On October 5, Lisa Bloom released a statement via twitter regarding her representation of Harvey Weinstein and the Weinstein Company. She explained that she and Weinstein had been working “together on a project bringing [her] book to the screen,” and asserted that “he has always been respectful toward” her. Bloom also said that Weinstein asked her “to do a comprehensive review of his company’s policies and practices regarding women in the workplace.”
Two days later, Bloom announced (again via twitter) that she was no longer representing Weinstein (or presumably the Weinstein Company).
Bloom’s engagement on this matter may have been doomed from the start. She apparently failed to identify -- let alone explain to her clients -- her own conflict of interest in the matter. According to the New York Times, Bloom “denied that her work with Mr. Weinstein created a conflict of interest. ‘A conflict is representing two different sides in the same case.’”
As is obvious to readers of this blog, conflicts aren’t limited to situations where a lawyer represents “two different sides in the same case.”
California Rule 3-310 identifies other types of conflicts, such as when a lawyer has a business relationship with a party to a matter. Under those circumstances, the lawyer must inform a “client of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client.” (emphasis added)
Here, Bloom had a pre-existing business relationship with Weinstein and the Weinstein Company: the business deal to bring her book to the screen. Bloom’s clients obviously were aware of that business relationship because it involved them directly.
But under the California Rule, Bloom had an obligation to provide her clients with a written explanation of how that business relationship could have “actual and reasonably foreseeable adverse consequences” for them – such as by affecting Bloom’s objectivity in advising Weinstein and limiting her credibility when speaking on his behalf.
While Bloom couldn’t see her own conflict of interest, others could see it. The NYT reported that Lance Maerov, a Weinstein Company board member, identified Bloom’s conflict of interest in an email to her:
“’You have a commercial relationship with TWC via a TV deal so how can you possibly provide impartial advice to Harvey or address this group with any credibility?’”
Bloom hasn’t always had such a narrow definition of conflicts of interest. Earlier this year, she asked Fox News to conduct an investigation of Bill O’Reilly’s sexual harassment of her client, Wendy Walsh. After Fox News chose Paul Weiss to conduct the investigation, Bloom complained that “because Paul Weiss has represented Fox News before, the firm has a conflict and should not serve as the investigator. She asked that Fox News assign the investigation to someone else.” (source: Law360)
In the last few days, Bloom has been subjected to public criticism -- and worse -- for her decision to represent Weinstein.
I don’t know whether Bloom sought counsel from anyone else before deciding to take on this representation, or whether she relied on her own legal ethics analysis. Her short-lived representation of Weinstein may be a cautionary tale about the danger of relying on one’s own judgment when taking on a representation that appears to be a great opportunity.