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Boies Faces Ethics Violations Charges in Florida
Wednesday, December 17 2003 @ 06:53 AM EST

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. Law.com 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.

"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.
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:
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.
Uh oh.

  


Boies Faces Ethics Violations Charges in Florida | 195 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Boies Faces Ethics Violations Charges in Florida
Authored by: Anonymous on Wednesday, December 17 2003 @ 07:11 AM EST
What's amazing is that Scott Lewis, the "gardener" (he's owner of
a landscaping company, but not a lawyer), was appearing "pro se" ...
representing himself against the supposedly hotshot lawyer Boies, and WON.


[ Reply to This | # ]

Boies Faces Ethics Violations Charges in Florida
Authored by: Anonymous on Wednesday, December 17 2003 @ 07:17 AM EST
I like the last paragraph a lot....

Its a surprise that the appropriate bar council did not sanction him for
violating so many court orders. Surely as a law practitioner his has to abide by
court orders and any failure to respect should have serious consequences...
Well, may be not one per case, but more than 5 per case????

I hope he is found guilty: Not for the sake of SCO vs IBM, but to show that even
lawyers have to abide by court ruling, even if they really dislike the court.

[ Reply to This | # ]

I don't get it
Authored by: jobh on Wednesday, December 17 2003 @ 07:23 AM EST
Is it against the rules for a lawyer to not require payment? Doesn't that
disclude pro bono legal representation, like FSF uses?

And another perspective: giving it away for free is immoral and probably
unconstitutional... haven't I heard that from someone else recently...

[ Reply to This | # ]

Boies Faces Ethics Violations Charges in Florida
Authored by: Greebo on Wednesday, December 17 2003 @ 07:27 AM EST
I'm not a lawyer, but does this have some bearing on why Boies was a no show at
the disclosure hearing?

What happens to SCO's case if he is convicted of this? Can he still represent
them?

Greebo.

[ Reply to This | # ]

what was in it for Boies?
Authored by: Alan Bell on Wednesday, December 17 2003 @ 07:29 AM EST
sounds like a long standing personal relationship, and an allegation that Amy
Habie is the CFO of the Boies law firm (surely this is an easy fact to verify).
Anyone care to speculate what kind of favours or 'valuable considerations'
passed from Habie to Boise, which were worth Boise dipping into his wallet for
$400,000?

[ Reply to This | # ]

Boies Faces Ethics Violations Charges in Florida
Authored by: phrostie on Wednesday, December 17 2003 @ 07:52 AM EST
Quiet, last night was busy for me.
PJ is probably cursing me for adding to her inbox.


BTW, and OT. where would a good place be to get information on the MS
settlement for the State of kansas?
I'm in Georgia now, but a friend who lives there recieved an email saying that
he can get $10, but not to contact the state about it. that did not sound right
to me.


---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/cad-linux

[ Reply to This | # ]

SCO Excuse Opportunity
Authored by: Anonymous on Wednesday, December 17 2003 @ 08:34 AM EST
"Your honour, we had no idea Boies was crooked, we need N
months to find another lawyer and rebuild our case"

[ Reply to This | # ]

Online Poll
Authored by: Anonymous on Wednesday, December 17 2003 @ 09:02 AM EST
Probably more for fun than serious research, but look here (http://www.ldapzone.com/) for an online poll on this question:

"Is the SCO-IBM lawsuit and MS' licensing of SCO patents a threat to Linux and Open Source?"

[ Reply to This | # ]

OT: Hey Br3n you're famous.
Authored by: iZm on Wednesday, December 17 2003 @ 09:02 AM EST

I just read about your good self here on forbes.

---
Stupidity, like virtue, is its own reward.

[ Reply to This | # ]

Boies Faces Ethics Violations Charges in Florida
Authored by: Mark Levitt on Wednesday, December 17 2003 @ 09:04 AM EST
So,
The lawyer for the people who are arguing that "giving something away for
free" is a violation of the constitution is facing charges for
"giving something away for free."

Oh the irony...

:)

[ Reply to This | # ]

What does this tell us?
Authored by: rsmith on Wednesday, December 17 2003 @ 09:17 AM EST

I've got the distinct feeling that this is a personal matter, rather than a business conflict.

It could be a case of "hell hath no greater fury than a woman scorned". Mr. Lewis admits to having had an affair with Habie, who appears to be seeing Boies now. So maybe she's pushing Boies to help drive her ex-lover into the ground.

In any case, it shows Boies is willing to do whatever it takes to win (like violating 13 court orders from six different judges). SCO might like that attitude.

One thing I don't understand is, how Boies's firm can walk away from nine sanctions? Looks like violating court orders doesn't bring a lot of consequenses.

---
Confucius say: It is impossible to sling mud with clean hands.

[ Reply to This | # ]

and LOL at the final sentence
Authored by: Alan Bell on Wednesday, December 17 2003 @ 09:32 AM EST
"Everybody says Boies is a genius, but I don't see
it," her husband said. "I see Goliath falling."

[ Reply to This | # ]

Boies Faces Ethics Violations Charges in Florida
Authored by: Anonymous on Wednesday, December 17 2003 @ 09:39 AM EST
Here's the relevant
regulation

http://www.flabar.org/divexe/rrtfb.nsf/8bf68c7a6fda323085256bc800648
cce/440d7aaa027bd6c585256bbc004bd9ef?OpenDocument

[ Reply to This | # ]

Boies is a loser of a lawyer
Authored by: Anonymous on Wednesday, December 17 2003 @ 10:19 AM EST
Why does everyone say Boies is such a good lawyer? Every high profile case
I've seen his name on, he's LOST.

RIAA v. Napster: Napster is destroyed.

DOJ v. MS: Settled VERY favorably for MS.

Bush v. Gore: Boies' client lost the court battle.

Now he's on SCO's side, and all I can say is: Things look very favorably for
Linux with a track record like that...

[ Reply to This | # ]

The case between Amie Habie and Scott Lewis
Authored by: Anonymous on Wednesday, December 17 2003 @ 10:26 AM EST
Here is what the case is about.

http://www.4dca.org/Jan2002/01-23-02/4D99-3903.pdf

[ Reply to This | # ]

Boies Faces Ethics Violations Charges in Florida
Authored by: irieiam on Wednesday, December 17 2003 @ 10:26 AM EST
Not being a lawyer:

Can/Would the SCO-IBM judge read up on this stuff? I do understand that Florida
law has it's own rules and if Boise is sanctioned then it's really only for
Florida and wouldn't directly affect Utah or NY as far as his license is
concerned but would the 'idea' that he is acting unethically ever get to
'our' judge? I kinda hope so and I kinda do not. It seems that would be
unethical in it's own right for the judge (Utah) to hold outside affairs
against Boise...but again - I'm just asking.

---
-irieiam

The first requisite of Freedom is choice. The second would have to be
availability of information. Something bless the internet...please.

[ Reply to This | # ]

Bar Rules sighted.
Authored by: Waterman on Wednesday, December 17 2003 @ 10:45 AM EST
Florida Bar Rules (e) Financial Assistance to Client. A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

[ Reply to This | # ]

Boies Faces Ethics Violations Charges in Florida
Authored by: Anonymous on Wednesday, December 17 2003 @ 11:00 AM EST
Habie is both the BSF CFO, and, reputedly, Boies girlfriend. If they are by any
chance living together, or spending enough time in each others domicile to
represent that they are, there may be "common law" issues that come
into play, such as, for instance, whether he and Habie can claim to be common
law spouses.

(Boies is divorced, isn't he? Or single? If not then I guess the above defense
won't work.)

This is a bit more convoluted than presented in the story, and while I believe
that Boies and Habie have been playing a set of unfair advantages for vindictive
purposes, I'm not sure their is anything here that actually crosses the line of
ethical behavior as defined in the codes of most states.

The reason I use the word "vindictive" is that it sounds like
Boies/Habie have invested more money into the case than the outcome is worth. Be
that as it may, it is not uncommon for companies to represent employees pro bono
in legal disputes, nor is it uncommon for the wealthier of a couple to
financially assist to the poorer of the two in whatever endeavors he/she may be
engaged in.

Plus, this is all taking place in *Florida*. Anyone remember the the 2000
recount? This is a state with a long history of both chicanery and just plain
old political weirdness in general.

I don't presume to defend Boies. I'm sure he and his lawyer can do that quite
adequately. I'm just pointing out that the issues aren't particularly
clearcut, that there is a Republican base in FL that would like to get Boies on
something, anything, and Lewis's complaint may be just what they were already
looking for.

[ Reply to This | # ]

I think we have to be careful in how significant we find this
Authored by: Alan Bell on Wednesday, December 17 2003 @ 11:08 AM EST
It is interesting and fun to dig into the personal and professional history of
David Boise, however we must remember the following:
1) Lawyers will know people who are involved in rather messy cases. (yes they
don't often go to parties with them, but what the heck it doesn't matter)
2) Boise is not really representing SCO, he runs a practice of some 175 lawyers
one of whome is representing SCO.
3) We don't want to be accused of doing a character assasination on Boise (as
PJ was gently pointing out to me when I was speculating earlier) we don't need
to get personal, the facts are massively compelling anyway.

[ Reply to This | # ]

OT - Unfavorable Press for Groklaw
Authored by: penfold on Wednesday, December 17 2003 @ 11:59 AM EST
I'm not sure if anyone else has seen this article here.

But I thought I would bring it to everyone's attention.

http://www.forbes.com/home_europe/2003/12/16/cx_dl_1216linux .html

---
I'm not kidding, that boy's head is like Sputnik; spherical but quite pointy at parts! He'll be crying himself to sleep tonight, on his huge pillow.

[ Reply to This | # ]

Boies Faces Ethics Violations Charges in Florida
Authored by: knez on Wednesday, December 17 2003 @ 12:03 PM EST
http://www.lectlaw.com/files/cur78.htm seems to have all the details.

[ Reply to This | # ]

Boies Faces Ethics Violations Charges in Florida
Authored by: Anonymous on Wednesday, December 17 2003 @ 12:55 PM EST
According to this <A
HREF="http://www.freerepublic.com/focus/news/866629/posts">articl
e</A> from March 2003, Amy Habie was then CFO of Boise's law firm and
they paid fees for her 7-year old lawsuit. Previously, Boise provided $2 million
free legal service for Habie's divorce and custody cases.

Habie's company and her attorneys have been held in comtempt of court 3 times,
sanctioned 9 times, and lost 11 appeals.

[ Reply to This | # ]

NY stock exchange
Authored by: phrostie on Wednesday, December 17 2003 @ 01:03 PM EST
it's a sign of the times. NY stock exchange firms are in trouble too. it
would be interesting to get a list and compare.
http://www.cbsnews.com/stories/2003/12/17/national/main589076.shtml

---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/cad-linux

[ Reply to This | # ]

Boies Faces Ethics Violations Charges in Florida
Authored by: Anonymous on Wednesday, December 17 2003 @ 01:04 PM EST
http://www.theregister.co.uk/content/28/34572

[ Reply to This | # ]

OT: Guess on Northrup Grumman
Authored by: Anonymous on Wednesday, December 17 2003 @ 01:06 PM EST
I have been wondering why IBM wanted to ask Northrup Grumman some questions
(check the docket)

I think this might be the answer.

On Caldera.com/SCO.com Logicon is listed as a SCO partner

Logicon appears to be part of Northrup Grumman. Check www.logicon.com (also LMDS
is described on one Caldera page as a Northrup Grumman product)

Now one of the allegations that SCO is throwing against IBM is that IBM unfairly
destroyed the value of UNIX by giving away free Linux, etc.

Now check: http://www.caldera.com/company/success/story.html?ID=3

However, here we have an example of a company (Logicon) using Linux (and SCO
Linux 2.4 no less) to eliminate expensive UNIX workstations. And SCO being so
happy about it that they write a success story.

Here is the most telling quote.

"Given the local auto-traffic conditions, developers wanted the options to
work at home," Wright said. "However the software development for
LMDS is done on expensive Unix workstations and providing Unix workstations for
home use was completely beyond our budget." Wright decided to create his
own workstations. He installed SCO Linux on a batch of retired PCs
(three-year-old machines no longer being used) then gave the machines to
developers for home use. The PCs were an assortment of brands, most with Pentium
133s. As a result, SCO Linux created an affordable, yet powerful, take-home
developer workstation.

"SCO Linux provided an easy to install and complete development system at
almost no expense," Wright said. Now developers have the flexibility to
work from home a couple days each week instead of spending hours driving in
heavy traffic.

[ Reply to This | # ]

Boies Faces Ethics Violations Charges in Florida
Authored by: shoden on Wednesday, December 17 2003 @ 01:16 PM EST
From the article here.
Boies' lawyer, Richard McFarland, declined to comment on the case other than to say that the Bar complaint is a "well-crafted piece of work." McFarlain, a partner at McFarlain & Cassedy, has 20 days to file a response on Boies' behalf. He said he probably will request an extension.
No kidding. I wonder if Boies' car stalls as much as he does.

---
S.K.

MR. MCBRIDE: Your Honor, I have a smaller, obviously --

[ Reply to This | # ]

OT: SCO linux , not in france
Authored by: Budgreen on Wednesday, December 17 2003 @ 01:29 PM EST
here's an interesting article from The Register, makes for funny read.

http://www.theregister.co.uk/content/28/34572.html


guess they just have a slow cleanup of their linux involvement.

---
Hutz: Well, your Honor, we've got plenty of hersay and conjecture, those are
*kinds* of evidence.

[ Reply to This | # ]

PJ, I see and book and Movie in your future!
Authored by: blhseawa on Wednesday, December 17 2003 @ 02:55 PM EST
This TSG -vs- IBM just has more twist and turns then any TV drama.

Just unbelievable.

Anyway, this is news to me at least.

Thanks!

[ Reply to This | # ]

closed court
Authored by: brenda banks on Wednesday, December 17 2003 @ 06:25 PM EST
http://www.siliconvalley.com/mld/siliconvalley/business/columnists/gmsv/7513798.
htm

When SCO finally reveals the code that inspired its $3 billion copyright
infringement suit against IBM, it will do so in a closed court. "SCO will
present this evidence to the jury, the judge and to the defendant (IBM), but it
will remain confidential," SCO public relations director Blake Stowell
told ZDnet. "No one in the public will get to see this code."

---
br3n

[ Reply to This | # ]

OT: Recent Stock Sales
Authored by: Anonymous on Thursday, December 18 2003 @ 12:47 AM EST
This is off-topic, but there doesn't seem to be a good place to put it right
now....

The SCO Vice President, Larry Gasparo, exercised a stock option for 6,640 shares
at $1.12 per share on Dec. 10th. He then sold all 6,640 shares the same day. If
I am reading the info correctly (and it is posted correctly) then it appears he
currently does not hold ANY shares of SCOX at the moment. Zero.

http://finance.yahoo.com/q/it?s=SCOX

While this is just speculation, it seems like that does not bode well for what
he thinks of their future. It appears that all of the inside stock transactions
for the past several months have all been sales as far as I can tell. I am not a
financial analyst, but that raises a red flag for me.

If you have the opportunity to buy several thousand shares of a company (at a
greatly discounted price) that stands to make millions/billions beyond its
normal income in the next 2 years, don't you think people would hold onto a few
of them? Granted, he made a almost $100k in the transaction, but think what he
could make if he just held onto it for awhile?

I'm not saying they know they are going to lose, but it sure *seems* that way.

Mike A.

[ Reply to This | # ]

Boies Faces Ethics Violations Charges in Florida
Authored by: brenda banks on Thursday, December 18 2003 @ 06:19 AM EST
sorry about the line wraps on the urls
i use tiny url when i notice that the url is too long.that one slipped past



---
br3n

[ Reply to This | # ]

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