Harvey Weinstein’s Dream Team and Conflicts of Interest
Harvey Weinstein can likely afford the best attorneys money can buy. He has chosen high profile lawyer Jose Beaz, and Harvard Law professor Ronald S. Sullivan, Jr.
Harvey Weinstein’s primary accuser, actress Rose McGowan, is also high profile. She recently pleaded no contest to a drug possession charge where she was represented by …. Jose Baez and Ronald S. Sullivan, Jr. Say what?
Is this a conflict of interest? Perhaps not a technical conflict of interest, but it certainly doesn’t feel right.
McGowan is Weinstein’s first and most vocal accuser, however, she is not part of the case being prosecuted against him now in a Manhattan court. She is not currently on any witness list for the case, so the reasoning goes that so long as that remains the state of affairs, there is no conflict of interest.
Under the Model Rules of Professional Conflict, Rule 1.7 discusses Conflict of Interest: Current Clients.
Client-Lawyer Relationship
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Applying the rule to McGowan’s interests, it seems clear that there is no concurrent conflict in that she is no longer represented by Baez or Sullivan, and the matter in which they did represent her is not related to their current representation of Weinstein. Their actions in Weinstein’s current case have no definite bearing on any duties they may have to her in the future regarding her previous case. But, it still doesn’t feel right.
Curiously, another celebrity just lost his lawyer under similar circumstances. The rapper 6ix9ine (birth name Daniel Hernandez) is standing trial for racketeering, gun crimes, and other charges. When the judge in Hernandez’s case learned that his attorney, Lance Lazzaro, had served as the attorney for Hernandez’s co-defendants in previous cases, he threw him off the case citing potential conflict of interest. In this case the conflict involves parties to the case, and it’s possible that Lazzaro could have possession of information from the previous cases that would help his current client, and harm the co-defendants – even if Lazzaro did not actually have that sort of information. No one can really know, and his presence alone combined with the previous relationships, will create the perception of a conflict. The judge made the right decision in order to safeguard the integrity of the trial.
While McGowan is not expected to participate in Weinstein’s current trial, it is not beyond the realm of possibility that her former lawyers possess information that could aid Weinstein’s defense, and at least in an indirect and perhaps intangible way, still harm McGowan. She is the face of the #MeToo movement, and this representation undermines her story in a way that is hard to describe, but feels like betrayal to her. As a matter of comity and respect to the client who came first, Baez and Sullivan ought to decline representation of Weinstein.
McGowan has made claims that, if true, would warrant an ethical investigation. She plead no-contest in her drug possession case, but says Baez did nothing. She derided his professionalism and thinks he was bought off by Weinstein.
“I asked Jose Baez directly if he would ever work with Harvey and I told him it was my fear that he would be bought off while representing me,” McGowan said. “He responded by saying, ‘I don’t like to lose.‘”
Whether any shady dealing happened there, and whether any shady dealing will imbue to the good fortunes of Harvey Weinstein is not presently known, but there is one way to help reassure the public that the officers of the court hold the integrity of the judicial system in high regard. They should take a pass.