The non-legal press doesn’t usually get very deep into questions of legal ethics, but New York Magazine did a reasonable job of it in its hard-hitting piece this week on “The Bad, Good Lawyer” David Boies.

The article asks whether Boies has crossed an ethical line, principally in his work on behalf of Harvey Weinstein (This blog argued before that he did, in The Weinstein Saga: Now Featuring Lying Investigators, Duplicitous Journalists, Sloppy Lawyers.)

While admirably tough on Boies, it’s a shame the piece conflates unethical, illegal or even bad behavior with the decision by Boies to represent Russian oligarch Oleg Deripaska, Republican fundraiser Elliott Broidy or former Malaysian Prime Minister Najib Razak, who is accused of money laundering. There is no indication Boies enables these people or is somehow complicit in what they did to get themselves into trouble.

Similarly unnecessary in a serious look at a lawyer’s ethics are throwaway lines such as Boies’ “cozy personal relationship” with Bill Clinton. If that’s a negative, you could say the same about dozens of lawyers and hundreds of famous people.

But, the information in the story about the involvement of Boies’ daughter in movies produced by Weinstein’s company while Boies was advising Weinstein was interesting, as were the attacks by Boies on one outspoken Weinstein Company director, Lance Maerov, who turned out to be asking good questions about Weinstein’s personal conduct. Unlike some of the Weinstein Company directors, Maerov was doing his job.

What’s as disturbing as the way Boies and his firm failed to supervise a fraudulent investigation into Weinstein accusers and others by Israeli company Black Cube, is the defense of the practice by lawyers interviewed by the magazine. As we wrote about before, the agents of a U.S. lawyer shouldn’t go around pretending to be people they are not. A U.S. lawyer has the duty to supervise any agents the lawyer hires. Period.

Yet New York reports that “Some corporate litigators shrug off the Black Cube revelations, saying the only thing that was surprising was that all the embarrassing details escaped the usual vault of attorney-client confidentiality. ‘That happens, it doesn’t shock me,’ [prominent entertainment lawyer] Bert Fields says of the firm’s impersonation practices.”

Even worse was the quote from “another attorney who has dealt with Boies in the past,” who brushed the fraud off this way: “The technique is a tool … Lizzie Borden misused the ax.” Many lawyers said similar things to the article’s author: “This is just what lawyers do.”

If this is just what lawyers do, those lawyers ought to be disciplined for it.

Lawyers who know anything about professional responsibility know it is wrong to send investigators out to commit fraud. A quick instruction to “follow the rules” is not enough to qualify as adequate supervision.

Getting away with it is hardly justification. Imagine if someone defended unauthorized dipping into client escrow accounts. As long as the money gets paid back and the client is no wiser, who is harmed?

No lawyer would dare make that argument, but in the case of using fraudulent techniques, it’s all supposed to be OK if you don’t get caught.

If anyone wants to hire a lawyer they want to be sure won’t cross ethical lines, this is a good test question for them: Is it OK to hire investigators to set up fake identities to lure people into interviews?

For more good ways to screen for lawyers and investigators who know and abide by the rules, see my American Bar Association article, Five Questions Litigators Should Ask Before Hiring an Investigator (and Five Tips to Investigate it Yourself).

This blog may be one of the few publications in the Western world that has never written the word “Kardashian,” but that has now changed. In the stories about the robbery in Paris of Kim Kardashian we found numerous issues that touch on the work we do.Kardashian Paris Investigation

After my recent book The Art of Fact Investigation came out in May, a number of people wrote to me and suggested another chapter in the next edition about what people could do to maintain privacy in the face some who may want to dig up facts on them.

The easy advice for Kim Kardashian-West: if you are on social media a lot with information about valuable possessions and your whereabouts, criminals will easily learn about your valuable possessions and your whereabouts. Big rings on Instagram? Not a good idea. The super-secret apartment hotel in Paris? With paparazzi following you everywhere, how secret is any place you go?

The harder advice both to accept and to act on relates to some speculation in the media that the crime was an inside job, because the thieves knew that Kardashian’s security guard was not on duty that night.

When we let others into our homes and into our lives, there is always the chance that one of those people may feed information to the outside. This is why many people like a preliminary background check of the electrician or plumber they are about to admit into their home. They like a more thorough look at someone who will watch their children. But Kardashian-West isn’t just dealing with plumbers and babysitters.

How many photographs are there of her bringing home groceries, for example? She eats therefore food is delivered by people. When she buys something large, that too is delivered. It is unlikely that she drives her car to Jiffy Lube when it’s time for an oil change. People drive for her.

We have written before about the value of talking to workers who have been in someone’s home. Movers, gardeners, handymen – all get to know the home to an extent and the people who work there. If one of them becomes estranged because they are fired or are not paid, they have every incentive to talk about the person they used to serve.

We are not saying that Kardashian-West has been betrayed by any of her staff. Only that when police found out that the bodyguard was off duty that night, they surely wanted to know: who else knew that? And they would have started the questioning close to home.

 

Want to know more?

  • Visit charlesgriffinllc.com and see our two blogs, The Ethical Investigator and the Divorce Asset Hunter;
  • Look at my book, The Art of Fact Investigation (available in free preview for Kindle at Amazon);
  • Watch me speak about Helping Lawyers with Fact Finding, here.