One of David Boies’s problems is that he has too many clients.
This month, as numerous women emerged and accused Harvey Weinstein of sexual harassment and assault, Boies – once his lawyer – found himself in a jam.
“We’ve been conflicted out of that,” said Boies.
His firm had represented Weinstein, and Boies said it also represents both his production house, The Weinstein Company, and The New York Times, which published the allegations against Weinstein.
One of the most connected litigators in the country, Boies, now 76, said that he has no plans to retire.
“In terms of hour amounts, I think I’m probably generating the same as I did ten years ago,” he recently told Big Law Business.
Still, there are signs Boies is stepping to the side at his 310-lawyer Boies Schiller. For one thing, he said that he and fellow name partner Jonathan Schiller are in the process of relinquishing management responsibilities while the third name partner Don Flexner is preparing to retire later this year. An executive committee launched years ago, partly to plan for his succession, will take over the management as the name partners step back.
“Now there are 15 to 20 partners generating significant amounts of business,” said Boies, who added his revenue production is a third of what it was to the firm revenue a decade ago.
Other partners are appearing in high profile cases: Bill Isaacson has been pressing Apple’s antitrust claims against Qualcomm and Karen Dunn is defending Uber’s driverless car program as it fends off a high-stakes trade secrets case filed by Waymo.
But compared to some competitors, who have raced ahead of the firm in size, sprouting offices around the world and in some cases posting higher profits, Boies Schiller has remained on a path of slow growth — adding an average of 10 lawyers per year since 2003, when it had 170 lawyers, according to an analysis of American Lawyer data.
Nor does it hew to the industry norm of staffing at least double the number associates as partners, instead keeping a roughly even 45:55 associate-to-partner ratio.
Boies said he aims for less than three percent headcount growth per year.
“Growth beyond that two to three percent growth is your long-term enemy – maybe your short-term friend,” said Boies, adding that firm culture suffers if a firm grows too fast.
Conflicts of interests between lawyers with different clients are more likely to arise, and it is difficult to maintain a collegial atmosphere, he said.
By comparison, Quinn Emanuel had 200 lawyers in 2003 and now has 720, an average of 40 lawyers per year and more than 6 percent growth. This year it posted $5 million profits per partner, above Boies Schiller’s $3 million. Kirkland & Ellis added on average about 70 lawyers per year, or four percent per year when compared to its 2016 headcount of 1760 lawyers.
Nonetheless, Boies Schiller has at times exceeded two to three percent growth rates: In April, it combined with the 26-lawyer Caldwell Leslie, a litigation boutique in Los Angeles — and one of only three small-scale mergers the firm has undertaken — which means it is on course to grow by at least eight percent this year, although Boies insisted the merger did not signal any ambition to expand more quickly.
The firm is focused on developing “core client work” – matters that are explicitly not one-off litigations, but ongoing, even smaller representations, for corporations which will be more sustainable, he said.
These core clients include HSBC, Barclays and Starr International.
“The one shot litigation is much more profitable,” he acknowledged, “but the core client work is very rewarding work, it’s very interesting work and it gives the firm a stable base.”
His model of slow sustainable growth isn’t for everyone: In 2006, Quinn Emanuel recruited litigation partner Philippe Selendy.
Selendy said he had more autonomy at Quinn Emanuel to take on plaintiffs’ side cases against large financial institutions and to hire his own lawyers.
“David Boies has always been an extraordinary leader of that firm, but he also casts a shadow,” said Selendy, in an interview for a story about his own firm. “I wanted a place where I had this radical ability to do what I liked.”
At Quinn, he sued a number of banks over their alleged role in the financial crisis, recovering more than $25 billion for a federal housing agency and a bond insurer.
Boies disputed that Boies Schiller partners don’t have autonomy, but acknowledged Selendy could hire more lawyers at Quinn Emanuel.
But past instances suggest that when Boies Schiller has flirted with plaintiff-side cases, it hasn’t always worked.
For instance, in 2003, it opened an office in New Jersey that focused on representing whistleblowers – often times from the pharmaceutical industry – who accused companies of defrauding the federal government under the False Claims Act. By 2009, the litigation was creating too many conflicts with Boies Schiller’s institutional client base, so the firm spun off the practice.
“It just didn’t fit with our core clients’ work,” said Boies.
He said that if he could compare his firm to any, it would be Wachtell, the corporate M&A firm, despite its difference in practice areas. He said that he has admired the firm for its “disciplined growth.”
However, Cravath – Boies’s old firm – has seen the slowest growth of the three firms in attorney headcount since the early 2000s. Cravath had 438 lawyers in 2003, and last year had 497.
Cravath, Boies noted, is one of his primary competitors, and he has tried to lure its associates with salaries based on productivity – a departure from lockstep.
A Cravath spokeswoman did not respond to a request for comment for this story.
Neither Cravath nor Wachtell, however, have ever merged with another law firm.
“No lawyer ever wants to turn down an interesting case,” said Boies, of firm growth generally.
One case Boies didn’t turn down came in 2010, when John Phillips, a False Claims Act lawyer approached him about a medical technology startup – called Theranos – in need of representation.
He flew to California to meet its CEO, Elizabeth Holmes, and later won a patent dispute on its behalf. But as he became more involved, the legitimacy of its blood-testing technology came into question, and federal prosecutors launched a criminal probe into whether the company misled investors.
Holmes had been considered the next Steve Jobs of the health care world, aiming to offer technology that drew accurate blood tests with a cheap finger-prick. But after The Wall Street Journal reported internal flaws, her company’s value plummeted by the billions and federal health sanctions prompted the shuttering of many of its operations.
Boies, who had joined the Theranos board, backed out of legal representation and then left the board entirely. He said there were “some differences of view over how things ought to be handled,” and declined to comment further.
The Theranos matter aside, Boies admitted that every trial lawyer makes mistakes. Luck is always a factor.
“John Quinn or Marty Lipton or Joe Flom would all tell you that a good part of our success has been being at the right place at the right time,” he said.
“That is hard to manage.”
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