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Florida Bar Hits David Boies With Ethics Complaint

 


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.

Neither Boies' attorney, Richard McFarlain of Tallahassee, nor Bar officials would comment on why Boies was financing Habie's litigation. Boies could not be reached for comment.

But Scott Lewis, who has been locked in litigation with Habie for years, claims that Habie is the chief financial officer of Boies' law firm. According to Lewis, Boies knew Habie from representing her in an early 1990s divorce and child custody battle with her ex-husband, a Guatemalan textile manufacturer.

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.

In cases against Florida Bar members initiated by other state bars, The Florida Bar often follows up and investigates the case.

Boies gained fame in the past decade for his high-profile victories in the Microsoft antitrust case. Boies' firm has offices in Miami and several other locations in Florida. Last year, it merged with Miami-based Zack Kosnitzky.

The Boies case was referred to The Florida Bar by Palm Beach County Circuit Judge David Crow, who is overseeing the underlying contract dispute between Boies' client, Amy Habie, and Lewis, a West Palm Beach gardener. The two have been battling in court since Lewis and his wife, Carol, sold the assets of their family gardening business to Habie in March 1996.

The parties settled their differences in August 1998, but have been suing each other over compliance with the terms of their settlement agreement ever since. 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.

In February, Lewis, who is handling the case pro se, filed a motion asking Judge Crow to disqualify Boies from the case because his firm was bankrolling Habie's five-year court battle against him. Having Boies' firm pay Habie's legal fees gave her an unfair advantage because she had no financial incentive to resolve the dispute quickly, Lewis argued.

"No reasonable person ever would have set aside 10 sanction orders by six different judges and continued the relentless pursuit of the destruction of the Lewises without the assurances and backing of powerful and committed legal counsel such as David Boies," Lewis said in court papers.

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. Under Bar rules, lawyers are allowed to advance court costs and fees to clients if they have a contingency agreement that provides for repayment based on the outcome of the case. They also are allowed to represent poor clients for free.

There was no evidence that Habie had a contingency agreement with Boies' firm and Habie is far from poor, Judge Crow said. "The plaintiff's law firm not only donated its own services to advance the interests of its nonindigent client, but has paid hundreds of thousands of dollars in litigation expenses and attorney's fees on behalf of its client with no obligation on the part of the client to repay any portion of those funds," he wrote.

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.

Lewis hailed the Bar for filing a complaint against one of the most prominent trial lawyers in the country. "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."

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.

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