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ANALYSIS: David Boies May Have Violated Attorney-Client Privilege to Dish on Harvey Weinstein

In my legal estimation, storied litigator David Boies, made famous for representing Al Gore before the Supreme Court, may have revealed confidential information in violation of the attorney-client privilege as it related to former client Harvey Weinstein. It happened in a letter sent to multiple media organizations earlier Tuesday.

In the wee hours of the afternoon, Boies sent out the the following statement. The first half reads, in part.

In the first half of this year, Mr. Weinstein learned that the New York Times was considering publishing a story alleging that many years ago Mr. Weinstein had raped an actress. Mr. Weinstein hotly disputed that allegation.

I told Mr. Weinstein at that time that neither I nor the Firm would represent him in this matter, and he hired several other lawyers to represent him.

I 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.

Mr. Weinstein, together with the lawyers representing him, selected private investigators to assist him and drafted a contract. He asked me to execute the contract on his behalf. 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.

I did not (nor did the firm) select the investigators (at least one of which had been used by Mr. Weinstein previously) or direct their work; that was done by Mr. Weinstein and his other counsel.

While I told Mr. Weinstein that I was not in a position to represent him on these issues, his request to contract with investigators seemed at the time, like a reasonable accommodation for a longtime client. I regret having done this.

The above-quoted defense is a stunning document in a daily-more-dizzyingly complex legal drama. Briefly: news broke yesterday that Weinstein–by way of his crack squad of Israeli investigators–attempted to intimidate Ronan Farrow and the New Yorker as well as journalists from the New York Times from publishing their exposés on Weinstein’s alleged illicit sexual exploits.

Boies’ firm apparently facilitated the contracting of Weinstein’s so-called “army of spies” for their client–which wouldn’t really be newsworthy except that at the same time Boies’ firm was employed by the New York Times. Fast-forward to today’s letter. In that letter–again, quote above–Boies reveals various details about his legal and professional relationship with Weinstein.

But did Boise’s defense to the media circus at which he’s now performing in the center ring perhaps violate professional ethical rules? Maybe so.

New York State’s expression of the attorney-client privilege is codified at NY CPLR §4503. It reads, in relevant part:

Confidential communication privileged.  Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing, or administrative action, proceeding or hearing conducted by or on behalf of any state, municipal or local governmental agency or by the legislature or any committee or body thereof.

Potential ethical landmines for Boies are spread throughout the quoted half of today’s statement.

For example, Boies writes, “Mr. Weinstein, together with the lawyers representing him, selected private investigators to assist him and drafted a contract. He asked me to execute the contract on his behalf. 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.”

Here, Boies is relaying details of his first interactions with Weinstein after the rape and abuse allegations were made public. Specifically: (1) the efforts Weinstein and other members of his legal team made to hire private investigators; (2) the drawing up of a contract for such services; (3) the alleged purposes of hiring such outside help; and (4) an insinuation that Weinstein provided Boies with pretextual motives for the outside hires. And that’s in one paragraph alone.

Taking the rest of the quoted parts of the statement into account, Boies explicitly references various exchanges with Weinstein that detail: (1) at least two distinct discussions with his longtime client regarding continued representation generally; (2) one discussion regarding the best–only–strategy for Weinstein going forward; (3) who selected the investigators; (4) who directed the investigators’ work; and (5) that Weinstein had previously used one of the investigators in the past.

All of this information was put into a letter sent to the employees at Boies’ law firm and then released to the media.

Taking a look at the New York State rule on the attorney-client privilege, the sticking point here likely becomes whether Boies was actually acting “in the course of professional employment,” while Weinstein relayed the information to his longtime attorney.

At the offset, Boies states that he declined to represent Weinstein on the broader issue of his sexual harassment, abuse and rape scandal. (“I told Mr. Weinstein at that time that neither I nor the Firm would represent him in this matter, and he hired several other lawyers to represent him.”) That much is clear.

Boies, however, seemingly wants to have it both ways by later acting as the facilitator of the allegedly threatening investigative army that attempted to squash the Weinstein scandal before it happened–all while simultaneously purporting to represent the New York Times in a legal capacity as well. The Times, for their part, is furious andt

Boies declining to work on Harvey Weinstein’s broader sex scandal issues while contracting out the investigators who worked to kill the scandal in its infancy is a distinction, for sure, but it’s not immediately clear that this distinction is imbued with a great deal of difference.

The fact remains, Boies was acting in some kind of professional capacity for his client when he took on the contracting–a form of professional employment to be sure. Boies learned and then disclosed quite a bit of information his client made during the meeting(s) which led to that professional employment.

Before concluding, it should be noted that were any non-attorneys present during the Weinstein-Boies conversations which Boies today relayed–or if Weinstein ever gave Boies the go-ahead to bare his professional soul on the matter–any such information would not be protected by the attorney-client privilege.

Finally, whether anything comes of this potential ethical lapse is another question entirely. Weinstein would likely need to be the mover here by filing a complaint against Boise with the New York State Bar Association. That’s unlikely, but if he chose to do so, Weinstein could probably produce a fairly juice-filled distraction by forcing his former attorney in front of a disciplinary board.

[image via screengrab]

Colin Kalmbacher is an attorney and LawNewz editor follow him on Twitter: @colinkalmbacher

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