Julianna Margulies’ latest attempt to find another hit series after “ER” is a lawyer drama, “The Good Wife.” It tells of the travails and trials of a former litigator who returns to law firm practice after her prosecutor husband, played by “Mr. Big” Chris Noth, is sent to the slammer in a scandal that also involved marital infidelity. As lawyer dramas go, “The Good Wife” is fairly good about not distorting the legal ethics rules. It still slips up, however, as this week’s episode showed.
Margulies was called upon to defend her firm’s aging and flamboyant founder, charged with DUI and assaulting an officer. This created an ethical issue to begin with, which the script ignored. If the partner had an alcohol problem, it would create a conflict for his lawyer, who would simultaneously have an obligation to inform the firm and an obligation to keep anything she learned about his substance abuse confidential. She couldn’t undertake the representation unless the partner, her client, agreed that no confidences would be withheld from the firm, or the firm agreed to waive any conflict that arose as a result of the representation. Since the other firm partners assigned Margulies the case, we’ll assume that such a waiver was made. (But it wasn’t.)
During the course of the trial, Margulies learns that the founding partner wasn’t driving drunk, but is actually taking medicine to slow the progression of dementia. The partner dramatically bellows that the information is subject to “attorney-client privilege,” and orders Margulies to never divulge it.
Attorney-client privilege is what keeps lawyers from having to reveal in court what their clients tell them in confidence in order to get good legal advice, things like, “I shot my wife and made her into sausage links. What do I do now?” A lawyer cannot be compelled to disclose such privileged information, even in court. The fact that her client suffered from dementia, however, was not privileged: the partner-client never told her about it, and he never mentioned it to get her legal advice. This information isn’t privileged, it’s a confidence, meaning that Margulies could not ethically communicate it to anyone else without her client’s permission, except that it could be divulged in court if so ordered, unlike privileged information. (There are some other exceptions too.) Lawyer dramas always lump privilege and confidence together, assuming, perhaps, that since lawyer often have trouble remembering the distinction, it is futile to try to explain it to TV audiences. But one reason lawyers are confused about it, I’m convinced, is that they watch the lawyer shows.
What happened next also was inaccurate. Dramatic as the scene was, with the old partner “ordering” his attorney to keep his malady secret and Margulies pausing dubiously before indicating her assent, it was superfluous. He needn’t order her to keep mum; the ethics rules do that already.
But there was a twist here that the scriptwriters missed, one that had just been in the legal ethics news. As a partner in the law firm, Margulies’ client had a fiduciary duty to tell the firm about his medical condition that might expose the firm to liability, if, for example, he messed up a case because he became confused. Since he had that duty, the information couldn’t be transformed into a confidence between him and his lawyer, who also had an obligation to the same firm, her employer. Thus the fact of his dementia could be divulged, indeed, had to be divulged, to the firm by Margulies. The facts were similar to a case recently decided by the Ninth Circuit. She had a duty to the firm, as its employee, to divulge anything not a client confidence that was important to the firm’s welfare. Because her client had the same obligation, as a firm partner, his dementia couldn’t be a confidence.
In the episode, the firm suspects that their founder is losing it, and has hinted at removing him. The story closes with the partner announcing that he is leaving the firm, but taking many clients with him. Now the firm has the ethical dilemmas. If it believes that their partner is no longer fit to practice, it may have an obligation to report him to the bar. Even if it doesn’t feel that is necessary, the firm still has an obligation to any clients who might go with him to the new firm to let them know about his diminished capacity or the firm’s reasonable suspicion of it. The firm has an obligation under the ethics rules to let clients know about facts that could affect their decisions regarding the representation, and this information certainly qualifies.
If they tell the clients about his condition, and this causes them to stay with the firm, might the ex-founding partner sue his old firm for sabotaging his business relationships? Oh, yes. That lawsuit will be peanuts, however, compared to the malpractice suits it will see from old clients if the firm knowingly lets them go off with an attorney who is mentally impaired.
I’ll give “The Good Wife” a B minus in legal ethics. It should be lower, but I know that are lot of law firms would handle these issues exactly like they were handled on the show.