July 2015 • Volume 103 • Number 7 • Page 52
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The Good Wife’s Lessons in Legal Ethics
The Good Wife - which happens to be set in Illinois - regularly raises ethical issues that give lawyers something to think about as they wait for the next episode.
Can law-related TV shows teach us about legal ethics? Can they, at the very least, be a springboard for a discussion about ethics issues?
In the case of the Emmy-winning CBS drama The Good Wife, the answer is definitely "yes." Luckily for ISBA members, this show takes place in Chicago, so we can use the Illinois Rules of Professional Conduct as a guide. It follows Alicia Florrick, played by Juliana Margulies, as she negotiates re-entering the legal world after taking time off.
The good 'lawyer'?
Sometimes the show leaves us wondering, "How ethical is Alicia Florrick?" One example appears early in the show's run. In season 1, episode 7, entitled "Unorthodox," Alicia works with a solo practitioner defending a couple in a negligence case. The co-counsel is effective and comes up with a unique but legitimate defense that seems to work.
However, as the trial is winding down, Alicia and her investigator discover that the co-counsel never passed the bar exam and is not licensed to practice law in any state.
Illinois Rule of Professional Conduct ("IRPC") 5.5 prohibits a lawyer from aiding the unauthorized practice of law ("UPL"), which includes assisting a nonlawyer in his or her practice. In In re Discipio, 163 Ill. 2d 515 (1994), the court concluded a lawyer aided UPL by entering into an agreement to receive referrals and information from a disbarred lawyer. Based on that ruling, Alicia could certainly be violating IRPC 5.5.
In addition, since Alicia also represents the client, she has a responsibility under IRPC 1.4 to inform the client of the UPL. Unfortunately, she handles the situation by telling the non-attorney to turn himself in after the jury starts deliberations. Certainly this is a tricky situation, but why put your career on the line to win one case by facilitating UPL?
Clients - and lawyers - with diminished capacity
The Good Wife tackled an increasingly common ethics issues in the episode "Threesome," which centered on Alicia's representation of one of the partners of the firm in which she was employed. In the course of her representation, Alicia discovers that the partner is suffering from the early stages of dementia.
This situation triggers IRPC 1.14: Client With Diminished Capacity. Though the rule isn't discussed in the show, the partner/client is able to hide his declining health well and manages to handle most day-to-day tasks, which allows Alicia to maintain a normal client-lawyer relationship with the partner/client as allowed under IRPC 1.14 (a).
There are other issues in the episode, too. The case centers on a car accident that may have been caused by the client/partner. At the conclusion of the matter, Alicia warns the client/partner that he should not be driving. If she has serious concerns about the client, she might be allowed to take protective action under IRPC 1.14(b), which states as follows:
When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
This instance may not require such action, but it is important to consider. Further, a lawyer in Alicia's position needs to keep in mind IRPC 1.7(a), which prevents a lawyer from representing a client when doing so creates a concurrent conflict of interest. 1.7(a)(2) also prohibits representation if it conflicts with a personal interest of the lawyer. Certainly representing one of her partners would oblige her to consider this rule.
Fiduciary duties also come into play as the partner/client, as well as Alicia, may have a duty to inform the other partners in the firm about the partner/client's diminished capacity.
Consulting those pesky clients
Another ethics issue that arises in The Good Wife, and many other legal shows and movies for that matter, is a violation of IRPC 1.2 and 1.4. Viewers are often shown two lawyers negotiating quickly with each other with back-and-forth offers until one lawyer finally gives in and an agreement is reached.
It is on display in the episode "Boom," where two lawyers negotiate by writing competing offers on a notepad as a witness testifies. Finally, they agree on a number that satisfies both lawyers.
It's a familiar scene and most people probably don't give it much thought, but for lawyers one important step is missing. IRPC 1.2 states that "a lawyer shall abide by a client's decisions concerning the objectives of representation." Decisions about representation, including settlement negotiations, must be made by the client. Most shows don't include clients in these scenes.
Further, IRPC 1.4(a)(1) demands that a lawyer keep the client reasonably informed about the status of the matter. Unless the client has agreed otherwise, the lawyer must promptly consult the client before taking action. Comment  to IRPC 1.4 states as follows:
a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer.
It is understandable that writers leave this portion out. Quick negotiation makes for better television. But it also gives viewers a false sense of how legal ethics work.
Ethics education that goes down easy
These are just a few of the examples from The Good Wife, a series you might want to dip into if you haven't already. For one thing, pop culture can affect the way the legal system is viewed, and clients and potential jurors may have to be reminded that what they see on television is not always accurate. But shows like The Good Wife also give you an opportunity to think about ethics issues when the pressure is off - and be entertained at the same time.
BaIley Cunningham is assistant counsel for the ISBA.