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Volume 48, Number 6 (2001) reprinted by permission of the author and the Law Review CAN THEY DO THAT? LEGAL ETHICS IN POPULAR CULTURE: OF CHARACTERS AND ACTS Carrie Menkel-Meadow*
acts? Did your first image of a lawyer come from real life or from a movie, a television show, a popular novel, or literature?1 Second, what popular, cinematic, or literary image would you select as being "exemplary" of the good lawyer? Do you imagine a person of good character or one who does good deeds? Who seeks justice, possibly at great personal or professional risk to self, or who is "good or helpful" to other people, including clients and third parties? Is a "good" lawyer a person who performs his or her craft well or a person who is fair, kind, and just? Do you see a courtroom trial advocate, ready with razor sharp questions and pithy - but moving - closing arguments? Do you see a skillful draftsperson or law office counselor advising people to do the right thing or create new and interesting entities? Many critics of lawyers in popular culture have argued about whether recent images of lawyers in movies, popular novels, legal thrillers, and even more complex "high" literature reveal a declining ethicality, or faith and trust in lawyers. Some separate the heroes from the villains, and see a decline in the heroism of lawyers.2 Others see a more complicated alternation of good and bad images of lawyers in American history as different periods of American cultural representations reflect the vagaries of historical appreciation or deprecation of lawyers, beginning with the period immediately after the American Revolution, and - most agree - culminating in the zenith or "golden age" of lawyer appreciation in the films of the late 1950s and early 1960s.3 From a period of virtual or actual canonization of such figures as Atticus Finch,4 Sir Thomas More5 and television's The Defenders,6 we are now in a period that not only creates its own more morally and ethically ambiguous lawyers, but also seems to be engaged in some revisionist re-readings of even such heroes as Atticus Finch.7 With the vast increase in novels, mysteries, thrillers, movies,8 and television shows about lawyers, images of lawyers - good, bad, indifferent, complicated, and nuanced - are proliferating. These recent depictions present a greater variety of lawyer images to choose from, which, while perhaps still not "representative" (in a socially scientific way) of all lawyers, present a more accurate choice of complex lawyer images to analyze than ever before. As I will suggest in this Essay, the greater variety of genres and increasing numbers of lawyers in popular literature and culture present an excellent opportunity for students of legal ethics to examine the work of lawyers in both their "macro" (choice of career, choice of client, role in legal institutions) and "micro" (choice of particular actions and behaviors) contexts, and allow us to examine the many different criteria we might apply to evaluate whether a lawyer is a good or bad actor, or a good or bad person.9 It is also interesting to ask why lawyers have so frequently been depicted as the repositories of professional morality, and used in critiques of morality in American culture, compared to other professionals with ethical dilemmas such as doctors,10 architects,11 police officers,12 and business managers,13 not to mention other kinds of workers (such as British butlers,14 or French executioners15), and ordinary human beings. I will focus here on some comparative professional ethics, as depicted in popular culture and literature, as another way of looking at how ethics are presented in modern culture and to illustrate how lawyers have come to be considered one bellwether of American morality. The variations of genre allow different aspects of the lawyer's persona to be developed. Long novels and television series allow "character" to be more fully developed.16 Movies and superficial thrillers or mysteries tend to focus more on acts and discrete plot turns rather than on character. Thus, the multiplicity of ways in which lawyers are represented allow us to create a sociologist's "four-fold table."17 We can examine and map examples of expressions of legal ethics or morality demonstrated in popular culture, considering lawyers' characters and acts in positive and negative columns, representing both professional and personal choices.18 I supply some examples in the following chart:
in novels, movies, and television shows allow us to view (from multiple "sight-lines") the beginning of the action (what led up to a particular choice point), the action itself, and the consequences of such actions. Thus we are provided multiple ways of seeing (backward, sideways, and forward) the consequences of a lawyer's action, which are often missing from an appellate case as read in the conventional professional responsibility class.21 Responses to my opening questions above have included such conflicting descriptions of good lawyers as smart, winning, self-sacrificing, ana-lytic, compassionate, problem-solving, honest, independent, loyal, defenders of unpopular causes/clients, tough, caring, incisive, sensitive, strong, firm, flexible, creative, and justice-seeking. Descriptions of bad lawyers have included such attributes as dishonest, greedy, manipulative, mean, selfish, crafty, wily, disloyal, conforming, adversarial, argumentative, naysaying, negative, fee-focused, and rapacious, among others. When asked to provide concrete examples or illustrations of these attributes, it is remarkable how many readers or viewers consistently name Atticus Finch, Sir Thomas More, Clarence Darrow (both as a real and as an imaginatively presented character),22 Perry Mason,23 or E.G. Marshall in The Defenders as emblematic of the good qualities, but any number of John Grisham's characters or Al Pacino's character in The Devil's Advocate24 as evil. But, what are we to make of Rusty Sabich in Presumed Innocent,25 a good prosecutor, prosecuted for murder because of his adulterous relationship with a coworker. Or Michael Brock of John Grisham's The Street Lawyer,26 who begins as a greedy partnership-seeking lawyer in a major Washington D.C. firm and ends as a lawyer for the homeless? Or Bobby Donnell in The Practice,27 who defends both the guilty and the innocent, using a variety of tactics, including skillful cross-examinations and questionable tactics like "Plan B" (falsely suggesting someone else did it)?28 As character and concrete acts of professional and personal life are depicted over time and in settings increasingly more diverse than the dramatic courtroom, these modern protagonists in popular culture often present a more complex and nuanced picture of the modern lawyer, neither all heroic nor all evil. In this Essay, I want to explore a few examples of depictions of lawyers in popular culture to suggest that modern lawyers demonstrate a full range of moral and ethical behavior, both personally and professionally, and that these depictions of lawyers in popular culture are actually extremely effective exemplars of legal ethics from which we can teach and learn much. I am particularly interested in contrasting lawyers' characters or macroprofessional choices (deciding what kind of law to practice, what clients to choose, how to live one's life) with their particular actions or microbehavioral choices (as consumers of popular legal culture learn to ask, when viewing or reading lawyer stories, "Can they do that?"). At least one other teacher of professional responsibility has already developed a full course of legal ethics, by asking his students to systematically explore the ethical dilemmas presented on The Practice.29 And, in a new and emerging genre, what I call "bill and tell" stories,30 real lawyers, mostly who have left the practice, tell stories (some fictionalized, some real) of their actual practices that provide deeply contextualized and literal, as well as literary, accounts of their ethical choices. Finally, by comparing depictions of lawyers' ethical dilemmas to those of other professionals and other workers, we can ask why lawyers are expected to be ethical within their professional rules and why lay consumers of popular culture are permitted to judge them by more than their own professional constraints.31 as soldiers, doctors, lawyers, or butlers provide a role-differentiated set of moral or ethical expectations. In one sense, this can be seen as a conflict of disciplines. Philosophers are more likely to expect virtues of the person, as expressed in "dispositions" in a person's character that are enacted in various situations throughout a person's life.33 Sociologists, beginning with the work of Emile Durkheim,34 have acknowledged first, the division of labor and then, the moral division of labor by roles in our society, leading to organic order and social functioning. Some of the recent debates in legal ethics scholarship reenact debates of the 1950s functional-structuralists with the post-Watergate 1970s demands to revisit both personal and professional moral character.35 These issues have also recently been revived during the impeachment debates, as we considered whether particular bad "acts" constituted "high crimes or misdemeanors" within a role-differentiated functionality, when what was most disturbing to most people was really the former president's "character" flaws.36 William Simon's persistent arguments for allowing ethical discretion in lawyer decision making37 suggest that lawyers must develop ethical dispositions by exercising judgment with well-internalized values and prudent exercise of both rationality and human care for others (including clients and those in relationship to clients) in increasingly complex contexts, rather than respond mechanistically, like Oliver Wendell Holmes's "bad man," to the "authoritarian and categorical"38 letter of the code of the Model Rules. Thus, Simon, like other realist "contextualists,"39 finds value in the highly contextualized stories of modern popular culture that depict lawyers demonstrating their "moral pluck," in actions which he defines as "transgressive and resourceful. "40 Lawyers take such action when they have to choose courses of action that require independent thinking, when rules are too rigid, contradictory, ambiguous, or non-existent. Kantian-like moralists,41 who would impose categorical ethical imperatives, particularly having to do with character or absolute rules42 ("thou shalt never lie"), or those who believe that positive rules and laws can and should provide adequate guidance for the ethical lawyer,43 are opposed to the more discretionary form of ethical decision making suggested by some legal ethicists. The claim that stories, with their non-universal contexts and particular "truths" are the best way to teach about good character (through illustration), good decision making, and action (through empathic understanding) is hardly new. Philosophers and literary critics have made such claims for years, and law professors have joined the argument.44 James Boyd White is the father of a "law and literature" movement, which suggests that it is only through study of the humanities side of law that a lawyer can become fully human.45 Use of "high" literature (Greek myths, philosophy,46 classical plays, the "great novels," and selected short stories) to teach about professional and even legal ethics has become quite common. But, as the examples below will illustrate, it is probably the more commonly viewed movies and television shows and the more commonly read popular novels that instill legal ethical curiosity in the modern-day law student and that carry some penetrating lessons for the practicing lawyer. by seeking vindication for the wrongfully accused, by obtaining compensation for the wrongfully injured, or representing a larger social principle (such as Darrow's defense of the teaching of evolution in the Scopes trial). Note that heroic lawyers sometimes, not always, seek the truth (that is the "honor" of scientists and academics). Justice occasionally requires an untruthful turn. The ironies of many stories about lawyers is that a lawyer seeking justice must occasionally trample on the truth or on an ethical rule to get there (as in the transgressions of several of John Grisham's youthful heroes on their way to unmasking the greed or evil of either other lawyers or bad corporate forces).48 And, like many real heroes,49 good lawyers are devoted to their professional causes and sometimes neglect families or have unfullfilling personal lives. Atticus Finch serves as a model - if sometimes harsh - father. But he is a widower, who has to "soldier on" alone,50 and in the end, he too, agrees to lie in order to do a more perfect justice.51 Sir Thomas More lost his life and his devoted family in the name of a principle. And heroes do lose. Clarence Darrow was known to lose a few cases. Even our heroes are not perfect. (Perry Mason lost three cases during the run of the television version of Erle Stanley Gardner's creation, and, after some complaints that the prosecutors were always winning on Law & Order,52 even that star prosecutorial team lost a few cases). As David Papke has suggested,53 The Defenders has been regarded as "heroic," because of its courageousness in taking on the social issues of the day, including civil liberties, racism, abortion, the death penalty, and conscientious objection, especially when compared to Perry Mason, which was still on the air when The Defenders began. In one sense this social critique function is now played by The Practice, in contrast to L.A. Law,54 both written by David E. Kelley, as the former addresses difficult social and legal issues (assisted suicide, date rape, criminal environmental hazards), along with a steady diet of murders and drug deals, while L.A. Law tended to feature up-scale divorce, high-end products liability cases, and tax law, with a few pro bono cases handled by Ann Kelsey (she also raised a few issues about women in the law).55 Today's stories of lawyers with "character" show them as more flawed and also as likely to lose some cases (more realistic portrayals I believe), but the good lawyer is resilient and most importantly committed. It seems somewhat odd to me and consistent with those who have chronicled the more negative depiction of modern lawyers in the media that one of the only recent "lawyers as hero" in popular fiction is Michael Brock of The Street Lawyer.56 Although Grisham is not known for deep character development, Michael Brock demonstrates character change. He begins as a greedy, selfish, overly busy, and ambitious associate, but becomes a lawyer for the homeless after being taken hostage and confronting the excesses of his life in a world of privilege. Grisham uses all the devices of traditional thrillers and mysteries to work a plot that has Brock exposing his former law firm as a nasty organ of unlawful evictions in the name of corporate real estate development.57 The Street Lawyer also demonstrates another modern turn on the hero's character. Real heroes in modern legal stories are often not lawyers, but paralegals or legal secretaries, close to, but not of, the legal profession. The paralegals Sofia Mendoza (who works in the homeless clinic) and Hector Palma (the big firm paralegal who steals files to right the wrongs his firm has committed) are more committed to justice, people, and causes than are most of the lawyers around them (with the exception of Mordecai Green, the hardworking founder of the homeless clinic). Like the recent depiction of Erin Brockovich,58 a paralegal who almost single-handedly takes on the corporate water polluters, these paralegals suggest that not enough lawyers are available to work for "the little people," when everyone seems to be chasing those L.A. Law dollars. These days, only those outside of the profession seem to take on the unpopular cases or the dispossessed and injured. On the other hand, as modern literature has moved from fiction to memoir, we find our lawyer-heroes these days more frequently in different forms of popular culture - the legal memoir or journalistic account of the actual case. Starting perhaps with The Buffalo Creek Disaster59 and culminating with the recent bestseller success of a journalist's reporting of Jan Schlichtmann's role in A Civil Action,60 lawyers seem to need to tell their own stories of commitment to causes (mass torts, corporate misfeasance, serious death, and illness) and to people, whereas the fiction and film worlds have taken a more cynical turn. Books like The Buffalo Creek Disaster and A Civil Action61 often document character changes not unlike that of Michael Brock, as in Gerald Stern's commitment of time, labor, and money to a complicated public interest case from within the comfort of his large Washington D.C. law firm, or Jan Schlichtmann's literal "betting the firm" on his fight for people with leukemia caused by toxic dumping in the Woburn water supply. These men, like the transformed hero of Schindler's List,62 are ordinary men, working either within corporate privilege or in traditional small law firm struggles, but they are "moved" by their work to commit their professional lives, money, and often, their personal lives to people and causes outside of their usual ken. Perhaps one of the richest explorations of modern-day legal heroes can be found in the non-fiction reportage of Melissa Fay Greene in Praying for Sheetrock,63 in which a group of dedicated legal services lawyers help a black community gain political power in a southern town marked by decades of white rule, through the filing of lawsuits and the use of political action. Her story demonstrates that the real unsung heroes of lawyering are those who labor with little pay and much commitment to cases and people who seldom gain the attention of klieg lights.64 Modern-day heroes are crafted in a more complex world, where there is more than the local community and the self to serve. More often than not, the better treatments of "character" in popular culture demonstrate change or redemption65 of the lawyer character. Michael Brock becomes a street lawyer after being taken hostage and losing a wife who, as a doctor, also worked long, hard, relationship-killing hours, and realizes that he could be employing his considerable legal skills in more fulfilling ways. Frank Galvin, the drunken "anti-hero" of The Verdict66 finds salvation, redemption and recovery of his personhood and professional career by becoming committed to his comatose medical malpractice client and by fighting off a large and somewhat unscrupulous law firm (even though Galvin is also not above bending a few ethical rules). For these more complicated characters, who are neither all good nor all bad, character is constituted in the complex relationship of personality and circumstance. While being a lawyer tempts one to do everything for a client (including pushing over the line of permissible legal ethics), or to do everything for oneself and for personal aggrandizement, being a lawyer also offers one the opportunity to respond to legal or personal challenges and to recommit to the justice-based values of the profession. Redemption is possible for lawyers who find meaning in serving others and in rediscovering the value of their professional selves. As Robert Coles has recently demonstrated in Lives of Moral Leadership,67 today's hero must be effective and must act; it is not enough to be idealistic and to care about justice or good causes. Thus, the lawyers who re-find their efficacy by accomplishing something - a career change (Michael Brock), the ability to work hard and win a case again (Frank Galvin), or the courage to keep representing unpopular clients (Bobby Donnell and Eugene Young on The Practice) after "tests" of their modern mettle - seem to represent our own version of the more modest Greek drama of professionalism. Another element of modern character development is significant to note - the recognition of small worlds of professional communities. Many of the earlier depictions of modern heroes focus on the strength, courage, redemption, or recovery of the individual lawyer. But, there are also interesting depictions of some of the lawyers' commitments to each other and to the professional communities they create. Over thirty years ago, one commentator noted the creation of "professional communities" on a variety of the early lawyer and doctor television programs, in which lawyers help and succor each other while performing difficult, but important, public service.68 Many of the dramatizations of professionals on television in the "golden era" of the 1950s and 1960s69 involved character development in the training and mentoring of a younger professional by an older and wiser professional - the senior Lawrence Preston (The Defenders) guiding his son, Kenneth, Dr. Gillespie and Dr. Kildare (Dr. Kildare70), Dr. Zorba and Ben Casey (Ben Casey71), now replicated in Leland McKenzie on L.A. Law, and an only slightly older, but clearly more experienced, Bobby Donnell on The Practice. Gene Hackman's father figure does much the same to turn his daughter, big-firm defender of corporate interests, into a lawyer also seeking social justice in Class Action.72 These "learning communities" of lawyers (and other professionals) demonstrate that being a professional does require good character (loyalty, ongoing learning, honesty (at least with one's colleagues, if not the system), and devotion to the larger public and to social good). Hear what one television critic has said of the television professionals of the 1960s and consider how much of it is still true: [T]hey know that without such work the quality of everyday life would plummet, society would flounder. Their jobs, in short, are the best of all possible jobs: they offer both inner meaning and public worth. Television's city-dwelling professionals thus serve as living proof that work in the modern world can be beautiful ... . The professionals of these programs are not only public servants; they are also spokesmen of society, and their behavior reveals the way society operates to take care of its own ... . The professionals themselves are tireless, selfless, and profoundly equitable ... . In the presumably cold, dead heart of contemporary life and society, television's profes- sional dramas have managed to find nothing less than the pulse of the good community. The living there may have its difficulties, admittedly, but in the end the problems are only superficial ones. For this is a place that offers meaningful work,[73] a public devotion to the common good, and secure, vital values.74More recent professional series demonstrate an even more equalitarian sense of community. Although Leland McKenzie presided over highly fictionalized daily firm meetings, the lawyers of L.A. Law and The Practice, like their compatriots on ER, mostly soldier on together in relative equality and with unrepresentatively little concern about partnerships and hierarchy. Occasionally there are treatments of partnership and income, but these modern-day professionals mostly help each other through their difficult cases. They seem to be more likely to help and to fall in love with each other (which involves all kinds of conflicts of interests that the shows do not portray with much ethical accuracy75) than to engage in the kind of ruthless competition with each other that is the presumed culture and frequent depiction of legal education.76 Indeed, while police detectives have to deal with and often complain about their hierarchical bosses on N.Y.P.D. Blue77 and Homicide,78 there is little critique of senior partners and much less depiction of ethical conflicts between senior and junior lawyers on television than in the days of "yore,"79 in real life,80 or in other media.81 Like other reflections of society in popular culture, treatment of professional character mirrors issues in the real world. Following the recent political scandals of the Bill Clinton presidency, questions about what good character is, and how it relates to professional duty and responsibilities, have been raised in all venues, from the movies to Sunday school to Sunday talk shows.82 While The West Wing83 ends this season with an exploration of presidential truth telling about arguably private matters with public implications (the president's health), the recent movie The Contender,84 took on the relevance of a political figure's sex life to her professional duties. When a seemingly documented scandal accuses vice presidential nominee Laine Hanson of engaging in a college-day fraternity sex orgy,85 she refuses to discuss the matter, demonstrating commitment to the principle that whatever she may or may not have done in her youth is irrelevant to her current qualifications to be vice president. The Contender not only cleverly reworks the Clinton ethical and political quandaries, but suggests that professional character may also have gendered dimensions. Laine Hanson's commitment to silence and her refusal to discuss publicly this "private" matter also confronts the question of whether a woman's character in professional life may be judged differently. As the number of women (and other previously excluded demographic groups) increases in media portrayals of lawyers we will have an increased opportunity to explore whether popular culture is ahead, in step with, or behind the reality of the integration of the profession.86 Whether the moral character of lawyers is related to who they are personally and demographically is also a fascinating question to examine from the perspective of popular culture, sometimes reflecting, sometimes challenging more scholarly treatments of the same issue. I have argued for years that women may bring a different moral sensibility to the practice of law by seeking to do less harm, solve more problems, be more concerned with human relationships of both clients and of those who interact with clients, and to deal with others more honestly and fairly.87 Therefore, it should be no surprise that one of my favorite depictions of the struggles of modern lawyers is the film All of Me.88 In this film, which uses a now standard plot of bump-on-the-head transformation into someone else,89 Steve Martin, playing a stereotypically aggressive and dishonest lawyer, becomes literally embodied by the soul of Lily Tomlin, a deceased, do-gooding woman. In what has to be one of the funniest and most serious critiques of the character of lawyers, Lily Tomlin and Steve Martin literally, figuratively, and linguistically fight over the control of both body and soul of a lawyer who, in Steve Martin's body, makes a dishonest closing argument, as Lily Tomlin struggles to push the truth out of Steve Martin's mouth. (Of course, this scene can be read not only as a gender critique of lying male lawyers,90 but as the standard - layperson as moral, lawyer as good professional but bad person - critique found in much moral philosophy.)91 On The Practice, Eugene Young's recent defense of his work as a criminal defense lawyer, against his ex-wife's claim that he should not have custody of his young black son who was arrested for possession of drugs in a school locker, courageously depicted these lawyer character issues (commitment to justice and equal treatment) with the added social dimension of race.92 Eugene's defense of his profession and its purpose is, in my mind, the most eloquent defense of the criminal defense lawyer's calling and commitment to justice seen in the popular media in decades. Perhaps the most troubling of lawyer character issues depicted in the popular media, which replicates the debates among legal philosophers and ethicists, is the tension, in a lawyer of good character, between commitment to law and commitment to justice. As Americans and lawyers, we argue throughout the world for the sanctity, as well as the instrumental fairness, of the rule of law. Some legal ethicists seek clarity and conformity in the "law of lawyering."93 Writers of popular fiction, movies, and television mirror the challenge that William Simon and others have posed to the law of legal ethics. Consider that within one year Gregory Peck portrayed both Atticus Finch94 and Sam Bowden (the law-abiding southern gentleman lawyer of the first Cape Fear95). In both roles, he served as a righteous trial lawyer attempting justice in the courtroom (in the first instance, seeking acquittal of a black man falsely accused of rape, and in the second, defending a white man accurately accused of rape). At the conclusion of both films, however, this gentlemanly southern lawyer has been forced to take the law into his own hands, ultimately violating the law in both cases (covering up a murder in one and actually committing a perhaps justified (self-defense) murder in the other), all in the name of justice. We, the audience, complicitly applaud this man of noble character who achieves justice with all the American approbation of a good western well fought.96 Is lawyer character constituted from ordinary human mettle? Strength of character? Commitment? Loyalty? Honesty? Selflessness and protection of others? Good judgment?97 Leadership? Or, is good lawyerly character supposed to be faithful to the rules of law, ethics, and procedure? Literary and popular depictions of lawyers dramatize these tensions, as legal philosophers debate the differences between morality and positive law.98 In the movies and on television good lawyer character just as often demonstrates a departure from the rules of law in the name of a greater justice,99 as it does conformity to it. We may want to question why this is so - do these fictional depictions help us develop role models committed to justice, or is there also a danger that good and strong character allows us to take justice, and law (as long as we are "worthy" and morally justified) into our own hands? Perhaps it is in our actions that our true characters are revealed, and it is to those particular acts that I now turn. intersections of rules,102 professional and personal conceptions of morality, and the sociology of the profession's influence on legal ethics actions (hierarchical, economic, and social demands on the professional). Role-plays and simulations are one way to place students in the role of a lawyer who must make actual ethical choices and decisions about actions. But over the years I have tapped the richness of vicarious experiential learning that can occur by studying legal actions taken as depicted in literature, movies, and television.103 Watching lawyer stories in the movies and on television, or reading mysteries and legal thrillers now enables us to spot issues by the hundreds,104 and really requires that all lawyer and law student viewers keep their ethics rules close at hand. Seeing acts taken or contemplated vividly depicts the actual ethical dilemmas that lawyers face and helps us consider what other choices are available. Modern popular culture has gone so far as to actually depict ethical proceedings, though often inaccurately. Ethics claims and charges were occasionally brought on L.A. Law (for solicitation of clients, conflicts of interests, and such) and are now quite common on The Practice, where we have actually viewed several disciplinary proceedings. Most often the writers, probably for dramatic reasons, allow ethics issues to be raised in the case-in-chief,105 when in fact they would most often be dealt with separately, either in a disciplinary hearing or in a malpractice action.106 Beyond ethical rule violations, popular culture treatments of lawyers raise such compelling professional and personal moral issues as what to do with incriminating physical evidence,107 sleeping with opposing counsel,108 one's client, a juror, or the presiding judge,109 whether to falsely accuse an innocent person,110 how to get information or documents from the other side without formal discovery,111 and when and how a lawyer may reveal confidential information to others. While The Practice has literally become an ethics course112 with at least one ethical issue an episode (and sometimes more), legal ethics and personal morality are clearly on the minds of all modern writers about legal issues. While I do not assert here that the ethics issues dramatized in popular culture are necessarily representative of what actually happens in law practice,113 it is useful for scholars to study the actual occurrence of ethics violations and compare them to treatments in popular culture. It is instructive to canvass and analyze what legal acts have been demonstrated as ethical quandaries or dilemmas in the popular media. It is possible to construct a temporal template of ethical issues depicted in the popular media from the beginning of the lawyer-client relationship to the end of an appeal or transaction (or to a murder for those relationships that end really badly). Russell Banks's The Sweet Hereafter114 tells the fictionalized story of an actual bus accident that killed a number of children and had a great impact on many lives. The story is told from the point of view of many different participants in the story, but from Mitchell Stephen, Esq., we learn how clients are involuntarily solicited, because lawyers are angry and are able to harness their anger to compensate other people. For Mitchell Stephens, "there are no accidents"115 - someone is always responsible for things that go wrong, and it is the plaintiff's lawyer's job to find someone (with deep pockets) to blame and to pay up so the injured can be compensated. This is class justice and the lawyer must orchestrate it: "I wanted a mean lean team, a troop of vengeful parents willing to go the route with me and not come home without some serious trophies on our spears."116 As Stephens describes himself, he lives for these "disaster negligence suits ... . Nothing else provides me with the rush that I get from cases like this ... . It's almost like a drug. It's probably close to what professional soldiers feel, or bullfighters."117 Stephens tells us how he ropes in mourning parents and what he does when one of them, Billy Ansel (who has lost two children), resists him, and how he lies to make his case. We also learn how Stephens appears to his clients (from their point of view), as one of the injured children, Nichole Burnell, takes his measure when she is interviewed and prepped for a deposition (which she later deliberately ruins by telling her own truth and seeking justice against another wrongdoer, her own abusive father, rather than against any of the actors in the accident). Although Nichole likes Mr. Stephens, he makes her feel greedy and dishonest by preparing for a deposition to get the money her parents want from her injury. Nichole overhears a conversation Billy Ansel has with her father about how the lawyers are all suing each other because some plaintiffs have signed up with more than one lawyer, and the reader feels the pain of grieving parents trying to make sense of what has happened and what could happen to them, while the lawyers fight to profit from their misery.118 In contrast, Jan Schlichtmann's real-life, initially unwanted plaintiffs grow slowly from distrust of a legal system that will not do anything for a widening group of injured people (never big enough for the class action numbers that would have been possible in the Buffalo Creek disaster119) to become increasingly committed to their lawsuit, and to see their lawyer as a mixed bag of altruistic and selfish motives. Atticus Finch is actually pressed into service in representing Tom Robinson by the judge handling the case, but he tells a good story to his daughter about the responsibility of lawyers to take unpopular clients and cases (the "n" word is used in both the book and the movie, circa 1960-1962). In so doing, he has given us all a model and argument for the importance of pro bono publico and even court-appointed work, especially in criminal law. Representing unpopular clients and taking court appointments has continued on The Practice, while in past years, paying clients have been more the rule on L.A. Law and on the short-lived Murder On120 (a show inspired by the public's hunger for criminal celebrity trials following the coverage of the O.J. Simpson trial). A Civil Action made the economics of contingent-fee lawyers clear to the viewing public, and began to address the inevitable conflicts of interests that accompany virtually any payment scheme for lawyers.121 From client acquisition, modern films and movies depict a variety of ethical dilemmas in representation (still mostly restricted to the more dramatic world of litigation and courtrooms, rather than transactional lawyering122). For example, The Practice has several times, in different settings, explored issues of confidentiality - when must or can a lawyer reveal private, confidential information to others?123 And when Bobby and Helen were dating, the show explored difficult, but I suspect increasingly common, professional dilemmas when lawyers on opposite sides of cases date or live with each other, hear confidential information in phone conversations, and see messages and papers left lying around the house.124 The lawyers on The Practice have grappled with what to do with physical evidence, when they can "rat" on their own client, and many thorny witness preparation issues. In a modern replay of the now classic client "coaching" scene of Anatomy of a Murder,125 lawyers tell their clients what the law is before learning the facts. A guilty-feeling Helen, as prosecutor, actually testifies against one of her colleagues whom she believes wrongfully suggested testimony to a material witness. Ellenor Frut commits one of the most egregious, but clever, unethical acts (can you think of what ethical rules she violates?) when she advises a client who has been in an accident and has been drinking, to finish the open bottle at the scene of the accident "to calm his nerves" - and thereby destroy the accuracy of any breathalyzer test. The lawyers of The Practice have conflicts of interest galore - they sleep with each other and the judge, they work both sides of a case, they take on civil matters beyond their competence, but at least they have explicit ethical conversations about what they are doing. There is not only talk about the law, possible ethical violations, and consequences to their firm and their clients, but they do in fact get called on some of their questionable behavior. Competence is questioned in popular culture, whether by the satire of Joe Pesci's performance in My Cousin Vinny,126 by the too-young and inexperienced colleague in Grisham's The Rainmaker127 by the all-too-common substance abuse of Frank Galvin in The Verdict,128 by the actual Rule 11 motion filed against Jan Schlichtmann for not adequately investigating and supporting his complaint filing,129 or by the impressionability of a lawyer who believed she was zealously representing her client, but who may in fact have been subject to a "con job" that cost her her freedom and her law license.130 Scott Turow counters these images of incompetence by providing perhaps the most detailed and accurate accounts of the hard work that both prosecutors and defense counsel put into their jobs - in investigation, case preparation, courtroom strategy, and courtroom execution131 - even if some of the lawyers and judges turn out to be corrupt or worse.132 As most popular culture continues to explore the drama of the courtroom, I am personally interested in recent turns to more typical locales of lawyers' work - the bargaining table. Still located mostly in litigation contexts, the ethics and practices of lawyers in settlement conferences present serious ethical dilemmas, hardly responded to by the rules. While The Practice lawyers engage in plea-bargaining and tense settlement negotiations every time they take on a medical malpractice or products liability case, the settlement conference is becoming a more common staple of legal drama. My personal favorite is the blatant ethical violation in The Verdict, the premise of which is needed to fuel the rest of the film. Frank Galvin turns down a large, and certainly likely to be accepted by his client, settlement offer from the Catholic Church (which controls the hospital which mistreated his comatose client) without even talking to his client (the family of the comatose woman). In direct violation of Rules 1.2, 1.3, and 1.4 (and all of their predecessors that were in effect in Massachusetts at the time of the film133), Galvin turns down the offer. Thus, the case (and the film) can proceed to the more dramatic confrontation in the courtroom, where Galvin, overcoming his alcoholism and violating some laws by stealing mail to get information, triumphs over a major and well-staffed law firm. Michael Brock's lawsuit against the developer who wrongfully evicted his homeless clients is completed in a settlement conference, this one in a judge's chambers with Brock's own ethical transgressions (deception used to get evidence and confidentiality violations) as part of the negotiation agenda.134 Similarly, while nothing overtly in violation of the rules transpires, Jonathan Harr's descriptions (from one side only135) of the various settlement negotiations (meetings at the Ritz Carlton in Boston and W.R. Grace headquarters in New York) in A Civil Action provide us with some entry into the world of lawyer impression management, guarded information exchange, and normal "deception."136 Modern treatments of lawyers demonstrate good acts as well - not all is sex, lies, and videotape. Lawyers like Frank Galvin and Jan Schlichtmann, as well as paralegal Erin Brockovich, demonstrate the power of persistence and the necessity of hard, long, and detailed fact investigation. Although in trial movies and television shows it sometimes looks like victory goes to the clever and the articulate, in truth we seldom see anymore the contrived final question of a devastating and surprising Perry Mason-like cross-examination. As discovery has replaced surprise in trial, popular culture is slowly catching up with what makes good lawyers in real life - hard work! Hard work and long hours get their share of criticism, ruining marriages in The Firm137 and The Street Lawyer, not to mention adultery on the job with coworkers. No one could accuse modern lawyers depicted in the media as a lazy bunch - even the "you can have it all" glamour pusses of L.A. Law. Good lawyering (as well as realistic lawyering) takes hard work, as the "bill and tell" books painfully recount, and virtually all of these modern tales, both fact and fiction, do want us to consider the consequences of hard professional labor on personal lives. Changes in the practice of law, both in the work done and in the demographic composition of the legal profession, are beginning to seep into modern depictions of discrimination issues (partnerships, power, decision-making authority for minority and women attorneys, and sexual harassment). In this, L.A. Law showed us other kinds of lawyer work, including Arnie Becker's divorce work,138 tax, and corporate work. Leland McKenzie even served as an arbitrator in what has to be the first depiction of ADR on screen.139 As creators of popular culture begin to realize that lawyers do many things besides trying cases, I look forward to depictions of some of the equally difficult and dramatic ethical issues that are encountered in other forms of legal work: conflicts of interest in alternative dispute resolution involving repeat players, corporate deal making, disclosure obligations in transactional negotiations and public offerings, lawyers paid with stock options in dotcoms, and now the fall-out from "dot-gones."140 Yet, before I conclude, I want to consider how lawyers depicted in popular or high culture compare to other professionals with ethical problems. It is surprising that with all the burning issues in biomedical ethics (abortion, euthanasia, scarcity of donor organs, and high drug prices for the developing world), the depiction of doctors in the popular media continues to be mostly ethically "favorable" - attention is drawn more to substantive issues of diagnosis, treatment, cure, or personal lives, than to medical ethics. Although the classic treatment of professional character in my view is George Eliot's Middlemarch,143 in which Dr. Lydgate confronts conflicts between his idealistic hopes for modern science and the greedy economic needs of his wife and the traditional values of his community, few modern medical shows have looked at the individual doctor's medical ethics with quite the same scrutiny as that applied to lawyers. It is true that ER has looked at substance abuse and dysfunctional personal lives, but with the exception of Dr. Kovac's recent lapse in his treatment of a drunk driver, these doctors seem never to do any harm144 and pitch in for each other whenever they can. Real medical decisions about when to intervene and when to either let die or facilitate death have captured the Supreme Court and much scholarship.145 We know these life and death decisions go on every day in real life, but they are somewhat absent in some of our more prominent movie and television depictions - are the issues scarier to the public than the misfeasance of lawyers? We will all die, but not all of us have to use lawyers - is that it? Shouldn't we care just as much about the ethics of the doctors that we all go to? Recent political scandals and the new television program The West Wing have increased the depiction of ethical dilemmas faced by our public figures and politicians. Here once again, George Eliot was there early on with her novel, Felix Holt,146 in which she used character studies to depict the utopian promises and goals of politicians who seek the common good, with those who are more content to muddle along in the status quo for personal aggrandizement or personal gain.147 In political ethics, the juxtaposition of the relation of the possible to the good provides challenges at both public and personal levels that can echo some of the dilemmas of legal ethics. Writing some decades later than George Eliot, William Dean Howells, in his time a rival in American literary popularity to Henry James, touched on the nascent ethical issues facing American journalism in the late nineteenth century. Often considered the first novel about American divorce, In a Modern Instanc148 also reports on the transformation of American journalism from independent reporters to owner-dominated editorials. It is interesting that popular and scholarly accounts of journalistic ethics continue to speak of "objectivity" in the news,149 when as early as 1880, literary treatments of journalism suggested an already-compromised set of ethical standards as owners of newspapers selected topics and "slants" on the news. William Dean Howells would have known first hand of these conflicts, having moved, like so many of our modern lawyer-authors, from his first craft of magazine editor to his second of novelist. Bartley Hubbard, the protagonist who practices "the new journalism," represents the "fraying of the social fabric" of American ethics when he succumbs to "the new journalism" in stealing the writing of a story from his friend, drinking, and cheating on his wife (which leads her, a symbol of pure American New England solidity, to have to divorce him). The divorce in this novel, though located in conjugal relations, is clearly meant to represent the separation of "old" American ethics in journalism and work from the newer, more commercial forms. Does the theme of increased commercialism sound familiar? Journalists became heroes again, briefly, in American popular culture with the unfolding of the Watergate saga and the tireless investigation of Woodward and Bernstein150 - so that all journalists wanted to be "investigative journalists." As our investigative stories have turned more tawdry, and as some of them have been exposed as falsifications,151 journalists should be on the popular ethical chopping block too. But are they? One recent attempt to depict an investigative reporter152 (by the creators of Law & Order) failed after only a few weeks, even as more lawyer shows were beginning to appear.153 Don't more people read newspapers and magazines than hire a lawyer? Why aren't they interested in how their news is written and produced? In popular culture's most recent depiction of professional ethics, which has been very evocative for legal ethics teachers, Ishiguro's The Remains of the Day154 focuses on a single butler who loyally serves his master, a British gentleman with diplomatic ties to the German Nazi regime. Stevens, the butler, has inspired a movie155 and much legal commentary.156 His loyalty to his master provokes lawyers, and all who serve as agents, to question whether we can be judged by association with those whom we choose to serve. Is Stevens complicit in his master's political leanings by caring for his household? Ishiguro suggests that he is. In his efforts to be a loyal servant to his master, Stevens misses his father's death on the evening of a meeting with the Germans at the master's estate, and he loses his chance for romance and a fulfilling relationship with the sensitive Miss Kenton. Ishiguro's butler, Stevens, is emblematic of the issues discussed here. Stevens appears to be of impeccable character - loyal to a fault, efficient, honest, and hardworking. But, his slavish devotion to his professional identity and the tasks set before him everyday cause him to miss the answers to the big questions in life. At the end, he has come to question his devotion to his master, whom he begins to conclude is not the honorable man he thought him to be. He realizes that by performing his acts reflexively, one after another, as a person puts one foot before another, he has lost himself in the high quality of his professional performance. We, the reader, are witness to each act, as they cumulate to make a character. We can see the folly of the choices he makes. Stevens, the butler, can tell us many things about lawyer ethics in popular culture and in reality. First, it is the cumulation of choices and acts that make the character of a man (or woman) in professional role, and it is important to witness each one, as recent television shows and movies allow us to do.157 Character dispositions form the default choices that suggest themselves to characters. But in the movies, as in real life, there is always the chance that a particular circumstance will cause one to act differently, or to make a particular choice, or the chance that a single act or event may change our very being (or at least our professional orientation, as Michael Brock from The Street Lawyer demonstrates). Second, it may indeed help to have a professional code of ethics. It is harder for Stevens to ask if he can "do that" (refuse his master's orders) without an ethical code beyond that of the human ethical code to guide him. Butlers must serve or quit; lawyers may have legally sanctioned grounds to withdraw when particular acts or client goals are unsavory.158 Third, we do learn to think ethically and empathetically by reading or viewing other people's (and other professional's) stories. Stories situate the action, provide some arguable justifications for actions taken, and provide the context in which the actor must act. In answering our question, "can they do that," we must look to sources such as ethics rules, cases, our consciences, or other professionals with whom to discuss our dilemmas. Finally, I think in the end we realize that lawyers are not butlers, and that we are better served by the complexity of the competing loyalties of our professional roles. I think there are more depictions of lawyers' ethical dilemmas in popular culture than of other professionals precisely because we have several masters. As lawyers, we serve the private interests of clients, but we also serve the public interest of the justice system, as well as ourselves and our families. To have a job which, at the same time, faces both inward and outward, with private duties and responsibilities, but with public consequences, sets up a dramatic tension that creators of stories and other cultural artifacts cannot resist. To view the character and acts of lawyers, who are duty bound to do justice and must also serve and defend flawed human beings, appears to be an act of cultural consumption to which we cannot avert our eyes. My hope is that as the work of real lawyers becomes ever more complicated and diverse, the images of lawyering depicted in popular culture will reflect that complexity, so we can continue to ask "Can they do that?" with even greater sophistication and nuance. 135. Jonathan Harr wrote his journalistic account of A Civil Action by shadowing Schlichtmann. See HARR, supra note 60. For the most part, the defense counsel did not share their strategies or other information with him. This is why fiction may illuminate more than fact. In fictional works, we often get entry into the lawyer's heads and actions from all sides of a case (see, for example, Banks, supra note 114), especially if there is an omniscient narrator. 136. See See MODEL RULES OF PROF'L CONDUCT R. 4.1 cmt. 1 (1999), which permits some lack of candor in settlement negotiations. 137. GRISHAM, THE FIRM, supra note 48. 138. Now depicted in the lawyer shows focusing on female attorneys, such as Family Law (CBS television broadcast, 1999-current) and Judging Amy (CBS television broadcast, 1999-current). 139. So far as I can tell, the second was Michael Crichton's seriously flawed and distorted mediation scene in the movie version of DISCLOSURE (Warner Bros. 1994). But as always with Michael Crichton, he wanted to demonstrate that he was on the "cutting edge" of a topical issue - mediation is clearly one of those for the legal profession. 140. How will lawyers with stock options be involved in picking bankruptcy counsel? Some of these issues revisit old and dramatic issues for lawyers, such as serving on boards of directors or having conflicts of interests when companies have problems. See supra note 20. 141. See, e.g., MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY (1994); ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993); DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE (2001). 142. See, e.g., ETHICS IN PRACTICE, supra note 13; Simon, supra note 9; see also THE GOOD LAWYER, supra note 31; DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY (1988). 143. GEORGE ELIOT, MIDDLEMARCH (David Carroll ed., 1992) (1872). 144. But see the season finale: Dr. Mark Greene lets a murderer/child abuser die, rather than try to revive him via electric shocks. And, he covers up his actions by repeatedly shocking the air. ER: Rampage (NBC television broadcast, May 17, 2001). 145. See, e.g., Cruzan v. Dir., Mo. Dep't of Health, 110 S. Ct. 2841 (1990); Louis Michael Seidman, Confusion at the Borders: Cruzan, "The Right to Die" and the Public/Private Distinction, 1991 SUP. CT. REV. 47. 146. GEORGE ELIOT, FELIX HOLT: THE RADICAL (Lynda Mugglestone ed., 1995) (1866). 147. While Felix Holt was often called her "political novel," George Eliot was, in fact, more interested in character study and how the concrete politics of the Reform Act of 1832 had not entirely succeeded. See id. Introduction. The novel is ultimately about the ethical wielding of power, both public and personal. 148. WILLIAM DEAN HOWELLS, IN A MODERN INSTANCE (Edwin Cady ed., 1988) (1882). 149. See MICHAEL SCHUDSON, DISCOVERING THE NEWS: A SOCIAL HISTORY OF AMERICAN NEWSPAPERS (1978). 150. See ROBERT WOODWARD & CARL BERNSTEIN, ALL THE PRESIDENT'S MEN (1974). 151. See, e.g., Robin Pogrebin, Rechecking a Writer's Facts, A Magazine Uncovers Fiction, N.Y. TIMES, June 12, 1998 at A1; New Republic Associate Editor Stephen Glass Fired for Fabricating Stories, at http://www.ndsn.org May June 98/netnews5.html. 152. See Deadline, (NBC television broadcast, 2000). 153. See 100 Centre Street (A&E television broadcast, 2001); Ally McBeal (Fox Network television broadcast, 1997-current); Family Law (CBS television broadcast, 1999-current); First Years (NBC television broadcast, 2001); Judging Amy (CBS television broadcast, 1999-current). 154. ISHIGURO, supra note 14. 155. See THE REMAINS OF THE DAY (Columbia Pictures 1993) 156. The story in The Remains of the Day appears to be a fictionalized account of "the Cliveden set," which describes Lady Nancy Astor's (an American and the first woman to sit in the British parliament) and her husband's rather cozy relationship to several Nazi office holders. Cliveden had a butler, who served as loyally as Stevens for many years, and found even his resignation would not be accepted by Lady Astor. See JAMES FOX, FIVE SISTERS: THE LANGHORNES OF VIRGINIA (1998); see also supra note 14. 157. This is why despite the higher production values of movies, I prefer television depictions of lawyers. There we can see more actions of the people we are watching and can feel the quotidian qualities of their existence. To the extent that character change occurs, we can see it coming from weeks of knowledge, and when it seems too sudden or unexplained by daily acts, we know it isn't real. 158. See MODEL RULES OF PROF'L CONDUCT R. 1.16 (1999). |
