The legal press is reporting the news that David Boies is facing ethics violations charges in Florida. It's not a client that complained. It's a judge, Palm Beach County Circuit Judge David Crow. It is fallout from a case that settled in 1998. But the parties have been suing each other over compliance ever since. Judge Crow has been overseeing that case.
After the judge referred the Boies matter to the Florida Bar, it then filed a complaint with the Supreme Court on December 11, according to the reports, and Monday the Supreme Court's Chief Justice issued an order that within two weeks, a judge will be appointed to serve on the case, to make factual findings, and to recommend an appropriate sanction, which must then be either approved or disapproved by the state's Supreme Court.
I've been aware of this matter since the summer, but I never thought it would get this far. In February, Scott Lewis, a gardener in Florida, who has been representing himself, against David Boies on the other side, if you can imagine such a tilted playing field, filed a motion asking that Boies be disqualified from handling the case for Amy Habie, his opponent and Boies' client, saying it was unfair that the firm was bankrolling Habie's five-year court battle against him. It put him at a disadvantage, he argued, because by having free legal representation, she had no motive to settle. Despite being repeatedly sanctioned by several different judges, he wrote, she persisted with the case.
The judge denied the disqualification request, according to the reports, saying it wouldn't provide sufficient relief because Boies would still be free to pay her legal fees even if he didn't personally represent her. But he did rule that Boies had violated state rules governing attorney-client representation arrangements and he referred the matter to the Florida Bar, which did its own investigation and then filed the complaint with the Supreme Court, resulting in Monday's order. At issue is whether it was proper to represent a nonindigent client pro bono, first of all, and whether an attorney may pay a client's legal bills without a contingency arrangement whereby the client repays the attorney if he or she prevails.
I got more email on this story than any other story of the day, maybe of all time, so there must be interest in it among Groklaw readership. So here's the scoop from two legal news sources. NYLawyer reports this:
"The Florida Bar has filed an ethics complaint against famed Microsoft litigator David Boies, alleging that he violated Bar rules by paying more than $400,000 in legal fees for a client his firm is representing in a Palm Beach County contract dispute.Conflict of interest, you say? Where have I heard that phrase before? You can read the full story on Law.com, which provides more details:
"Boies, 63, who represented Al Gore in the 2000 presidential election recount battle, is charged with providing financial assistance to a client, Amy Habie of Miami, according to the Bar complaint. The complaint was filed with the Florida Supreme Court on Dec. 11.
"According to the complaint, Boies' firm, Armonk, N.Y.-based Boies Schiller & Flexner, not only represented the affluent Habie for free but paid more than $400,000 to other law firms who worked on the case. Under Florida Bar Rule 4-1.8(e), it is generally a conflict of interest for an attorney to provide financial assistance to a client in connection with pending or contemplated litigation."
"If Boies is found guilty of the ethical violation, it is unclear what remedy The Florida Bar can seek. McFarlain said the Florida Bar has no jurisdiction to disbar Boies or suspend his law license because he is licensed by the state of New York.
"Florida Bar Counsel Edward Iturralde in Tallahassee said the Bar could recommend that Boies be prohibited from litigating in Florida. 'If he is disciplined in this case, he won't be able to appear pro hac vice in the future,' Iturralde said. What New York's attorney regulatory agency will do depends on New York's reciprocity rules, Iturralde said. . . .
"Boies conceded that his firm had been paying Habie's legal fees, but argued that Florida Bar rules did not prevent his firm from providing legal services pro bono. . . .
"On Feb. 20, Judge Crow denied Lewis' motion for disqualification, saying that disqualifying Boies from the case would not eliminate the Habie's unfair advantage because that would not stop Boies' firm from continuing to pay her legal fees.
"But Crow also ruled that Boies had violated Florida Bar rules by financing Habie's litigation. Crow said Habie's case did not fall under either of the exceptions allowing lawyers to pay a client's fees. . . .
"Judge Crow forwarded his ruling to The Florida Bar, which conducted its own investigation and filed a complaint with the Florida Supreme Court.
"On Monday, Chief Justice Harry Lee Anstead issued an order giving Chief Leon County Circuit Judge Charles Francis in Tallahassee two weeks to appoint a judge to serve as referee in the disciplinary case against Boies. The referee will make factual findings and recommend an appropriate sanction, which the state Supreme Court ultimately must approve or disapprove."
Mr. Lewis seems as surprised as I am that this matter went this far:
"'There aren't many countries where a gardener can obtain justice against one of the most powerful and politically connected men of the land,' Lewis said. It's phenomenal what's happened here.'"
The part that made it stand out in the SCO context is this little statement buried deep in the story:
"Throughout the litigation, Habie and her attorneys have been sanctioned nine times by six different judges for violating at least 13 court orders related to the settlement and discovery orders."