“The Good Wife” Ethics Follies

“The Good Wife,” CBS’s legal drama starring Julianna Margulies, began as an unusually nuanced show of its type that presented intriguing ethical dilemmas without crossing into David Kelley’s over-the-top Legal Theater of the Absurd. Little by little, however, the show’s willingness to ignore core legal ethics principles is becoming more pronounced. “Boom,” which aired last week, continues a trend that is ominous, considering “The Good Wife” is still in its first season. After all, the lawyers in Kelley’s “The Practice” didn’t start finding severed heads and getting charged with murder until a couple of seasons in.

If you missed “Boom,” or if you didn’t but had misplaced your A.B.A. Model Rules of Professional Conduct, here are the legal ethics howlers committed by the “Good Wife’s” attorneys:

  • Jonas Stern, the now departed founding partner of Margulies’s struggling law firm, SLG, takes the case of the widow of a managing editor of a newspaper who was killed in a bomb blast, presumably provoked by the paper’s publishing of a cartoon depicting the prophet Mohammed (shades of “South Park”!). She wants damages, alleging that the paper recklessly placed her husband at risk. SLG is defending the paper, which fits Stern’s not-so-secret agenda: he wants to destroy the firm and take all of its clients. Ethics Violation: Stern has a conflict of interest. His own reasons for wanting to beat SLG could easily undermine his client’s interests, and interfere with his objective judgment. To get past this clear conflict of interest, Stern would need to explain his personal interest in the case to the widow, his client, receive her consent, and reasonably believe that his personal interest won’t affect his representation. In the episode, he gets her consent to his conflict, but I doubt that he could reasonably believe that his vendetta will not affect his performance; her consent alone is not enough to make it acceptable for him to take the case. Applicable Rule: A.B.A. Model Rule 1.7.
  • Stern is also, as we learned in an earlier episode, suffering from progressive dementia. Violation: Practicing law while impaired by a disability is only an ethical violation if it substantially interferes with the lawyer’s ability to represent the client, but I believe that Stern would be required to inform his client about his condition, because it raises serious questions about his ability to handle her case. If he did, I don’t think she’d continue to retain him. Would you? I recognize that the applicable rule is written so narrowly that it could, and by many authorities, is, regarded as not requiring disclosure of such information because it is not directly related to the case itself. But really: no ethical duty to let your client know you’re losing your mind? Come on. Applicable Rule: A.B.A. Model Rule 1.4
  • Margulies’s character, Alicia Florrick, previously represented Stern as his attorney and knows about his condition. So does her entire firm, in the view of the Rules: even if she didn’t tell anyone in the firm about his problem (and she should have, but that’s an earlier episode), Rule 1.10 imputes the knowledge to them. She proceeds to use that knowledge to outmaneuver him in the trial. Violation: This one is really outrageous. What she learned while representing him is confidential, and she may never use that information to his detriment. Yet because she has information that she would be obligated to use to help her current client, but cannot because it is confidential, she has an irresolvable conflict, and because she does, so does SLG. Applicable Rules: A.B.A. Model Rules 1.6, 1.7, 1.9, 1.10
  • Gray area: is it really ethical to use a lawyer’s medical problems against him? Or if it will help one’s client, is it unethical not to?
  • Meanwhile,  Alicia’s rival associate Cary is having a fling with a former law school classmate who is an associate in Stern’s firm. First he blabs to her information about the bombing case, then he seems to be receptive to her entreaties for him to leave SLG and come work for Stern. Violations: Lots. 1) Cary violated his duty of confidentiality by telling the woman anything about the case. 2) He is actively involved in a law suit against the same firm that is trying to recruit him mid-litigation. This is insane. If he switched sides while the case continued, Stern’s firm almost certainly would be conflicted out of it, because Cary would possess privileged information about SLG’s client; his girl friend’s offer makes no sense. Moreover, Cary has an absolute ethical obligation to both refuse to continue discussions about this topic and to report the effort to recruit him to both the firm and the client. The A.B.A dealt with this issue in Formal Opinion 96-400:

“A lawyer’s pursuit of employment with a firm or party that he is opposing in a matter may materially limit his representation of his client, in violation of Model Rule 1.7(b). Therefore, the lawyer must consult with his client and obtain the client’s consent before that point in the discussions when such discussions are reasonably likely to materially interfere with the lawyer’s professional judgment. Where the lawyer has had a limited role in a matter or has had limited client contact, it will ordinarily be more appropriate for him to consult with his supervisor, rather than directly with the client. Generally, the time for consultation and consent will be the time at which the lawyer agrees to engage in substantive discussions of his experience, clients, or business potential, or the terms of a possible association, with the opposing firm or party. If client consent is not given, the lawyer may not pursue such discussions unless he is permitted to withdraw from the matter. While the negotiating lawyer’s conflict of interest is not imputed to other lawyers in his firm, those other lawyers must evaluate whether they may themselves have a conflict by virtue of their own interest in their colleague’s negotiations. Lawyers in the law firm negotiating with the lawyer also have a conflict, requiring similar action to resolve, if their becoming associated with the lawyer would cause their firm’s disqualification, or if the interest of any of those lawyers in the job-seeking lawyer’s becoming associated with the firm may materially limit their representation of a client adverse to the job-seeking lawyer.”

3) Later it turns out that Cary was “playing” the associate in order to uncover the Stern firm’s dastardly efforts to poach SLG associates. I think this deception is a violation of the attorney’s obligation not to engage in misrepresentation. I also think, because she was attempting to make him betray his firm and his client, Cary should have reported her for misconduct; she was attempting to induce him to commit an ethical violation.  Applicable Rules: A.B.A. Model Rules 1.4, 1.6, 1.7, 1.10, 8.3, 8.4

  • When the trial turns against Stern, the camera shows him writing, in court, a note to SLG senior partner Diane Lockhart offering to settle for $350,000—a big reduction from the multi-millions in damages being claimed in the original suit. The camera shows her reading his offer, and then writing out a counter-offer of $250,000 and passing it to him, as he wearily nods his head. Violation: This one is so universal in movies and TV that it is hardly worth complaining about any more, except that it misinforms potential clients about their rights. Lawyers may not do this. Stern’s client would have to agree to the reduced amount before he could offer it. Lockhart’s client, the paper, would have to have a chance to accept or reject it. Then her clients would have to approve of her counter-offer, and Stern could not accept it without consulting his client. Lawyers get suspended, not to mention sued, for doing what Lockhart and Stern do in the episode. Applicable Rule: A.B.A Model Rule 1.2 a)

So let’s see: that’s eight ethics rules violated by five lawyers in one episode of “The Good Wife.”

What will Season #2 be like?

12 thoughts on ““The Good Wife” Ethics Follies

  1. This raises the question, is The Good Wife so badly written that it doesn’t deal with lawyers realistically? Or is it accurate in its depiction of lawyers? Could be either.

  2. I’d say the show’s writers just don’t care. The ethical violations in this episode would virtually always be flagged, and are so egregious that no reputable firm would allow them. Would lawyers try some of this stuff if they likely costs weren’t so great? A lot would. But the costs are great, and these things just won’t be tried.

  3. Dear Jack,

    Well, I’m the co-creator of THE GOOD WIFE and I care. I care deeply because the point of the show is to raise the bar on Alicia Florrick’s ethical challenges over the course of the season.

    I must admit, I don’t think you’re being fair to our show. And I usually like reading your postings, and find myself challenged by your thoughts. But just to be clear: when someone does something unethical on the show that doesn’t mean the show necessarily approves of it. We are, in fact, examining when the law as a set of rules forces (or tempts) professionals to make unethical decisions.

    But can I say regarding your points:

    You write in your first point–“Stern has a conflict of interest. His own reasons for wanting to beat SLG could easily undermine his client’s interests, and interfere with his objective judgment. He would need to explain his personal interest in the case to the widow, his client…”

    But this he does in that very first scene. He says to the widow “And Mrs. Sanbourne understands that [regarding his conflict of interests], don’t you, dear?” And the widow answers “I do.” She wants to use the added passion from his conflict of interests to gain a better settlement. In other words, you criticize us for something we in fact do: show Stern ask for and get approval.

    I think you’ll see, taking us to task for an ethical infraction that is answered within the scene you’re criticizing is, in fact, either sloppy, or… well, unethical.

    Regarding #2:

    Stern– the private Stern– is not being held up as a paragon of ethical behavior. He never has been. The fact that he is willing to hide the ill effects of old age from his clients is not a failure of his firm– he has hidden it from his firm;– it is a private failing. And of course if characters didn’t have private failings– if they only behaved ethically all the time– there would be no drama.

    Regarding point #3:

    You say regarding Alicia using Stern’s failing against him: “This one is really outrageous.” But then you acknowledge that it’s a… “Gray area: is it really ethical to use a lawyer’s medical problems against him? Or if it will help one’s client, is it unethical not to?”

    This is the question we found interesting, and the reason we wrote this part of the episode. It’s, in our opinion, a gray area, and a gray area that makes Alicia do something I (personally) consider unethical. And yet interesting. But I think it’s far from outrageous.

    Regarding point #4:

    The activities of Cary, the Junior Associate, and the other lawyer are not meant to be sanctioned activities of their respective law firms. This is the maneuvering of lower level lawyers– and is true to our research of how (some) lawyers in these bigger firms behave. This is again not intended to represent the proper ethical behavior of a lawyer; it is only mean to reflect a truth we found in reality: that young striving lawyers sometimes do wrong things.

    I wish you’d look at other parts of our show, and see the other worthy ethical sequences: for example, in that same episode, there is a question of whether a diversity program is worth naming names; whether a newspaper editor always needs to balance sensationalism with the public’s right to know.

    Excuse the length of this posting, but I took exception to this characterization of our show– “the lawyers in Kelley’s “The Practice” didn’t start finding severed heads and getting charged with murder until a couple of seasons in.” This seems so hyperbolic as to be almost (unethically) pejorative.

    Having said all that, let me flip over to my Jekyll side: I like your blog.

    Respectfully,

    –Robert King

    • Dear Robert: I like your show too, or I wouldn’t watch it. I have my own conflict of interest here: I am a professional stage director and a playwright when I am not being a pain-in-the-neck ethicist, so I completely understand the dual goals of wanting to be accurate and needing to yield to the basic requirements of drama and entertainment. I know the jurors in “12 Angry Men” are breaking rules all over the place by bringing evidence into the jury room and looking beyond the four walls of the case presented to them. I know “The Andersonville Trial” misrepresents the entire event from a procedural standpoint.
      I know that many of the plot twists in “The Good Wife” linked to complex legal ethics conflicts and dilemmas can’t possibly be explained in sufficient detail for the audience that isn’t A.B.A. obsessed to grasp without ruining the drama. “The Good Wife” is thought-provoking and challenging; I would never advocate sacrificing that to rigid fealty to the Rules, especially since, as we both know, real firms and lawyers fudge the rules too.

      My issue with legal shows and movies is that they reinforce a false impression of the legal profession that causes cynicism and ignorance that causes real harm. You didn’t mention the classic 1.2 violation with settlement offers being offered and rejected without any client notice or approval. I know why this is done in drama most of the time; I agree that you don’t have much choice; I think the dramatic presentation in the episode was by far the most interesting way to handle it—but people really think this is the way lawyers work. I have talked to parties in law suits who were shocked to learn that their lawyers couldn’t just accept or reject whatever they thought was best, because they did. Your show’s version was minor compared to Robert Duvall and John Travolta offering and rejecting multimillion dollar settlements in the hallway in “A Civil Action,” but still: somebody has an obligation to correct the record. I would love it if it were you—not on the show, but perhaps on the website, with a note on the show that suggests that readers learn more about the ethical issues presented and how they would work in the real world. That would set a new high bar in responsible drama. I certainly don’t believe you are obligated to do this; I think your obligation is to put on a terrific TV show, period. But someone is. The dilemma: unless the legal profession decides to set out to educate non-lawyers about what legal ethics really are, the public will still end up 1) thinking lawyers are, as a group, untrustworthy and 2) sometimes getting hurt by this because they end up holding lawyers to a lower standard.

      Regarding your comments: 1) I wrote this sloppily and in a misleading fashion, and will correct it as soon as I post this. My main point was that this conflict is unwaivable. The client can’t waive by saying “yes, I know your conflict will get in the way of your judgment;” loyalty, zeal and competence can’t be waived by a client or anyone else. The client has to agree that the conflict won’t make a difference in the lawyer’s performance; here, the client was glad it would make a difference. That’s actually more interesting than I made it out to be….tunnel vision on my part, and I apologize. In explaining that a lawyer had to get informed consent, I made it sound like Stern hadn’t sought consent. Thanks for flagging it. 2. This is a great issue, especially since Stern’s argument would be that until his malady makes him less than an effective lawyer, he doesn’t have to tell anyone. I think he’s wrong—I think he’s violated the Rules as soon as his illness makes him less than a Stern-level lawyer, even if he’s still better than most. The impaired lawyer is a major ethics issue, and it is still murky: I hope “The Good Wife” keeps exploring it. 3) I’m really troubled by Alicia being directly involved in a case where she uses information, a secret, she received from a client in confidence to harm that client later. I think this knowledge alone should knock her and the firm out of the case unless Stern consented to them using it against him (and now that I think of it, he might!). [There is also an argument that, based on a line of cases including the recent Broadcomm mess, Stern’s dementia was never a confidence in the first place, since he may have had a fiduciary duty to communicate it to his firm.] The gray area issue is a different one…for it to be gray, we have to assume that knowledge of the physical problem is not a confidence, which in this case, it was.

      Robert, I fear that I gave a wrong impression: as I said, I like the show. I have cited the show in seminars as one of the best examples since “The Defenders” of a TV program that looks at genuine ethical issues in an intelligent way. The Cary sequence rang some alarms for me…it seemed to be edging into Stephen Bochco territory where all the judges and lawyers on both sides are sleeping with each other. I think this is a true slippery slope, ethically and dramatically. In Texas, there’s a man who just might be executed yet, after being convicted in front of a judge who was having an affair with a prosecutor. This is really bad stuff and most lawyers know it—I hate to see a vivid portrayal that suggests that these kinds of outrageous conflicts are common or tolerated.

      I obviously have to find a way to flag these misconceptions and distortions for viewers without giving the impression that you and the show are doing anything “wrong” from an artistic, entertainment perspective. “The Good Wife” isn’t a public service show; it’s not for CLE credits. It is one of the very best dramas on TV and one of the most intelligent legal shows since “Perry Mason.” That’s why I don’t want to see heads turning up in boxes, for as with real lawyers and real legal ethics, once integrity starts to slip in art, it becomes hard to remember what the limits were.

      Thanks so much for the kind words, the criticism, and for stopping by. And thanks for “The Good Wife.”

  4. I freaking love love love this show! All the grey areas is what keeps me coming back, and the family drama of course! 🙂

    Thank you Robert and Michelle King for writing such a fantastic show! 🙂

  5. I love this show too — it’s the only show I watch on TV.

    I enjoy the gray areas, and I love that the show examines ethics in all aspects of life — including family (Alicia and Peter Florrick, the kids). I don’t know of any other show that portrays a family relationship so realistically, and it’s due to the gray areas.

    All characters in this show are like real people — that is The Good Wife’s greatest accomplishment.

  6. Alicia discovered Stern’s dementia on her own; he did not confide in her about it. He denied it was relevant, or any of her business, and had been trying to hide it from her. Does this make any difference in how she is obligated to handle it?

    • Nope. Anything a lawyer learns in the course of a case that would be embarrassing to a client or that a client would not want divulged is a confidence (a “secret,” in some jurisdictions), and the lawyer is bound to protect it and not disclose. You will recall that Stern specifically told Alicia that she could not tell anyone. And a lawyer may never use a confidence against his or her client, except for a very narrow set of exceptions, none of which are present in this situation.

  7. Dear Jack,

    Again, thanks for the kind words. And Kiki and 4Florrick, thank you also.

    By the way, the only reason I didn’t correct your flagging of the 1.2 violation is because you’re basically right. I say “basically” because the concern of dramatic compression takes precedence for us here. We also tend to rip the fabric of the space-time continuum with our compression of trials and trial prep.

    But your point is well-taken. Likewise, I hope you accept my point: that criticism also has an ethical component. If what is being criticized is a drama than any criticism should probably take into account the essentials and dictates of drama.

    But this was a fun little joust, and I hope we can criticize each other again.

    Ethically yours,

    Robert King

    • Thanks, Robert. I do accept that point; I continue to wrestle with the proper balance.

      For example, my theater company is premiering a new play about Sophie Treadwell, the remarkable 20’s and 30’s playwright, journalist and feminist who wrote “Machinal” and tracked down Pancho Villa for his first newspaper interview. I feel like we have an ethical obligation to present this important historical—and unfairly neglected—figure fairly to the public, but we also have an obligation to make a good play. The playwright is under no restrictions at all, can’t be, shouldn’t be. If she writes a wonderful play that presents a completely inaccurate Sophie, then so be it. Still, something feels wrong about this, and I would expect, indeed hope, that an inaccurate depiction would inspire some criticism that set the record straight.

      It speaks well of you and your writers, as well as the product, that you think about these issues as well. No easy answers, unfortunately. But the thought does result in a superior product.

  8. This was fascinating! I love the understaded motivations that barely appear on the surface of Alicia’s face making it almost impossible to tell what does motivate her, and was really skeeved out about Carey, who seemed to be a “good” guy (a counterpart to a “good” wife) acting in a slimy, ethically challenged way. So, perhaps a large part of the discussion would be what is “good?” You both make the distinction about good drama vs. high ethics, and I would suggest good drama demands lawyers who violate ethics, actually. That’s what is dramatic about it! I know a showing was made that Stern preemptively took Alicia to task not to use her knowledge, but I’m of the opinion that one, yes it was/is his obligation to report a condition for which he is medicated that could effect his performance, even if it were just the medication and/or side effects; and that Alicia is very new, becomming more “Kalinda-lized,” and really went after what was best for her client.

    However it is not ethically wrong to object repeatedly, is it? So calling it close on ethics is assuming a motivation which is projected on to her. We really don’t know what her motivations were. To win, to look better than Carey, to impress L&G? I doubt they were to violate ethics, and since she is shown as striving to be “good,” I don’t think it’s logical to make this assumption.

    The larger issue and one no one mentions here is that a few shows ago, Alicia was saying – paraphrasing – that the man is going on about loosing years of his life, and all I could think of was I wish you were out of my office. That brought home in stark relief what it is to be a lawyer. Can you have your emotions trounced daily? Can you just not care that a presumption of innocence, or a preponderance of reasonable doubt – which interestingly Cary called correctly – cost someone prison years because you were too scared to stand by your abilities as a defense lawyer? That fight went down way too easily, IMO.

    Now if clients want to have that impression of lawyers, that they are really not all that emotionally invested in you having the best possible outcome, that’s something beyond ethics. It’s perception equaling reality; however I’d wager that the vast majority of the public believes that if they hired a lawyer, the lawyer would care about their results.

    And the money amount on paper? I thought the point was that Stern defaulted to offer what the original settlement offer was and got less….and anyone would have known it was for dramatic effect at that point precisely because of the amounts written.

    Thanks to all who even have a deeply held interest and opinion in the subject of ethics; that alone makes the discussion valid on all sides.

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