Quite a few readers have written that they would enjoy some of the problems I present in my seminars on legal ethics. I try to please, so here are some difficult legal ethics issues that arose in the screenplay of last year’s Oscar-nominated film “Bridge of Spies.”
I wrote about the film earlier this year, here.
The film tells the true story of Jim Donovan, an insurance lawyer who is recruited, in 1957, by his New York bar association to take on the representation of the accused Soviet spy Rudolf Abel, a job that we see Donovan not only do bravely and competently, but one that he takes all the way to the Supreme Court. He loses, and Abel goes to prison.
Legal ethics points:
- That ends the representation, and Abel is no longer Donovan’s client, but a former client.
- Lawyers still have duties to former clients: they must keep all of the confidences learned during the representation and after, and not use these against the interests of the ex-client, or reveal them ever, even after the ex-client is dead and buried, except under rare circumstances.
- A lawyer is also not allowed to become adverse to the interests of a former client in a substantially related matter to the one he (or she) handled for the client.
Because when representing Abel, Donovan had argued against executing the spy on the grounds that he might a useful bargaining chip if an American was captured by the Russians—an argument he made to save Abel’s life, not to provide unsolicited advice to the government—the capture of U2 pilot Gary Powers after he was shot down in a spy plane makes the lawyer a candidate to make his own scenario come true. An East German official sends Donovan a letter claiming to be able to broker an exchange of Powers for Abel. When the CIA learns about the letter, they ask Donovan to go to East German and negotiate the deal.
“Who will be my client?” Donovan asks. “Nobody” is the answer. He agrees to go.
Legal ethics points:
- The answer “Nobody” is wrong, and Donovan was wrong to fail to clarify the issue. He is a lawyer, and he is being chosen for a task both because he was involved in Abel’s case as a lawyer and because negotiation is a core lawyer’s skill. While an argument can be made that this was a non-legal assignment, I don’t buy it. Donovan will have to hold himself to legal ethics principles, and unless he explains that he is explicitly not going to behave like a lawyer and receives consent, he is obligated to treat it as a legal representation, with all the duties that implies.
- So who is the client? This is often the tricky question when representing the government. It isn’t the CIA, or the CIA’s agent. It apparently isn’t the State Department. It is no longer Abel. Who is it? The best answer is that Donovan represents the whole government, and the United States of America.
- This, however, creates a problem. When he was representing Abel, the United States of America was his adversary. Now he is representing his former client’s foe, which doesn’t care a fig about Abel’s welfare, just what he can bring in trade. This is too close to a conflict of interest with a former client for comfort. Donovan must still stay sufficiently loyal to Abel. What if confidences he learned in the course of that representation become crucial to fulfilling his assignment for the United States? What if he learns confidential information during his diplomatic assignment that could be used to get Abel a new trial (such as learning that he was framed by the CIA)? In either case, Donovan would be forced to quit as the deal broker. That means to me that he shouldn’t take the job in the first place.
- Is the spy trade assignment “substantially related” to his previous representation of Abel? It’s a strange substantial relationship and is the kind of issue courts often have to unravel, but I don’t see how it could not be.
- Abel could cure the conflict by consenting to Donovan taking on the assignment, if he was fully briefed on the possible perils to his own welfare. Thew spy might, for example, believe he is safer in a U.S. prison than in the Soviet Union, a thought that he alludes to later. Donovan, however, never asks for his consent.
When Donovan arrives in East Germany, he learns that another American, a young student, is being held by the East Germans as a spy. The negotiators for the Iron Curtain may try to substitute him for Powers in exchange for Abel. The CIA agent tells Donovan that getting Powers, and only Powers, is the objective. Rescuing the student would only be frosting on the cake. Yet we see Donovan apparently trying to get both Americans back. Indeed, in the crucial negotiation stratagem, he responds to a bait-and-switch ploy by the East German negotiator, who offers only the student without Powers, by insisting that either the US gets both the pilot and the student, or there will be no deal for Abel at all.
Legal ethics points:
- This brinksmanship is fine, if it is just a bargaining stance to improve the chance of getting Powers, which is what Donovan was recruited to do. If, as the film and performance by actor Tom Hanks seem to suggest, it is because Donovan has decided that getting the student released is a priority as well, he’s breaching his duty to the United States. Now he has a personal conflict with his client. He wants to see the student freed, and what he wants doesn’t count here. It is only what his client wants that matters, or should.
- The theory would be that Donovan has decided that the U.S. and its citizens, not the government, and certainly not the CIA, are his true clients. The nation’s best interest will be served by getting Powers and the student back. This can be used as a rationalization literally any time a government attorney decides to operate as a free agent, go rogue, or start blowing whistles. (Mark Felt, a.k.a “Deep Throat,’ comes to mind.) In some cases this approach can be defended, but not here. Donovan’s assignment was clear and unequivocal: get Powers back. Period.
- The CIA agent, Donovan’s sole contact with his client, the government, is furious that Donovan insisted on the student being included in the trade, but the tactic works. Still, that’s moral luck, and doesn’t bolster any arguments that Donovan was ethical to allow the student to become an objective of his representation.
An exchange of the three prisoners is arranged to take place at the Glienicke Bridge. Donovan again meets Abel, his former client, who seems eager to be released. On the other side of the bridge, Powers appears, but not the student. He is supposedly to be released at another locale, Checkpoint Charlie, but has not appeared there. The CIA agent directs Donovan to send Abel across for Powers; as his contact has always insisted, the government doesn’t care about the student. Donovan insists on confirmation that the student is being released. Out of gratitude for his previous representation, Abel agrees to wait with his former lawyer, and not cross the bridge. Eventually, the student is delivered, and Powers and Abel cross the bridge in opposite directions.
Legal ethics points:
- All’s well that ends well, right? That’s moral luck again. Donovan’s various conflicts caught up to him on the bridge. Assuming Abel wanted to be exchanged, Donovan was going directly against his former client’s interests by refusing to complete the trade without the student.
- Abel, conveniently, consents to the delay, which places his return to the Soviets and release from prison at risk. What if he hadn’t agreed? Presumably it would not have changed anything. Donovan was marching to his own drum.
- Donovan’s client’s agent, the CIA, explicitly directed him to take Powers for Abel when the student was late, and the lawyer refused. As a lawyer, Donovan can’t ethically do that. He was risking the objective for which he had been retained for another objective that he had decided was better, and worth risking the actual objective to accomplish.
Some final observations:
It is important to remember that during this episode, New York and the rest of the U.S. jurisdictions were still judging ethical conduct by the old Canons of Ethics, which did not include sufficiently specific guidance on many of the dilemmas Donovan faced. The Canons were published by the American Bar Association in 1908, and representing the government was barely touched on. It wasn’t until 1969 that the new American Bar Association Model Code of Professional Responsibility belatedly modernized the ethics rules for lawyers. New York held on to them longer than any other jurisdiction.
My analysis is based on the current New York Rules of Professional Conduct, which didn’t exist during the time represented in “Bridge of Spies.” In real legal practice, lawyers like Jim Donovan often find themselves thrust into gray area situations where their exact duties and the applications of the ethics rules are vague and perhaps unique. Then they have to do what they think is right, often under time pressure and with no time to consult anyone else. I am sure Donovan was doing just that, and thus this post mortem is technical, not critical. Would any bar association choose to discipline a lawyer whose good faith choices in such a difficult scenario didn’t match an uninvolved panel’s judgement of what constituted compliant conduct? Never. Donovan proved himself a skilled and courageous lawyer, trying to do a difficult and important task with life-and-death overtones. He also was a credit to the legal profession.
Who knows what the history of the Cold War would have been if Jim Donovan had chosen compliance with the legal ethics rules over his own assessment of what was right?