When a Manhattan federal judge overturned the National Football League’s four-game suspension of star quarterback Tom Brady on Thursday, the NFL wasn’t the only losing party in the matter — its law firm Paul, Weiss, Rifkind, Wharton & Garrison was also put in the hot seat.
Paul Weiss was hired by the NFL to conduct an independent investigation into the alleged improper deflation of footballs that occurred during the Jan. 18 AFC Championship between Brady’s New England Patriots and the Indianapolis Colts.
In deciding to suspend Brady for four games, NFL Commissioner Roger Goodell relied heavily on the investigation that Paul Weiss produced in May, known as the Wells Report. Brady’s lawyers attacked the disciplinary proceedings that resulted from the investigation when they appealed his suspension in federal court in Manhattan, and U.S. District Judge Richard Berman validated some of those concerns in his ruling on Thursday.
The investigation conducted by renowned Paul Weiss defense lawyer Ted Wells came up for criticism from Berman, who noted that the firm strayed from its role as “independent,” since it became an advocate for the NFL in its disciplining of Brady.
“The Court notes that the Paul, Weiss role in this case seems to have ‘changed’ from ‘independent’ investigators to NFL’s retained counsel at the arbitral hearing,” Berman wrote. [Click here to view the opinion on Bloomberg Law]. “Among other things, this change in roles may have afforded Goodell… greater access to valuable impressions, insights, and other investigative information which was not available to Brady.”
Berman continued: “Compounding Brady’s prejudice is the fact that, as noted, Paul, Weiss acted as both alleged ‘independent’ counsel during the Investigation and also (perhaps inconsistently) as retained counsel to the NFL during the arbitration. Paul, Weiss uniquely was able to retain access to investigative files and interview notes which it had developed; was able to use them in direct and cross-examinations of Brady and other arbitration witnesses; share them with NFL officials during the arbitral proceedings; and, at the same time, withhold them from Brady.”
In July, the Players Association claimed that Paul Weiss’s Lorin Reisner sat at counsel table with the NFL at an arbitration hearing to defend Brady’s discipline.
Winston & Strawn’s Jeffrey Kessler, who represented for the Players Association, told NBC Sports that he was “stunned when Paul, Weiss showed up as counsel for the NFL defending the discipline.”
The Players Association contended that the involvement of Reisner, along with Goodell’s refusal to make investigative files generated by Wells and Reisner available to the Players Association, made the procedure fundamentally unfair.
“How could we attack the Wells Report?” said Kessler in oral argument last month. “We didn’t have access to any of their underlying materials.”
On Thursday, Berman agreed and concluded Brady was not given a fair disciplinary process; the judge wrote that Brady “was prejudiced by his lack of access” to the evidence in Paul Weiss’s investigation into the deflated footballs among other reasons.
“Brady was denied the opportunity to examine and challenge materials that may have led to his suspension and which likely facilitated Paul, Weiss attorneys’ cross-examination of him,” said Berman.
Ted Wells, the lead investigator, did not respond to a request for comment. Neither did Lorin Reisner, who represented the NFL in defense of its discipline of Brady.
It’s worth noting that the NFL was represented by Akin Gump in the Brady dispute, although the Akin Gump lawyers who were involved did not respond to requests for comment about Paul Weiss’s role in the case.
Deborah Rhode, one legal ethics expert who is a law professor at Stanford Law School, said she believed Paul Weiss had a conflict of interest in representing the NFL in its dispute with Brady, while also being an independent investigator in the case.
She said, however, that the “injury (to Paul, Weiss) is mainly reputational.”
“You look at these cases, and you think, ‘What were they thinking?'” said Rhode. “I think they wanted to maintain a relationship with a very powerful client that could bring them substantial business in the future and didn’t fully consider the questions both in the fact and in appearance of partiality that a switch in roles might entail.”
Bruce Green, a legal ethics professor at Fordham Law School, said that he found Paul Weiss’s switching of roles “problematic” but fell short of saying that there was anything ethically questionable about the representation.
“None of this is to say that, in this context, there is anything ethically improper about it; it’s just arguably, not well-advised,” said Green. “Lawyers don’t serve as both witnesses and advocates because the dual role is confusing.”
He offered, however, that the NFL may have wanted to retain Paul Weiss to defend it against its Brady discipline because of its knowledge of the case, and because it would be less expensive than hiring another law firm that would need to take time to bring its lawyers up to speed.
The NFL has said that they intend to appeal Berman’s ruling.