The acclaimed CBS series “The Good Wife” premiered last night, with an episode called “Taking Control.” The title is ironic in one respect. Because the legal profession regards lawyers as being in control of the non-legal staff that works for them, good wife and whiz-bang attorney Alicia Florrick (played by Juliana Margulies) violated one of the most important legal ethics rules in the very first episode. This was far from unrealistic, however. Her ethical breach is not only a common one, but also one that many lawyers are careless about. It is also unethical conduct that the public assumes is standard practice for lawyers…because movies and TV shows make it seem that way.
In “Taking Control,” Kalinda (the beautiful, brilliant and innovative investigator, played by Archie Punjabi, who is employed by Alicia’s law firm) tracks down a witness through the use of a phone ruse, lying to a series of restaurant owners by pretending to be the witness and persuading one of them to read her the witness’s address. While anyone who was a fan of “The Rockford Files” or any other TV show about private investigators wouldn’t blink at such a tactic, someone in the employ of a lawyer and under a lawyer’s supervision is prohibited from engaging in this kind of deception. The Rule is 5.3, Responsibilities Regarding Nonlawyer Assistants, and it says…
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Kalinda does this sort of thing frequently, and so do most private investigators. Lawyers can’t send investigators out to accomplish a task knowing well how they generally operate, and later claim that they are “shocked…shocked!” to discover that their investigator used deceptive means. Rule 5.3 states that if an investigator employed by a lawyer uses deception, that is the same as the lawyer using deception. Another rule, 8.4, makes it clear that engaging in dishonesty and deception is misconduct for a lawyer, and also that a lawyer may not…
“…violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;“
When Kalinda pretends to be the witness in order to acquire her address, Alicia (and her entire firm) is violating the rules through the act of another.
Many lawyers and most of the public don’t know this, because they’ve seen it so often. The practice is called “pretexting”…using trickery and false statements to acquire private information about an individual who would not want the information revealed. Perry Mason had his secretary, Della Street, and investigator, Paul Drake, engage in similar deception almost every episode, and there were a lot of episodes. In the movie “The Verdict,” there is a scene in which the alcoholic lawyer played by Paul Newman and his partner, played by Jack Warden, are both working the phones pretending to be people they’re not, telling false stories to acquire proprietary information. If one does this to acquire private information from a financial institution, it violates the Gramm-Leach-Bliley Act and is thus a crime.
Gramm-Leach-Bliley has gotten lawyers into trouble; the kind of deception engaged in by Kalinda, which does not involve banks…not so much. For one thing, it is not illegal, just dishonest and wrong; it is also difficult to catch, and the victim has to know that it is an ethical violation for the lawyer-employer in order to report it to the bar authorities.
So watch out for Kalinda, Alicia; she may get you suspended yet. And you attorneys out there: watch out for your investigators, too. When they’re unethical, you’re unethical…and you’re accountable.