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.
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.