LEGAL NEWS


The Lawyer and the Landscaper
David Boies's eight-year war against a
Florida gardener may have come to an end.



The American Lawyer
July 1, 2005

"Page Six," The New York Post's gossip section, is usually more concerned with Paris Hilton than professional ethics. But an article in May proves that at least one lawyer has the star power to keep up with Paris. The headline-"Boies Loses Another One."

Boies, of course, is David Boies, the founder of Boies Schiller & Flexner. "Loses Another One" is a reference to the latest-and perhaps the last-battle in the long-running war between the Armonk, New York, lawyer and Scott Lewis, a Florida gardener. After nine years of litigation, over $500,000 in sanctions and attorneys fees assessed against Boies Schiller and its client, and two referrals to the state bar for disciplinary proceedings, Boies may finally be buried.

The firm was disqualified from further involvement in the case by Judge Jonathan Gerber of the Palm Beach County Court, who referred Boies Schiller to the Florida bar for investigation and possible disciplinary action. He also sentenced Patrick Bilton, one of Boies's business partners, to 90 days in the Palm Beach County Jail for criminal contempt.

Judge Gerber read the order from the bench. Afterward, Lewis went out to the hallway, shed a tear of relief, then went home for a quiet celebration with his wife and children. He's happy, but afraid that he hasn't seen the last of David Boies.

The odyssey began in 1996, when Lewis sold his gardening business to Boca Raton resident Amy Habie. Months later, Habie sued Lewis, claiming that Lewis was violating a noncompete agreement by stealing clients. Lewis, in turn, claimed that Habie never paid him the money she owed. Habie was represented by Boies, who was with Cravath, Swaine & Moore at the time. They were first introduced by a law school friend of Boies's who was handling her bitterly contested divorce from Guatemalan textile tycoon José Habie.

Lewis filed a motion to dismiss, which was granted by a Florida judge. In response, the veteran of International Business Machines Corporation's epic antitrust battle with the U.S. Department of Justice filed a 76-page antitrust and racketeering complaint against Lewis in federal court in Miami. Conspiracy was an essential element of the claim. Lewis's coconspirators, according to Boies, included two other gardeners and the guy who installed the sprinklers.

In 1998 the case worked its way up to the U.S. Court of Appeals for the Eleventh Circuit, which ruled against Habie and Boies. A settlement was reached just before the ruling, but questions about Habie's compliance with that agreement have dragged on ever since. Lewis has represented himself pro se since 2000 (a period which includes nine appeals by Boies Schiller); Boies has represented Habie for free throughout the proceedings. Twenty-three lawyers from Boies Schiller (which inherited the matter from Cravath) have worked more than 10,000 billable hours on the case, according to documents filed in court by Boies Schiller. An expert for Lewis has estimated the time to be worth $4.5 million.

There are many sides to the relationship between Boies and Habie. So many sides, in fact, that Boies suffers a conflict of interest, according to a ruling by Judge Gerber, because a trust set up for his children's benefit owns a 25 percent interest in Nical of Palm Beach, Inc. (Nical was set up by Boies for Habie to acquire the gardening business). Habie, who owns 50 percent, is the chief financial officer of Boies Schiller. The third partner in Nical is Bilton. He has been convicted eight times for narcotics trafficking and money laundering. Bilton's wife, Ann Hines, is also an employee of Boies Schiller, although the firm declined to specify what she does for the firm. Boies and Habie are also officers in a Nevada corporation called Diamond B Ranch, Inc.

The case has been an ethical morass for Boies. His firm and its client have been sanctioned and held in contempt at least ten times. Boies is not allowed to take depositions in the case unless a Florida attorney is present. In 2003 the Florida bar found probable cause that his funding of the litigation violated Florida rules of professional responsibility. The state court declined to punish Boies, but his personal appearances in Palm Beach dropped sharply after the finding. If the Florida bar pursues the ethics complaint suggested in the most recent order, Boies could be disbarred from practicing in the state.

David Boies did not return phone calls seeking comment.