Bingham, the galactic law firm with roots in Boston’s old-fashioned legal market, is a ubiquitous advertiser in expensive print publications, boasting about its deftness in navigating complex business challenges with keen legal insight. The firm even brags about its advertising prowess.
The shameful performance of one of its Boston-based partners in botching a basic matter of document handling suggests the firm ought to spend more time and money on the nuts and bolts of old-fashioned lawyering than on Madison Avenue promotion and mercantile ambitions.
At issue is the embarrassing spectacle of Larry Silverstein handling a simple contract drafting exercise for Jamie and Frank McCourt. The rich erstwhile couple feud over ownership of the Los Angeles Dodgers baseball team—a feud protracted because of Silverstein’s inexplicable bungling that was confounded by conduct verging on the unethical.
A California court hearing the McCourt divorce case released an opinion declaring invalid the couple’s contract that Silverstein prepared. The contract was invalid because Silverstein botched it. His errors culminated in the existence of two versions of a single contract, one declaring that the Dodgers belonged solely to Frank and the other that the team was the couple’s joint property. The contract thus failed elementary requirements of contract law and basic requirements of California law applicable to marital asset splits.
Following are some of the problems in Silverstein’s and Bingham’s representation of the McCourts in this matter, culled from the court’s opinion:
1. Bingham/Silverstein represented both spouses, despite obvious conflicts of interest—and despite advising them that was a bad idea.
2. California law applied, though Silverstein is not licensed to practice California law and is not knowledgeable about relevant California law.
3. The matter involved contract and family law, though Bingham’s web site states that Silverstein specializes in tax, corporate, securities and real estate law.
4. Silverstein’s directions to his secretary were apparently not clear and/or he did not carefully proofread or otherwise verify the results.
5. Silverstein revised a version of the contract on his computer that apparently differed from the master that appeared on Bingham’s system.
6. Silverstein required his clients to sign multiple copies of the contract “out of an abundance of caution,” one reason why two different versions were signed.
7. To be “super cautious,” Silverstein had his clients sign one set of contracts in Massachusetts and another set in California, mistakenly thinking that something in California law required that.
8. Silverstein had the first set of documents notarized, apparently thinking, wrongly, that was somehow relevant to the validity of a contract under California law. (Lay people commonly make that mistake.)
9. When he discovered his mistakes, Silverstein covered his tracks by switching the differing sets of documents so that it would appear as if only a single set existed.
10. Silverstein did not tell either of his clients about his bungling or ask either’s permission to make that switch.
The case has eerie echoes of The Verdict, David Mamet’s movie starring Paul Newman, where a prominent, but exhausted, Boston doctor put a patient in a coma because of failing to do what elementary medical procedure required—looking at her medical chart before an operation—and then forged documents to hide the truth.
The most elementary lessons for lawyers are: (1) proofread documents and double-check collation of contracts and attachments before having clients sign them and (2) if you make a mistake in proofreading or collating, tell your client(s) and ask permission to correct.
Hat Tip: A.J. Sutter