Complaint Against David Boies and Mitchell Berger

By The National Legal and Policy ... | July 7, 2008 | 8:27 PM EDT

(Editor's Note: The following is the full text of the Florida Bar complaint against attorney's David Boies and Mitchell Burger, lawyers for the Al Gore campaign. The complaint, which was filed by the National Legal and Policy Center in Washington, DC, seeks an investigation of conduct by Boies and Burger surrounding their arguments before the Florida Supreme Court.)

COMPLAINT TO:
Bar Counsel
The Florida Bar
Tallahassee Branch
650 Apalachee Parkway
Tallahassee, Florida 32399

Bar Counsel
The Florida Bar
Fort Lauderdale Branch
Cypress Financial Center
5900 North Andrews Avenue, Suite 835
Fort Lauderdale, Florida 33309

COMPLAINANT:
\ri720National Legal and Policy Center
1309 Vincent Place, Suite 1000
McLean, Virginia 22101
703-847-3088

RESPONDENTS-ATTORNEYS
David Boies
Boies, Schiller & Flexner LLP
80 Business Park Drive, Suite 110
Armonk, New York 10504
914-273-9800

Mitchell W. Berger
Florida Bar No. 311340
Berger Davis & Singerman
350 East Las Olas Boulevard, Suite 1000
Fort Lauderdale, Florida 33301
954-525-9900

NATURE OF COMPLAINT

In order to protect the public, the profession, and the courts, this Complaint requests that the Bar Counsel of the Florida Bar initiate an investigation into apparent professional misconduct of Respondent-Attorney David Boies and Respondent-Attorney Mitchell W. Berger pursuant to the Rules Regulating the Florida Bar. See Fla. Bar Reg. R. 3-3.1-4, 3-4.2 (2000).

JURISDICTION

Respondent-Attorney Boies and Respondent-Attorney Berger are subject to the disciplinary jurisdiction of Supreme Court of Florida. "The Supreme Court of Florida has the inherent power and duty to prescribe standards of conduct for lawyers, to determine what constitutes grounds for discipline of lawyers, to discipline for cause attorneys admitted to practice law in Florida, and to revoke the license of every lawyer whose unfitness to practice law has been duly established." Fla. Bar Reg. R. 3-1.2 (2000); see also Fla. Bar Reg. R. 3-3.1 (2000).

Respondent-Attorney Berger (Florida Bar No. 311340) is a member of the Florida Bar. See Berger, Davis & Singerman, Attorney Resumes (A-H), (visited Nov. 30, 2000) Thus, respondent-Attorney Berger is subject to disciplinary jurisdiction of Supreme Court of Florida. See Fla. Bar Reg. R. 3-4.1 (2000) ("Every member of The Florida Bar . . . is within the jurisdiction of this court and its agencies under this rule and is charged with notice and held to know the provisions of this rule and the standards of ethical and professional conduct prescribed by this court.").

Respondent-Attorney Boies is a member of the State of New York Bar. See "David Boies" Martindale-Hubbell Law Directory (2000). Respondent-Attorney Boies is subject to the disciplinary jurisdiction of Supreme Court of Florida because he has been permitted to appear pro hac vice in the State of Florida, including before the Supreme Court of Florida, in matters related to the 2000 Election. See, e.g., Palm Beach County Canvassing Bd. v. Harris, No. SC00-2346 (Fla. order granting motion to appear pro hac vice Nov. 17, 2000) (Exhibit A).

Rule 3-4.1 provides: "[e]very attorney of another state who is admitted to practice for the purpose of a specific case before a court of record of this state is within the jurisdiction of this court and its agencies under this rule and is charged with notice and held to know the provisions of this rule and the standards of ethical and professional conduct prescribed by this court." Fla. Bar Reg. R. 3-4.1 (emphasis added). The Rule further states: "Jurisdiction over an attorney of another state who is not a member of The Florida Bar shall be limited to conduct as an attorney in relation to the business for which the attorney was permitted to practice in this state and the privilege in the future to practice law in the state of Florida." Id. Thus, for Respondent-Attorney Boies' business that is related to the 2000 Election, which includes the subject matter of this Complaint, Respondent-Attorney Boies is subject to the disciplinary jurisdiction of the Supreme Court of Florida.

CONNECTION TO RESPONDENT-ATTORNEY

The Complainant did not employ Respondent-Attorney Boies or Respondent-Attorney Berger. The Complainant has not retained an attorney for the purposes of this Complaint and matters related to this Complaint. The Complainant's connection to Respondent-Attorney Boies and Respondent-Attorney Berger is that the Complainant is a nonprofit foundation that monitors ethics in government and Respondent-Attorney Boies and Respondent-Attorney Berger are participating in legal action that relates to government: the election of the President and Vice-President of the United States.

STATEMENT OF FACTS

Amid the many legal matters in the State of Florida since November 7, 2000, regarding the 2000 Election, Respondent-Attorney Boies and Respondent-Attorney Berger, representing Vice President Albert A. Gore, reportedly offered an allegedly false affidavit in two separate trials. See Jan Crawford Greenburg & Dan Mihalopoulos, "Bush Turns Top U.S. Court; Republican Wants Florida's Manual Recounts Stopped; Illinois Case Offers Shaky Precedent," Chi. Trib., Nov. 23, 2000, at 1 (Exhibit B) [hereinafter "Greenberg & Mihalopoulos"]; see also Steve Miller, "Gore Lawyer's Ballot Affidavit was False," Wash. Times, Nov. 25, 2000, at A4 (Exhibit C) [hereinafter "Miller"]. The following excerpts from a November 23, 2000, Chicago Tribune article set forth the nature and the context of Respondent-Attorney Boies and Respondent-Attorney Berger's conduct:

A landmark Illinois Supreme Court ruling hailed by Vice President Al Gore's lawyers may not be the legal home run they believe will aid his quest to win Florida's 25 electoral votes and the White House, an analysis of the ruling shows.

Gore's lawyers focused on the Illinois ruling because the Florida Supreme Court quoted it at length Tuesday night [(November 21)] in its decision to allow manual recounts in selected counties to continue. The lawyers suggested that the mention of the Illinois case was a sweeping directive to count controversial "dimpled" ballots, in which ballots were indented but not punched through.

. . . But that Illinois case should not give Democrats any confidence that dented ballots will be counted in Gore's favor. That's because the Illinois court actually affirmed a trial judge's order to exclude dented ballots, since he had decided he could not reasonably determine the voters' will by examining the ballots. In fact, in the Illinois case, the dented ballots were not counted at all.

"The judge did not count ballots that were indented because he could not determine the voters' intent," said attorney Burton Odelson, who represented challenger Rosemary Mulligan in the 1990 case. "From the beginning, I knew everybody [in Florida] was interpreting this case wrong and reading into it what they wanted to read into it."

. . . Late Tuesday [(November 21)], the Gore legal team pressed the issue further, asking a Cook County attorney involved in the Illinois case to sign an affidavit saying that dented ballots were ultimately approved in the Illinois case. The affidavit the attorney signed Wednesday [(November 22)] apparently was mistaken in its assertion that such ballots were counted.

In fact, in its ruling the Illinois Supreme Court approved the procedures that Cook County Circuit Judge Francis Barth used four days earlier when he refused to accept any dented ballots, even those with, as he said, "definite" or "distinct" dents. Instead, Barth counted most of the ballots that had been perforated enough for light to shine through them, even if the paper tag known as a chad had not fallen out.

"I don't believe the fact that an impression standing alone counts necessarily that this voter intended then to vote on the state representative race," Barth said during a 1990 hearing after examining one disputed ballot, which he discarded.

In rejecting the dented ballots, Barth looked at the condition of the rest of the ballot. If the voter had clearly punched out chads in other contests, he said, the voter knew he had to punch a hole for his vote to count. As such, he said he couldn't make the logical leap that a dent should count as a punch in another race.

"It's not clearly ascertainable what the voter intended," Barth said during the Sept[ember] 17, 1990, hearing in which he ruled on the disputed ballots.

In evaluating the ballots, Barth relied on guidelines in a 4-day-old Illinois Supreme Court order. The high court told Barth to look at the ballots not counted by machines because the chad was not completely dislodged. It then said he should determine whether the voter's intent "can be reasonably ascertained" and, if so, to count the vote.

That guidance is similar to that a Florida judge gave Palm Beach County on Wednesday [(November 22)], saying officials could accept the dimpled ballots if voter intent was clearly discernible. Gore's lawyers had urged the trial judge to rule that a discernible indentation on or near a chad must be recorded as a vote.

But Florida Circuit Court Judge Jorge Labarga, again picking up language used by the Illinois Supreme Court a decade ago, instead ruled that a dimpled ballot could be tallied only when officials "fairly and satisfactorily ascertain the intent of the voter."

Using that same guidance, Barth rejected the dents, saying at the 1990 hearing he began "with the assumption that a voter will understand that there must be a punch in the ballot." Barth acknowledged that it could be difficult for voters to read punch cards and determine whether they had punched the right holes. But he then continued: "I believe that there is at least a minimum standard that they be cognizant and aware of the fact that it is a punch card."

At one point, Barth noted that lawyers were arguing dents to the point that "fibers were disturbed." But that wasn't enough in one ballot, particularly since the voter had successfully punched the ballot for other candidates, he ruled. Of the 27 disputed ballots the state Supreme Court ordered Barth to examine, he rejected nine dented ballots because, as he said, the dents were insufficient to prove the voter's intent.

He rejected four others with pinholes that were misaligned, accepted three "hanging chads," in which the perforation was partially attached, and approved five ballots punctured by pinholes. Six disputed ballots were withdrawn. Barth raised practical reasons why he couldn't reasonably ascertain the will of the voter in a ballot that had a dent for one candidate, but clear punches for other candidates in other races.

"Can a voter make a dent in the ballot and yet change [his] mind, and decide not to vote for that candidate?" Barth asked attorney Michael Lavelle, lawyer for Republican Penny Pullen, at the hearing.

"Yes. I wouldn't say that's not impossible," Lavelle responded. "That's quite possible."

Late Tuesday night [(November 21)], Gore's top lawyers enlisted Lavelle's aid in the vice president's legal battle. He said attorneys David Boies and Mitchell Berger, a Florida lawyer, awoke him with a phone call shortly before midnight to find out whether he would swear that he remembered the trial judge counting indented ballots.

Lavelle . . . said he signed two identical affidavits early Wednesday [(November 22)] and faxed them to Berger, who had told him he needed the papers to file in two county courts. In the affidavits, he said that to the best of his recollection, he believed the judge counted indented ballots, giving Pullen the victory.


"In 10 years, memories can fade," Lavelle said later Wednesday [(November 22)] when told Barth had, in fact, excluded them. "I couldn't remember the details. The affidavit was more general than specific."4 See supra Greenberg & Mihalopoulos (emphasis added).

The Illinois case referred to in the article is Pullen v. Mulligan, 561 N.E.2d 585 (Ill. 1990); it was cited by the Supreme Court of Florida in Palm Beach County Canvassing Bd. v. Harris, No. SC00-2346, at 34-35 (Fla. Nov. 21, 2000). To add credibility to the Chicago Tribune article, consider another source -- the following is from a November 25, 2000, Washington Times article:

Attorneys for Vice President Al Gore obtained a false affidavit from a Chicago lawyer in an effort to support the contention that dimpled ballots are to be counted in hand recounts in two Florida counties.

The Cook County case cited in the affidavit was quoted by the Florida Supreme Court this week in its decision to allow manual recounts and stipulate a method for discerning voter intent in two largely Democratic counties.

The Nov[ember] 22 sworn affidavit from Michael Lavelle, a Cook County attorney who was representing a Republican plaintiff seeking state office, says that a Cook County trial court accepted indented or dimpled ballots as indicating a voter's intent.


He also stated that the Illinois Supreme Court directed the trial court to "make a visual inspection of each of the ballots unable to be counted by the automatic tabulating equipment and to determine vote intent on these indented or dimpled ballots."


Democrats are battling in circuit courts in two Florida counties to get the dimpled ballots counted as valid in hopes of overcoming the official, though uncertified 930 vote lead of Texas Gov. George W. Bush.

During arguments before the Florida Supreme Court, Mr. Gore's attorneys said that the Illinois Supreme Court ruling "was a sweeping directive to count controversial 'dimpled' ballots, in which ballots were indented but not punched through."


. . . Gore attorneys called Mr. Lavelle--who contributed $1,000 to Mr. Gore's campaign in September 1999--late Tuesday [(November 21)] asking for an affidavit that recalled the trial judge counting indented ballots.


Mr. Lavelle [said] he faxed the affidavits Wednesday morning [(November 22)] to attorney Mitchell Berger, who said he would submit them in cases in two Florida county courts.

But Mr. Lavelle . . . was wrong in his assertion,
as was the Florida Supreme Court in citing the case.

"The Florida justices were correct on the citing, but they don't know how correct they are," said Burton Odelson, who represented the defendant in the 1990 lawsuit in question. "The case pertains to counting dented ballots, but the Illinois Supreme Court said that dented ballots should be excluded, not accepted."

"And I think that this will ultimately be the law that must be interpreted here," said Mr. Odelson . . .

Mr. Odelson also swore out an affidavit, asserting that the Illinois Supreme Court case "is cited as precedent for virtually all recount cases since the decision was rendered by the Supreme Court." He also swore that the judge, Francis Barth, in his case did not count ballots bearing an indentation on the ballot, a claim supported by a court transcript.

The judge in the case "counted ballots he found to be of the 'pinhole classification' . . . light could be seen through the pinhole and the ballot was counted."

"It is undisputed that Judge Barth did not count any ballots that contained a 'dent' without some other indication of voter intent," Mr. Odelson wrote.

According to the transcript in the circuit court case upheld by the Illinois justices, the "sunshine rule" is an assumed presumption of voter intent in the case. No dented ballots were ultimately counted.

. . . [I]n the case of any false affidavit, an effort must be made immediately to "purge the perjury," said a Republican attorney who spoke on background. "Both the person and the people who solicited the affidavit should report it immediately," said the attorney.

Added Mr. Odelson: "It is incumbent upon whoever filed the affidavit to withdraw it."

. . . The Illinois case was also cited in a Wednesday [(November 22)] ruling by Florida Circuit Court Judge Jorge Labarga, who ruled that Palm Beach County canvassing board members could not rule out dimpled ballots in their count. See supra Miller (emphasis added).

A copy of this allegedly false affidavit by Michael Lavelle is attached (Exhibit D). Paragraph five, on page two, states:

The Supreme Court of Illinois directed the trial court to make a visual inspection of each of the ballots unable to be counted by the automatic tabulating equipment and to determine voter intent on these indented or dimpled ballots. The trial court determined that seven (7) indented or dimpled ballots reflected the voter's intent to vote for Pullen and one (1) indented or dimple ballots [sic] reflected the voter's intent to vote for Mulligan. As a result of the visual inspection of the dimpled ballots, Pullen was named the Republican nominee by a margin of six (6) votes.

See Florida Democratic Party v. Carol,
No. 00-019324 (07) (17th Cir. Ct. Fla. affidavit of Michael Lavelle Nov. 22, 2000).According to the reports in the Chicago Tribune and the Washington Times, this statement, under oath, appears to be false.6 Therefore, it appears that Respondent-Attorney Boies and Respondent-Attorney Berger offered an allegedly false affidavit to two Florida courts: the Circuit Court of the 15th Judicial Circuit of Florida (Palm Beach County) (Florida Circuit Judge Jorge Labarga) and the Circuit Court of the 17th Judicial Circuit of Florida (Broward County) (Florida Circuit Court Judge Leroy H. Moe). See supra Greenberg & Mihalopoulos; Miller; Florida Democratic Party (affidavit of Michael Lavelle).

Apparently, Mr. Lavelle agreed that the November 22, 2000, affidavit had problems because he reportedly corrected the affidavit on November 23, 2000. See Rowan Scarborough, "Lawyer Withdraws Chad Vote Affidavit, Democrats Don't; Illinois Case Cited for Dimple Counts," Wash. Times, Nov. 30, 2000, at A16 (Exhibit E) [hereinafter Scarborough]. As the Washington Times article, infra, reports, the corrected affidavit was apparently not given to the Palm Beach County and Broward County Canvassing Boards -- apparently leaving the allegedly false affidavit in place. Id. This fact suggests that Respondent-Attorney Boies and Respondent-Attorney Berger have not taken remedial measures to address the allegedly false affidavit -- at least with respect to the two Canvassing Boards and possibly with respect to the two Florida Circuit Courts (however, note that the Florida Circuit Courts were not mentioned in this latest article). See Fla. Bar Reg. R. 4-3.3(a)(4) (2000); see also supra Scarborough. The known facts about the corrected affidavit, according to the Washington Times, are as follows:

A Democratic lawyer has retracted a sworn affidavit that the Gore campaign solicited and then used to persuade two election boards to count slightly indented punch-card ballots as votes.

The lawyer, Michael Lavelle, faxed a corrected affidavit Nov[ember] 23, but Democratic attorneys never forwarded the document to either the Broward or Palm Beach County election boards, according to a Republican attorney monitoring ballot hand counts in those two jurisdictions.

Democratic attorneys used Mr. Lavelle's first affidavit to persuade the Broward board to change its policy and count ballots whose punch-hole chad had been merely indented, but not detached in any way.

. . . The Lavelle affidavit was personally requested by Gore attorney David Boies for submission to the state Supreme Court and the canvassing boards. It involved a 1990 election case in Cook County, Ill., in which the two Republican primary candidates had their election decided by a county judge and then the state Supreme Court.

. . . In his corrected affidavit addressed to the Florida Democratic Party, Mr. Lavelle said he realized his mistake after a Chicago Tribune reporter read him the original court transcript. Said Mr. Lavelle in his second affidavit, "My mistaken recollection was that the trial judge counted 'indented or dimpled ballots' where light did not shine through. In fact, the trial judge only counted 'indented or dimpled ballots' that light could pass through."

Authorities on punch-card voting say ballots through which light can be seen are "detached chad" and ballots that have only indented chad are "dimpled." See supra Scarborough (emphasis added).

To summarize, it appears that Respondent-Attorney Boies and Respondent-Attorney Berger offered an allegedly false affidavit to two Florida courts,7 and there has been no report that Respondent-Attorney Boies or Respondent-Attorney Berger has taken remedial measures to address the allegedly false affidavit.

ARGUMENT
Given the attached affidavit and the reported facts in the two news articles, supra, Respondent-Attorney Boies and Respondent-Attorney Berger may have violated and/or may continue to be in violation of one or more of the following Florida Rules of Professional Conduct and Florida Standards of Conduct:

RULE 4-3.3 CANDOR TOWARD THE TRIBUNAL
(a) False Evidence; Duty to Disclose. A lawyer shall not knowingly:

(1) Make a false statement of material fact or law to a tribunal;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) permit any witness . . . to offer testimony or other evidence that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer has offered material evidence and thereafter comes to know of its falsity, the lawyer shall take reasonable remedial measures.

See Fla. Bar Reg. R. 4-3.3 (2000) (emphasis added); see also Comment, Fla. Bar Reg. R. 4-3.3. Cf. The Florida Bar v. Kleinfeld, 648 So. 2d 698, 699-700 (Fla. 1994) (disciplining an attorney, inter alia, under Rule 4-3.3 for her own false affidavit); The Florida Bar v. Rood, 622 So. 2d 974, 975-76 (Fla. 1993) (disciplining an attorney, inter alia, under Rule 4-3.3 for falsifying documents relating to a probate court matter); The Florida Bar v. Broida, 574 So. 2d 83, 86-87 (Fla. 1991) (disciplining an attorney, inter alia, under Rule 4-3.3 for "[c]ontinuously misrepresenting facts to the Court.").

RULE 4-4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person.
See Fla. Bar Reg. R. 4-4.1 (2000); see also Comment, Fla. Bar Reg. R. 4-4.1.

RULE 4-8.4 MISCONDUCT
A lawyer shall not:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

(d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice. . .

See Fla. Bar Reg. R. 4-8.4 (2000); see also Comment, Fla. Bar Reg. R. 4-8.4.

RULE 3-4.3 MISCONDUCT AND MINOR MISCONDUCT
The standards of professional conduct to be observed by members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney's relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline.
See Fla. Bar Reg. R. 3-4.3.

Therefore, given that a violation, or violations, appeared to have occurred, the Bar Counsel should initiate an investigation of Respondent-Attorney Boies and Respondent-Attorney Berger.

CONCLUSION
The attached affidavit and publicly reported accounts in the Chicago Tribune and the Washington Times suggest that Respondent-Attorney Boies and Respondent-Attorney Berger may have committed professional misconduct. Therefore, the Bar Counsel should initiate an investigation of Respondent-Attorney Boies and Respondent-Attorney Berger.

STATEMENT
Under penalty of perjury, I declare the foregoing facts are true, correct, and complete.

Kenneth F. Boehm
Chairman
National Legal and Policy Center
1309 Vincent Place, Suite 1000
McLean, Virginia 22101
703-847-3088; 703-847-6969 (fax)

November 30, 2000

Note: This Complaint is being mailed to the Florida Bar via certified mail (Article Numbers P-492-206-900 and P-492-206-910) today. It also is being faxed to the Tallahassee Branch (850-561-5829) but not to the Fort Lauderdale Branch because it declined to provide a fax number.

CC: Supreme Court of Florida Chief Justice Charles T. Wells
Supreme Court of Florida Justice Harry Lee Anstead
Supreme Court of Florida Justice Major B. Harding
Supreme Court of Florida Justice R. Fred Lewis
Supreme Court of Florida Justice Barbara J. Pariente
Supreme Court of Florida Justice Peggy A. Quince
Supreme Court of Florida Justice Leander J. Shaw, Jr.
Florida Circuit Court Judge Jorge Labarga
Florida Circuit Court Judge Leroy H. Moe
Florida Circuit Court Judge N. Sanders Sauls
New Jersey State Bar
New York State Bar
Tennessee Bar