Reel Ethics:
An Analysis of the Model Rules of
Professional Conduct in the Movies
Jeffery A. Styres
Southern Farm Bureau Life Insurance Company
P.O. Box 78
Jackson, MS 39205
(601) 981-7422
jstyres@sfbli.com
When he’s not watching movies, Jeffery A. Styres serves as senior counsel and
privacy coordinator for Southern Farm Bureau Life Insurance Company located
in Jackson, Mississippi. In this capacity, he oversees a substantial portion of the
company’s litigation and privacy functions, as well as providing legal support to
the company’s agency, claims, compliance, human resources, pensions, policy
service and underwriting departments. Before re-joining Southern Farm Bureau
Life in 2005, he was in private practice in Mississippi and Alabama, specializing
in life, health and disability litigation, in addition to insurance defense, medical
malpractice defense and pharmaceutical products liability litigation. Mr. Styres
holds degrees from Samford University (B.S. in accounting), the University of
Alabama at Birmingham (MBA) and Mississippi College School of Law. He is a
member of the Mississippi, Alabama and Georgia state bar associations. In 2009,
Mr. Styres was appointed by Mississippi Supreme Court Chief Justice William L.
Waller, Jr. to the Mississippi Board of Bar Admissions, and regularly writes bar
exam questions on legal ethics and professional responsibility. A fellow of the Life
Management Institute (FLMI), Mr. Styres was a vice-chair of DRI’s Life, Health and
Disability Committee from 2010-2012, and has previously served as DRI seminar
faculty.
Credits: Recognition and special thanks are given to Kevin Sills and Artimese Fairley in the
marketing productions department at Southern Farm Bureau Life Insurance Company for their
assistance with this presentation. This presentation would not be possible without their friendship,
talents and support.
DISCLAIMER: Any copyrighted material in this presentation is being used pursuant to the “Fair
Use Exception” (17 U.S.C. §107 et seq). In using any copyrighted work(s), the author and/or sponsors
of this seminar state that: 1) the purpose and character of any copyrighted work(s) is/are not of
any commercial nature, but is/are used solely for non-profit educational purposes; 2) that any
copyrighted work(s) was/were reproduced for criticism, comment, teaching and/or scholarship;
3) that the amount and substantiality of the portion of any copyrighted work(s) used as part of
this seminar is/are insignificant to the copyrighted work(s) as a whole; 4) the effect and use upon
the potential market value of any copyrighted work(s) has not and will not be impacted; and 5)
copyright marks have clearly been indicated on any copyrighted work(s) that is/are being used. The
author further states that pursuant to any applicable continuing legal education rules that he has not
been compensated in any manner, excluding reimbursement allowed for reasonable and necessary
expenses. Any views or opinions expressed in this portion of the seminar are those solely of the
author and are not necessarily those of DRI, Southern Farm Bureau Life Insurance Company, or any
other professional organization of which the author may be affiliated.
Reel Ethics:
An Analysis of the Model Rules of Professional Conduct in the Movies
Table of Contents
I.Introduction................................................................................................................................................151
II. Act I: There’s a Reason It’s the First Rule...................................................................................................151
A.Background..........................................................................................................................................151
B. Issue Presented....................................................................................................................................152
C. Ethics Rule Implicated........................................................................................................................152
D.Analysis................................................................................................................................................152
III. Act II: Appropriate or Inappropriate Witness Preparation?.....................................................................153
A.Background..........................................................................................................................................153
B. Issues Presented...................................................................................................................................154
C. Ethics Rules Implicated.......................................................................................................................154
D.Analysis................................................................................................................................................155
IV. Act III: Preparing the Witness for Trial.....................................................................................................156
A.Background..........................................................................................................................................156
B. Issues Presented...................................................................................................................................157
C. Ethics Rules Implicated.......................................................................................................................157
D.Analysis................................................................................................................................................157
V. Act IV: Dealing with Unrepresented Persons............................................................................................157
A.Background..........................................................................................................................................158
B. Issues Presented...................................................................................................................................158
C. Ethics Rules Implicated.......................................................................................................................158
D.Analysis................................................................................................................................................159
VI. Act V: The Boss Made Me Do It.................................................................................................................160
A.Background..........................................................................................................................................160
B. Issues Presented...................................................................................................................................161
C. Ethics Rules Implicated.......................................................................................................................161
D.Analysis................................................................................................................................................162
VII. Act VI: What They Don’t Teach You in Law School Will Get You Hurt...................................................163
A.Background..........................................................................................................................................163
B. Issue Presented....................................................................................................................................164
C. Ethics Rules Implicated.......................................................................................................................164
D.Analysis................................................................................................................................................164
VIII.Conclusion...................................................................................................................................................165
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Reel Ethics:
An Analysis of the Model Rules of Professional Conduct in the Movies
I.Introduction
In this one-hour continuing legal education seminar on legal ethics and professional responsibility,
participants will view brief scenes from legal-themed movies raising various ethical issues. Participants will be
asked to identify, analyze and seek to resolve the ethical rules raised in each movie clip vis-à-vis the ABA Model
Rules of Professional Conduct (“Model Rules” or “MRPC”), case law and/or rules that may be applicable to each
participant’s jurisdiction. Viewers will also be challenged to go beyond the moral minimum required by the
Model Rules and reflect upon their own personal ethics in the hypothetical scenarios presented.
The goals of this portion of the seminar are to:
1) Elevate the issue identification skills of attendees in the areas of ethics and professional responsibility with situations that attorneys may routinely face;
2) enhance attendees’ knowledge of the rules of ethics and professional responsibility by applying
the Model Rules to particular facts and issues facing attorneys today; and
3) expose questions and issues in legal ethics in a creative, interesting and thought-provoking manner that is hopefully enjoyable to the participant and encourages further study and reflection.
II. Act I: There’s a Reason It’s the First Rule
“The I Think I Can Handle It Scene” from My Cousin Vinny
(© 2000 Twentieth Century Fox Film Corp.)
A.Background
While on a cross-country road trip during spring break, two carefree college students (played by
Ralph Macchio and Mitchell Whitfield) stop at the “Sac-O-Suds” convenience store while driving through
rural Alabama. After being pulled over for what they believed was suspected shoplifting, the two youths are
mistakenly arrested for robbing the convenience store and murdering the cashier. Luckily, after his “one phone
call” to his mother in New York, one of the college students learns that he has a lawyer in the family – Vincent
LaGuardia Gambini, a.k.a. “Cousin Vinny” (played by Joe Pesci), a former Brooklyn auto mechanic who has
repeatedly flunked the bar exam and has never touched foot in a courtroom, much less in the south.
After driving all night with his leather-clad girlfriend (played by Marisa Tomei) from Brooklyn to
fictional Beechum County, Alabama, Vinny learns that the “two utes” have been charged with capital murder
and possibly face the death penalty if convicted. Having recently passed the bar exam on the sixth try, Vinny
has no experience in criminal law, much less any legal experience with a case holding such potentially grave
consequences for his clients. As soon as he sets foot in Alabama, everyone is suspicious of Vinny’s competence
as an attorney as he has no idea how to dress for court, much less how to enter a plea at the preliminary hearing on behalf of his clients. Paul Bergman and Michael Asimow, Reel Justice – The Courtroom Goes to the Movies, p.109 (Andrews McNeel Publishing 2006).
My Cousin Vinny creates humor based upon Vinny’s various procedural missteps, lack of courtroom
fundamentals and his mannerisms that irk the genteel but no-nonsense trial judge (played by Fred Gwynne).
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As the film progresses, Vinny comes through at crunch time as his street-savvy advocacy skills make up for
his inexperience in criminal law. Nonetheless, from a legal ethics perspective, the beginning of the film calls
into question whether Vinny is competent to represent his clients in such a proceeding, especially in such a
“foreign jurisdiction.”
B. Issue Presented
Should an attorney undertake representation when the lawyer knows that he/she lacks the requisite
knowledge and skill applicable to a particular matter and/or the lawyer lacks training and experience in the
field in question?
C. Ethics Rule Implicated
MRPC 1.1: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for
the representation.
D.Analysis
The first Model Rule, MRPC 1.1, requires competence as the drafters of the Model Rules believed
that competence is the foundation upon which all other ethical rules are based. Ronald D. Rotunda & John
S. Dzienkowski, Legal Ethics – The Lawyer’s Deskbook on Professional Responsibility, p. 81 (The American Bar
Association, 2006-2007). Clearly, there is a reason that the rules of ethics and professional responsibility begin
with competency as the first requirement.
Much of whether a lawyer is competent is based upon a number of factors contained in the Comment
to MRPC 1.1. In determining whether a lawyer possesses the requisite knowledge and skill in a particular
matter, relevant factors include:
• The relative complexity and specialized nature of the matter;
• the lawyer’s general experience;
• the lawyer’s training and experience in the field in question;
• the preparation and study the lawyer is able to give the matter; and
• whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established
competence in the field in question.
See Comment, MRPC 1.1.
The Comment to MRPC 1.1 is also clear that “A lawyer need not necessarily have special training
or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience.” Id. The Comment goes on to state that
“Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may
involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study.” Id.
Model Rule 1.1 is also clear that a lawyer need not necessarily be experienced in a particular matter in
order to be considered competent in that matter. Rotunda & Dzienkowski, supra, p. 82. The Model Rules recognize that there has to be a “first time for everything,” otherwise a lawyer would never be able gain any initial
experience.
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Competence, in and of itself, also is not a prerequisite to accepting representation in the particular
matter. The Model Rules allow for the attorney to accept the representation and then acquire the necessary
competence. However, there is one caveat to seeking to gain competence in a certain area after representation
commences. According to ABA Model Code of Professional Responsibility EC 6-3, such preparation cannot
result in “unreasonable delay or expense to [the] client.” This caveat is also adopted in the Model Rules by referencing that the lawyer’s preparation must be reasonable. Rotunda & Dzienkowski, supra, p. 82. See also Rule
1.1, Comment 4.
When a lawyer does not have the skill ordinarily required or where referral to, association or consultation with another lawyer would be impractical, it is permissible for a lawyer to give advice or assistance in
emergency situations. However, even in an emergency, assistance should be limited to what would be reasonably necessary under the circumstances since “ill-considered action under emergency conditions can jeopardize the client’s interest.” MRPC 1.1, Comment 3. Additionally, inappropriate advice given in an emergency
situation could also result in malpractice exposure should it breach the standard of care expected by an attorney in such an emergency situation.
As far as competency is concerned, requisite familiarity with well-settled principles also extends to
procedural matters. See Matter of Gallegos, 723 P.2d 967 (N.M. 1986) (lawyer did not apply for supersedeas
bond to protect property during appeal, telling judge he “really had no idea how to proceed”). A lawyer is also
expected to know the court rules within the jurisdiction they practice. See In re Dempsey, 632 F. Supp. 908 (N.D.
Cal. 1986)(lawyer not familiar with federal trial practice failed to notice motions in accordance with local rules,
attempted to issue subpoenas improperly, and consistently made improper or unintelligible objections).
As a final word of caution regarding competency, shortcomings with this requirement, especially in
the area of criminal law, can give rise to claims of ineffective assistance of counsel under the Sixth Amendment, see McMann v. Richardson, 397 U.S. 759 (1970)(due process contemplates effective assistance of competent counsel) and/or sanctions for violation of court rules. See In re Alexander, 513 A.2d 781 (D.C. 1986)
(lawyer disciplined for drafting “seriously defective” complaint that violated Federal Rules of Civil Procedure).
In conclusion on this scene, the law recognizes that clients can waive a lot of rights, but permitting
the client to waive the lawyer’s duty to competence is not one of them. Rotunda & Dzienkowski, supra, p. 84.
See also Rule 1.2, Comment 5. This restriction is naturally linked to the prohibition on the attorney’s ability to
reduce his personal malpractice exposure based upon some sort of agreement with the client. See ABA Model
Code of Professional Responsibility DR 6-102(A). If in the assessment of the lawyer he does not believe that
he possesses the competency the matter requires and/or cannot gain the competency needed through study
and preparation (that does not otherwise result in unreasonable delay or expense to the client), the attorney is
likely better off declining the representation, or at least associating with a practitioner who the lawyer knows
possesses the competency that the matter requires.
III. Act II: Appropriate or Inappropriate Witness Preparation?
“The Lecture Scene”
From Anatomy of a Murder (©1959 Columbia Pictures Corp.)
A.Background
Released in 1959 and nominated for seven Academy Awards®, Anatomy of a Murder was adapted
from the 1958 novel by John D. Voelker (under the pseudonym of Robert Traver). Voelker, a retired associate justice of the Michigan Supreme Court, purportedly based Anatomy of a Murder on a 1952 murder case
Reel Ethics: An Analysis of the Model Rules of Professional Conduct in the Movies ❖ Styres ❖ 153
wherein Voelker served as defense counsel for Lieutenant Peterson, who was charged in the fatal shooting of
Maurice Chenoweth, a tavern owner. Peterson was found not guilty by reason of insanity. Paul Bergman and
Michael Asimow. Reel Justice – The Courtroom Goes to the Movies, 67 (Andrews McNeel Publishing 2006).
Both the novel and the movie center on the small town murder trial of U.S. Army lieutenant Manion
(played by Ben Gazzara). Manion is charged with murdering Barney Quill, who owned the Thunder Bay Inn.
The prosecution contends that Manion deliberately killed Quill in a jealous rage in the Thunder Bay Inn tavern after Manion suspected that his wife and Quill were having an affair.
Bright but lazy defense attorney Paul Biegler (played by Jimmy Stewart) would rather be fly fishing
than practicing law, but will take an occasional case in order to keep the doors of his otherwise struggling law
practice open. After Manion is arrested for murdering Quill, Biegler receives a call from Manion’s wife (played
by Lee Remick) inquiring if Biegler would go to the jailhouse and represent her husband. Initially, Biegler is
unsure if he even wants to accept Manion’s case, which Biegler suspects is indefensible before consulting with
Manion.
There is no dispute that Manion shot Quill, which was witnessed by several patrons in the bar. Additionally, the shooting takes place sometime after Manion’s wife informs her husband that Quill raped her –
enough time to infer that the killing was not done in the heat of passion, but with deliberation on Manion’s
part, thus eroding any defense of irresistible impulse or temporary insanity.
When Biegler goes to the jailhouse to confer with Manion, Manion proves to be a problem client.
Manion also presents an ethical hurdle for Biegler in that Manion refuses to tell Biegler what happened unless
Biegler first tells him how the law might apply to his case. Id.
The jailhouse scene wherein Biegler discusses the facts (and possible defenses) with Manion for the
first time, which some refer to as “The Lecture,” raises profound ethical issues. In this scene, Biegler even goes
further to keep his client advised as to the defenses that might be applicable – depending upon whether Manion either remembers (or fabricates) the facts supporting those defenses. Id.
B. Issues Presented
1) How far may an attorney go in suggesting a possible defense to a client before the attorney learns
of the facts that may be applicable to the client’s case?
2) Does informing the client of the law in advance of hearing the facts allow the client to shape his
story to “fit the law” unethical and/or possibly subject the attorney to suborning perjury?
3) Is it ethical for an attorney to discuss possible defenses before asking the client their version of
the facts?
C. Ethics Rules Implicated
As demonstrated in “the lecture” scene, a fine line exists between advising a client about the law as
it might apply to their case, which is proper, and suborning perjury by assisting the client to create false testimony, which is improper.
The ABA’s Model Rules of Professional Conduct (“MRCP”) state:
MRCP 3.4(b): A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or
offer an inducement that is prohibited by law; [and]
MRCP 3.3(a)(3): A lawyer shall not knowingly offer evidence that the lawyer knows to be false.
If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence
154 ❖ Women in the Law ❖ March 2013
and comes to know of its falsity, the lawyer shall take reasonable remedial measures, including if
necessary, disclosure to the tribunal ….
See also MRCP 8.4 on the general prohibitions of a lawyer to engage in criminal, dishonest or other conduct
that is prejudicial to the administration of justice.
D.Analysis
It is perfectly ethical (if not obligatory) for counsel to interview the client and discuss their testimony
in order to assist the client to testify effectively. This would be true for any witness the attorney also speaks
with to testify on the client’s behalf. It is also appropriate to advise the client as to what the law is, even if such
advice suggests a defense that the client might not have been aware of. The problem is that an attorney can
convey an unspoken message to a witness that alters the witness’ testimony – without ever coming out and
actually telling the witness. Bergman & Asimow, supra, p. 66.
After concluding “the lecture,” Biegler does not ask Manion his recollection of the events, but rather
asks Manion, “What’s your excuse for killing Quill?” – suggesting that Manion must have one. When Manion asks whether he is getting “warmer” when he said he “must have been mad,” Biegler surely must realize
that his client is not telling the truth. Biegler is obviously aware of the limits on witness coaching, but keeps
Manion guessing until Manion says “I must have been mad.” Biegler then pauses before leaving the room and
replies, “In the meantime, see if you can remember just how crazy you were.” Therefore, Manion comes up
with the defense of temporary insanity, albeit due to some gentle prodding from the attorney, leaving Manion
to either remember or fabricate the facts that support that defense. Bergman & Asimow, supra, p. 66.
Most attorneys would agree that as long as the client comes up with the facts supporting the defense,
no ethical violation has occurred. Nonetheless, according to at least one commentary, “This is an example of
what lawyers are not supposed to do.” Ronald D. Rotunda & John S. Dzienkowski, Legal Ethics – The Lawyer’s
Deskbook on Professional Responsibility, 747 (The American Bar Association, 2006-2007).
In Biegler’s defense, how could an attorney in his position be suborning perjury or advising the
witness to testify falsely if he does not yet know the facts or does not possess any knowledge that his client
intends to perjure himself at trial? Conversely, it seems unlikely that Manion’s testimony would have been the
same if Biegler had not first “lectured” him. A deeper ethical quagmire might be present if that were Biegler’s
intention all along in advising his client – but how could such a violation be proven?
In one of the few opinions addressing the elusive distinction between appropriate witness preparation and inappropriate witness coaching, one court has commented on the distinction when preparing a witness is different than creating testimony. As noted in State v. McCormick, 259 S.E.2d 880, 882 (N.C. 1979):
It is not improper for an attorney to prepare his witness for trial, to explain the applicable
law in any given situation and to go over before the trial the attorney’s questions and the witness’ answers so that the witness will be ready for his appearance in court, will be more at ease
because he knows what to expect, and will give his testimony in the most effective manner that
he can. Such preparation is the mark of a good trial lawyer, and it is to be commended because it
promoted a more efficient administration of justice and saves court time.
Even though a witness has been prepared in this manner, his testimony at trial is still his voluntary testimony. Nothing improper has occurred so long as the attorney is preparing the witness
to give the witness’ testimony at trial and not the testimony that the attorney has placed in the
witness’ mouth and not false or perjured testimony.
See also Rotunda & Dzienkowski, supra, p. 747, internal citation omitted.
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Attorneys would fall short in representing their clients if they did not interview applicable witnesses
and prepare their clients for trial, but lawyers may not “suggest” that a client or witness testify falsely. Restatement of Law Governing Lawyers, Third, §116(1)(Official Draft 2000). Notably, what constitutes “suggesting”
testimony is not clearly defined and will be highly subjective and fact-specific based upon the type of testimony being proffered. However, if the suggestion is brazenly made, the lawyer is suborning perjury. See Harlan v. Lewis, 982 F.2d 1255, 1257 (8th Cir. (Ark.) 1993), cert. denied, 510 U.S. 828 (1993), wherein the Eighth
Circuit ruled that a defense lawyer in a medical malpractice case “violated Rule 3.4 by ‘suggesting’ to another
treating physician that, although he also could be sued by the plaintiff, that suit would be unsuccessful if he
did not testify.” Rotunda & Dzienkowski, supra, at 746.
So where exactly is the line between permissible witness preparation and inappropriate coaching?
According to Rotunda & Dzienkowski’s Legal Ethics – The Lawyer’s Deskbook on Professional Responsibility:
Careful trial lawyers must find out if the witness is giving his own testimony or merely repeating what a lawyer told him to say. If the witness’ testimony appears to have been memorized or
rehearsed or if it appears that the witness is testifying using the lawyer’s words rather than his
own, or had been improperly coached, such matters should be explored on cross-examination.
The jury then decides what weight to be given to the witness’ testimony.
Rotunda & Dzienkowski, supra, at 747, citing State v. McCormick, 259 S.E.2d 880 (N.C. 1979); Model Code of
Professional Responsibility DR 7-102.
Arguably, an attorney is entitled to act as if she did not know that her client intends to commit perjury and case law adequately prescribes what actions should be taken if she believes that her client intends to
do so. See Nix v. Whiteside, 475 U.S. 157 (1986). However, as long as the attorney continues to represent the
client, violations of ethics rules along these lines would be difficult to prove since conversations between attorneys and their clients are often in private and if discovered, objections based upon attorney-client privilege
will most certainly be asserted.
Ethics experts maintain that the attorney’s primary aim is “truth by advocacy” and the judicial system will be protected from fraud and perjury by the effective working of the adversary system. Here, Biegler
informs Manion just enough to assist his client and probably avoid a charge of unethical conduct. Irrespective
of whether or not the rules of professional conduct were violated, Anatomy of a Murder, although filmed in
black and white more than fifty (50) years ago, timelessly depicts that shades of gray will always exist between
appropriate witness preparation and inappropriate coaching.
IV. Act III: Preparing the Witness for Trial
“The Woodshed Scene” from The Verdict
(©1982 Twentieth Century Fox Film Corp.)
A.Background
In The Verdict, based upon the 1980 novel by Barry Reed, down-and-out attorney Frank Galvin
(played by Paul Newman) has spent so much time at the “wrong kind of bar” that his law practice has dwindled down to a single case. Galvin represents a woman who was admitted to the hospital to give birth and
wound up in a permanently vegetative state, due to the negligence of the anesthesiologist. Galvin, known
for trolling for prospective clients in funeral parlors, does not express much interest in the case until shortly
before trial, and earlier in the movie, violated two rules of ethics [MRCP 1.4(a)(3) and MRCP 1.4(b)] by failing to communicate a settlement offer to the client (the sister of the injured patient).
156 ❖ Women in the Law ❖ March 2013
In stark contrast to Galvin’s lackadaisical approach to the case, the hospital and anesthesiologist
intend on presenting an ironclad defense. In preparing the defendant anesthesiologist for trial, the defense
lawyer, Ed Concannon (played by James Mason) takes the witness to “the woodshed” by rehearsing the anesthesiologist’s direct examination in a law firm conference room and offers the witness suggestions as to how to
give more persuasive testimony at trial.
B. Issues Presented
1) Does the defense lawyer cross the line between ethical and unethical preparation of a witness by
dictating how the anesthesiologist should respond to questions on direct examination?
2) Has anything the defense lawyer suggested in preparation significantly or materially change
what the witness’ testimony otherwise would be?
C. Ethics Rules Implicated
Compare “the woodshed scene” in The Verdict to “the lecture scene” in Anatomy of a Murder. The
applicable ethics rules are the same:
MRCP 3.4(b): A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or
offer an inducement that is prohibited by law; [and]
MRCP 3.3(a)(3): A lawyer shall not knowingly offer evidence that the lawyer knows to be false.
If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence
and comes to know of its falsity, the lawyer shall take reasonable remedial measures, including if
necessary, disclosure to the tribunal ….
D.Analysis
Such rehearsals are proper so long as attorneys do not change the substance of the witness’ testimony.
A lawyer can ethically review, shape and even offer suggestions regarding a witness’ testimony or demeanor,
but cannot overtly or covertly induce the witness to testify falsely. In taking the doctor to “the woodshed,” the
defense attorney’s preparation of the witness assists the anesthesiologist to testify more clearly and convincingly – but does not alter the substance of his testimony.
According to professors Michael Asimow and Dr. Shannon Mader in their textbook Law and Popular
Culture,
This sort of preparation enables the witness to present testimony clearly and forcefully, in a way
that the jury can understand and believe. However, it is improper to cause the witness to testify
to something substantively different from what the witness would otherwise have said. Sometimes even a subtle suggestion by the lawyer can influence the witness to testify in a way that he
or she might not have done.
Michael Asimow & Shannon Mader, Law and Popular Culture: A Course Book, p. 59 (Peter Lang 2004). See
also State v. McCormick, 259 S.E.2d 880 (N.C. 1979)(A lawyer may coach a witness prior to trial so long as the
lawyer is preparing the witness regarding the witness’ own testimony and is not suggesting what the witness
should say or that the witness should give perjured testimony).
V. Act IV: Dealing with Unrepresented Persons
“The FBI Scene” from The Client
(©1994 Warner Bros.)
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A.Background
In the movie based upon John Grisham’s fourth novel, The Client, a young boy (played by Brad Renfro) witnesses the death of a lawyer who committed suicide because he knew where his mob clients had buried the body of a U.S. senator that had been kidnapped and killed. Before he committed suicide, the lawyer
told the young boy where the senator’s body was located, which results in the boy becoming a target of the
mob – as well as a potential star witness for the FBI and the U.S. Attorney’s office. In his fear and desperation,
the young boy retains a lawyer, Reggie Love (played by Susan Sarandon) for $1.00.
In “the FBI scene,” FBI agents and government lawyers (played by Tommy Lee Jones, T.J. Walsh and
Anthony Heald) meet with the boy outside the presence of his mother and persuade the boy to tell them
where the mob lawyer said the senator’s body was buried. The government’s lawyers try to frighten the boy
into talking by telling him that he and his mother could be jailed if he does not cooperate. They also tell him
repeatedly that he does not need to have an attorney present as he talks with them.
B. Issues Presented
1) Is anyone comfortable with the “half-truths” the government lawyers told to the boy’s attorney
about whether or not anything was said to her client about the need for legal counsel being present?
2) In light of the boy’s questions, and the fact that he was a minor, should the government lawyers
have known that the boy misunderstood their role? Should the government lawyers have taken
steps to avoid that possibility?
3) Was it ethical for the government lawyers to suggest or allow the boy to believe that he and/
or his mother would be jailed if he did not tell them what he knew? Are the ethical obligations
owed to a child different than those owed to an adult in this respect?
4) Should the government lawyers have asked the boy if he was represented by counsel before they
questioned him? Even if ethics rules did not require it, would asking the boy if he had an attorney (or would like to have any attorney) before questioning him have been the right thing to do?
C. Ethics Rules Implicated
MRPC 4.1(a): In the course of representing a client a lawyer shall not knowingly make a false
statement of material fact or law to a third person ….
MRPC 4.2: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter,
unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court
order.
MRPC 4.3: In dealing on behalf of a client with a person who is not represented by counsel, a
lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall
not give legal advice to an unrepresented person, other than the advice to secure counsel, if the
lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
MRPC 4.4(a): In representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay or burden a person, or use methods of obtaining evidence that violate the legal rights of such a person.
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D.Analysis
When dealing with others on a client’s behalf, a lawyer is required to be truthful, but generally has
no affirmative duty to inform an opposing party of relevant facts. However, a misrepresentation occurs if the
lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Regardless as to
whether the person the lawyer makes the statement to is represented by counsel, it is an independent violation
of the MRPC to make an inaccurate or misleading statement to persons other than the lawyer’s own client. See
MRPC 4.1 (For misrepresentations of fact to a court, see MRPC 3.3: Candor Toward the Tribunal).
Misrepresentations can also occur by failure to act or otherwise ameliorate what the lawyer knows
to be misleading or false statements. Annotated Model Rules of Professional Conduct, 2d ed., 415 (ABA Press
1983). Rule 4.1(a) prohibits lawyers from knowingly making false or misleading statements and may also violate Rule 4.1 if the lawyer refers to, incorporates, or affirms the statement of another person, such as the client,
that the lawyer knows to be false. “The lawyer cannot avoid responsibility by truthfully stating that another
person made a statement when the lawyer knows that the other statement is false.” Rotunda & Dzienkowski,
supra, at 812. Rotunda & Dzienkowski also offer this word of caution regarding Rule 4.1:
Lawyers should also be careful not to make affirmative representations when they in fact do not
know if those statements are accurate or not. Although a statement made in reckless disregard of
the truth or negligently by a lawyer may not violate Rule 4.1, such statements may expose a lawyer to civil liability to a third person.
Rotunda & Dzienkowski, supra, at 813.
Although in “the FBI scene” there was no evidence that the government lawyers knew that the young
boy was represented by counsel before questioning him, Rule 4.2 is the traditional prohibition against communicating with a person known to be represented by counsel without the other lawyer’s consent. The purpose of this rule is to prevent lawyers from taking advantage of uncounseled lay persons and to preserve the
integrity of the attorney-client relationship. Annotated Model Rules of Professional Conduct, 2 ed., 424 (ABA
Press 1983). The requirement of obtaining consent “covers any person,” whether or not a party to a formal
proceeding, who is represented by counsel concerning the matter in question.” MRPC 4.2, Comment 2. Moreover, Rule 4.2 is intended to govern not only civil but also criminal cases. MRPC 4.2, Comment 5.
In some instances, communication with a represented party may result in an ethical violation even
though it was unintentional. Annotated Model Rules of Professional Conduct, 2d ed., 425 (ABA Press 1983),
citing Carter v. Kamaras, 430 A.2d 1058 (R.I. 1981)(immaterial whether direct contact was intentional or negligent violation); In re McCaffrey, 549 P.2d 666 (Or. 1976)(immaterial whether communication is negligent or
intentional). However, if the lawyer does not know that the person is represented by counsel, then Rule 4.3
applies.
In dealing with individuals who are not represented by counsel, MRPC 4.3 restricts the lawyer’s communications with unrepresented persons:
If a person is not represented by counsel, the lawyer for the represented person may neither state
nor imply that the lawyer is disinterested. If the unrepresented person does not understand the
role, the lawyer should try to correct the misunderstanding. In the absence of a misunderstanding, the Rule, however, does not affirmatively require that a lawyer identify that she is representing a client. And, the Rules do not require that lawyers disclose the identity of the client to
unrepresented persons, although lawyers may do so as a matter of normal practice.
Rotunda & Dzienkowski, supra, at 858-59, citing ABA Code of Professional Responsibility DR 7-104(A)(2);
Restatement of the Law Governing Lawyers §103 (Official Draft 2000).
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Prior to the development of Rule 4.3, it had no counterpart in the Model Code. Model Code of Professional Responsibility DR 7-104(A)(2) provided that a lawyer shall not “(g)ive advice to a person who is not
represented by a lawyer, other than the advice to secure counsel….” Id. Therefore, under the Model Code, the
lawyer is not under any affirmative obligation to correct any misunderstanding regarding the lawyer’s role in
the matter, assuming that the lawyer has informed the third party that they should seek counsel.
As Rule 4.3 relates to this particular scene in The Client, note there is no distinction in the rule
between adults and minors – the Rule uses “persons.” Therefore, an attorney arguably has a heightened ethical obligation to assure that while questioning a presumably unrepresented minor like in The Client, that the
Rule also contemplates coverage of persons who by lesser age or immaturity would expectedly have greater
difficulty understanding the lawyer’s role. On the same token, a lawyer’s obligation to tell the truth to a minor
should be no different of an obligation to tell the truth to an adult.
The duty of representing a client effectively and zealously also does not allow an attorney to harass
another person or threaten criminal charges. The ABA Model Code included a specific provision prohibiting a
lawyer from threatening or presenting “criminal charges solely to obtain an advantage in a civil matter. Model
Code of Professional Responsibility DR 7-105(A). Interestingly, the Model Rules do not contain any such
express provision. However, this omission in the Model Rules does not mean that the lawyer is free to engage
in such conduct. If the lawyer’s threats amount to criminal extortion under state law, Model Rule 8.4(b) would
apply, for that provision prohibits a lawyer from committing any criminal act that reflects adversely on honesty, trustworthiness or fitness as a lawyer in all other respects. Rotunda & Dzienkowski, supra, at 867 [internal citations omitted].
As to the use of tape recordings conducted without the knowledge of at least one of the parties that a
recording is being conducted, the Model Rules have no specific provision prohibiting a lawyer from engaging
in secret tape recordings of conversations with witnesses, opposing parties, or even the client if these recordings are otherwise legal. Rotunda & Dzienkowski, supra, at 870. Most state ethics opinions appear to follow
MRPC 4.4; however, attendees should check and review any applicable ethics rules or opinions that may apply
in their specific jurisdiction. That said, if the lawyer engages in secret tape recording in violation of ethics
rules, the lawyer is then subject to discipline [MRPC 8.4], plus the aggrieved party may sue the lawyer in tort
if there is violation of other law. Rotunda & Dzienkowski, supra, at 871, citing Kimmel v. Goland, 793 P.2d 524,
525 (Cal. 1990)(holding that an injured party may sue a lawyer for invasion of privacy because of the lawyer’s
“illegal recording of confidential telephone conversations.”) Of course, to the extent any surreptitious recording involved dishonesty or violates federal or state anti-wiretapping statutes, attorney participation would also
violate MRPC 8.4 (Misconduct).
VI. Act V: The Boss Made Me Do It
“The Deep-Sixing of Discoverable Documents Scene” from Class Action
(©1991 Twentieth Century Fox)
A.Background
In the movie Class Action, Jedediah Ward (played by Gene Hackman) is a brash and successful trial
lawyer representing a group of class action plaintiffs against Argo Motors for negligently designing cars
that explode when struck by other vehicles. Luckily, the prestigious law firm handling Argo Motors’ defense
employs Jed’s daughter, Maggie (played by Mary Elizabeth Mastrantonio), an associate rapidly closing in
on partnership status. The firm’s relationship partner with Argo wants Maggie to handle the case because
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he believes that Maggie can neutralize her father since she’s repulsed by Jed’s bravado and is immune to her
father’s legal posturing. In hopes that she can advance her own career, Maggie also carries on a secret affair
with her supervisor and insists in working on the Argo case to prove that she’s a better lawyer than her father.
Reel Justice – The Courtroom Goes to the Movies, p. 180 (Andrews McNeel Publishing 2006).
Maggie believes that Argo’s defense is a worthy cause until she uncovers a “smoking gun” report
developed by one of Argo’s engineers who previously warned Argo that its vehicles could explode if struck
while the left turn signal was flashing. Id., p.177 (Andrews McNeel Publishing 2006).
Maggie is not the only attorney involved with Argo’s defense with knowledge of the damaging engineering report. Maggie’s supervising attorney, Michael Grazier (played by Colin Friels), was previously made
aware of the report while the vehicle was in production. Prior to Maggie’s involvement in the case, Michael
worked with Argo’s in-house counsel (played by lawyer turned actor and former U.S. senator, Fred Thompson)
to minimize the impact of the engineer’s report and assisted in formulating a legal strategy wherein wrestling
with the “fall out” from the defective design would be preferable to the costs of a recall and/or making design
improvements.
During discovery, the plaintiffs specifically requested names and contact information of persons
involved with designing Argo’s Meridian model, a disaster on wheels akin to the notorious Ford Pinto™. Knowing that production of the engineer’s report would strike a major blow to defending the case as well as continuing to retain Argo as one of the firm’s biggest clients, Maggie asks her supervising attorneys for direction.
After receiving instructions from her supervisors which Maggie knows does not exactly “square up” with the
notions of fair play and justice she inherited from her father, Maggie reluctantly goes along with her supervisor’s instructions wherein the report will be produced, but included along with an avalanche of discovery
responses. Additionally, reference to the engineer’s report is to be mislabeled in such a manner wherein the
report cannot be located and clearly runs afoul of discovery rules. All Maggie has to do is play along.
Unbeknownst to Maggie, prior to production, her supervising attorney actually destroyed the report
so that it will never be discovered by the plaintiffs. As the remainder of the movie unfolds, once Maggie finds
out that her supervisors destroyed the engineer’s report, she makes unwise ethical choices, some of which
potentially breaches the duty of loyalty that she owes to the client and undoubtedly impacts her future as an
attorney.
B. Issues Presented
How do ethics rules address discovery abuses?
2)What responsibilities, if any, does as subordinate attorney have when directives issued by a
supervisory attorney runs afoul of the rules of professional conduct?
C. Ethics Rules Implicated
MRPC 3.4: A lawyer shall not
(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not
counsel or assist another person to do any such act;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent
effort to comply with a legally proper discovery request by an opposing party;
(f) request a person other than a client to refrain from voluntarily giving relevant information
to another party unless:
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(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person’s interests will not be adversely affected
by refraining from giving such information.
MRPC 5.2(a): A lawyer is bound by the Rules of Professional Conduct notwithstanding that the
lawyer acted at the direction of another person.
MRPC 5.2(b): A subordinate lawyer does not violate the Rules of Professional Conduct if that
lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
MRPC 8.3(a): A lawyer who knows that another lawyer has committed a violation of the Rules of
Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness
or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
D.Analysis
An effective adversary system contemplates that evidence in a case is to be marshaled competitively
by the contending parties. Fair competition in the adversary system can only be secured by prohibitions
against destruction or concealment of evidence, as well as other such obstructive tactics used in discovery.
MRPC 3.4, Comment 1.
Documents and other evidentiary items produced as part of discovery are often essential to establish
a claim or defense. Subject to evidentiary privileges, the right of an opposing party to obtain evidence through
discovery is an important procedural right. The exercise of that right can be frustrated if relevant evidence is
altered, concealed or destroyed. Annotated Model Rules of Professional Conduct, 2d ed., p. 348-349 (ABA Press
1983). A corollary to the general principle that a lawyer may not misrepresent the facts or the law is the Rule
3.4 requirement that a lawyer may not unlawfully obstruct access to, alter, or conceal evidence, or witnesses,
or encourage a witness to testify falsely. Rotunda & Dzienkowski, supra, p. 733.
A lawyer who conceals documents or other materials or who procures such concealment violates
Rule 3.4. See, e.g., Matter of Davis, 273 S.E.2d 614 (Ga. 1981)(lawyer counseled client to conceal funds from
bankruptcy court). Likewise, a lawyer’s duty of fairness to the opposing party and counsel prohibits a lawyer
from abusing pretrial discovery procedures. While there may exist sound reasons to engage in legitimate discovery disputes, there are many discovery abuses that do nothing other than delay a lawsuit or work extreme
disadvantages to the requesting party. These abuses are often
[A]ttributed to counsel who use discovery for fishing expeditions … who delay completion of
discovery, and who force undue expense on opposing counsel by extensive interrogatories, by
requests for production of unnecessarily large numbers of documents, and by production of
documents in large, unorganized lots in response to interrogatories and production requests.
Annotated Model Rules of Professional Conduct, 2d ed., p. 358 (ABA Press 1983), quoting Cohn, Federal Discovery: A Survey of Local Rules and Practices in View of Proposed Changes to the Federal Rules, 63 Minn. L. Rev.
253, 255 (1979); see also Roadway Exp., Inc. v. Piper, 447 U.S. 752, 757 n.4 (1980).
Michael’s instructions to Maggie to “deep six” production of the engineer’s harmful report are clearly
violative of MRPC 3.4. See Compaq Computer Corp v. Ergonome, Inc., 387 F.3d 403 (5th Cir. 2004)($2.8 million
in sanctions imposed against defendants for abusive practices for the sole purpose of frustrating Compaq’s
ability to extract discovery); Berkey Photo, Inc. v. Eastman Kodak, 603 F.2d 263 (C.A. NY 1979)(lawyer later
held in contempt for lying about existence of documents requested by the opposition and associate who knew
that the documents existed but did not report was fired).
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What should Maggie have done when she discovered that partners in her lawfirm planned to destroy
the engineering report to avoid it from being produced? MRPC 5.2(a) is emphatic that a lawyer is bound by
the rules of ethics “notwithstanding that the lawyer acted at the direction of another person.” Thus, there is no
“following orders” defense. The only exception to this rule is when a lawyer acts in accordance with a supervisory lawyer’s “reasonable resolution of an arguable question of professional duty.” MRPC 5.2(b). “One cannot
escape one’s ethical duties by merely claiming that one is only following orders, but one can escape by following reasonable orders.” Rotunda & Dzienkowski, supra, p. 897 (emphasis supplied).
When faced with instructions from a supervisory lawyer that the subordinate lawyer knows violates
the Rules of Professional Conduct and does not present at least an arguably reasonable question of professional duty, it is not enough for a subordinate lawyer to refuse to comply with any unethical directives from a
supervisor. The subordinate lawyer is also bound by MRPC 8.3 to report the supervising attorney to an appropriate disciplinary agency if he or she knows the other lawyer has committed a violation that raises a “substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer.” “Top Ten Ethics Traps (And
How to Avoid Them)” ABA Journal, Nov. 2007, p. 33 (contribution by Kathryn A. Thompson) quoting MRPC
8.3. The downside is that doing this will inevitably cause the reporting attorney to lose their job.
When faced with such a conundrum, subordinate lawyers must also consider their obligations
toward affected clients per MRPC 1.6. Model Rule 1.6 prohibits lawyers from revealing information unless
clients provide their consent or the information falls within an exception to the rule allowing for disclosure.
Moreover, MRPC 8.3 specifically states that lawyers are not required to disclose information that is otherwise
protected by MRPC 1.6. Id. Thus, in reporting the conduct of a supervisor to any disciplinary tribunal, the
reporting attorney must take into account what information, including confidential information gained from
the client, must be revealed in order to support the disciplinary charge. Id. This requirement can place the
reporting attorney in a “no win” situation since, for purposes of MRPC 1.6; client consent is generally required
before the information may be revealed. Id.
Arguably, what constitutes an “arguable question of professional responsibility” and “reasonable resolution” are subject to debate and interpretation; however, this much is clear: “Subordinate lawyers who are
dragged into the fray when their bosses run afoul of ethics rules cannot assume ‘second chair status’ excuses
them from professional obligations.” Id.
VII. Act VI: What They Don’t Teach You in Law School Will Get You Hurt
“The Hospital Solicitation Scene” from The Rainmaker
(©1997 Paramount Pictures)
A.Background
Based upon the adaptation of John Grisham’s novel featuring an idealistic attorney fresh out of law
school who takes on the case of a lifetime, The Rainmaker tells the story of a struggling third-year law student at
the University of Memphis School of Law, named Rudy Baylor (played by Matt Damon). When his prospects of
a job at reputable a law firm following graduation fall through, Rudy’s only option is to accept a position working
for a lawyer named “Bruiser” who also owns the nightclub where Rudy worked at part-time through law school.
Based upon his employment arrangement with Bruiser, Rudy learns quickly that he must bring clients to the firm in order to survive. In order to show him how he is expected to “develop clients,” Bruiser
introduces Rudy to one of his associates – “paralawyer” Deck Shifflet (played by Danny DeVito), who has
taken the Tennessee bar exam multiple times but has yet to obtain his license to practice.
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While The Rainmaker is primarily known for Rudy taking down a health insurance company based
upon the insurer’s bad faith denial of his client’s insurance claims, early in the film, Deck educates Rudy on
the art of “client development,” especially while induced by financial temptation. In addition to Deck providing Rudy with a palatable rationale for what otherwise constitutes unethical client solicitation, Deck also gives
Rudy a succinct lesson in all there is to know about legal ethics.
Deck’s example that economic interests play a role in professional conduct provides Rudy with a
practical example that not everything about the practice of law is learned in law school. While “a rainmaker”
is typically perceived as an attorney who brings in lots of business, a touch of irony exists in that the biggest
case Rudy most likely will ever have in his career is one that he picked up ethically while interning for the
legal clinic during law school.
B. Issue Presented
How does the Model Rules address in-person solicitation of potential clients?
C. Ethics Rules Implicated
MRPC 7.3(a): A lawyer shall not by in-person, live telephone or real-time electronic contact
solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:
(1) is a lawyer; or
(2) has a family, close personal, or prior professional relationship with the lawyer.
See also MRPC 5.5(b): A lawyer shall not assist a person who is not a member of the bar in the performance
of an activity that constitutes the unauthorized practice of law. (1983 Model Rules version).
D.Analysis
There inherently exists a potential for abuse in direct in-person or live contact by a lawyer with a
prospective client believed to need legal services. “The prospective client, who may already feel overwhelmed
by the circumstances giving rise to the need for legal services, may find it difficult to fully evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and
insistence upon being retained immediately. The situation is fraught with the possibility of undue influence,
intimidation, and overreaching.” Annotated Model Rules of Professional Conduct, 2d ed., p. 519 (ABA Press
1983).
Direct personal contact with prospective clients to solicit their business has been historically prohibited. See generally Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 454, reh’g denied, 439 U.S. 883 (1978). The general prohibition against solicitation also extends to indirect solicitation through the lawyer’s use of agents. See
MRPC 8.4(a), prohibiting a lawyer from violating or attempting to violate the Model Rules through the act of
another.
The type of solicitation Deck and Rudy engage in as depicted in this scene clearly runs afoul of the
Model Rules. If caught, Rudy will have jeopardized his legal career before it even gets off the ground. Likewise,
Deck may never get to practice law, regardless of whether or not he is able to pass the bar exam. As for Deck
“tipping” the hospital security guard earlier in the scene, MRPC 7.2 also prohibits the payment of compensation to anyone for recommending the attorney’s services. This rule prohibits payments to nurses, ambulance
drivers, or other health care professionals for referring clients to the attorney.
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VIII.Conclusion
Honesty and integrity are essential attributes required of every lawyer. Likewise, the Model Rules of
Professional Conduct also place a substantial premium upon the knowledge of ethics rules and careful application of those requirements by lawyers as a part of their daily practice. Whether all attorneys utilize this
knowledge is their choice. Attorneys who maintain diligence in these areas will not only experience the personal satisfaction in maintaining the honor of the legal profession, but will also discover that the discipline
and professionalism mandated by the MRPC provides every attorney who adheres to the rules a foundation
upon which a strong and rewarding practice may be built.
Most movie audiences remember the “bad attorneys” more than they do the ethical ones. Although
attorneys facing ethical crises in the movies may make for good theatre, for every ethical violation committed
by a “movie lawyer,” there are binding rules, codes, disciplinary opinions and possibly even disbarment that
likely applies to such conduct in real life.
Legal-themed movies do not always provide the best examples of ethical conduct and whether
today’s legal movies represent an accurate or unfair portrayal of the legal system is a topic for another day.
Hopefully, someday more legal-themed movies will focus more on the ethical conduct expected of attorneys
as opposed to the increasing portrayals of attorneys who take advantage of their clients and/or the legal system for personal ambition, hubris or gain. Although such depictions may only result in “ethical violations,” in
many respects such ethical misconduct can appear tantamount to a layperson like any other miscarriage of
justice, and definitely erodes the public’s confidence in the judicial/legal system. It is only through adherence
and respect of these standards, combined with a through, working knowledge of the rules of legal ethics and
professional responsibility, that the public trust in the legal profession can be maintained.
As Deck waxes so eloquently in The Rainmaker, legal ethics and professional responsibility must be
more than what is found in “big, fat ethics books.” Being an ethical attorney must always be acted out and
carefully depicted in all of us.
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