A New York federal judge has ordered an outside expert to analyze a tape recording that has the potential to disqualify David Boies’ law firm from representing a woman accusing Alan Dershowitz of sexual abuse, marking a new development in the ongoing fight between two of America’s top attorneys.
Dershowitz, the Harvard law professor who represented Jeffrey Epstein, recorded a phone conversation between himself and Boies, the famed attorney whose clients have ranged from Al Gore in Bush v. Gore to Harvey Weinstein.
Dershowitz, who transcribed the audio himself, says the recording captures Boies casting doubt on the claims of his firm’s client, Virginia Roberts Giuffre. Giuffre, a victim of Epstein, said she was directed by Epstein to have sex with Dershowitz. Dershowitz has repeatedly denied this claim, saying he never even met Giuffre.
Dershowitz has repeatedly called Giuffre a liar and an extortionist, prompting Giuffre to file a defamation lawsuit that is before Senior U.S. District Judge Loretta Preska.
Preska on Tuesday ordered an outside digital forensics firm to establish the authenticity of the tape, which is of poor quality, the words distant and barely audible.
The firm’s analysis could determine whether the audio is admissible as evidence. If it is determined that the recording was captured legally — meaning that it was recorded in a state that allows the party to a phone call to record the opposite party without that person’s consent — and if the recording says what Dershowitz purports it to, the Boies firm’s ability to represent Giuffre could be undermined.
Boies would be a potential witness, perhaps disqualifying his firm from handling the case.
Reached by email Thursday, Dershowitz declined to comment on whether he had permission from Boies to record, or where he was when he taped the conversation, since phone recording laws vary state-by-state.
“Everything I did was lawful and ethical,” Dershowitz said in an email to the Herald. “Boies admitted that his client was ‘wrong ... simply wrong’ in accusing me. Everything will come out at trial.”
In Florida, it is illegal to record over the phone without both parties’ consent. But in other states like New York, one party can record without the other party’s consent.
A spokesperson for Boies declined to comment on the matter but pointed to a July affidavit in which Boies says the recording was made without his consent, and that he never doubted Giuffre’s credibility during the conversation. Dershowitz’s transcript of the call, which he has offered up to reporters while refusing to share copies of the actual audio, gives no indication that he asked Boies’ permission.
“Throughout my discussion with Mr. Dershowitz, I told Mr. Dershowitz that I was convinced Mrs. Giuffre was telling the truth as she recalled it,” Boies said in the affidavit. “Mr. Dershowitz affirmatively agreed that he believed Ms. Giuffre was telling the truth as she remembered it and would easily pass a lie detector test.”
It is quite uncommon, although not always illegal, for lawyers to record other lawyers without their consent, according to Stephen Gillers, an ethics professor at the NYU School of Law. (Gillers was speaking generally and not in relation to Boies, Dershowitz or the case at hand.)
For calls in which the recorder is abiding by state law, the American Bar Association has taken the stance that it is not unethical for a lawyer to record calls with those who have not consented, as long as the lawyer does not falsely state or imply that the call is not being recorded, according to Gillers.
“However, I believe it remains rare for lawyers to record other lawyers without consent,” Gillers said in an email to the Herald.
The move to admit the recording into evidence is the latest milepost in Dershowitz’s efforts to undercut Boies’ credibility.
The Herald previously reported that in July, Dershowitz filed multiple bar complaints in three states against Boies. All have been dismissed.
Dershowitz was a pivotal member of the all-star legal team that helped Jeffrey Epstein avoid federal charges of sex trafficking in 2008, after he was accused by as many as three dozen underage girls of coercing them into sex. Recruiters would fan out into the community and beckon teenage girls to come to his waterfront Palm Beach estate to give a man a massage. The massages frequently turned into sex. A 53-page federal sex trafficking indictment was drafted and then shelved, resulting in Epstein pleading guilty to minor charges in state court.
After the Miami Herald published a series of stories last November, titled Perversion of Justice, the federal investigation of Epstein was revived. He was arrested in July upon arrival on his private jet at New Jersey’s Teterboro Airport, only to be found dead in his New York City jail cell the following month.
A criminal investigation into the activities of his alleged enablers is ongoing.