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David Boies' Mea Culpa Doesn't Cut It

Vivia Chen

November 9, 2017

Saint_Francis_of_Assisi_by_Jusepe_de_RiberaIt's hard not to be charmed by David Boies. I've met Boies on several occasions and interviewed him about a range of topics—from his opinion about Donald Trump, a skirmish he got into with Alan Dershowitz, to his star turn on The Good Wife. He's a rock star of lawyers, a maverick who looms above the stuffed suits of the profession and a shiny knight for liberal causes.

And, of course, he's brilliant. Yet, he comes across as soft-spoken, direct and remarkably homespun (those iconic Sears' suits! those Merrell shoes!).

So how did a bonafide legend like Boies get caught in the tawdry Harvey Weinstein mess in which his judgement and ethics are called to question?

There are two ways to view Boies' role in the Weinstein catastrophe: It was either chutzpah or stupidity. Judging by what Boies has said so far, he'd prefer if you pick the stupid option. 

In case you missed it, the backstory is this: Boies signed off on hiring Black Cube, an investigation agency, to thwart the publication of a New York Times story about Weinstein's sexual abuses, according to The New Yorker's Ronan Farrow. (Black Cube's investigators—one posed as a women's advocate, while another pretended to be a Weinstein victim—ingratiated themselves with actress Rose McGowan and a journalist to pump them for information about Weinstein's alleged assaults.) To top it off: The Times was a Boies Schiller & Flexner client at the same time. (Less than 48 hours after the New Yorker story broke, The Times fired Boies Schiller & Flexner.)

Unsavory allegations, unsavory client, unsavory techniques—plus a heaping serving of a possible conflict of interest. You couldn't ask for a better setup for a story about the fall of a living legend. Most lawyers and law firms wouldn't recover, but what about Boies?

To his credit, or because he has no other choice, Boies is not dodging the issue. His method is to fall on his sword. "We should not have been contracting with and paying investigators that we did not select and direct," he told The New Yorker. "At the time, it seemed a reasonable accommodation for a client, but it was not thought through, and that was my mistake." 

Boies repeats those explanations in a recent public statement that followed. He states that he made it clear to Weinstein that he would not represent him with respect to McGowan's charge that the movie mogul raped her. He also reiterates that it was Weinstein's other lawyers who "selected private investigators to assist him and drafted a contract." And again, Boies emphasizes that he signed the contract with Black Cube because, it "seemed at the time, like a reasonable accommodation for a longtime client." 

I wish I could take Boies at face value, but it strains credulity to think that a lawyer—any lawyer, much less a very savvy one—would blindly sign a contract for something that he's barely involved in. Indeed, there's nothing "reasonable" about the accommodation. It would make far more sense if Weinstein's other lawyers signed the contract, since they are the ones who are supposedly directing the private investigator.

Which raises this question: Was Boies and his firm truly that out of the loop about what the private investigators were doing, which was to dig up dirt on women to discredit them? That's puzzling, since The New Yorker reports that the investigators sent summaries of reports to Weinstein's lawyers (though it's unclear which lawyers), and that Weinstein himself had forwarded photos of himself and McGowan to Boies and another lawyer that supposedly help prove his innocence. 

And though Boies admits that he knew what the investigators were trying to find ("I 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"), he suggests that he was unaware about their sleazy methods and purposes: "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 seems to want it both ways: He knew that the goal was to stop the Weinstein story in its tracks, but he insists he didn't know that the road to achieve those goals would be so sordid. Coming from a tough litigator who knows how to play hardball, that's hard to buy.

As for the whole conflicts of interest thing with the Times, Boies essentially relies on a technicality. In his statement, he says that "when we were engaged by the Time we made clear that we needed to be able to continue to represent clients adverse to the Times on matters unrelated to the work we were doing for the Times." 

Boies might be technically right about the (overly?) broad waiver, but that hardly seems to be the best way to sooth an angry client. Not surprisingly, The Times fired Boies Schiller and issued this: "Whatever legalistic arguments and justifications can be made, we should have been treated better by a firm that we trusted."

Boies is in a pickle, and he seems unsure about how to put distance between himself and his now ex-client, who happens to be one of the most hated men in America. "I don't believe former lawyers should criticize former clients," Boies tells Farrow in The New Yorker. But in the same breath, he sort of does just that: "In retrospect, I knew enough in 2015 that I believe I should have been on notice of a problem, and done something about it."

Like lots of Weinstein's male cohorts who have found themselves in his ugly ambit, he seems to be saying, "My bad. I could've, should've done something." It sounds contrite, but I'm not sure where it leads. 

At the end of the statement he issued in the aftermath of the New Yorker article, Boies pleads his case:

I have devoted much of my professional career to helping give voice to people who would otherwise not be heard and to protecting the rights of women and others subjection to oppression. 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.

And wouldn't we all love to believe him?


Art: St. Francis d'Assisi (Wikipedia)


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"Whatever legalistic arguments and justifications can be made, we should have been treated better by a firm that we trusted."

This is actually an outstanding comment to educate young lawyers about professional responsibility. It expresses the essence of what we should do.

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The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: VChen@alm.com

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