“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?