More “The Good Wife” Ethics

The CBS legal drama “The Good Wife” has a good cast, well-scripted stories, and apparently a preference for misleading the American public on attorney ethics. Here’s the setting for its most recent set of gaffes: attorney Alicia Florrick (Julianna Margulies) and her supervising partner are battling an evil insurance company (you didn’t really think Hollywood would stay on the health care reform sidelines, did you? With a big vote coming up? ) that refuses to pay for in utero fetal surgery necessary to save an unborn baby from certain death. The insurance company’s attorney has a strong case, but offers a deal: it will pay for the surgery if Florrick’s firm will drop a class action lawsuit against the company. The partner, Will Gardner, refuses the offer: many other desperate members of the class need to make the insurance company pay for treatment, and besides, the law firm, which is in dire financial straits, needs the income that the class action might generate.

There are three things ethically wrong here:

1. Will is absolutely duty bound to present any legitimate settlement offer to his client, under ABA Model Rule 1.2. No matter how good or unsatisfactory the offer may be, the lawyer never can make the call. It is the client’s decision, and the offer must be communicated for the client’s consideration. Admittedly, this outrageous misrepresentation of legal ethics requirements is among the most commonly made on TV shows and movies too. An infamous example is in the film “A Civil Action,” where plaintiff attorney John Travolta turns down a multimillion settlement offer from wily defense counsel Robert Duvall. Another is in “The Verdict,” when down-at-the-heels defense attorney Paul Newman also rejects an offer without bringing it to his clients. (“The Verdict” probably shows more textbook ethics violations by both sides of a case than any well-regarded Hollywood legal drama.)

2.”The Good Wife” episode treats the offered deal as a legitimate offer, but it is not; in fact, it is unethical in every respect. An attorney, says Model Rule 5.6 , can neither offer nor accept an offer of settlement that will restrict an attorney’s practice of law. Requiring an attorney or firm to drop one lawsuit (or promise not to initiate one) in order to settle another is the kind of deal that is expressly prohibited. Florrick’s firm couldn’t accept the offer if it wanted to, even if the client insisted on it. Its only course of action would be to report the insurance company’s attorney to the bar for discipline, and this the firm would be required to do under Model Rule 8.3.

3. If there wasn’t a Rule of Professional Conduct 5.6, banning the restriction of the right to practice law, this kind of offer would create an unsolvable conflict of interest under Model Rule 1.7. The offer to agree to the client’s demand in exchange for dropping an action by other clients, and one the law firm needs for its own survival, puts the interests of two sets of clients in opposition to, and the interest of the current client in conflict with, the firm itself. The only way to escape such a bind would be to withdraw from representing the desperate parents. This is exactly why these kinds of settlement offers are unethical. They would allow an adversary to create an unsolvable conflict that would have the effect of forcing the other attorney and firm out of a case entirely.

I know “The Good Wife” is fiction and entertainment. Still, I think the various lawyer organizations need to complain and insist on setting the record straight when TV shows and movies blatantly misrepresent the practice of law. The disinformation such dramas spread can do real harm. Clients who watch too much TV or who are Paul Newman and John Travolta fans won’t know that their lawyers have to tell them about all settlement offers, and they will be vulnerable to unethical practitioners. I refuse to believe that scriptwriters on shows like “The Good Wife” couldn’t write just as gripping scripts that accurately portrayed the ethical duties of attorneys. That they don’t even appear to try is just laziness, and irresponsible.

Unlike lawyers, however, scriptwriters have no ethics rules. And too often, it shows.

7 thoughts on “More “The Good Wife” Ethics

  1. This is sorta like in the last season of House, where Chase surreptitiously gave that dictator the wrong medicine so he would die. They talk about, “was it the right thing to do? Would that save lives?” But all I can think is, “Hippocratic oath! It’s very clear what you should have done, and it wasn’t that!”

    I love House, but… yeah.

      • It was pretty good TV, but bad ethics. I haven’t seen the resolution of it, but he spent the next few episodes almost incapacitated with guilt. I doubt any real doctors will be thinking what he did was right.

        I remember there was a video game called “Red Faction” where medics were sworn to heal anyone, even rebels. Thus, even when you’re actively trying to take down the oppressive mining company, the medics will still heal you. Now that’s Hippocratic.

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