Another excellent article on the David Boies v. New York Times dispute.
This was a client relations fiasco for David Boies and his law firm. On the one hand, Mr. Boies and his colleagues were representing the New York Times. On the other hand, Mr. Boies’ firm retained private investigators to try to halt the efforts to report on alleged misconduct by Harvey Weinstein.
Obviously, we don’t have access to the underlying documents, but Boies claims that he had the right to represent other clients in matters that did not conflict with the interests of the Times. That is true. I believe that Mr. Boies did not realize that there would be a serious conflict of interest when the Times was beginning to do reports on Harvey Weinstein.
I can see why the Times was very upset when they learned that their own lawyer was working against them. That being said, I do not see a violation of an ethics rule.
Edward X. Clinton, Jr.
This is a long and thoughtful opinion that deserves careful reading and study. The opinion denies a law firm’s motion to reconsider its disqualification. The court explained its holding disqualifying the law firm as follows:
This matter concerns whether a lawyer can represent—at the same time, in the same litigation, in the same courthouse—a criminal and his victim.
Being a defendant—particularly a criminal one—can be lonely. As a society, we don’t require a defendant’s friends to stand by the defendant. We don’t require a defendant’s parents to stand by the defendant. We don’t require a defendant’s children to stand by the defendant. We don’t even require a defendant’s spouse to stand by the defendant, though that spouse is often someone who took an oath to do so.
But a lawyer is different. Representing a client creates an unshakable loyalty that can still persist when bonds of friendship and family fail. There’s a practical reason for this. A lawyer needs to know the worst facts to give clients the best advice. Clients can’t feel comfortable providing such candor unless they know their lawyer is absolutely committed to advancing the clients’ interests and advocating against the conflicting interests of others. Though the rest of the world may be united against them, clients need to know that at least their lawyer will reliably remain in their corner, even in the face of great temptation.
The importance and impact of loyalty in the attorney-client relationship extends beyond the client and counsel, to courts too. Judges are often confronted with important issues and difficult disputes. Under our system of law, judges rely on adversarial advocates to help ensure that courts reach the right results in these situations. Adversarial advocacy assumes that lawyers are fiercely loyal in representing their clients. If that loyalty doesn’t exist, the engine of our legal system can’t run. Justice can’t be administered.
And the importance and impact of loyalty in the attorney-client relationship extends even further—beyond clients, beyond counsel, beyond courts—to our country itself. We live in a nation governed by the rule of law. We’ve constructed a powerful government to administer that law—a government that can deprive a person of property, liberty, and even life. But unlike governments of men, which depend on might, our government of law ultimately depends on the consent of the governed for its continued existence. The public must trust that the government and the legal system that undergirds it are fair and just. Lawyers serve as both stewards and servants of that trust. Since well before the law was an industry, our society looked to the profession to safeguard a complex system that keeps our country going. When the loyalty of a lawyer to a lawyers’ clients comes into question, the public can lose faith in both the justice system and the bar that purportedly protects it. So while maintaining private confidences, a lawyer must sustain the public’s confidence. In this way a lawyer leads two lives, both bound by loyalty.
Given all this, it’s easy to see why a lawyer’s duty of loyalty is a duty recognized in the common law of every jurisdiction of the United States. It’s easy to see why a lawyer’s duty of loyalty is codified in every significant American code of legal ethics ever promulgated. It’s easy to see why a lawyer’s duty of loyalty is the most fundamental of all duties a lawyer owes a client. And it’s easy to see why so much is endangered when a lawyer lets opportunity affect that loyalty.
This matter presents a uniquely complex situation that requires the extensive review that follows.
That review conclusively reaffirms what might otherwise be considered a commonsense proposition. That is, the duty of loyalty is improperly and impermissibly compromised when one law firm represents—at the same time, in the same litigation, in the same courthouse—a criminal and his victim. That’s what happened here, and if the Court had allowed it to continue, loyalty would have been lost in ways that the client would not—and sometimes could not—understand until after harm had been done. Thus, there could be no informed waiver.
This case arises out of one misdirected phone call. Robert Kim sued Verizon under the Telephone Consumer Protection Act (TCPA) for calling him to inquire about his roommate’s account. Verizon defended by filing a third party complaint against the roommate, Tosha Tarter, alleging that she lives with Kim and that she provided Verizon with Kim’s phone number for her own Verizon account.
Verizon then moved to disqualify the attorney who represented Kim and Tarter on the ground that there was a conflict of interest in that the interests of Kim and Tarter could be in conflict.
The district court denied the motion to disqualify on the grounds that Verizon lacked standing to bring the motion to disqualify. The court explained that Kim and Tarter consented to the conflict.
“Furthermore, Kim and Tarter have produced affidavits stating that they consent to the concurrent representation after being informed of the potential conflict. (DE 36-1 to 36-2). “Any argument for [Cueller’s] disqualification is weakened further where, as here, the party that Rule 1.7 is designed to protect—[Cueller’s] client—has decided that the benefits of [her] representation outweigh whatever detriment [the concurrent representation] may present.” Mills, 992 F. Supp. 2d at 894; see also Tizes, 1997 WL 116797, at *2 (“Even if some kind of conflict did exist, it would have a negative effect on plaintiffs, not defendants. Yet plaintiffs have consented to the representation . . . after painfully full disclosure of any conceivable conflict….”). Thus, even if Cueller is not “ideally situated” to serve as both Kim’s and Tarter’s counsel in this case, Verizon “has not shown us that the ends of justice compel an intervention to disqualify [Cueller] and frustrate [Kim’s and Tarter’s] right to a representative of [their] own choosing.” Mills, 992 F. Supp. 2d at 894; see, e.g., Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014)(TCPA case arising out of autodialed debt collection calls in which plaintiff and his housemate, who was named as a third-party defendant, were represented by the same counsel).”
Edward X. Clinton, Jr.