?  Of course, it doesn’t have to have been a violation of the Rules of Professional Conduct to be intolerably disloyal to the Times.  Certainly it was knuckleheaded client relations with a marquee client, the optics are hideous, and in all events the paper was free to jettison the Boies Firm whether or not it violated any formal Rule or legal standard.  But did it?

That turns out to be a harder question than you might think.  I’ll explain why after the jump. 

To put the problem in factual context, we need to consider the statement Boies recently released responding to the Times’.  For purposes of analysis we’ll assume that it’s all true.  What Boies said, in brief, was this:

• Earlier this year, Weinstein learned that the Times was “considering publishing a story that many years ago Mr. Weinstein raped an actress,” an allegation Weinstein denied. Boies declined to represent him “in this matter,” and Weinstein hired other counsel.

• Boies “also told Mr. Weinstein that the Times story could not be stopped through threats or influence; the only way that the story could be stopped was by proving it was not true.”

• Weinstein and his lawyers selected private investigators to assist him and they drafted a contract. Weinstein asked Boies “to execute the contract on his behalf.” Boies “was told at the time that the purposes of hiring the private investigators were to ascertain exactly what the actress was accusing Mr. Weinstein of having done, and when, and to try to find facts that would prove the charge to be false and thereby stop the story.”

• Neither Boies nor his firm “select[ed] the investigators . . . or direct[ed] their work; that was done by Mr. Weinstein and his other counsel.

• “It was a mistake to contract with, and pay on behalf of a client, investigators who we did not select and did not control. . . . Had I known at the time that this contract would have been used for the services that I now understand it was used for, I would never have signed it or been associated in any way with this effort.”

Boies also offered three reasons why he contended his Firm had no conflict of interest with the Times:

1. The Firm’s engagement letter with the Times has a blanket advance conflicts waiver, stating “we [the Boies firm] may be requested to act for other persons on matters which are not substantially related to the Engagement [with the Times], where the interests of the other persons, and the Firm’s representation of them, may be against the [Times’ interests], including adversity in litigation.”

2. “[D]espite the language in our Engagement Letter, I told Mr. Weinstein that we would not represent him in this matter” regarding the proposed Times story on the alleged rape.

3. “[B]ecause I perceived the investigators’ work as trying to ascertain the exact charges against Mr. Weinstein and to develop facts that would prove the charges untrue, I thought at the time that was an appropriate endeavor.”

First, let’s clarify the Boies Firm’s role.  As noted above, the contract for Black Cube’s services is available on The New Yorker’s website (here).  That contract is very strange.  The first paragraph declares that the Boies Firm is engaging Black Cube “on behalf of a client (hereafter ‘the Client’).”  The Client is never identified.  What is clear is that the Boies Firm is acting for a Client who The New Yorker reports (based on other documentation) is Harvey Weinstein, and one of the “primary objectives” of the engagement is “to completely stop the publication of a new negative article in a leading NY Newspaper” that The New Yorker identifies as the New York Times. 

It is difficult to imagine interpretive contortions strenuous enough to reconcile these statements with Boies’ recent public assertion that his Firm did not represent Weinstein in “this matter” concerning the prospective Times story, or at least that he told Weinstein they wouldn’t.  The engagement may have been limited to contracting with the investigators, but it was an engagement to act for Weinstein in connection with the Times story.  So Boies’ second argument against the existence of a remediable conflict of interest (“I told Mr. Weinstein we would not represent him,” by which he apparently means they actually didn’t) is simply not consistent with the available facts.

As an aside, these circumstances are very peculiar in another way:  It is difficult to fathom why the Boies Firm was in this picture at all.  It is, of course, common for lawyers to retain investigators for the benefit of their clients.  The reason typically advanced is that when investigators work as counsel’s agents, at least in anticipation of litigation, the fruits of the investigators’ efforts are usually attorney work product, and protected in some important ways from compelled disclosure.  (Farrow’s article refers repeatedly to attorney-client privilege, which is in fact considerably less salient in this context.)  There are also the additional advantages that lawyers are accustomed to working with investigators, can more effectively direct their efforts toward what might help the client’s cause, and should know how to keep their conduct in compliance with the law.

Here, Boies tells us, the counsel actively involved in defending Weinstein’s interests in connection with the Times’ reportage selected Black Cube and negotiated its terms of engagement, but Weinstein asked Boies and his Firm, who Boies insists were not actively involved in the engagement, to sign the contract retaining the investigators, rather than the lawyers who were actively pursuing Weinstein’s defense.  This is exceptionally unusual, and begs the question what the heck was going on that the parties chose to structure things this way.

Was there a wrongful conflict of interest?  This has been the question that has mostly detained the legal and mainstream press, though as we will see it’s not the only one.  And here’s where things get complicated.

Were the Times’ and Weinstein’s interests sufficiently adverse to be wrongful?  It’s very clear that lawyers are legally and ethically prohibited from acting adversely to an existing client, even in an unrelated matter, without all affected clients’ informed consent.  That’s what the Times accuses the Boies Firm of doing—representing Weinstein adversely to the Times while representing the Times in something else.  The difficulty inheres in the reality that “adversity” (also referred to as divergence, or conflict) of interests exists on a continuum from completely aligned to zero-sum total war.  The law governing lawyer conduct does not prohibit (or perhaps more precisely, does not impose any remedy for) acts adverse to a current client’s interests unless they are adverse enough on this scale. 

There are common examples on either side of the divide:  For example, party adversity—that is, nose-to-nose adversity across the “v.” in a caption or across a negotiating table—is pretty much always adverse enough to create a remediable conflict of interest.  But not all interest adversity is legally remediable.  To use a common example (enshrined in the Comments to Model Rule of Professional Conduct 1.7), a lawyer who does a good job helping one competitor in an industry is literally acting adversely to the interests of that client’s competitors by helping her client succeed.  But the lawyer is still free to represent other competitors in the same industry on unrelated matters despite this adversity, because the help is not adverse enough to support prohibitory or compensatory remedies under prevailing law.  In the ordinary course of events, the easy cases substantially outnumber the hard ones.

This creates the context for Boies’ third argument why his Firm was not conflicted—“because [he] perceived the investigators’ work as trying to ascertain the exact charges against Mr. Weinstein and to develop facts that would prove the charges untrue . . . .”  He is arguing that Weinstein’s and the Times’ interests were not sufficiently adverse to be legally or ethically wrongful.

I think this argument fails, but it takes some explaining why.  First of all, it depends on a very cramped and convenient view of the facts.  Boies’ argument is that both Weinstein and the Times wanted the truth to come out; because they were both pursuing the same goal, he argues, their interests were not in conflict.  But what we know from Weinstein’s past behavior (as reflected in the documents and reporting offered in The New Yorker and the Times, and it does not take much imagination to guess that it was familiar to Boies as Weinstein’s longtime legal adviser) is not only to attack the facts (e.g., I couldn’t have done it because I was in Singapore at the time), but to attack the accuser’s overall credibility on the sadly familiar character grounds that she is promiscuous, voraciously ambitious, greedy, dishonest, etc.  As Farrow reports, this kompromat was the kind of information that Weinstein frequently tasked his investigators to gather. 

In other words, Weinstein regularly sought to discredit accusers by arguing that, as bad people, they should not be believed (and that, as promiscuous women, they must have consented to sexual contact with him), and he sought to do just that in this specific instance.  Of course, once you’re in the territory where you’re trying to persuade someone of something arguable, your interests are generally viewed as classically “adverse” to theirs.  Boies’ argument is comparable to saying that the interests of the parties to a conventional business negotiation are not “adverse” to one another because they both want to make a deal.  That’s obviously wrong.  Boies’ argument is more subtle than this, but at bottom suffers from the same defect.

Did the Times waive the conflict?  That leaves Boies’ last argument, which is more substantial.  He argues that his engagement letter with the Times included a blanket advance waiver, in essence the Times’ agreement in advance to let the Boies Firm continue to represent the Times while representing others against the Times in unrelated matters.  The words from the letter he quotes are:  “we [the Boies firm] may be requested to act for other persons on matters which are not substantially related to the Engagement [with the Times], where the interests of the other persons, and the Firm’s representation of them, may be against the [Times’ interests], including adversity in litigation.”

The question here is whether this amounts to a waiver enforceable in this case.  That is not an easy question.  New York (where Boies is apparently licensed and where the events at issue apparently occurred) has entertained the view that a client can agree to waive some conflicts in advance, provided that the consent is adequately informed—that is, that the risks and benefits are adequately explained.  (A New York City Bar Opinion takes this view; apparently the bench has not unanimously endorsed it—see here and here.) 

If the language quoted above is all there is (and there may be more that Boies did not include), there is some reason to doubt its enforceability.  All it says is that the Boies Firm “may be requested” to act adversely to the Times in unrelated matters.  Nothing in the quoted language states that the Times is consenting to the Boies Firm’s taking the conflicted engagement, no matter what it is, let alone provides a meaningful discussion of the risks and benefits of consenting in advance to doing so.  And nothing in the quoted language says the Boies Firm may take an engagement adverse to the Times without telling them, which is what happened here and is a feature of the Firm’s conduct that the Times found particularly galling.  The lack of consent, explanation and disclosure would cause at least some courts to find the waiver unenforceable.  We’ll see if it gets tested in this instance.

What about the duties of confidentiality and loyalty?  Sturdy readers who worked their way through my recent post on the President’s lawyers, and thus have recently been reminded of the breadth and power of the duty of confidentiality, should be troubled over this situation for a separate reason.  Ronan Farrow’s reportage in The New Yorker includes a copy of the writing by which the Boies Firm retained Black Cube’s investigative services.  How Farrow got this document, and the “dozens” of others he describes in his reporting, including communications between Weinstein and his investigators, is a mystery; he gives no hint as to the identity (or even the general nature) of his sources.  Most if not all of these documents are confidential and attorney work product, yet someone turned them over to an overtly hostile journalist.  That someone may have broken the law.

And entirely apart from that, on what basis does David Boies believe that he has the right to publicly announce what Weinstein asked him, in confidence, to do, what he replied to Weinstein that he would and would not do, and what he actually did do for Weinstein in a nonpublic engagement?  And on what basis does Boies claim the right to disclose some of the terms of his engagement letter with the Times?  Perhaps Weinstein or the Times gave him permission, though it’s hard to see why either would.  Perhaps Boies is relying on the “self-defense” exception to the duty of confidentiality (NY R. Prof. Cond. 1.5(b)(5)), which in New York allows a lawyer to disclose confidential information “to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct.”  While the scope of this exception is ill-defined, it has generally been limited to controlled disclosures to courts, regulators and adversaries when claims are pending or impending, rather than “I am not an enabler” chest-baring to the press and public at large.

And what about Boies’ protest, having apparently just terminated his longstanding representation of Weinstein, that “I would never knowingly participate in an effort to intimidate or silence women or anyone else, including the conduct described in the New Yorker article. That is not who I am”?  It’s easy to condemn Weinstein’s despicable history of predation and intimidation, but we lawyers represent lots of despicable people, and once we choose to stand for them our duty of loyalty extends to them too.  Would you feel the same if Boies had just unsuccessfully defended a criminal case, and called a press conference on the courthouse steps to announce “I’m pleased the jury was able, despite my best efforts, to see my client for the marauding monster he is, and we can all feel safer now that justice has been served”?  It is, once again, not clear whether throwing his ex-client under the bus in this fashion violates Boies’ legal or ethical duties.  But the answer doesn’t have much to do with how much Weinstein deserved it.  And regardless of whether it’s a breach of duty, it’s not the kind of thing we typically see from those at the pinnacle of the profession.

Now the really juicy stuff—ethical supervision!  It may sound more than a little technical, but lawyers have a duty to supervise the non-lawyers who work for them to make reasonably sure their behavior complies with the lawyer’s legal and ethical duties.  That obligation is important in protecting the public, and the supervising lawyer is personally responsible if a failure to adequately supervise results in illegal conduct.  (See NY R. Prof. Cond 5.3.)  And of course a lawyer can’t evade the prohibition on particular conduct by having someone else do it for him.  (See NY R. Prof. Cond 8.4(a).)  One thing particularly striking about Boies’ non mea culpa is his statement that “[i]t was a mistake to contract with, and pay on behalf of a client, investigators who [sic] we did not select and did not control. . . .”  I’ll say—in fact, if that’s what happened it’s a flat abdication of his duty to supervise.

Much more difficult is determining whether the investigators with whom the Boies Firm contracted did anything illegal.  The contract provides (as most such contracts do) that the investigators will perform their services in compliance with applicable law, but of course that’s just the beginning of the inquiry. 

This post has gone on way too long already, but suffice it to say there are at least a couple of areas of exposure.  To the extent that Weinstein intended to use personal information gathered by the investigators to intimidate accusers from coming forward (or the press from publishing) and the investigators knew it, they were conspirators or aiders and abettors in extortion, which is a tort and a crime and, needless to say, very bad.  The contract is artfully worded so as to avoid proving this occurred, but surely it’s possible given what has been reported about Weinstein’s habits.  Boies’ protests that he did not know anything like that might be happening miss the point: He retained the investigators, and he was responsible for supervising them.  If they broke the law while he was asleep at his post, he and his Firm bear the blame.

It’s also possible that Black Cube’s use of “pretexting”—pretending to be someone other than they are with purposes other than the ones they actually harbor—violated the law.  Pretexting is a subject of widespread uncertainty and confusion in the ethical world.  Civil rights lawyers send “testers”—racial and ethnic minorities who are not actually applying—to seek housing or employment in order to determine whether landlords or employers are illegally discriminating.  They lie about who they are and why they’re there in order to expose the truth.  Investigators are often used for analogous purposes when a patentee or trade-secret holder suspects infringement. 

These seem to many of us appropriate and constructive uses of what amounts to strategic dishonesty in the service of justice.  Yet lawyers themselves are generally forbidden from contacting a person who is known to be represented (NY R. Prof. Cond 4.2), and from misleading an unrepresented person as to the lawyer’s interests or role (NY R. Prof. Cond 4.3). It’s hard to see why that becomes OK when the lawyer has an investigator do it for him (see NY R. Prof. Cond. 8.4(a)).  And it takes on a distinctly ugly cast when the same strategic dishonesty that looks so helpful in civil rights cases is used as Ronan Farrow reports Black Cube did with Harvey Weinstein’s victims.

So did David Boies violate any enforceable legal or ethical standards?  Maybe.  But I think we can safely conclude that, whether he did or not, it stinks.

--Bernie

 

Comments

[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.