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Boies Schiller Keeps Finding the Spotlight, For Better or Worse

March 27, 2019, 8:50 AM

Boies Schiller Flexner has always held a certain cachet in Big Law, as much for the many cases that didn’t get a word in print as for the occasional one that spread its name.

Now, though, the firm seems to be everywhere. Its newest star turn came Monday, when it played a key role in the arrest of a lawyer whose name had become even more ubiquitous than its own lately.

Michael Avenatti, who previously represented adult-film star Stormy Daniels in her allegations against President Donald Trump, was arrested as he arrived at Boies Schiller’s Manhattan office on charges of extorting one of the firm’s clients, Nike Inc. Two of the firm’s lawyers recorded conversations that helped the government make its case.

It was the latest in a string of high-profile representations—from helping Amazon.com billionaire Jeff Bezos seek retribution on the National Enquirer, to firm co-founder David Boies’ serving as counsel and board member at Theranos Inc., the blood-testing firm that collapsed amid fraud allegations that were the subject of a recent HBO documentary; to David Boies signing off on a contract that allowed private investigators to help disgraced movie mogul Harvey Weinstein fend off some #MeToo allegations.

As David Boies himself said in a 2017 interview, no lawyer ever wants to turn down an interesting case.

“While the high profile nature of some of our cases may catch the attention of the media, clients come to us because they know we are focused on delivering the highest quality legal services,” said a Boies Schiller spokesperson. “Sometimes that’s newsworthy and sometimes it’s not—and sometimes the least newsworthy cases are the most important to the client or even to the law.”

Highlights and Letdowns

Boies Schiller, founded in 1997 by David Boies and Jonathan Schiller, made its first big splash in early 2000s starting with Boies’ representation of presidential candidate Al Gore in the election recount controversy that was decided by the U.S. Supreme Court. Around the same time, he and the firm settled a blockbuster antitrust case against Microsoft on the Justice Department’s behalf.

Several years later, Boies was present at another historic moment, as he joined joined his former Bush v. Gore opponent Ted Olson to defend same-sex marriage at the Supreme Court.

But David Boies’ aggressive representation of Weinstein at the height of the #MeToo movement appeared to place his firm on the wrong side of history, as did its role in the implosion of Theranos, where Boies was alleged to have pressured the Wall Street Journal to kill a story that uncovered the fraud.

The co-founder has been reducing his role at the firm as part of a long-term transition plan. Four lawyers formed a new management committee overseeing the firm in December.

Why Boies?

Boies Schiller may seem to be everywhere, but the cases that get its name in front of the public—for better or worse—may be tied directly to the way it specializes, according to Kent Zimmermann, a law firm strategy adviser with the Zeughauser Group.

“They appear to be a firm that doesn’t try to be all things to all people, they have some distinct areas of focus and when you look at the board level matters they handle that are in the headlines they tend to be in specific areas that the firm has chosen to focus on, mainly high stakes litigation including white collar work and investigations,” said Zimmermann, who does not count Boies Schiller as a client.

Boies, in the 2017 interview, said the firm was focused on developing “core client work”—matters that are explicitly not one-off cases, but ongoing, even smaller representations, for corporations, which will be more sustainable. With around 300 lawyers in 15 offices in the U.S. and London, Boies Schiller isn’t the international behemoth that other Big Law firms have become.

“The one shot litigation is much more profitable,” he said, “but the core client work is very rewarding work, it’s very interesting work and it gives the firm a stable base.”

He said that if he could compare his firm to any, it would be Wachtell, the corporate M&A firm, despite its difference in practice areas. Boies said that he has admired the firm for its “disciplined growth.”

Of course, Wachtell also is known for its full-service treatment of clients, answering calls at 3 a.m. and being ready to move at a moment’s notice—all qualities Boies Schiller seems to emulate in its biggest representations.

Perception Questions

The firm has pushed back against negative public perception of its work. In an interview with the New York Times last year, Boies pointed out the difference between a lawyer choosing his clients and choosing how to represent them. With the former, you have some discretion, but regarding the latter, you have to be all-in and can’t bow out when things get tough, he said.

In an age where access to information feels boundless, Boies Schiller may attract more scrutiny from corporate legal departments than in the days when companies hired for the individual lawyer and didn’t care much about who else their firm represented, said Susan Hackett, CEO of consultancy Legal Executive Leadership and former general counsel of the Association of Corporate Counsel.

“You can’t really separate the decisions you make from overall reputation because everyone knows everything about everyone now,” Hackett said. This, she added, is especially true for corporations, which deal with numerous stakeholders, including the board and C-suite, as well as sometimes their own employees, when they hire a firm.

Zimmermann doesn’t think a firm like Boies Schiller, which is often tasked with “bet the company” litigation, will fall out of favor easily.

“Generally the market cares more about the quality and depth of the firm and the results it gets,” he said. “And the actions of one lawyer or a small group of lawyers in a firm usually don’t move the needle on a firm’s reputation.”

To contact the reporter on this story: Rebekah Mintzer in New York at rmintzer@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Bernie Kohn at bkohn@bloomberglaw.com; Tom P. Taylor at ttaylor@bloomberglaw.com