ABA Model Rule 3.3

“The Good Wife” Jumps The Ethics Shark

/ Jack Marshall / 8 Comments

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. Continue reading →

A Shocking Legal Ethics Violation In Utah

/ Jack Marshall / 20 Comments
So...would you like to revise your testimony about the harmless electric shock, Professor?

“So…would you like to revise your testimony about the ‘harmless electric shock,’ Professor?”

(The title is an uncreative and obvious pun, but on the other hand, how often do I have a chance to make it?)

I always advise lawyers that whenever they have a sudden inspiration that involves a trial tactic that they have never heard of anyone else trying, they need to stop and examine whether there are ethical issues involved. Here is a good example of why that’s a good idea.

Electricity expert Athanasios Meliopoulos, while testifying to dispute the claim of Utah dairy farmers who had sued a power company alleging that current from its plant harmed cattle grazing nearby,  said under oath that 1.5 volts could not be detected by a human being.

Don Howarth, an experienced Los Angeles litigator who represented the farmers, decided to undermine the expert’s testimony on cross-examination by giving Meliopoulos  a joke shop pen that was rigged to deliver an electric shock. Howarth told the witness that the retractable pen contained a 1.5-volt AAA battery and challenged him to click it and “tell the jury whether you feel it or not.” What he did not tell the witness, or the jury, or the judge, was that in addition to the AAA battery, the pen also contained a transformer that boosted the battery voltage to up to 750 volts, enough to deliver “a harmless powerful shock,” according to the pen’s packaging.

Meliopoulos, a Georgia Tech professor, pushed the ball-point pen’s button  and was indeed shocked enough to cause  his body to jerk and force him to drop the pen.

How unethical is this? The judge, in fining the lawyer $3000 and issuing other sanctions, listed the breaches: Continue reading →

Encore: “The Ethics of Letting a Lying Defendant Testify”

/ Jack Marshall / 11 Comments
"Objection! The defendant's pants are clearly on fire!"

“Objection! The defendant’s pants are clearly on fire!”

I’m in Ohio today, talking about legal ethics with a large law firm, and the discussion there turned to the difficult problem of the lying criminal client. Here is a post on the topic from the early days of Ethics Alarms, slightly updated, and the disturbing thing is that we are no closer to finding a satisfactory and ethical solution to the problem.

What do you do when your guilty client wants to claim he’s innocent in the witness chair, under oath? Continue reading →

Criminal Defense Ethics: The Aneurysm-Inducing Argument

/ Jack Marshall / 1 Comment

Darrow would understand.

Apoplectic stand-up comic Louis Black has a classic routine in which he describes how a snippet of a conversation he over-heard at an IHOP nearly killed him. The statement, “If it hadn’t been for that horse, I never would have spent that year in college,” made no sense to him at all and kept going around and around in his brain, threatening to cause a fatal aneurysm.

I know exactly how he feels.

A week ago, I read a news account of the election fraud trial of one Julius Henson, a former campaign consultant to ex-Maryland Governor Robert Ehrlich. This was the second trial arising out Ehrlich’s dirty and unsuccessful campaign in 2010 to win re-election over Democrat Martin O’Malley. In the first one, Ehrlich’s campaign manager, Peter Schurick, was convicted of election fraud for approving an election day robocall that went out to African-Americans in Maryland who were registered Democrats, suggesting that they “relax” and stay home, because O’Malley had already won. In the article, it said that Henson’s attorney had offered the defense that the call, which was created by Henson with his wife’s voice on the recording, was not designed to suppress the black vote for O’Malley. It was, argued Edward Smith, intended to prompt them to go to the polls and vote for Erhlich through the use of “reverse psychology.”

WHAT??? Continue reading →

Legal Ethics Train Wreck on “The Good Wife”

/ Jack Marshall / 2 Comments

Oh, Alicia, Alicia...what have they done to you?

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. Continue reading →

The Ethics of Letting a Lying Defendant Testify

/ Jack Marshall / 4 Comments

It’s snowing like crazy outside, and I’m stuck putting the lights on a nine-foot tree.  My only escape from the pine needles assaulting my tender skin is ethics reverie, and I find myself thinking, once again, about the classic criminal defense attorney’s ethical challenge:

What do you do when your guilty client wants to claim he’s innocent in the witness chair, under oath? Continue reading →