Attorney David Boies, founding partner of Boies Schiller Flexner, is well known for high-profile litigation including representing Al Gore in the 2000 recount litigation that culminated in the Supreme Court decision that handed the presidency to George W. Bush and later teaming with Theodore B. Olson, his adversary in Bush v. Gore, to successively challenge California’s ban on same-sex marriage.
News articles on the legal work he did for Harvey Weinstein, the movie mogul facing a wave of allegations of sexual harassment and sexual assault, have brought less favorable attention. News reports state that that Mr. Boies signed a contract with Black Cube, an Israeli private-intelligence agency operated by former members of Israel’s Mossad intelligence service to help block a negative article about Weinstein in The New York Times. Mr. Boies’s firm has provided outside legal counsel for The Times three times in the last 10 years, including one libel case.
Although not yet adopted by the California Supreme Court, Proposed Rule 1.7 [3-310] entitled “Conflict of Interest: Current Clients” provides in relevant part “(a) A lawyer shall not, without informed written consent from each client and compliance with paragraph (d), represent a client if the representation is directly adverse to another client in the same or a separate matter; (b) A lawyer shall not, without informed written consent from each affected client and compliance with paragraph (d), represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person, or by the lawyer’s own interests.”
News reports indicate The New York Times was not even aware of the work on behalf of Weinstein making it unlikely any written conflict waiver exists. As to whether the representation was “directly adverse” or there was “a significant risk” Mr. Boies’ representation would be “materially limited” to either client, Mr. Boies issued a statement denying any conflict saying he believed the investigators had been hired solely to determine the facts related to the allegations against Mr. Weinstein, which he believed would be to The Times’s benefit.
But, the contract, a copy of which was posted on The New Yorker’s website, said one objective was to provide Weinstein with “intelligence” to “stop publication of a new negative article in a leading NY newspaper.”
Not only are potential or actual conflicts at issue, but Mr. Boies public statement regarding the work for Weinstein potentially implicates attorneys’ obligation to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” (Cal. Bus. & Prof. Code § 6068(e)(1).)
There are no indications Weinstein consented to Boies’ public statements regarding the contract with Black Cube which at least potentially fall within the privilege covering, among other information, information that “might be embarrassing or detrimental to the client.” (COPRAC Form. Opn. 1993-133.)
Practitioners should be using the recent news as an important reminder of their ethical obligations to clients even where an attorney may believe their representation of clients may not be materially limited or where there may be widespread public disdain for those very clients.
Andrew Servais (firstname.lastname@example.org) is a partner with Wingert, Grebing, Brubaker & Juskie, LLP.