One of the problems with being an ethicist is that every movie seems like an ethics movie.
I watched “Zodiac” last night, struck by how much it resembled “Spotlight,” and not just because Mark Ruffalo had similar roles in the two films. It is a long, intense 2007 movie about the frustrating 1960s and early 1970s manhunt for the serial killer who called himself the “Zodiac” while killing seemingly random victims in the San Francisco Bay Area, and taunting police, Jack the Ripper-style, by sending them letters, blood stained clothing, and in a special touch, ciphers mailed to local newspapers. The case remains unsolved.
What set off my ethics alarms, however, was a scene based on an actual incident in the case. From the website “Zodiac Killer Facts”:
On the night of October 11, 1969, the Zodiac murdered cabdriver Paul Stine and removed a portion of the victim’s shirt. Days later, the killer mailed an envelope to the offices of The San Francisco Chronicle. Inside, the Zodiac had included a blood-soaked piece of Stine’s shirt along with a letter that traumatized the Bay Area for decades. In his customary cavalier style, The Zodiac wrote, “School children make nice targets. I think I shall wipe out a school bus some morning just shoot out the frunt tire and pick off the kiddies as they come bouncing out.”
The Zodiac’s threat to assassinate school children terrified children and parents everywhere, and created a nightmare of security concerns for police and school officials. Armed men escorted children to and from schools while patrol cars and even aircraft followed along and monitored the surrounding area. As media coverage of Zodiac’s murderous plans increased and fears of a horrific ambush grew, a local television station was the setting for a chilling scene.
In the early morning hours of October 22, 1969, the Oakland police department received a phone call from a man claiming to be the Zodiac. The caller said he wanted famous Boston attorney F. Lee Bailey to appear on a local television talk show, but told the operator that he would settle for San Francisco lawyer Melvin Belli in the event Bailey was unable to appear.
Hours later, Belli was the guest on the show with host Jim Dunbar. A man called the KGO television station several times, and, in conversation with Belli, claimed he was the Zodiac and that his name was “Sam.”
I knew Melvin Belli in his waning years; he was one of a kind. You may know him from the old Star Trek episode in which he played a sinister alien called “Gorgan” who turned children into murderers. Mel was known as the “King of Torts,” and his Trumpian flare for self promotion and dubious ethics infuriated colleagues and the legal profession. Often lost in the bright lights of his many flamboyant exploits and controversies is that he was one of the truly great and innovative trial lawyers of all time.
Here is a video of the actual call:
The film version adds some details that I can’t confirm. It portrays, for example, that the police were tracing the call, and that Belli was under instructions to keep the alleged Zodiac—it is now thought that Belli was talking to a fake—on the line. Whether the film is accurate or not isn’t germane here, as I am interested in the ethics of Belli’s conduct as it was shown to movie audiences, not what he did in real life.
In the film, Belli promises the supposed Zodiac that the phone call isn’t being traced, though it really is, to get the killer to call back after he had hung up in the middle of their initial exchange. This troubles me. There are two provisions in the ABA Model Rules, essentially consistent with the earlier ABA Code that was in place during the Zodiac killings and also consistent with California’s legal ethics regulations, that forbid lawyers from lying. Although the attitude of the profession is that a lawyer is always a lawyer, in most cases the rule is only enforced, except in egregious situations, when a lawyer lies in course of practicing law.
Was Mel Belli practicing law? Don’t be so sure he wasn’t. The man he thought was Zodiac had said he wanted to speak to a criminal lawyer, F.Lee Bailey, then settled for Belli. Did Mel make it clear to the Zodiac that this wasn’t an attorney-potential client conversation? He did not. Belli may have assumed that since the conversation was in public and confidentiality was out of the question it was obvious, but he was talking to a lunatic, and the ethics standard isn’t what the lawyer thinks or even what a reasonable client would think, but what the individual in question thinks. It was up to Belli to state, up front, on TV, that in this conversation he was not serving as a lawyer, and that this was not a conversation creating or leading to an attorney client relationship.
Mel was on a TV show, as a lawyer (and not, say, as an actor, like in “Star Trek”), representing the profession. Today, some jurisdictions would regard that appearance as advertising, which lawyers were forbidden by ethics rules to do then. Mel was very ingenious about exploiting loopholes in that prohibition. In that appearance as represented by the film, in a conversation that was dangerously close to an initial attorney-potential client interview that the Zodiac may well have thought was such an interview, Belli lies to the Zodiac outright.
If that happened in the actual incident, I am confident that it would violate the ethics rules. Even to trap a serial killer, a lawyer cannot lie in a conversation where the killer knows he is talking to a lawyer and to some extentrelying on his veracity and trustworthiness because he is a lawyer. The lie was even worse because it was on television, and in effect the fictional Belli was lying to the TV audience as well. Once this became known, what would have occurred is that hundreds of thousands of citizens would know that a lawyer, a renowned lawyer, lied to someone seeking his help. Those who saw “Zodiac” also got this impression. These are the kinds of misrepresentations of the profession and legal ethics that drive lawyers crazy, though not crazy enough. The ABA and other legal organizations have a duty to correct these misimpressions, and they don’t.
…Melvin Belli, in the actual incident, didn’t lie, or at least I can’t find any evidence that he did.
…Though Belli always went right up to the line and often over it, I doubt that he would have lied like this, even if asked by police. With Mel, you never knew, however. He might have reasoned that assisting the manhunt this way would make him a hero, and untouchable by disciplinary authorities.
…If he thought that, he would have been right. There have been similar incidents when lawyers have breached the rules to help police, and they have received the lightest of raps on the wrist for it. Bar associations and courts don’t like punishing lawyers for conduct the public sees as admirable, even if the public’s admiration is based on ignorance.
My verdict: in the movie, Mel Belli violated the ethics rules by lying to the (fake) Zodiac.