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David Boies, the celebrated lawyer at the center of a growing ethical controversy over his simultaneous representation of Harvey Weinstein and The New York Times while the newspaper was investigating the disgraced producer, has defended some of his hardball tactics in an email to staff obtained by The Hollywood Reporter.
Boies‘ firm was fired by the Times on Tuesday, and a strongly worded statement from the company suggested Boies, Schiller and Flexner had helped to create a “secret spying operation aimed at our reporting and our reporters,” which the Times described as “reprehensible.”
In the email to his colleagues at Boies, Schiller and Flexner, Boies confirms that Weinstein was a client of his but was no longer a “client of mine or of the Firm.”
The email reveals that in the first half of this year, the film mogul learned that the Times was “considering publishing a story alleging that many years ago Mr. Weinstein had raped an actress.”
Boies says that he told 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.”
Boies said that neither he nor the firm could represent Weinstein, but as detailed in a New Yorker report published Monday, the firm helped the producer execute a contract and helped arrange payment for private investigators who would then go on to spy on and attempt to discredit accusers, including Rose McGowan and journalists investigating the sexual harassment, such as Times reporter Jodi Kantor.
Boies felt that helping to execute the contract for the private investigators wasn’t unreasonable. “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.”
In hindsight, Boies said his decision to help was a mistake. “I regret having done this. It was a mistake to contract with, and pay on behalf of a client, investigators who we did not select and did not control.”
He added: “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.”
Read David Boies‘ full email to staff:
Many of you have asked for clarification of my, and the Firm’s, role related to Harvey Weinstein and recent stories concerning the hiring of private investigators. You are entitled to clarification and it is important to me to make clear what happened.
Mr. Weinstein was a client of mine; he is no longer a client of mine or of the Firm.
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. It was a mistake to contract with, and pay on behalf of a client, investigators who we did not select and did not control.
It was not thought through, and that was my mistake. I take responsibility for that.
I also want to address the issue of whether there was a conflict of interest with the Firm’s representation of the New York Times. First, when we were engaged by the Times 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. Our Engagement Letter, countersigned by the Times, expressly states:
“We have explained and you have agreed that as a result of the types of clients the Firm advises and the types of engagements in which we are involved, we may be requested to act for other persons on matters which are not substantially related to the Engagement, where the interests of the other persons, and the Firm’s representation of them, may be against the client’s, including adversity in litigation.”
Second, despite the language in our Engagement Letter, I told Mr. Weinstein that we would not represent him in this matter.
Third, because I perceived the investigators’ work as trying to ascertain the exact charges against Mr. Weinstein and to develop facts that would prove the charges untrue, I thought at the time that was an appropriate endeavor.
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. 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.
If any of you have further questions, please let me know and I will try to address them.
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