I had missed this story, but Bernie Burk's post at The Faculty Lounge alerted me to it. Long story short, there is a litigation brought by a woman against the federal government and the woman's complaint made extraordinary allegations -- vehemently denied -- about Alan Dershowitz, who is not a party in the case. The Boies firm now represents the woman and Dershowitz claims that the firm has a conflict because one of the lawyers there apparently reached out to him and suggested that he might represent Dershowitz regarding the woman's suit. The facts are still murky, but from news accounts (possibly behind paywalls) it appears that at the time the Boies lawyer made the soft feeler to Dershowitz the firm already represented the woman. Dershowitz may have sent the Boies letter a memo marked confidential. Of course, MR 1.18 comes to mind (and for California lawyers the Flatt case comes to mind) and the rule has a special, limited imputation provision. Maybe more facts will come out and perhaps we'll see a motion to disqualify -- one that will have standing issues (because Dershowitz isn't a party in the litigation), intervention issues, what counts as "adverse," 1.18 issues, confidentiality, and imputation issues. (There's also a "no contact" issue about who can grant consent to speak to a represented party -- the lawyer or the client.) A great exam question, really.
After Dershowitz made his claim, the Boies firm responded:
Mr. Dershowitz’s assertion that the Firm is somehow conflicted is false. Mr. Dershowitz has never been a client of the Firm. He never gave the Firm any confidential information. He was never asked to give the Firm any confidential information. He never even met in person with any Firm lawyer. In his brief exchange of emails and telephone calls with a lawyer at the Firm who is a personal friend, he was told that there were a number of obstacles to the Firm representing him in any capacity. The meeting to discuss a possible representation was cancelled when an initial conflicts check revealed the Firm’s representation of Ms. Roberts.
Mr. Dershowitz’s recent complaint that David Boies has not discussed the controversy with Mr. Dershowitz despite their past cordial relations is not false, but it is disingenuous. Mr. Dershowitz has never sought in any way to speak to Mr. Boies about this subject. Moreover, Mr. Dershowitz’s counsel have, as Mr. Dershowitz knows, demanded that all Boies, Schiller & Flexner lawyers not communicate with Mr. Dershowitz directly.
I leave it to your readers and the bar to judge whether Boies Schiller is guilty of a conflict of interest. The email exchange will prove that two partners solicited my business, asked me to send them legal materials; agreed to “review” the materials; opened, read and responded to a highly confidential legal memo clearly marked lawyer-client confidential. Indeed after reading my highly confidential memo, they sent me an email providing me with additional authority to support the arguments made therein. Under the law, these actions—especially their decision to open, read and reply, to a confidential email clearly marked lawyer-client privilege—precludes them from serving as counsel adverse to me with respect to the very matters covered in my confidential memo. . .
I would be happy to discuss this matter with David Boies and I waive any requirement that he speak to me only through counsel.
Which prompted this reply from the Boies firm:
Mr. Dershowitz selectively and misleadingly describes what happened. If he wishes to release all of the exchanges between him and his counsel and Boies, Schiller & Flexner, those exchanges will demonstrate that Mr. Dershowitz’s claim of any attorney client relationship is frivolous.
Boies Schiller is willing to release those exchanges if Mr. Dershowitz is. Those exchanges will demonstrate among other things that the particular memo Mr. Dershowitz refers to was not sent at the request of Boies Schiller and, in any event, contains no confidential information, but only what Mr. Dershowitz was saying publicly.
To which Dershowitz sur-replied:
The Boies firm is playing unethical games, asking me to release the very lawyer- client confidential memo they never should have opened or read unless they were representing me. I am happy to release the part that says it is a lawyer- client confidential memo but obviously not its content. Nor should they release or threaten to release my confidential memo.
Their claim that my memo contains nothing "confidential" is a blatant lie. It is twice marked "lawyer client privilege confidential " and was sent only to my legal team. Without disclosing its confidential contents I am comfortable disclosing that I described how we could set a litigation "trap for them." If that is not confidential I don't know what is! I have been substantially prejudiced because I can [no] longer use this litigation tactic as a result of them opening and reading my confidential memo.
[edited since posting]