Blame Harvey Weinstein, Not His Lawyers

It's perfectly okay for Harvey Weinstein's attorneys to do their very best job for him. Not only is it okay, it's their obligation and duty. 

Harvey Weinstein (Photo by Drew Angerer/Getty Images)

It’s already tough to be a criminal defense attorney. You have to love representing the underdog. You never know what might come up against your client until it hits you at trial, and you have to like the heat that representing the underdog generates.  Everybody in the room might hate you as much as they hate him.  Besides all this, often that same client is hard to get along with, doesn’t pay you, and rarely says thanks.

And that’s just the run-of-the-mill case.  Multiply that by 100 when you’re on a high-profile case plastered all over the media, where the entire country, if not the world, has already pegged your client as guilty.

I’ve had my share of these cases — terrorism, rape, murder — so understand the burn Harvey Weinstein’s lawyers must now be feeling. (The publicity and money they’re earning can’t hurt, but it also makes the pressure that much greater.)  Weinstein is pretty much universally reviled. If he had a friend in the world, even that guy would think twice before sticking up for him.

Taking on what looks to be a losing case is meat-and-potatoes in the defense profession. But taking one on where you’ve got to battle the media, go head-to-head with the #MeToo cultural phenomenon, and still win — that’s a huge hill to climb.

So, let’s get one thing straight. It’s perfectly okay for Weinstein’s attorneys to do their very best job for him.  Not only is it okay, it’s their obligation and duty.  It’s the very heart of their job.

Imagine a doctor saying to a patient, I’m not taking out that bullet because you were shot robbing a bank.  All the doctor sees is an injured person who he has sworn (through the Hippocratic oath) to help.

Sponsored

That’s why I was concerned last week when stories surfaced that Weinstein’s lawyers are being “scrutinized” for attempting to interview the complainants in the case and other women who’ve accused Weinstein of sexual assault.

Trying to talk to complainants, developing theories to impeach their credibility, and even taping phone or face-to-face conversations with them without their knowledge, is all fair game.  So is looking up everything you can about them on social media, and speaking to their friends or employers.  This is what defense attorneys are supposed to do.  Is it uncomfortable sometimes? You bet.  But it’s as much a part of the job as it is for a reporter to track down the family whose house just burned and ask how they’re coping.

What’s not legal is offering them money to keep quiet or scaring or threatening them in any way.

A more interesting development for the long-term is the civil class-action suit that attorneys filed last week against Weinstein in the Southern District of New York.  It names three women as complainants but adds “all others similarly situated.”

According to the complaint, these women were victims of a “Weinstein Sexual Enterprise or Army of Spies.”  The introduction goes on to state:  “[T]he casting couch was Harvey Weinstein’s office of choice, a choice facilitated and condoned by Miramax, the Weinstein company ‘TWC’ and its board of directors.  Plaintiffs and hundreds of other females like them, found themselves with Weinstein on the casting couch at offices, in hotel rooms, in his homes or in rooms at industry functions.  Under the guise of meetings ostensibly to help further Plaintiffs’ careers, or to hire them, or to make a business deal with them, or to socialize at industry events, Weinstein isolated Plaintiffs and class members in an attempt to engage in unwanted sexual conduct that took many forms: flashing, groping, fondling, harassing, battering, false imprisonment, sexual gratification, attempted rape and or completed rape.”

Sponsored

That pretty much sums up the theory of the criminal case as well, but the civil case is far broader.  If the class-action suit is certified (meaning women similarly situated to the named plaintiffs are allowed to join), Weinstein is looking at a long, complex battle with possibly money and vindication for the plaintiff-class at the other end.  In the short run though, the criminal case is worry enough.  It will likely be tried within a year and if Weinstein is convicted, his money won’t be enough to keep him out of jail.


Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.