The Legal Fallout For Harvey Weinstein’s Hired Hands

By: Nicole Kardell

*This article was first published November 9, 2017 as an Expert Analysis – Opinion piece for Law360.

The revelations surrounding the Harvey Weinstein cover-up are certainly cringeworthy, but are the actions of the mogul’s hired hands actually illegal? That Weinstein allegedly exploited and victimized women is terrible (even if far too common). The fact that so many firms and individuals, including lawyers, were involved in the cover-up is shameful. And the tactics reportedly used by Weinstein’s damage-control mercenaries definitely seem over the top.

You can go to jail for lying to federal agents (see Martha Stewart). You can go to jail for lying to investors (see Bernie Madoff). But what about lying to a victim of sexual assault to gather information to use against her?

She is not the government. She may not have a money damage claim. Does a rape victim have legal recourse against an impostor (or the impostor’s boss)? Do members of the press have any legal recourse?

According to such reports as Ronan Farrow’s exposé in The New Yorker, Weinstein hired attorneys, a private security agency and a corporate intelligence firm to collect detail on the women who were alleged victims of his sexual assaults and the reporters investigating their stories. Part of their information-gathering involved sending agents out to pose as victims themselves or as women’s rights activists.

Those agents attempted to fall in with the victims and reporters so that they could gather information at the source. The agents would take what they learned through their undercover conversations — e.g., detail on the allegations, personal information about the alleged victims, information about to whom the victims were speaking — to reach out to the victim’s contacts, discredit the victims’ stories and suppress any reporting in the press.

The alleged victims and reporters could have a decent claim against Weinstein and his hired hands for common law fraud and perhaps even conspiracy to commit fraud, given that:

• the agents falsely held themselves out as victims or activists;
• they made false statements to the victims and reporters about who they were and why they wanted to meet;
• those false statements were significant to the victims and reporters as they established a false expectation that the agents were in a position to help;
• false representations prompted the victims and reporters to divulge valuable information about their stories; and
• the victims and reporters who divulged information relied on the truth of the agents’ false representations and were deceived.

That roughly covers all but one of the general elements of common law fraud. The charge of conspiracy to commit fraud would need to apply those elements to the group participating in the alleged conspiracy.

The requirement of demonstrable injury remains problematic: The victims and reporters would need to be able to demonstrate a direct injury as a result of the agents’ false representations. Could the victims or reporters adequately show that their stories did not get published in a timely manner because of the agents’ false representations, and that they were harmed by the delay? Were they otherwise injured by the agents’ false statements in direct and demonstrable way? Lost opportunity or emotional distress are injuries that are hard to prove and hard to quantify.

Finally, there is the question of whether the law firm representing Weinstein committed ethics violations. Several problematic details coming out about the firm’s role in the coverup include the “success fees” it offered a private security firm, and the fact that the firm simultaneously represented The New York Times in a separate matter while working behind the scenes to stop the Times from writing on the Weinstein story. As of Nov. 8, the Times had formally severed ties with the law firm and said it would “be pursuing appropriate remedies.”

There is a difference between (1) client advocacy in which a lawyer or investigator seeks evidence to defend against allegations and correct misrepresentations and (2) client work in which a lawyer or investigator uses duplicitous means to gather information to intimidate and silence alleged victims and their storytellers. One is smart and strategic defense work; the other gives lawyers and investigators a bad name.

Defense attorneys believe in strong client advocacy, but there is a line between creative and unscrupulous defense work that we don’t cross. Vigorous advocacy for one’s client does not extend to winning at all costs. All is not fair in love and war.

And certainly all is not fair at the crossroads of a woman’s career aspirations and a powerful man’s sexual appetite. We have conventions; we have ethical obligations; and maybe the law needs to do a little catch-up to ensure there are ramifications for those who prey upon the already-victimized and vulnerable.