Editorial Advisory Board: Raymond Chandler vs. the Rules of Professional Conduct

David Boies has had an illustrious legal career, representing, unsuccessfully, Al Gore before the Supreme Court in Bush v. Gore and, on the winning side in the high court, the same-sex plaintiffs seeking a constitutional right to wed. Now, at 76, Boies has performed a service for the legal profession, if not for himself, by embroiling himself in an ethical contretemps through the use of a private investigative firm that employed dissemblance in seeking information from actress Rose McGowan to block publication of a New York Times article about Harvey Weinstein’s serial sexual misconduct.

An agent for the investigative firm, Black Cube, claimed falsely to McGowan that she was representing a woman’s advocacy group. Boies’s law firm, which he heads, executed the original contract with Black Cube, and Mr. Boies personally signed a renegotiated contract in July.

Maryland lawyers should take heed. The Maryland ethical rules, like New York’s, forbid an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Another Maryland rule provides that, in the course of representing a client “an attorney shall not knowingly . . . make a false statement of material fact . . . to a third person.” What an attorney cannot do directly, he or she is forbidden to do through another.

While Maryland has not had occasion to comment on the limits that apply to investigations made by or on behalf of an attorney that use dissemblance or pretext in dealing with third persons, that is no excuse for not being aware of the ethical restrictions that appear directly aimed at such tactics. And New York provides guidance, both in a 2007 ethics opinion and in a 2016 opinion by U.S. District Judge Jed S. Rakoff in Meyer v. Kalanick. While the 2007 ethics opinion distinguishes “dissemblance” from “dishonesty, fraud, misrepresentation and deceit,” Rakoff does not. The ethics opinion defines dissemblance as “misstatement as to identity and purpose made solely for gathering evidence.”

No such distinction was accepted by Rakoff, who deemed as fraud what was admitted to be dissembling and use of false pretenses. In what appears to be an anticipation of the circumstance that McGowan and Mr. Boies now face, Rakoff ruled the misrepresentations made in order to gain information about plaintiff and plaintiff’s counsel, were “both intentional and material.”

Nor, Rakoff ruled, were the misrepresentations not fraud because they did not cause actual damage as would be required under New York’s civil fraud statute. The consequences for the party sponsoring the deceit were severe. All information arising from the fraud was discoverable, unprotected by privilege or any other doctrine, and fell within the crime fraud exception. None of the information could be used by defendants in any way. And defendants were enjoined from any other investigations using unlawful or unethical means.

Know the limits

Of particular relevance to lawyers, in New York and any jurisdiction that, like Maryland, carries the same ethical injunctions as the Empire State, lawyers must “adequately supervise non-lawyers retained to do work for lawyers in order to ensure that the non-lawyers do not engage in actions that would be a violation of the Rules if a lawyer performed them.”

There may be exceptions, as recognized in the ethics opinion from New York but, at best, they are limited. Examples given by the committee included investigating trademark infringement by posing as consumers, and the use of “testers” in racial discrimination cases.

The lesson, if one were necessary, from the Black Cube investigation is all lawyers should be aware of the limits set by our ethical rules of investigations by us or those we hire and are obliged to supervise. We do not pretend to know whether or how Boies will be judged for his involvement in the sordid affair(s) of Weinstein, but one thing we are sure of: The ethically challenged actions of shamuses dramatized in crime novels of the 1930s and ’40s may serve up compelling stories, but they are hardly guideposts for modern legal practice.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

John Bainbridge Jr.

Wesley D. Blakeslee

Martha Ertman

Arthur F. Fergenson

Susan Francis

David Jaros

Ericka King

Stephen Meehan

C. William Michaels

Norman Smith

H. Mark Stichel

Ferrier R. Stillman

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.

Find out more about the members of the Editorial Advisory Board.