Many have wondered how Harvey Weinstein’s story went unreported for so long. Part of the reason may have come to light in a recent New Yorker article.
According to the New Yorker article, and other news coverage, Weinstein hired attorneys and private intelligence agencies to collect damaging information on journalists working on stories about him as well as their sources. The explicit goal of these investigations was to prevent the publication of the abuse allegations against Weinstein.
David Boies and his law firm contracted Black Cube, a private intelligence agency, so Weinstein could direct them to try to uncover information to stop the publication of a New York Times story about Weinstein’s abuses.
More details are available here:
- David Boies’s Egregious Involvement with Harvey Weinstein, New York Times
- How the Lawyer David Boies Turned a Young Novelist’s Sexual Past Against Her, New Yorker
Boies signed the Black Cube contract at the same time his firm was also representing the Times. This was a double breach of ethical concerns.
First, as an attorney generally, he acted for one client in a way that was directly in conflict with the interests of another client. Second, as a well-regarded first amendment attorney, he helped accomplish activities that are repugnant to the ideas of the first amendment and a free press.
In a statement, the New York Times called the situation, “intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe.”
The use of intimidation tactics was not an isolated incident for Boies.
In 2015, his firm was hired to push back against a Wall Street Journal investigation into Theranos, a blood test start-up company. They pressured employees and threatened legal action against the Journal. The paper went forward with publishing the story, which ultimately won a George Polk award and led to several lawsuits against the company.
In 2014, Boies represented Sony during the massive hack of the company’s emails and proprietary documents. In letters, he threatened major media outlets with lawsuits if they published stories.
No one should think Boies was the first or last person of power to act unethically. His story is just the most recent and more noteworthy than most. The lesson of this example continues to emphasize the importance of ensuring your legal team does not have conflicts of interest that could prevent them from not only giving highest priority to your legal interests but also not working directly against your legal interests.
Ralph Nadar experienced firsthand the pushback from powerful interests in the auto industry when he was ready to publish his ground-breaking book Unsafe at Any Speed about the Chevrolet Corvair. Without his work, we can only imagine what safety features would not be part of today’s automobiles.
“Risky” stories like the Weinstein saga and Unsafe at Any Speed are what make the free press so important to American society. They often have the most impact – as is evidenced by the incredible healing #MeToo movement started by the publication of the Weinstein expose. In addition, a free press needs to be strong—having resources to fight the legal battles that often go along with courageous reporting.
A favorite motto in journalism is that news media exist to comfort the afflicted and afflict the comfortable. Knowledgeable media lawyers have experience supporting news media when they live up to this motto and, as a result, incite heavy-handed responses from powerful interests.