David Boies in Hot Seat After Weinstein Expose

David Boies wants everyone to know – including his firm’s employees – that he made a mistake in his work for Harvey Weinstein.

The famed trial lawyer disclosed Nov. 6 his role advising Weinstein as the Hollywood mogul sought to dissuade the New York Times from publishing an explosive expose on him over sexual harassment and assault allegations.

Stories in the Times and the New Yorker eventually appeared in October, setting in motion Weinstein’s downfall and prompting others to come forward against him. It also has been the catalyst for harassment allegations against other Hollywood luminaries.

In a memo issued to employees at his New York law firm, Boies Schiller Flexner L.L.P., Boies expressed regret for his role in contracting private investigators who sought to kill the Times’ story.

The memo, provided to Big Law Business by a firm spokesman, surfaced a day after The New Yorker first reported on the Boies connection to Weinstein, his investigators, and the Times piece. The report detailed how Weinstein’s investigators had worked to dig up information about the journalists reporting the story and the accusers who were going public.

Boies, who represented Democrat Al Gore in the contested 2000 presidential election and argued for marriage equality before the U.S. Supreme Court, did not respond to Big Law Business’s request for comment. But his memo, along with the New Yorker story, provides a rare look at how lawyers like Boies can operate behind the scenes to influence media on behalf of powerful clients.

Boies told employees in the office memo that he regretted his representation. But he maintained that it didn’t represent a conflict of interest with the Times, which his firm has represented as outside counsel.

“Mr. Weinstein was a client of mine; he is no longer a client of mine or the Firm,” wrote Boies.

In his memo, Boies detailed his involvement in the matter and addressed questions he said were raised by those at his firm.

In the first half of the year, he explained, Weinstein “learned that the New York Times was considering publishing a story alleging that many years ago, Weinstein had raped an actress.”

He wrote that Weinstein “hotly disputed that allegation,” but Boies told him that the Times story “could not be stopped through threats or influence,” but rather by proving the allegation was not true.

Boies said Weinstein, together with other unnamed lawyers representing him, selected private investigators “to assist him and drafted a contract.”

“He asked me to execute the contract on his behalf,” he wrote. “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 reiterated a statement also reported by the New Yorker that neither he, nor Boies Schiller, selected or directed the investigators, at least one of which had been used by Weinstein previously.

“That was done by Mr. Weinstein and his other counsel,” wrote Boies.

Boies felt Weinstein’s request to contract with investigators “seemed at the time, like a reasonable accommodation for a longtime client” and he now regrets having done it, he wrote.

Since then, the Times and The New Yorker have reported allegations of sexual harassment and assault — including rape — against Weinstein.

Those involved in investigating the coverage were Kroll, the corporate intelligence firm, and Black Cube, an intelligence agency, according to the New Yorker. One investigator was reported to have pretended to be a women’s rights advocate and met with one of Weinstein’s accusers, secretly recording at least four meetings with her, the report said.

Boies did not address either of those details in his memo.

He also addressed the issue of whether there was a conflict of interest with his firm’s representation of the Times in other matters.

“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,” he wrote.

He pointed to an engagement letter countersigned by newspaper.

The letter, which he quoted, said:

“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.”

However, he said that “had I known at the time” that the contract with private investigators “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.”

He wrote:

“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 any effort to intimidate or silence women or anyone else, including the conduct described in the New Yorker article. That is not who I am.”

The Times issued a scathing statement over the matter on Monday.

The paper called Boies’ involvement “inexcusable” and said it was “intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe.”

It also said the company would “be pursuing appropriate remedies” but did not elaborate.

David McCraw, the top lawyer for the Times newsroom, did not immediately respond to a request for comment.

In the New Yorker story, Boies reportedly held himself accountable for any role he may have had in helping Weinstein stay under the radar.

“Although he vigorously denies using physical force, Mr. Weinstein has himself recognized that his contact with women was indefensible and incredibly hurtful,” Boies told the New Yorker.

“In retrospect, I knew enough in 2015 that I believe I should have been on notice of a problem, and done something about it. I don’t know what, if anything, happened after 2015, but to the extent it did, I think I have some responsibility. I also think that if people had taken action earlier it would have been better for Mr. Weinstein,” he said in the piece.

 

Contact the reporter responsible for this story: Casey Sullivan at csullivan@bloomberglaw.com.

Contact the editors responsible for this story: Tom Taylor at ttaylor@bna.com, John Crawley at jcrawley@bna.com and Gabe Friedman at gabefriedman@outlook.com.