HL has recently asked himself “self, how can lefties like you beatify lawyers who represent Gitmo prisoners pro bono but sneer at other sisters and brothers at the bar (sometimes they are the same) for taking money from Harvey Weinstein, Jeffrey Epstein, Bill Cosby, Kevin Spacey and Asia Argento to defend them.
The fact that fellow liberals have sneered/jeered/smeared shows that they can. The real question is should they and what is lost when they do that?
What’s lost is at least sight of a great, not perfect, set of principles about the right to zealous representation, due process and the adversarial system. Most of us will need their protection at some point.
Alan Dershowitz
The Boies/Dershowitz war contains and displays all the elements to demonstrate why this is so. The skill level of these two big boys is extraordinarily high. Regardless if you’re a lefty and hate Alan lending legal support for Trump’s attack on the rule of law – as with the Harvard prof’s extreme, though not novel, views about any President’s use of the constitutional pardon power. And regardless if you’re from the right and dislike David’s advocacy for same-sex marriage and his brilliant but losing arguments in Bush v. Gore.
Claus von Bulow
These legal giants don’t need the money nor the work and have each toiled frequently and diligently pro bono. HL recalls a day when both he and Dershowitz were at SCOTUS on separate cases and Alan’s brilliant rule breaking argument saved the lives of two black men sentenced to death for crimes committed when they were 19 and 20. That long and famous defense in Tison v. Arizona was done pro bono and subsidized by Dershowitz’ equally brilliant and unorthodox defense of Claus von Bulow, a wealthy scumbag of the first order. That Robin Hood dynamic is how it often works.
It was not Dershowitz’ job to help prosecutors condemn those men, neither the poor black convicted murderers or the wealthy white attempted murderer, whose sentences (Tison and Greenawalt) and convictions (von Bulow) were overturned by Dershowitz’ skillful “Reversals of Fortune.” Frying them was the job of the prosecutors in Arizona and Rhode Island, which is why criticism of Jeffrey Epstein’s 2007-2008 sweetheart plea deal is properly directed not at Dershowitz but federal and state prosecutors in Florida, including Alexander Acosta, recently Trump’s Secretary of Labor.
David Boies
Boies is under fire for his long association with and representation of Harvey Weinstein and many other wealthy and controversial businessmen. One such representation of Charles Ergen, owner of the Dish Network, pitted David against HL, who represented Rupert Murdoch, in a battle to secure ownership of DirecTV. And for most of Boies’ long representation of Harvey Weinstein’s businesses, the gig was no different than many others such as the one where we were opponents or another where we were co-counsel, he for American Express and HL for Morgan Stanley. These are nice gigs if you can get them.
But when the Harvey Weinstein “Me Too” avalanche began in 2017, Boies and his firm came under intense fire both for merely representing the alleged sexual predator and because it was claimed that the representation went over certain lines. Including Boies’ use of a private investigator called Black Cube that allegedly intimidated Weinstein accusers and journalists. If that or other aggressive practices is proven illegal it warrants harsh sanction. But, the former mere zealous representation of Weinstein or any other accused is not merely OK but essential to maintain a system you and I will need when our turn to hear Oyez Oyez comes.
Harvey Weinstein & Jeffrey Epstein
So much is clear and should be understood not merely by every law grad but every American, because it is so basic and essential to our freedom. What is not clear is what Boies is about in his representation of Virginia Roberts Giuffre, an accuser of the late Jeffrey Epstein. Boies’ attack on Dershowitz for his past relationship with and representation of Epstein is not merely a first magnitude display of hypocrisy but destructive of a system that David has practiced in at the highest level.
Providing a platform and megaphone for an accuser to attack a dead convicted sex criminal is one thing. But it is quite another to provide that for his client to attack a long list of never charged people, some ugly, some bad and some very good – including one real saint with a peace bridge in Ireland named for him. By doing so, Boies lends credence to assertions that he broke other rules for his wealthy clients like Weinstein. The hope and pro bono advice to both my brothers comes from another good book, “behold a good doctrine has been given unto you – forsake it not.”
A couple of observations on these very good questions – First, of course, are lawyers called to represent everyone who needs a lawyer, no matter how heinous the charge? If not, what are the escape clauses. I ask my 1L students just this after we have discussed any of a number of particularly awful cases – so Mr/Ms X, would you represent the defendant? If not, why not. Then we discuss.
Next, what’s allowable/encouraged advocacy and what’s over the line. As I recall – and I don’t practice any more – I don’t think the model rules require “zealous advocacy” because it was occasionally used to justify “win at any costs” advocacy, and some courts have either their own standards of civility or have cracked down in some notable opinions.
Cheers,