Intellectual Property

David Boies's Fall From Grace

Boies’s firm soldiers on and continues to rake in money by the barrel-load. Yet cracks in its once-burnished veneer are now visible to the naked eye.

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David Boies

We live in trying times, when even those we once held in high regard continue, again and again, to disappoint us. Consider, for example, David Boies. Many aspiring litigators, myself included, were once fans, following his high-profile cases with a keen interest and holding him up as a paragon of ethics and savvy. But, as has been revealed over the course of a single, skinny year, that favorable view of Boies was woefully, almost tragically, misplaced.

When news first trickled out about his work on behalf of Harvey Weinstein, his supporters winced and his legacy began to creak and yawn. As further evidence established that this representation included an attempt at silencing, and undermining the statements of, possible sexual assault victims, and doing so in an underhanded attempt to stymie The New York Times, which also happened to be his client, that legacy tottered over and came crashing down.

When it was later revealed that Boies was complicit in the great Theranos tragedy, people were less surprised. He had already been exposed as one whose successes resulted, at least in part, not from thorough preparation and oratory skills, but from a willingness to intimidate and bend the rules. Theranos, which claimed to possess game-changing blood test technology, was eventually exposed as a gigantic fraud. Boies was a Theranos board member and stockholder. He was also, somehow, the company’s lawyer. This conflict of interest may have been the impetus for Boies’s aggressive and distasteful defense of the company. He worked to intimidate whistleblowers, running up their legal bills and threatening litigation, and acted in a manner that Wall Street Journal reporter John Carreyrou, who exposed both Theranos and Boies, described as thuggish.

While engaging in this campaign to silence the Theranos whistleblowers, he privately wrote to the company that his work was putting him at “risk [of] being at the scene of a serious accident.” Yet, he remained on the company’s board until just before the Securities and Exchange Commission made public its allegations that Theranos perpetrated a $700 million fraud and endangered the health of its clients.

While enabling the Weinstein and Theranos disasters, Boies also somehow found time to assist in the intimidation of a young woman with the temerity to be caught up in a copyright dispute with his client. The case, which is now known as Cline et al v. Reetz-Laiolo, involved claims by Boies’s client disputing the authorship of Emma Cline’s successful book, “The Girls.” Not content to litigate the case on the merits, apparently, Boies’s team took the shameless step of threatening to exploit and publicize the sexual history of the young woman on the other side of the case for leverage. Remarkably, his firm asserted that Cline’s “sexual conduct” was central to the case, which was, to an objective observer, a simple copyright matter involving a book. And, in a telling reveal, it was reported that Cline’s attorney had to explain the concept of “slut-shaming” to a befuddled Boies.

What had become of the noble attorney who had triumphed over intimidation and retrograde sexual politics to prevail in the Hollingsworth v. Perry case, which struck down the law banning gay marriage? Gone, and, if last week’s unctuous New York Times profile is any indication, Boies doesn’t seem much to care.

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The interview, most likely orchestrated by Boies’s publicity team in an attempt to head off the pooling flood waters of public distaste, comes off as tone-deaf and incredible. But, perhaps he had no choice but to take one final swing in the press given that, as the NYT noted, “[t]he last 12 months have been an unprecedented public relations disaster for the most prominent lawyer in America.”

While he has long had a deft touch with the press, and a strong ability to connect with others, whether they be clients, judges, juries, or adversaries, this profile reveals a defensive, dissembling, grasping attorney. One who is nevertheless far too intelligent to even half-believe half of the statements he makes in the profile, yet there they are.

He is steadfast in asserting that it was not a conflict of interest to represent the New York Times while also attempting to silence a New York Times journalist at the behest of another client, Weinstein. (With whom, the article notes with some glee, Boies had invested $10,000,000 dollars in film projects that “flopped.”) Boies notes that his attempt to “completely stop,” as his contract with a covert investigator put it, a NYT article was completely appropriate because “reporters do not have a monopoly on investigating facts.”

He goes on about one’s duty of loyalty to clients like Weinstein and Theranos, but fails to acknowledge that, while his duty to his clients is strong, his paramount duty is to the rule of law, to justice. In illustrating the importance of providing counsel to those in need, he indulges his inner Kanye and expresses a desire to represent President Trump (the article further notes that Boies tried to bring Trump in to his old firm as a client but was rebuffed).

The Boies brand of justice, apparently, is reserved for the very rich (he bills close to $2,000 per hour) and well-connected. The writer behind the profile certainly paints a picture of a man who is not necessarily in touch with the people, slipping in low-key burns about Boies espousing the virtues of “liberty, equality, and inclusiveness” while sipping on a 20-year-old Château Mouton Rothschild and being “visibly relieved that he could again indulge his craving for the Four Seasons version of pigs in blankets.”

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“I spend a lot of money,” Mr. Boies is also quoted as saying, and his assets are noted as vast and inclusive of a vineyard. That these assets were paid for by clients like Weinstein and Theranos, who sought out Boies in an attempt to silence the truth and subdue and delay, if not impede, justice, is not lost on the reader.

Some of that money was spent by Boies’s firm to obtain the Los Angeles firm of Caldwell, Leslie & Proctor in April of 2017. Well-regarded for its entertainment and intellectual property practice, Boies and the firm’s principals trumpeted the amazing synergy that would surely result from the union. Mere months later, the Weinstein affair became public and one can only assume a large number of face-palms echoed over west Los Angeles.

Despite its travails, Boies’s firm soldiers on and continues to rake in money by the barrel-load. Yet cracks in its once-burnished veneer are now visible to the naked eye. Just this month, for example, it lost one of its top copyright litigators to a tech company. And, due to the widespread attention given to the Weinstein, Theranos, and Cline disputes, and the emphasis on how Boies apparently exacerbated the problems and dangers involved in each, no potential client will consider his firm without also contemplating whether this recent work was in pursuit of justice. And, to a small percentage at least, this will matter.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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