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Monday, April 18, 2016

How to Get Away With Unethical Lawyering, Season 1, Episode 2

Long ago I wrote a post on the first episode of How to Get Away With Murder detailing the plethora of ethical violations committed by the characters. After writing that post, however, work got busier, other legal issues grabbed my attention, jobs changed, and How to Get Away With Murder was not yet on Netflix. My attention turned to other things, and the show (and even blogging) fell off my radar.

Today, I begin to remedy this state of affairs.

This is the first of a regular series of blog posts in which I issue-spot the ethical violations in How to Get Away With Murder. Unlike other commentators who highlight the broader inaccuracies in the show's portrayal of the legal profession, these posts will focus primarily on the ethical violations committed by the show's characters. As with my first post, I will cite to Pennsylvania's Rules of Professional Conduct.

This post (and those to follow) contain spoilers for those who have not yet seen the show. My posts will start with Season One and both seasons of the show are on Netflix, so those of you who want to watch the show and avoid spoilers should have no difficulty catching up.

Season One, Episode Two of How to Get Away With Murder continues to unfold the chronologically chaotic tale of Annalise Keating's (Viola Davis's) criminal law class and legal practice. In Episode Two, Keating takes on the defense of a man accused of killing his wife, while flashes into the future shows Keating's students at various stages of covering up the apparent murder of Davis's husband, Sam.

The episode begins with a violation of Pennsylvania Rule of Professional Conduct 3.6(a), prohibiting the making of an "extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." Professor Keating begins the episode with a lecture to her criminal law class in which she begins discussing one of her current cases that we soon learn is proceeding to trial in mere days. Not only does Keating discuss the facts of the case, she displays gruesome crime scene photographs of the victim's bloody corpse as her lecture proceeds. She does this in a room full of law students, most of whom have laptop computers and who are almost certainly on Facebook posting about how disturbed they are by the horrific pictures their professor is showing them.

We are then given our first Brady violation of the series! The landmark Supreme Court case, Brady v. Maryland and its progeny require prosecutors to disclose exculpatory evidence to the defense. Violating this rule can lead to a mistrial, the reversal of a conviction, and severe ethical sanctions for the prosecutor that may result in disbarment. Brady is a big deal.

Well, it is to most people. The District Attorney in this episode doesn't seem to think so. Keating asks her student (now employee) Wes (Alfred Enoch) to obtain a supplemental police report from the police department without telling them who he is or who he works for. Wes does so and obtains the report -- which reveals that the police department covered up the name of the officer who discovered the murder weapon by naming a different officer in the primary report. Their reason for doing so, as explained in Keating's leading question / testimony in the trial, is that the officer who discovered the knife is under investigation for drinking on the job. That's Brady evidence, but it took Wes's covert request on the eve of trial to obtain that evidence. This leads me to conclude that the police and District Attorney failed to turn over the supplemental report in violation of Brady and Pennsylvania Rule of Criminal Procedure 573(B)(1)(a), which codifies Brady.

Back to the violations of the main characters. Again, we have Oliver (Conrad Ricamora) hacking into somebody's computer to obtain helpful information. Oliver does so at the request of Keating's student/employee Connor (Jack Falahee). Oliver's hacking is illegal, and Connor's request that Oliver do so is a violation of Rules of Professional Conduct 8.4(b) and (c) which define as "misconduct" criminal actions reflecting on a lawyer's trustworthiness and conduct involving dishonesty, fraud, deceit, or misrepresentation.

"You lie to me again, you no longer have an attorney," Keating tells her client. It's an intimidating line, but to back out of representing a client in the midst of trial would result in certain prejudice to the client's interests. Keating does not limit her ultimatum to lies that are themselves criminal acts or are repugnant to her. Keating only wants to avoid being embarrassed in court and losing the case, and were she to carry out her threat in response to, say, her client's lie about his innocence or prior criminal conduct, Keating would likely be violating Rule 1.16 which outlines when an attorney may cease representation of a client. Thankfully, this is one of the few ethical violations that does not manifest during the episode.

I could also point out that having a client admit on the stand to the murder of his first wife violates the Rule 1.1 requirement that an attorney provide competent representation, but this post is already pretty lengthy. Remarkably, the jury does not decide to punish Keating's client for his admitted prior murder that he "got away with," as it were, and promptly finds him not guilty.

As the dust settles, the ethical violations fade into the recent past. There are no consequences -- not for the Brady-violating prosecutor and not for the defense team's illegal hacking, the results of with are flaunted in court. Will this lack of consequences lead to even more egregious violations, perhaps as soon as Episode Three? Stay tuned for my next post to find out.

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