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Thursday, April 21, 2016

How to Get Away With Unethical Lawyering, Season 1, Episode 3

At the time I am writing this post, I have seen all of Seasons One and Two of How to Get Away With Murder. To date, about two minutes of Season One, Episode Three remain my favorite moment of the show, as they contain a perfect storm of outrageous ethical violations resulting not in prosecution, expulsion, or reprimand, but in reward for one of the show's main characters. It's outrageous, egregious, preposterous, and represents the law-ignoring mayhem that makes How to Get Away With Murder such fun for nitpickers like myself.

This is the third in my series of posts detailing the ethical violations in How to Get Away With Murder. My first post from a year and a half ago is here, and my most recent post on Episode Two is here. As always, the Pennsylvania Rules of Professional Conduct are my go-to authority on the characters' ethical violations.

That's it for the background, now on to the condemnation...

Near the beginning of the episode, Wes goes to the jail to visit his neighbor, Rebecca (Katie Findlay), who was arrested in the previous episode for the murder of Lila Stangard, a student at Middleton University. Also arrested is Griffin O'Reilly, a student with the good fortune and financial resources to make bail. Wes tries to see Rebecca, but is told that he cannot see her unless he is an attorney. Wes watches an attorney show his bar card and sign in, and the wheels begin to turn...

Meanwhile, Professor Keating and her gang of students/employees/minions are representing a housewife charged with public indecency who turns out to be wanted by the FBI for felony murder arising from a bombing many years before in which a janitor was killed. Following her client's arrest, Keating tells her client that the prosecution has offered her a deal of 10 years in prison -- a deal that expires in one hour. Mind you, this exchange appears to take place within mere hours of the client's initial arrest. Without any indication that Keating has reviewed any of the (presumably hefty) discovery a bombing case would involve, other than enough to determine that her client's fingerprints were found on the bomb, Keating tells her client not to take the deal. Keating assures her client that she can get the charges thrown out and that her client can Get Away With [Felony] Murder.

It's dramatic, it makes Keating look great, and it's nonsense. Keating knows her client's fingerprints were found on the bomb, but without reviewing any other discovery is able to conclude that she can successfully argue that her client was brainwashed into a terrorist plot. Keating cites the case of Patty Hearst (who was convicted) as an example of the brainwashing defense in her following lecture to her class on her current case (in violation of Rule 3.6(a).)

There is no way Keating could have known that her client had a viable defense at the time Keating urged her client to reject the prosecution's 10-year offer. Admittedly, Keating also could not have known that the prosecution's case was strong enough to warrant taking the offer in the short time Keating and her client were given to consider the offer. Keating should have spent that short time arguing that the prosecution should grant enough time for Keating to review the relevant discovery and help her client reach an informed decision, however, rather than telling her client that the prosecution's case was bunk. Keating's insistence that her client reject the offer is therefore a likely violation of the Rule 1.1 requirement that a lawyer provide competent representation and the Rule 2.1 requirement that a lawyer exercise independent professional judgment and render candid advice.

Looking into the Lila Stangard murder plot for a moment: in this episode, Wes arrives at the realization that he has Lila's phone, which Rebecca left in his apartment. Wes believes that the phone contains information relevant to Lila's murder, as he believes it contains information that will prove that Rebecca is innocent of any wrongdoing. Despite this belief, Wes does not turn it over to the authorities, possibly in violation of 18 Pens. Cons. Stat. § 5105 (a)(3), which prohibits the concealment of evidence of a crime. If Wes indeed violated this statute, that is likely a violation of Rule 8,4(b), which defines "misconduct" as the commission of a criminal act that reflects on one's honesty, trustworthiness, or fitness as a lawyer. At this stage of the show it may be argued that Wes does not know that the telephone contains evidence of a crime, but this argument would be a bit of a stretch.

This is not Wes's only ethical misstep in the episode, however, so even if I let him off the hook on this one, he will have plenty to answer to before the episode is finished.

Easing off the defense attorneys for a moment, though, we have another Brady violation!  As discussed in my most recent post, Brady v. Maryland (and corresponding Pennsylvania statutes) require prosecutors to disclose exculpatory evidence to the defense. This would include evidence of, say, the prosecution's star witness being offered "early release" in exchange for testifying against the defendant. Keating's plan to argue that her client was brainwashed backfires when the supposed ringleader of her client's former terrorist cell testifies that the entire bomb plot was the client's idea. This testimony catches Keating off-guard, and it is not until she grills the ringleader on cross-examination that she learns that he was offered "early release" in exchange for testifying against the defendant. This sort of deal with the prosecution would certainly undermine the ringleader's credibility, but the prosecution apparently never disclosed the deal to Keating, giving us the second Brady violation in the series.

Keating, interestingly, does not follow up on the ringleader's testimony that he was offered early release. We later see the ringleader sitting on a bus that same day waiting to skip town with Keating's client. No alarms are going off and police are not rushing out of the courthouse, so it is a logical inference that the ringleader has not escaped. Apparently, "early release" means that as soon as the ringleader finished testifying, he was set loose upon the world. Keating's failure to elicit the details of the ringleader's incredibly generous plea deal may be a violation of Rule 1.1's requirement of competent representation, although Keating not learning of the deal until the ringleader wason the stand may at least partially excuse her failure to explore the details of the ringleader's plea deal.

While I have not yet discussed the two-minute perfect storm of ethical violations that makes Episode 3 so special, it looks like this discussion will need to be delayed given the numerous ethical violations I have covered already. My next post on How to Get Away With Murder will dissect this portion of the episode and pose the unanswerable question of how Wes makes it out of Episode 3 with any hope of ever becoming a lawyer.

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