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Thursday, October 2, 2014

How to Get Away With Unethical Lawyering: Episode 1

I recently watched the pilot episode of ABC's How to Get Away With Murder. I blogged about the show back in May when the trailer first came out. I noted that the show appeared to be "(1) an overly-dramatic reiteration of the second half of Legally Blonde; and (2) a professional responsibility issue-spotter."

After watching the pilot, I think it's safe to say that I was right.

The show is centered around a criminal law professor, Annalise Keating (played by Viola Davis), at a fictional law school in Pennsylvania. She teaches criminal law while simultaneously running a highly successful criminal defense firm out of her home. For her assignments, she tells students the facts of cases she is defending and asks them to provide their own defense theories. Students who do the best are promised a job at her law firm.

The show also highlights several of her students, in particular, Wes Gibbins, played by Alfred Enoch. Gibbins, a bright-eyed first year law student starts out by making the classic mistake of not being prepared for the first day of class. He soon dives into Keating's world of criminal defense and intrigue.

With a premise like this, how can't there be a slew of ethical violations? After the break, I discuss the specific ethical problems that I noticed in the pilot episode. Because the show seems to take place in Pennsylvania, I will use Pennsylvania's Rules of Professional Conduct in determining whether ethical violations have occurred, and any reference to a "rule" will be to these rules unless I note otherwise. Warning, spoilers ahead.

The first major concern that I had was when Professor Keating apparently invites her entire class of well over one hundred students to listen in on an interview with one of Keating's clients. Under Rule 1.6, a lawyer has a rule to preserve the confidentiality of "information relating to representation of a client." I note this class-interview situation as a possible violation, however, because a client may waive confidentiality as long as the lawyer obtains informed consent from the client. This, however, raises a question on whether a worried client charged with murder can truly understand the possible exposure that may arise from her case's details being shared with dozens of untrained law students.

Moving on to a more scandalous ethical rule, there is a possible violation of Rule 1.8(j), which prohibits a lawyer from engaging in sexual relations with a client. While the facts are never fully disclosed, Keating makes an accusatory remark in a discussion with one of her colleagues, Frank Delfino (played by Charlie Weber), implying that Delfino had sex with the defendant Keating and Delfino represent. Delfino even apologizes after Keating makes this statement, so while the facts are unclear, I suspect that an ethical violation has occurred behind the scenes and between the sheets.

The last of the possible (rather than blatant) violations that I noticed was an apparent failure of the prosecution to provide discovery to Keating in the murder case that takes place during the episode. The prosecution accuses the defendant attempted murder by poisoning. When the prosecution introduces surveillance video of the defendant purchasing aspirin, Keating, the defendant, and everybody else in the courtroom is shocked. The defense lawyers' surprise upon the introduction of the video suggests that the prosecution never told the defense that it had this evidence.

Rule 573(B)(1)(g) of the Pennsylvania Rules of Criminal Procedure requires the government to turn over electronic surveillance if it is requested by the defendant. Given the surprised reactions by the defense team when the video was introduced, one of two violations has occurred. Either the government violated Rule 573(B)(1)(g) by failing to disclose the video in response to the defendant's request for electronic surveillance evidence. Or the defense attorneys failed to request any surveillance video in the government's possession, in which case there is a strong case that the defense attorneys violated Rule of Professional Responsibility 1.1, which requires attorneys to provide competent representation.

The ethical violations I have discussed so far are the non-blatant ones that I found particularly interesting. The show contains a host of clear violations in addition to the three I have already discussed. For one, Keating's sleeping with a police officer who is investigating her client creates a conflict of interest in violation of Rule 1.7. It is strongly implied that Keating hasn't told anybody about the affair, meaning that she probably has not informed her client of this conflict and obtained consent to continue representation despite this conflict.

Moreover, throughout the episode, several of the students (who presumably now work for Keating's firm) hide evidence of a crime by burning a dead body and conceal evidence from the police. All people (attorneys or otherwise) are generally prohibited from concealing evidence of a crime from the authorities. While comment 2 to Rule 3.4 contemplates that attorneys may be able to take possession of evidence of a crime for a temporary period of time, the comment prohibits lawyers from destroying that evidence.

I cannot conclude a discussion of the episode's ethical violations without pointing out the inappropriate investigatory tactics the students employed. One student lied to a witness's optometrist in order to obtain medical information revealing that the witness was colorblind. And another student sleeps with a witness in order to obtain emails between a business partner and the business's lawyer. Both of these instances are fairly clear violations of Rule 4.4 which requires lawyers to respect the rights of third persons. Comment 1 under Rule 4.4 specifies that lawyers should avoid "unwarranted intrusions into privileged relationships." Both doctor-patient and lawyer-client relationships fall into this privileged category.

Finally, I want to highlight my favorite reaction to the show that I have read so far. At Concurring Opinions, Taunya Banks has some thoughts on Scandal and How to Get Away With Murder. Regarding the latter, Banks writes:

The episode ends with Keating, through hook and crook – legal and illegal, including calling her adulterous boyfriend to reluctantly testify against his police colleagues, getting her guilty client off. One of her admiring students, a woman, says: “I want to be like her.” I wanted to run into my classroom the next day and scream – NO you don’t!


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