You know that feeling you get when you want to yell at the screen because a fictional lawyer in a television show mishandled a legal ethics dilemma?
You can learn from such scenarios and educate other lawyers in your firm about how you would have handled the situation differently. Set the stage with examples of how the fictional lawyer handled a thorny issue, and then break down how the lawyer got it wrong (or right) by applying the rules of professional conduct. Legal television drama can serve as an effective tabletop exercise for both new and experienced lawyers.
"Parenthood" and a Missed Deadline
Take, for example, the lesson that associate Julia Braverman and her law firm's managing partners learned in "Parenthood"'s Season Four episode, "There's Something I Need to Tell You."
Braverman missed a deadline to respond to a request for admissions. She did not inform the partner or their client about the potential material error. Instead, Braverman asked opposing counsel to "look the other way" and agree to send a joint letter to the court stating that they had stipulated to the extension before the deadline passed. Braverman explained to opposing counsel that she missed the deadline because of family commitments. She left the meeting unaware of how opposing counsel would act.
Braverman was later called to meet with firm leadership and was faced with their question "Where have you been for the last six months?" Because, even aside from this missed deadline, Braverman had lost focus at work and was not the confident and skilled lawyer that she used to be. Braverman then learned that her emotional appeal to opposing counsel had failed, the opposing party filed a motion to deem the requests admitted, and that her future at the firm was in jeopardy as a result.
This example of a real-world legal ethics dilemma -- a missed deadline -- implicates several of the California Rules of Professional Conduct.
First, CRPC 1.3 (Diligence) is a rule that receives little attention in legal ethics presentations and publications. Lawyers should not "intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing a client." For this purpose, "reasonable diligence" means that "a lawyer acts with commitment and dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer." Practically, this means that all lawyers (not just solos) should have a plan in place in the event they become unavailable to timely, competently perform legal services for their clients.
In Braverman's case, she experienced difficulty adjusting to her new role as a parent to a troubled youth. Her situation took her away from work more often than usual, and she lacked focus. Braverman could have mitigated the risk of missing the deadline had she taken parental leave, asked for support from colleagues, or, at minimum, ensured that at least one other lawyer or staff member was monitoring all of her deadlines.
Second, CRPC 1.4 (Communication with Client) requires lawyers to keep the client reasonably informed about significant developments relating to the representation. Responses to requests for admissions can make or break your case. As Braverman explained to her husband, "I basically forfeit this case, it's a big deal." Her failure to timely respond could materially impair the client's ability to defend the case.
This presents an opportunity to consider what triggers a lawyer's duty to inform a current client of the lawyer's material error. While ethics opinions from the American Bar Association are not binding authority, Formal Opinion 481 provides a roadmap to help lawyers navigate when and how to inform clients about mistakes. As a threshold matter, the lawyer should determine whether there was an error. Here, Braverman missing the discovery deadline was an error.
Next, the lawyer should determine whether the error was material. Formal Opinion 481 states that "An error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice." Id. at 2. The opinion concludes that a material error must be communicated to a current client. Here, the analysis may be different when Braverman first missed the deadline versus when the opposing party filed the motion.
Third, CRPC 1.2 (Scope of Representation and Allocation of Authority) must also be considered. "[A] lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by rule 1.4, shall reasonably consult with the client as to the means by which they are to be pursued." Lawyers may take some procedural actions without consulting their clients. In this set up, however, Braverman's opposing counsel should consult with their client before agreeing to grant the retroactive discovery extension.
Fourth, CRPC Rule 3.3 (Candor Toward the Tribunal) prohibits a lawyer from knowingly making a false statement of fact or law to a tribunal. Braverman's plea to jointly tell the court that the extension was granted before the deadline passed -- a lie -- implicates this rule.
Finally, CRPC 5.1 (Responsibilities of Managerial and Supervisory Lawyers) requires law firm managing lawyers to "make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm comply with" the professional rules. The practical tip here is to pay attention to your lawyers. The law firm managers sensed that Braverman was in trouble for the past six months, but they buried their heads in the sand until there was a clear consequence. Even then, the partners were more concerned that Braverman was no longer "on the partnership track" than with helping her learn from the mistake.
"The Good Wife"'s Data Breaches
There were several episodes of "The Good Wife" in which the firm's computers, phones, and other devices were likely breached. For example, in the Season Two episode "Raw Deal," Alicia Florrick learned that her laptop was infected with key logger software. The discovery was made after Florrick suspected an opposing counsel had tapped into their system. The firm later learned that the software was installed by one of its own partners, in an effort to gain confidential information about firm politics. Was this a breach? Or just an internal dispute?
This scenario is a good opportunity to explore the intersection of legal ethics and cybersecurity.
First, CRPC 1.1 (Competence) requires lawyers to apply the learning and skill, and mental, emotional, and physical ability reasonably necessary for the performance of legal services. Lawyers can achieve requisite level of competence by reasonable preparation. They are not expected to know everything. A new comment, added in early 2021, addresses the duty to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. This became especially important in the last year when we all went remote.
Here, Florrick was competent because she consulted with the firm's IT department when she was concerned that her laptop may have been breached. IT then discovered the key logger software.
Second, CRPC 1.6 (Confidentiality of Information) requires lawyers to maintain client confidences. American Bar Association Formal Opinion 477R on "Securing Communication of Protected Client Information" is the gold standard. All lawyers should read this opinion to understand how competence, confidentiality, and communication are a foundational trifecta for the why and how lawyers should implement effective cybersecurity procedures. Then read the opinion again. The opinion is that important.
Third, California Formal Opinion No. 2020-203 breaks down a lawyer's ethical duty to inquire and disclose data breaches. The key takeaways include:
• To understand the risks posed when using technology;
• To prepare a data breach response plan;
• The duty to monitor, mitigate, and investigate potential breaches;
• The duty to disclose to client if a breach affects their data;
• The duty to supervise, train, and establish internal policies and procedures; and
• To be mindful of data breach notification requirements.
Formal Opinion 2020-203 cautions, however, that "not all events involving lost or stolen devices, or unauthorized access to technology, would necessarily be considered a data breach." Id. at 7. Rather, a data breach for the purposes of the Opinion means "a data event where material client confidential information is misappropriated, destroyed or otherwise compromised, or where a lawyer's ability to perform the legal services for which the lawyer is hired is significantly impaired by the episode." The lawyer must make a reasonable effort to ascertain the nature and ramifications of the event, including whether client confidences were likely accessed by unauthorized persons.
In our fictional example, Florrick's firm may have narrowly escaped a true data breach. The key logger software was installed by a partner within the firm, who is also subject to maintaining firm client confidences. Their internal IT person stated, however, "Every key Alicia hit was sent through a Wi-Fi parasite program to another computer." This raises questions about whether the data transmissions, even to a firm partner, were secure. Consultation with IT experts would be prudent to determine whether anyone else could or did access the data.
"Suits" and Pillow Talk
Finally, while "L.A. Law"'s Arnie Becker crossed every line in the book with respect to inappropriately mixing business with pleasure, the more recent "Suits" brought the pitfalls of pillow talk to a new level.
In the Season One episode "Play the Man," Harvey Spector and Dana Scott represent opposing parties in a hotel chain merger. They tell their clients that they knew each other in college. Spector and Scott, however, fail to mention that they have a sexual relationship and that their intimacy continues during their clients' merger negotiations.
After a late-night rendezvous following due diligence discussions, Spector suspected that Scott must have hidden something about her client's intentions, because their encounter was the "the best victory sex" they had ever had. In other words, Scott gave up her tell. Acting on the hunch, Spector's further investigation revealed that Scott's client was in fact pursuing a hostile takeover instead of a merger. Game. Set. Match.
This set-up raises CRPC 1.7 (Conflict of Interest: Current Clients). A concurrent conflict of interest exists when there is a significant risk the lawyer's representation of the client will be materially limited by the lawyer's own interests.
Spector and Scott clearly failed to comply with 1.7(c)(2), which required written disclosure to both clients that they were intimate during the matter. Scott's representation of her clients was further compromised by her failure to maintain a poker face during her intimate relationship with Spector.
How to Train Lawyers with Lessons Learned from Legal Shows
The next time you yell at the screen because a lawyer on television or film has mishandled a legal ethics issue, use the opportunity to encourage your lawyers (both new and experienced) to watch the episode. Schedule periodic tabletop exercises with an open discussion of how the fictional lawyers either got the ethics right or wrong. Use the lessons learned to train your lawyers and yourself. You may find that even Saul Goodman complies with the rules now and then, but that's a lesson for another day.