Boies’s involvement in the saga is a public-relations nightmare for himself and his firm, as my colleague Gillian White explained. But legal experts also raised concerns about the ethical questions that may arise from Boies Schiller’s simultaneous representation of the Times in a libel lawsuit, which could be seen as a conflict of interest, as well as Black Cube’s clandestine activities on Weinstein’s behalf.
“Lawyers are not permitted to engage in dishonesty or deceit,” Kathleen Clark, a Washington University law professor who specializes in legal ethics, told me. “Black Cube seems to make its living by engaging in dishonesty and deceit, at least in part.”
Boies, for his part, cast his role in the saga as that of a bystander. He says he counseled Weinstein “that the story could not be stopped by threats or influence and that the only way the story could be stopped was by convincing the Times that there was no rape,” according to The New Yorker. “If evidence could be uncovered to convince the Times the charges should not be published, I did not believe, and do not believe, that that would be averse to the Times’ interest.”
In an email to Boies Schiller staff on Tuesday afternoon that the firm shared with The Atlantic, Boies offered a longer account of events that further distanced himself from Weinstein’s efforts. “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,” he wrote. Those lawyers then sought out Black Cube and other investigators and wrote up a contract for their services. Boies, by his own telling, then returned to sign a contract drafted by other lawyers between a client he wasn’t representing and private investigators he didn’t choose or oversee in a matter he says he had declined to take part.
Boies described this participation as “a reasonable accommodation to a longtime client” that he now regrets. “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 said in the email. “It was not thought through, and that was my mistake. I take responsibility for that.”
Boies first rose to legal stardom as a result of his antitrust crusade against Microsoft on behalf of the Justice Department during the 1990s. A political liberal who is closely associated with the Democratic Party, he represented Al Gore in the legal battles that followed the disputed 2000 presidential election. Boies later teamed up with former adversary Ted Olson, who represented George W. Bush in Bush v. Gore, in 2009 to mount a successful legal challenge to California’s constitutional amendment banning same-sex marriages.
He and his firm have a long relationship with Weinstein. In 2015, the Hollywood producer hired Boies to represent him in contract negotiations with the Weinstein Company, the influential production company Weinstein founded and had led until last month. During those negotiations, the company’s board of directors learned of confidential settlements between Weinstein and three or four accusers. Boies told the Times he had given some legal advice to Weinstein for one of those settlements but did not specify which.