“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. Continue reading

ARRGH! “The Good Wife” Did It AGAIN!

For God’s sake, Will! A) You just got off one suspension for unethical conduct—what are you DOING? B) They had to have taught you better than this at Georgetown Law!

“It” is misleading Americans who may be in litigation requiring settlement and who don’t know that lawyers cannot, must not and largely do not agree to financial settlement terms without getting the approval of their clients. I have dubbed this “The Hollywood Lawyer Fallacy,” and Will (Josh Charles) just did it again.

I know—every lawyer TV drama skips this part, as does virtually every movie about lawyers. Yes, I know it is done for pacing and dramatic purposes, that having a scene where the lawyers asks her client, “They’ve offered this amount, and I think we should take it, OK?” and the client says, “Sounds great!” just slows things down. But here is what repeatedly watching this inaccurate portrayal of  lawyers breaking one of the cardinal rules of the profession does: it sets up clients of incompetent lawyers to be misled, manipulated, and cheated. As I wrote the last time the otherwise ethically astute CBS drama did this while I was watching:  Continue reading

“The Good Wife” Ethics Addendum: Why Misrepresenting the Legal Profession’s Standards Does Real Harm

Sure, it was a comedy, but how many people believe that Jim Carrey's compulsively lying lawyer was not that far from the truth?

A comment from reader Penn on my post about “The Good Wife’s” recent misrepresentation of legal ethics standards got me thinking, and what it got me thinking was that I was too easy on the show.

Penn asked why I waste my time watching programs that raise my blood pressure, and there are two answers. The first is what I wrote back: it’s not a bad show; in the past it has been a very good one, even from the legal ethics perspective. I have used several scenarios from episodes in seminars.

The second answer, which I didn’t mention in my response to Penn, is the more important one, however. Good show or not, millions of Americans get their information about the legal profession from the portrayal of lawyers and law on TV and in movies. From these fictional sources, they think they know that most lawyers are liars, that they allow their clients to lie, that they put witnesses on the stand who they know will lie under oath. The public thinks that lawyers abuse the law, don’t earn their fees, don’t give a damn about their clients (unless they are sleeping with them), switch sides routinely and confuse juries to release serial killers on more victims. Continue reading

Donna Brazile Opens An Ethics Can Of Worms On “The Good Wife”

Is this the real Donna Brazile or the fake one?

The increasingly common practice of using real political figures playing themselves in dramas made me queasy from the beginning, and now I know why.

“The Good Wife,” CBS’s excellent legal drama now highlighting that network’s Sunday nights, has made such blurring of the real and fictional something of a trademark, featuring such real-life political power-player as Fred Thompson and Vernon Jordan in past episodes, not merely in cameos, but participating in substantive scenes as their real-life selves. Last night, Democratic Party strategist Donna Brazile, who had earlier in the day participated in Christiane Amanpour’s roundtable on ABC, played herself in the episode’s fictional meeting between her and  Eli Gold (Alan Cumming), the ethics-free campaign manager for the Good Wife’s Creepy Husband, Peter Florrick (Chris Noth). I must say, Donna Brazile made an extremely convincing Donna Brazile. She has a future in acting, as long as she can play herself. The problem is what fictional Donna Brazile told fictional Eli Gold, and the immediate, and confusing real life ethical issues it raises. Continue reading

Legal Ethics Train Wreck on “The Good Wife”

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

I’m Worried About “The Good Wife”

Shape up, Alicia.

CBS’s “The Good Wife” seems to be getting more cavalier with its ethics breaches, a disappointing trend. Showing the ethical fudging that undoubtedly goes on behind the scenes at major law firms (on occasion) is appropriate; treating major violations with a shrug is not. I know it is tempting for the show to assume it has the intelligent legal TV show championship sewed up, since “the Defenders” is a joke and “Harry’s Law” is a disgrace, but it’s standards have been high, and it is dispiriting to see them flag with such missteps such as…

  • Prosecutorial misconduct casually brushed off as nothing. When Alicia asks why a videotape  is so much clearer than the one the prosecutor’s office turned over as evidence, she is told that what she received before was a copy of a copy of a copy–“just to mess with you.” Continue reading

“Harry’s Law” Is A Legal Ethics Mess

When it comes to legal ethics, "Harry" is no straight-shooter.

As I have noted before, TV has one of its more ethically-sophisticated legal dramas to date in CBS’s “The Good Wife.” Oh, the lawyers (and their investigators) are frequently unethical, all right, but the show has seldom represented unethical conduct as ethical, or implied that it would be defensible if it came to the attention of the bar. In contrast, the new NBC Kathy Bates drama “Harry’s Law” has already ticketed itself for the Dumb Lawyer TV Show Hall of Shame, grossly misleading its audience about what constitutes a lawyer’s ethical duties. (Other recent admittees to the Hall: James Woods’ “Shark,” the Kathleen Quinlan drama “Family Law,” Steven Bochco’s embarrassing “Raising the Bar,”and every legal show created by David Kelley.) Continue reading

“The Good Wife” Ethics: Sex With Clients Edition

Diane, Diane..what were you thinking?

Last night’s episode of TV’s smartest legal drama since the 1960’s, CBS’s “The Good Wife,” dealt with the “no sex with clients” ethics rule adopted by most states (but not Washington, D.C.!) in a continuing subplot about the budding romance between firm tigress-partner Diane Lockhart (Christine Baranski ) and ballistics expert Kurt McVeigh, played by Gary Cole. In the episode, entitled “Silver Bullet,” Lockhart decides to represent McVeigh when he is sued for millions.

That’s her first ethics mistake. Continue reading

When TV’s Ethics Matter, and When They Don’t

As one who has argued that certain TV commercials, notably the infamous “green shirt” Tide commercial, the Twix commercial  and Direct TV’s disturbing (but often funny) series showing football fans hurting rival team supporters, I know I’m asking for trouble by declaring, as I officially do here, that for compliance firm Global Ethics to criticize TV shows like “The Office” and “30 Rock” for supposed workplace ethics violations is absurd. But it is absurd. And criticizing the commercials in question is not.

Hear me out. Continue reading

“The Good Wife” Ethics, Season #2: Alicia, Kalinda, and Pretexting

The acclaimed CBS series “The Good Wife” premiered last night, with an episode called “Taking Control.” The title is ironic in one respect. Because the legal profession regards lawyers as being in control of the non-legal staff that works for them, good wife and whiz-bang attorney Alicia Florrick (played by Juliana Margulies) violated one of the most important legal ethics rules in the very first episode. This was far from unrealistic, however. Her ethical breach is not only a common one, but also one that many lawyers are careless about. It is also unethical conduct that the public assumes is standard practice for lawyers…because movies and TV shows make it seem that way. Continue reading