“The Good Wife” Jumps The Ethics Shark

jumping the shark

I saw this coming several seasons ago- that the once ethically challenging CBS legal drama “The Good Wife” was on the way to strapping on Fonzie’s old water skis and jumping the old Ethics Shark. Sure enough, after being able to watch the show irregularly and being either confused or disappointed when I did, I finally got a chance to watch an entire episode last night. The Shark has been officially jumped and TGW is no longer bothering to check with its legal ethics consultants. This is known as “The David Kelley Syndrome,” as all of that producer’s legal dramas, “The Practice,” “Ally McBeal,” “Boston Legal,” etc, begin plausibly and end up in the Legal Ethics Twilight Zone as the writers run out of ideas.

In last night’s episode, “Cooked,” Good Wife Alicia’s defendant was charged with making GHB. He claims innocence because he wasn’t making authentic GHB, but a GHB-like substance,without the same chemical compound as GHB itself and thus less dangerous.  Alicia explains the law to him, which is that he would be better off if his intent was to make GHB but he  ended up with the pseudo GSB by mistake, instead of successfully making the possibly illegal GHB-like drug intentionally.  She says that he needs to be clear which he did, and tells him to tell the truth.

This is the common, much criticized defense lawyer tactic called “The Lecture” in the novel “Anatomy of A Murder.”  A lawyer is bound to explain the law to his or her client, and that sometimes means educating a client regarding how to “remember” what happened.

Then Alicia discovers that her defendant isn’t who he claims to be. He’s an FBI agent, and he’s part of an FBI sting to prove the judge in the case is taking bribes. She says she’s going to tell the judge about his false identity (and also that the charges were fake) so he tells her and that if she blows his cover, he’ll tell the judge that she suborned perjury by  giving “The Lecture.” She backs off, and agrees not to tell the judge.

Suspend her.

1. If she has a personal interest (Rule 1.7) that conflicts with her duty to protect client confidences (Rule 1.6), like her conflicting duty as an officer of the court to report a fraud on the court, a.k.a. THE WHOLE CASE, then the least she must do is withdraw under Rule 1.16.

2. That’s probably not enough. Her client isn’t really her client, since he knows that the charges are phony, and now she knows. Thus there are no confidences to protect; if she allows herself to become part of the sham—what if the judge isn’t corrupt?—she’s failing her ethical duties of candor to the court (Rule 3.3), honesty, and not furthering a criminal act. I suppose she has a technical out in that what the FBI does, even if it would be criminal for anyone else, isn’t a crime, but she can’t be sure of that. She has to tell the judge, before or after withdrawing.

3. Why is Alicia afraid of her fake client claiming that “The Lecture” is suborning perjury? It just isn’t, at least if done correctly.  Judges know it isn’t. Efforts to punish lawyers for explaining the law and telling clients that it matters what they say and how they say it, followed by the directive to tell the truth, have almost always failed. In this case, since the FBI agent has lied about everything, he would have no credibility anyway. He tried to extort his lawyer into violating the ethics standards.

Here’s the passage from “Anatomy…” (the author was a judge, Robert Traver):

“Sit down,  I repeated, and listen carefully . …”

“Yes, sir,” said Lieutenant Manion, obediently sitting down …” His lawyer was making ready to deliver the Lecture.

The Lecture is an ancient device that lavwyers use to coach their clients so that the client won’t quite know he has been coached and his lawyer can still preserve the-face-saving illusion that he hasn’t done any coaching. For coaching clients, like robbing them, is not only frowned upon, it is downright unethical and bad, very bad. Hence the Lecture, an artful device as old as the.law itself, and one used constantly by some of the nicest and most ethical lawyers in the land. “”Who, me?  I didn’t tell him what to say,” the lawyer can later comfort himself. “I merely explained the law, see.” It is a good practice to scowl and shrug here and add virtuously: “That’s my duty, isn’t it?”

4. The fact that the extortion works must mean that Alicia thinks she was suborning perjury.

5. No, lawyers have no duty to help the FBI use a fake case and a phony client even to catch a corrupt judge. They have no duty to law enforcement other than to obey the law and not get in the way until agents try to make them violate the ethics rules. A lawyer must side with the justice system, meaning the judge and the court, until she knows he is corrupt. Here, she has no competing loyalty, since she has no client any more.

Alicia’s ignorance is inexcusable, as is the series not making her ethical choices clearer. I’ve read three online summaries of the plot, and none of them got the ethics right. Once I would have expected the show to, however.

No more.

 

8 thoughts on ““The Good Wife” Jumps The Ethics Shark

  1. I have never watched the show but have always been annoyed by Jim Nance’s breathless teasers about the greatest thing since canned milk that will follow the conclusion of the golf tournament he’s obsequiously announcing for CBS. But I did google Juliette Margulies and found this about her father:

    “Paul Margulies (1935-2014) was a writer, philosopher and advertising-industry Creative Director. Margulies was famous for writing jingles (“Plop, Plop, Fizz, Fizz, Oh What a Relief it Is!”) and inventing tag lines such as “I Can’t Believe I Ate the Whole Thing.” A graduate of Dartmouth, with a degree in philosophy, Margulies retired at an early age to write about philosophy.

    Although famous on Madison Avenue for his innovative work in advertising, Margulies was best known, at the time of his death, as the father of actress Julianna Margulies.”

    • Famous for “plop, plop…” or fathering an actress who was playing a minor role in “Snakes on a Plane” before the TV Series gave her new wind in her career sails. Fame is a harsh mistress.

      • Hah.

        Woody Allen has a better plan. As he says in one of his movies (they’re all the same movie): “I want to become immortal by living forever.”

  2. 4. The fact that the extortion works must mean that Alicia thinks she was suborning perjury.

    Not necessarily; she may have a sincere belief that she might be convicted of it or face professional charges linked to it, even if she didn’t do it and she knew she didn’t do it. For instance, she might have grown cynical from seeing the tactics used by the likes of the F.B.I. …

    • Interesting that you mention that she had no client anymore once she new he was an FBI agent…

      The part of the episode that left me stumped was how she could ethically disclose to Eli that her client faked his degree. At that point, it could have been an unrelated fraud that would have been subject to confidence. While “lecture” might be ethical, surely this wasn’t, especially since she had not withdrawn.

      The hold episode was an ethics mess, obviously.

      • Confidences shared within a firm or an unconflicted lawyer may be considered unbreached, but Eli is the most untrautworthy lawyer since Lioonel Hutz. Why she would tell him anything about anything is a mystery.

  3. Never wanted to watch that show even once. Now….How to Get Away with Murder on the other hand….awesomely entertaining. Though, because of the amount of sex (I’m surprised no one’s fucked a donkey yet…) I can’t recommend it to anyone.

  4. Considering that the show is written so poorly, and the characters are completely one-dimensional, I am not surprised that the writers would get the ethics rule wrong. Then again, they get everything else wrong in the show, too. In the real world, that law firm and its many iterations would have failed miserably due to the soap opera-like back stabbing and other shenanigans.

    I have always thought that the purpose of the show was to pave the way for Hillary Clinton’s run for President (just as is “Madame Secretary”). Were it not for male meddling and/or male incompetence, the Good Secretary would pave a way to lasting peace in the Middle East, the Orient, and by gum, the good ol’ US of A. Russia would love us, North Korea would open its borders, Iran would release our guests, South America would reject . . . You get the picture. But, alas, male intrigue and dominance once again stand in the way of real progress.

    jvb

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