Alan M. Dershowitz. Photo: Rick Kopstein/ALM

A Jeffrey Epstein accuser who said she was forced to have sex with Alan Dershowitz may proceed with a defamation suit against the famed law professor, but she would have to do so without the representation of her longtime attorneys, a Manhattan federal judge ruled on Wednesday.

U.S. District Judge Loretta A. Preska of the Southern District of New York said Boies Schiller's  disqualification was "clearly required" under the witness-advocate rule, which bars attorneys from participating in cases where other lawyers in their firm might be called as witnesses.

The ruling centered on Dershowitz's assertion that defamation plaintiff Virginia Giuffre had conspired with her lawyers to extort Dershowitz with allegedly false claims that she was forced to have sex with the former Harvard Law professor.

Dershowitz's attorneys said last month that he possessed a recording of name partner David Boies supposedly disparaging Giuffre's account of her interactions with Dershowitz as untrue and said he intended to call Boies and other attorneys from the firm to testify at trial.

Preska said that position likely set up a situation in which the firm's other partners and associates may be forced to offer testimony discrediting their boss' allegedly prejudicial statements and raised the possibility that they would lack the independence to do so.

"At a minimum, the scenario Dershowitz paints—which cannot be disregarded—would be unseemly in the extreme," she wrote.

"Plaintiff's attorneys must be independent and free to challenge the credibility of Boies and other BSF partners in order to test the allegations made in the complaint they drafted and filed," Preska said.

The ruling did, however, reject Dershowitz' motion to dismiss the case on the grounds that it was time-barred under New York defamation law.

The decision did not address the merits of the underlying claims.

Sigrid McCawley, a Boies Schiller partner who has represented Giuffre in litigation dating back to 2015, said the "defamation case against Alan Dershowitz is going forward and he will have to face justice."

"We will appeal the disqualification decision, which is a result of Mr. Dershowitz's manipulation of the system to classify us as witnesses so our client will be deprived of trusted, longtime counsel," McCawley said.

Dershowitz said he was "pleased" that Boies Schiller had been disqualified from the case and reiterated his plans to call David Boies as a witness at trial.

"As the judge observed, [David] Boies admitted to me that his client was 'wrong…simply wrong' in accusing me," he said in a text.

Giuffre has publicly claimed that she was forced as a minor to have sex with associates of Epstein, the wealthy financier who killed himself in a Manhattan federal jail while under indictment on sex-trafficking charges. Dershowitz has vehemently denied that he ever had any sexual contact with Giuffre and called her a liar in multiple rounds of interviews and statements in the media.

Giuffre said in a statement that she would proceed with the defamation claims against Dershowitz, but was "dismayed" by the disqualification of her counsel.

"When it was not in vogue and not a breaking news story, my lawyers Sigrid McCawley and David Boies stood up to the muscle of the Epstein machine and its grip on the legal system," she said.

"It is no surprise that Alan Dershowitz, who was part of Epstein's ecosystem of power and privilege, is attempting to manipulate the legal system in the face of the serious charges I have brought against him."

Giuffre sued Dershowitz in April, saying that he had intentionally painted her as a "serial perjurer" in an attempt to damage her reputation and credibility.

Dershowitz countered with dual motions to dismiss the suit as untimely and to disqualify Boies Schiller as Giuffre's counsel. He argued that Carlos Sires, a partner in the firm's Fort Lauderdale, Florida, office had previously represented him and tried to impute the attorney's conflict of interest to the rest of the firm.

Preska, however, said that "because disqualification was so clearly required" under ethics rules, her opinion did not even need to reach the conflicts issue.

Giuffre's complaint, she said, included allegations related to Dershowitz' claims of an extortion conspiracy, setting up a type of "litigation jujitsu" where both sides would have to argue whether the scheme existed.

"Either way, BSF is immersed in the facts it pled," she said.

"Because plaintiffs are the 'masters of their complaints," Preska wrote, "the firm is thus hoist by its own petard."

Meanwhile, Dershowitz' attorney, Howard Cooper, said that by filing the motion to dismiss his client had preserved a key defense under the "single publication" rule, which holds that plaintiffs have only one claim for each mass publication of an allegedly defamatory statement.

Cooper had argued that recent attacks Dershowitz made in 2018 and 2019 were essentially identical to similar comments he made about Giuffre when she first levied her allegations of illicit sex in 2015. In the age of the internet, Cooper said, the comments had all reached the same "global audience," and the 2019 complaint was thus filed well outside New York's one-year statute of limitations for defamation claims.

Cooper said that while Preska's ruling rejected that argument on the motion to dismiss, a jury in the case would likely need to be instructions on whether the subsequent publications did in fact reach a new audience.

"I think the judge grappled with some substantial First Amendment issues," he said in an interview. "I think those issues were fully reserved and will remain an important part of the case going forward."

Preska on Wednesday said that Giuffre's new attorneys would need to meet with Dershowitz' team and submit a proposed discovery plan by Nov. 13. The next conference in the case is currently set for Nov. 20.

Cooper said his client was looking forward to his day in court, and chafed at the notion that a potential interlocutory appeal might slow the proceedings.

"I don't expect, nor do I think it would be fair, for there to be any delay at all," he said. "We hope this case proceeds expeditiously."

Giuffre, meanwhile, said she would "see Alan Dershowitz in a court of law."

"I will no longer be silenced. I will no longer be shamed," she said. "The reckoning of accountability has begun and today's decision will be appealed."

 

Read More:

Dershowitz Seeks Disqualification of Boies Schiller Attorneys, Dismissal of Epstein Accuser's Defamation Suit

Defamation Lawsuit Pits Alan Dershowitz Against Epstein Sex Trafficking Accuser

Legal Educators Loomed Large in Jeffrey Epstein's Plea Deal