The CBS legal drama “The Good Wife” continues to show the seamy side of big firm legal practice, with heroine Alicia Florrick’s firm, Lockhart, Gardner and Bond, its adversaries, and even Good Alicia herself violating legal ethics rules with abandon, and at an accelerating rate, based on recent episodes. There is nothing wrong with this as entertainment, as long as the Rules themselves are not being misrepresented (they aren’t), the misconduct isn’t being presented as ethical (it isn’t, though it is sometimes hard to tell), and viewers don’t get the idea that this is how most law firms behave. Unfortunately, like most legal shows, “The Good Wife” fails in this important realm. I work with many large law firms, and they are all very aware on the ethical lines, bold or fuzzy, that they must not cross, and take their obligations seriously.
The most recent episode of “The Good Wife,” entitled “Getting Off” included a full-fledged ethics train wreck sparked by the firm’s habitually unethical adversary, the fecund Patti Nyholm. In the middle of representing the defendant hospital in a lawsuit brought by a Lockhart, Gardner and Bond, Nyholm is fired by her firm and removed from the case. With a twinkle in her eye, she approaches none other than the Lockhart firm to represent her in a multi-million dollar lawsuit against her former firm for discrimination and wrongful termination, on the theory that it fired her because she was pregnant.
Has something like this ever happened? Sort of: the incredibly thorough and useful website Freivogel on Conflicts has list of cases in which a lawyer hires his or her opposition for representation in an unrelated matter. But this situation…the lawyer hiring her adversary to sue her ex-firm while the other litigation is ongoing—never. Lockhart, Gardner and Bond should hear the loudest of ethics alarms, and run away. Multiple bars have opined that the representing an opposing counsel is only possible if the firm reasonably believes that the two representations won’t effect each other or limit the firm’s effectiveness in any way. Here that belief is unreasonable, because to represent Nyholm zealously she would be likely to disclose details of her handling of various cases, including the current hospital lawsuit. The firm would need to avoid learning any confidences that it could use in the litigation, and that would make it difficult, and perhaps impossible, to do the best possible job on Nyholm’s case. The fact that the firm already knows that Nyholm’s ethics are shaky at best makes this conclusion unavoidable. In any jurisdiction, a law firm that took on the case of a former attorney for one of its current opposing parties would be required to withdraw from that case.
Nevertheless, Florrick and her senior partner Will Gardner accept Nyholm as a client, not in spite of the fact that she might disclose confidences about the other case, but because of it. Before they agree, the pregnant lawyer throws out a sample of what she can offer: a key witness, a doctor, that she had told the court was legitimately unavailable to testify was in fact hiding out to avoid having to testify.
In the real legal world, with a responsible law firm and ethical lawyers, this unethical revelation of a client confidence and admission of fraud on the court would demand three responses: reporting Nyholm to the bar disciplinary committee (Rule 8.3), disclosing the truth about the witness to the judge in the case (Rule 3.3), and kicking her out of their offices before she can do any more damage (Rule 1.6, 1.7).
But no. Alicia and her colleague go into court and demand to have the witness testify, telling the judge that they now know that he is available. The opposing attorneys look guilty; they know, as Nyholm did, that its client has lied to the court, through counsel. They also know that Nyholm, who is inexplicably in court, grinning away, spilled the beans. But if they accuse her of disclosing a client confidence, they will be admitting to their own misconduct for assisting their client in an act detrimental to the administration of justice. Their solution is to lie to the judge, exclaiming that they had no idea that their client’s doctor was available to testify. Then they immediately call for Lockhart, Gardner and Bond to be excluded from the case, on the grounds that the firm’s representation of Nyholm creates a conflict of interest.
Well, of course it does. Even if the Lockhart firm’s attorneys reasonably believed that they could effectively represent the plaintiff suing the hospital and Nyholm without violating the ethics rules—which they don’t and can’t—they would have to get consent from Nyholm’s former client, the hospital, and that is not going to happen.
The judge, in ruling on the call for the firm’s exclusion, would have to determine whether the two cases could be kept completely separate in the firm. It’s too late for that, however: Patti has already disclosed a confidence relating to her former case, and no separation, or screening, of the two cases can be timely because they are being handled by the same two lawyers. But the TV judge merely asks the Lockhart lawyers (and, strangely, Patti herself, who isn’t there as a lawyer and shouldn’t be part of this discussion) if the two cases will be kept sufficiently distinct.
“Oh, yes!”, they reply, lying through their teeth.
The final tally: five outrageously unethical lawyers, violating duties of honesty, candor to the court, loyalty, confidentiality, duty to report misconduct and fairness to opposing counsel, and one incompetent judge.