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2017-11-07 22:26:02
Weinstein Work Pulls Lawyer Back Into an Ethical Debate

David Boies may be best known for taking on nationally prominent political cases before the Supreme Court, including Bush v. Gore and the fight to legalize gay marriage.

But it’s his role as a hard-nosed litigator representing corporations and executives that has earned him lavish payouts but created potential ethical issues — so much so, it has forced his firm to step away from several cases.

In 2006, the cable company Adelphia asked his firm to resign from a bankruptcy case after it was disclosed that the firm had advised Adelphia to hire a document-management company partly owned by his children. Last year, Mr. Boies’s firm parted ways with Theranos, the blood-testing company it represented in a series of government investigations, in part because of disagreements over legal strategy with the Theranos board, on which he served.

Now Mr. Boies, 76, is again drawing fire for the perception of conflict of interest, after a report in The New Yorker on Monday outlined legal work he did for Harvey Weinstein, the movie mogul facing a wave of allegations of sexual harassment and sexual assault.

The article reported that Mr. Boies had helped execute a contract with a private investigation firm that Mr. Weinstein hired to help block a negative article about him in The New York Times. Mr. Boies’s firm, Boies Schiller Flexner, has provided outside legal counsel for The Times three times in the last 10 years, including one libel case.

The article said the investigative firm had been instructed to dig up information on Rose McGowan, an actress who had accused Mr. Weinstein of rape, and to find out what various reporters knew about the allegations against Mr. Weinstein.

On Tuesday, Mr. Boies issued a statement 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. He denied there was any conflict of interest with his work for the paper.

But late in the day, the paper said it was ending its relationship with his firm.

“We never contemplated that the law firm would contract with an intelligence firm to conduct a secret spying operation aimed at our reporting and our reporters,” The Times said in a statement. “Such an operation is reprehensible.”

Mr. Boies said neither he nor his firm had any role in initially hiring the private investigative firm, Black Cube. But he said he had made a mistake in helping out Mr. Weinstein, whom Mr. Boies described as a longtime client and who has denied any allegations of nonconsensual sex, in forging a new contract with the firm.

“It was not thought through, and that was my mistake,” he said in the statement. He pointed out that he had never been disciplined for his work.

In an interview, he sought to minimize his involvement with Mr. Weinstein, contending that he was brought in to deal with a “billing dispute” with Black Cube. But in effect, Mr. Boies helped draft a new contract to retain the services of Black Cube for Mr. Weinstein. The contract, a copy of which was posted on The New Yorker’s website, said one objective was to provide Mr. Weinstein with “intelligence” to “stop publication of a new negative article in a leading NY newspaper.”

“In retrospect, we should not have gotten involved in the billing dispute,” Mr. Boies said. “In the case of Harvey Weinstein, there is a lot of information that I didn’t have.”

The episode may deepen the perception that Mr. Boies pushes the boundaries on potential conflicts, while raising questions about why he didn’t seek to learn more about Mr. Weinstein’s team of hired-gun investigators.

“From Boies’s perspective, this is no good deed goes unpunished,” said Laurie L. Levenson, the David W. Burcham chair in ethical advocacy at Loyola Law School in Los Angeles. “From what I heard, he should have had more information as to what it was about. He is leaving a thumbprint on it, and whether he wants it or not, this now belongs to him.”

The rules of professional conduct in New York, where Mr. Boies practices, prohibit lawyers who have not consented to the conflict from representing clients “if a reasonable lawyer would conclude” that “the representation will involve the lawyer in representing differing interests.”

Stephen Gillers, who teaches legal ethics at New York University School of Law, said there were several ways to view Mr. Boies’s decision to execute the contract.

“If all he did, as he seems to claim, was help Weinstein unearth facts about his accusers that affected their credibility and might have persuaded the paper not to run the story, that would not be seen as adversely affecting his ‘loyalty’ to The Times,” Mr. Gillers said. “The paper has an interest in the credibility of its sources.”

“On the other hand, if Boies assisted Weinstein in targeting the integrity of Times journalists as a way to prevent the story from running or, failing that, to discredit the reporting if it did run, that would certainly be disloyal to his client,” he said.

Lawyers usually deal with potential conflicts by giving clients the option of switching to another law firm, legal experts said. In many instances, if the matters are not related, the clients will give the lawyer permission to keep representing them.

Sometimes broad waivers are included in the initial retention agreement. The agreement between Mr. Boies’s firm and The Times acknowledged that the firm would from time to time do work for clients whose interest may be adverse to the newspaper’s — a fact that Mr. Boies cited Tuesday.

But The Times’s statement on Tuesday made clear that it believed Mr. Boies’s firm had gone too far by handling a contract for a company that sought to undermine a major reporting effort.

Actual conflict or not, legal experts said Mr. Boies would most likely pay little penalty for his dual work for Mr. Weinstein and The Times. They said disciplinary action was unlikely because it usually required a formal complaint. Moreover, they said, some clients may find Mr. Boies’s aggressiveness appealing.

“I don’t think this will hurt from a business perspective,” said Rebecca Roiphe, a professor at New York Law School and a former prosecutor who specializes in legal ethics. “It is not going to harm his reputation with most clients. When you hire Boies, you are hiring an aggressive lawyer.”

That assertive, sometimes belligerent, style has made Mr. Boies a favorite in the business world. Steven A. Cohen, the billionaire investor, hired him to do battle with the Securities and Exchange Commission when it was deciding how long to bar him from the securities industry for failing to adequately monitor employees charged with insider trading. Maurice R. Greenberg, the former head the former chieftain of American International Group, tapped Mr. Boies and his team to deal with a long-running civil fraud case filed against him.

And Mr. Boies is no stranger to controversy. His decision in 1997 to leave Cravath, Swaine & Moore, a longtime legal powerhouse, came about because he wanted to represent George Steinbrenner, who owned the New York Yankees, in a suit against Major League Baseball. Lawyers at Cravath objected because the firm also represented Time Warner, which owned the Atlanta Braves.

So Mr. Boies started his own firm, which grew quickly. Some critics said his affinity for high-profile cases led him to take on more work than he could handle.

“My wife says I have a hard time saying no,” Mr. Boies said in a 2002 interview.

Occasionally, he worked for little or no money. He charged a reduced fee, for instance, to represent the federal government in its failed attempt to break up Microsoft on antitrust grounds. His videotaped deposition of Bill Gates, one of the company’s founders, is remembered as a classic example of the art of cross-examination.

And a casual follower of his career might take Mr. Boies for a champion of progressive causes. He represented Al Gore in the 2000 recount litigation that culminated in the Supreme Court decision that handed the presidency to George W. Bush.

And he may be best known to the general public for joining with Theodore B. Olson, his adversary in Bush v. Gore, to challenge California’s ban on same-sex marriage.

The Supreme Court heard the case in 2013 but ducked it. The court ruled in favor of same-sex marriage two years later.

While all that was going on, Mr. Boies’s moneymaking side of the business was generating some unflattering headlines.

In 2016, the law firm stopped representing Theranos after the disagreements over legal strategy with the board. There were also allegations that lawyers at Boies Schiller were trying to learn the identity of sources The Wall Street Journal used for a series of stories on the company.

Mr. Boies said Tuesday that the incidents at Theranos and Adelphia had been misconstrued by his critics. He said that his firm had not been disciplined with regard to Theranos, and that there had been no attempt to impede the Wall Street Journal reporting.

He conceded that aggressive litigation was going to leave some people unhappy.