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Every revolution has an inevitable, unfortunate amount of collateral damage, and the long-overdue “post-Weinstein” reckoning now taking place is no exception. Still, that doesn’t make it right, least of all when it hurts the very female victims the reckoning is meant to protect. But that is exactly what is happening with the unbalanced and inaccurate criticisms of one of the litigators who helped bring about the revolution in the first place: David Boies.
Some of the criticism coming his way has been almost absurdly excessive. Recent descriptions of America’s best-known lawyer bear little resemblance to the man I and the legal world know, a lawyer who has spent 50 years fighting for equality, suing to end discrimination, and giving rights and a voice to the oppressed in our society. From civil rights work in Mississippi in the 1960s, to fighting for democracy in Bush v. Gore, to winning the first case establishing a federal constitutional right in California to marriage equality, to reforming an educational system that deprives children who need a decent education most, to protecting abused women and children, Boies has, by virtually unanimous judgment, represented the best of the legal profession.
That work continues today. I have watched him devote much of his time and his firm’s resources to suing a billionaire pedophile and his collaborators. I’ve seen him sue to shut down BackPage.com, a website that markets girls to pedophiles. (If that lawsuit is successful, it will save many thousands of girls from abuse and death.) He is sure to bring more lawsuits on behalf of female sex abuse targets in the future. This is lawyering at its best.
Juxtaposed against this record is his former representation of Harvey Weinstein, a client whose now-infamous behavior — and Boies’ lawyering for him — has led to a spate of stories based on selective facts, holier-than-thou attitudes, and inaccurate conclusions. They raise a basic questions as old as the law itself: Should lawyers represent clients accused of reprehensible behavior? Should a lawyer’s representation of a disgraced client justify an onslaught of personal criticism? Is guilt by association itself a form of “shaming” of lawyers reminiscent of the “slut shaming” we are trying to bring to an end?
Some of the answers depend on understanding the role of lawyers in our society. Some of the answers depend on the facts, including what Boies knew and when he knew it. (Disclosure: I am a personal friend of Mr. Boies and, along with my partners, have worked with him on various cases protecting the rights of girls and women injured by trafficking and sexual abuse.)
Although a few reports, mostly online, include some facts about what actually happened in his representation of Weinstein and other clients, most stories sacrifice the facts in favor of colorful narratives:
Narrative #1: It was wrong for Boies to represent Weinstein under any circumstances.
Facts: At the time Boies represented him, Weinstein was a well-regarded film producer who denied any harassment or assaults. He was the most honored producer in Hollywood, a confidant of numerous respected political figures, a financial contributor to important liberal causes, and a close personal friend of media moguls. After looking at what people knew, including people closer to Weinstein than many of his lawyers, it is clear that there was no basis for Boies or his firm to have concluded that the filmmaker was not entitled to legal representation.
Narrative # 2: As a lawyer for Weinstein, Boies must have known about, or even negotiated, dozens of the private settlements between Weinstein and his victims — settlements that had the effect of silencing them and covering up Weinstein’s sexual assaults.
Facts: Boies did not negotiate the so-called Miramax settlements or any other settlements involving allegations of sexual assault, predation, or harassment by Weinstein. (Indeed, most were done before Boies even met Weinstein.) At the time of negotiation, Boies was consulted about a single complaint filed with the company by a female assistant to Weinstein that did NOT allege sexual assault or that the woman had been the subject of sexual advances or invitations. Moreover, even that settlement was negotiated by lawyers from another law firm. Prior to media reports of the last few months, Boies was not aware of any settlements (including those negotiated by others) with any woman whom Weinstein had raped or sexually assaulted. He believed, as others with much more knowledge believed, that any settlements were with women with whom Weinstein had had consensual relationships.
Narrative #3: Boies should not have represented Weinstein because his law firm also represented The New York Times, which broke the Weinstein story.
Facts: Boies already represented Weinstein when his firm began representing The New York Times, and the Times agreed in writing that he could continue working for his other clients, including those who, like Weinstein, might at some point have interests adverse to the Times. During the period it was investigating Weinstein, the Times acknowledged to Boies’ firm, in writing, that it knew the firm was representing Weinstein.
This arrangement is not unusual. Law firms often represent newspapers while continuing to represent other clients who may have unrelated disagreements with the newspaper’s coverage. In this case, the Times even went so far as to authorize Boies’ law firm to sue the Times on behalf of other clients. It makes no sense to say that the law firm was prohibited from investigating the facts.
Narrative #4: Boies should not have signed a contract with a private investigator (Black Cube) that would investigate an actress’ claim that she’d been raped by Weinstein.
Facts: Boies has acknowledged that hiring Black Cube was a mistake because he himself did not select it or control its work. That is not to say, however, that no company, whether Black Cube or a comparable investigator, should not have been hired to help find the truth.
Newspapers do not have a monopoly on investigating the facts. Lawyers have an ethical obligation to do so. Not even the most ardent civil rights and women’s rights advocates with whom David Boies (and my own firm) works believe that every charge of sexual harassment and assault must be accepted at face value or prosecuted without investigation of any kind. Lawyers know better. So do judges, juries, and reporters. To do otherwise would be a denial of due process inconsistent with fundamental fairness and the rule of law. Aggressive investigation — free of threats and intimidation — is every citizen’s basic civil right. If Boies and his firm were free to represent Weinstein (as they were), they had an obligation to do so aggressively.
But did Boies hire this company knowing they would use questionable means of investigation or intimidation? Did he condone a use of techniques that exceed the bounds of legitimate, zealous lawyering?
No, he did not. He signed a contract for their services as an accommodation to a client. Although he had no firsthand experience with the investigators, he knew the company was recognized inside the legal community and he knew it had been retained by some of the best firms in the country. He also knew that the company contractually guaranteed that everything it did would be legal, and that all of its “operational methodologies have been approved by K&L Gates,” a top-tier U.S. and international law firm on whose judgment other law firms could rely. He expected others close to the investigators to oversee their work.
As for what Black Cube actually did in the field, its work remains unclear to me (and evidently to the press). I did not query the reporters involved; I was interested only in what Boies knew. If it turns out that Black Cube attempted to threaten or intimidate reporters or witnesses, that would be profoundly wrong on many levels — as Boies has said from the beginning. But bearing in mind that Black Cube openly stated its intention to try to influence the Times‘ reporting — but do so only with facts acquired by legal means — there is no suggestion that David Boies either countenanced illicit investigative behavior or expected it to occur.
Narrative #5: While representing a man who claimed his former girlfriend had stolen and plagiarized his work, Boies threatened to shame the woman by revealing her private sexual life.
Facts: This story was the easiest to get to the bottom of. Boies himself did not direct this litigation, but he did receive copies of certain letters and his name was on one draft (but not the final) complaint, so to that extent he takes his share of responsibility. But for what? Contrary to the gist of most reporting, Boies’ partners did not raise the woman’s sex life as a character issue but responded to the woman’s raising of her boyfriend’s character as an issue, and to her (false) claim that she was so naive and inexperienced with dealing with “older” men that her conduct should be excused. When the Boies firm replied, it did not do so in a public filing, but presented its rebuttal in a private settlement negotiation. (The public complaint filed later did not contain the private sexual information.) Neutralizing an opponent’s attack with ammunition you possess is how settlements happen. Lawyers may even have an ethical obligation to let the other side know the facts it can produce at trial.
How did Boies’ law partners get the woman’s sex life? She gave it to them. Despite knowing her computer contained her sex life, she sold it to her boyfriend when they broke up. She did that because she had secretly installed spy-ware on her computer in order to spy on him. Aside from the moral questions of spying on her own boyfriend and stealing his work — behavior not exactly endearing — it was she, not he, who sought to assassinate her opponent’s character (and then use the current atmosphere to her advantage).
Narrative #6: The Weinstein Company had a distribution deal with the Boies Schiller Film Group — BSFG — (in which Boies held a financial stake) that induced Boies to represent Harvey Weinstein after he should have known better.
Facts: Actually, the opposite is the case. Of the several distribution deals BSFG has entered into, including with Netflix, Lionsgate and Open Road, the Boies Schiller Group made money on every film but the one distributed by Weinstein. (What’s more, the Weinstein Company has yet to pay BSFG its overdue share of the revenues from the film.) If a business relationship were a factor in Boies’ representation of Weinstein — and that, in my experience, he would not have allowed — it would have been an incentive to sever relations, not continue them.
The Weinstein case — and the way it’s being tried in the court of public opinion — raises a number of important questions. What is a lawyer supposed to do if one of his clients turns out to be a monster? Should that later realization by itself, without taking into account what the lawyer did not know (any more than many of the client’s closest friends and family knew), be allowed to cast a shadow on his or her lifetime of good work?
Many of the female victims of abuse and oppression who have benefitted from Boies’ aggressive lawyering have spoken up on his behalf in the last few weeks, although their support has been largely ignored by the media. That’s too bad. They represent his true work and commitment as much as what he has done for other clients.
The country is in the midst of much-needed reckoning on behalf of harassed and assaulted women. Using unbalanced and inaccurate criticism to trash those who helped bring it about is not only feckless but a deep disservice to the women targets they are trying to protect.
Stan Pottinger, a former U.S. Assistant Attorney General for Civil Rights, is a partner in Edwards Pottinger LLC.
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