Boies’ Choice to Defend Disgraced Judge Points to Immunity Test

David Boies, one of the country’s best-known lawyers, charges more than $2,000 an hour and at age 83 can have his pick of cases.

This raises a question as to why he would defend disgraced former bankruptcy judge David R. Jones, who is fighting lawsuits that allege he benefited from a personal relationship with a lawyer who worked on cases in his court.

The answer points to Boies’ self-professed passion for judicial independence. The suits offer a rare opportunity to test judicial immunity and potentially dictate when federal judges can be sued for actions on the bench.

“David Boies probably wants to test the law on how far judicial immunity goes, and it’s an interesting academic question,” said Nancy Rapoport, a professor at UNLV William S. Boyd School of Law. “His argument is going to be: Where do you draw the line?”

Jones turned to one of the country’s most famous lawyers after appearing to strike out on a request for the US Department of Justice to defend him in the first of two suits. The judge “must really be worried if he had to go to New York and hire one of the most expensive Big Law firms in the country,” said Stephen Gillers, a NYU Law School professor who studies legal and judicial ethics.

Jones, who built his Houston court into the busiest jurisdiction for large Chapter 11 cases, resigned last year after it became public he’d been in a relationship with Elizabeth Freeman, a bankruptcy lawyer at Jackson Walker who frequently worked on cases before the judge. Freeman left the law firm in late 2022.

Read Bloomberg Law’s investigation into relationships in the Houston bankruptcy court: Sex, Secrets Trigger Downfall of Star Texas Bankruptcy Judge.

Jackson Walker earned millions on cases before Jones, all while litigants were unaware that Jones and Freeman owned a home together. A federal appeals court judge last year found there was probable cause to believe that Jones committed misconduct. The US bankruptcy watchdog is trying to claw back millions in fees Jackson Walker earned in those cases.

The New York-based Boies has spoken publicly about his concern over attacks on judges that he sees as a danger to the rule of law.

He told the New York City Bar group in 2019 that judges were being viewed more politically as the Supreme Court issues decisions along party lines and as the confirmation process focuses on how judges will rule on specific issues.

“Judicial independence has been a cornerstone to the rule of law and it’s something that has frequently been under attack, and I would suggest it is no less under attack today than it ever has been in our history,” Boies said then. “Those attacks are sometimes obvious and sometimes less obvious.”

Boies did not respond to a request for comment on Jones through a spokeswoman.

Boies’ Role

Boies rose to fame through his US antitrust victory against Microsoft Corp. and his work representing Al Gore against George W. Bush over the 2000 presidential election. He co-founded his law firm, Boies Schiller Flexner, in 1997 and is poised to resign from the top management job there at the end of the year. Still, there’s no sign he plans on letting up in his practice.

He defended the Hollywood producer and convicted rapist Harvey Weinstein and was deeply involved in the failed blood testing startup Theranos Inc., whose founder Elizabeth Holmes was convicted of fraud.

The Jones scandal has already captivated lawyers. The two civil cases the judge faces are poised to garner more attention as arguments play out. That is likely one reason why Boies would take the case, Gillers said.

“The Jones case would be attractive to any Big Law firm for the enormous publicity it will spawn and because judges will appreciate that Boies is defending a former judge,” he said.

His concerns for judicial independence aside, Boies has picked a client who has few defenders in the legal community.

“Everybody’s entitled to a lawyer and David Boies has a great reputation as a great lawyer, and he’s represented some really disreputable people,” said Michael Frisch, ethics counsel at Georgetown Law. “So, add one to the list.”

Rule of Law

The two civil lawsuits Jones faces allege he benefited from the fees he signed off on that went to a law firm that employed his romantic partner. He also signed off on fees she generated directly in the cases.

In the first lawsuit filed against Jones, the former judge raised a pro se defense that he enjoyed judicial immunity to the claim. Jones in that case hired lawyers from McKool Smith, who have proceeded with the immunity argument.

During a court hearing earlier this month in that case, U.S. District Judge Alia Moses grappled with how far judicial immunity extends to decisions made by judges outside of the courtroom and chambers.

“I’m talking about any judge in the United States,” Moses said, according to a transcript of the hearing. “It gives me a little bit of pause to think that we can misbehave, walk into court, issue an order, and then be completely absolved of our misconduct.”

Judges are granted “fairly generous immunity” from civil liability for conduct undertaken within the scope of their authority, so that they aren’t “looking over their shoulder” if they make mistakes, said Charles Geyh, a professor of law at Indiana University who is an expert on judicial ethics and liability.

Jones should have disqualified himself from cases involving his romantic partner, Geyh said. The fact that he didn’t could open the door to arguments that judicial immunity shouldn’t protect him, he said.

“But whether the conduct concerns a non-judicial act, can be characterized as falling outside the scope of the judge’s jurisdictional authority, or is not subject to judicial immunity for some other reason will be the plaintiffs’ burden to show—and it is not an easy one to meet,” Geyh said. “That the judge has hired A-list talent to represent him may not signify more than that he is taking these suits seriously.”

‘Must Have Known’

The lawsuit Boies appeared in, brought by the former chief executive of an oil shipping company, alleges the judge wrongly removed the executive from his position before agreeing to a sale of the company. The executive, Morton Bouchard III, said he lost millions from the result of the bankruptcy.

Jones has yet to raise an immunity issue or any type of defense in the case.

The judge should not be granted immunity since he “must have known” he was violating the law governing when judges should recuse themselves, said Rapoport, the UNLV professor. She said that the alternative—judges being allowed to grant benefits from the bench to their loved ones—“can’t be right.”

Hiring Boies, Rapoport said, represents the embodiment of an old saying: When you’ve got the law on your side, pound the law. When you’ve got the facts on your side, pound the facts. And when you’ve got neither, pound the table.

“Hiring David Boies is pounding the table,” she said. “He has to get somebody who both is at the top of his game and signals that he’s a serious adversary—because Jones is in a boat load of trouble here.”

— With reporting by James Nani.