Joanna L. Storey Mishler

Senior Counsel, Klinedinst PC

T he Set Up

A few years ago, a colleague from the San Francisco Bar Association's Legal Ethics Committee and I started an annual tradition of presenting a CLE to our members about legal ethics lessons learned from fictional attorneys. We started with contemporary legal television shows and films in year one and added a few more for the "Sequel" in year two. This year we did the "Prequel," focusing on a few classics.

We set the stage with examples of how fictional attorneys handled a thorny issue, and then broke down how the attorney got it wrong (or right) by applying the rules of professional conduct. We offered practical guidance for how the principles discussed might affect your work. Much of what we discussed is elementary legal ethics, so the CLE is usually meant to be a refresher for experienced lawyers or a guide for newer attorneys.

In this article, I highlight two of my favorite legal drama classics that we broke down in the "Prequel." Take a seat, sit back, and enjoy the show.

The Verdict

Paul Newman's The Verdict (1982) is perhaps one of the most well-known legal dramas and showcases more ethical violations than the Academy Award nominations that it received. Newman plays attorney Frank Gavin, who we find down on his luck, struggling with alcoholism, and seemingly unaware that one of his personal injury cases is about to go to trial.

Gavin's first ethical violation was letting his personal challenges adversely affect his representation of the client. He neglected the case for months because of his alcoholism and depression. When he finally attended to the matter, he spent more time at the bar drinking and hitting on women than preparing for trial. On one occasion, Gavin was late for an early morning court appearance because he was hung over.

California Rules of Professional Conduct ("CRPC") 1.1 defines Competence to mean, not only learning and skill, but also the "mental, emotional, and physical ability reasonably necessary" to perform legal services. This rule is considered in combination with CRPC 1.3 (diligence), such that "a lawyer acts with commitment and dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer."

Focusing on attorney well-being is a welcome new trend. I encourage lawyers to seek out well-being resources, including https://calawyers.org/health-and-wellness/, https://lawyerwellbeing.net/, and https://www.americanbar.org/groups/lawyer_assistance/.

Gavin's second ethical violation was not telling the client about an oral settlement offer for $210,000, which he immediately declined. CRPC 1.4.1 provides that a lawyer must promptly communicate the terms of a written settlement offer to their client. The Comment adds: "An oral offer of settlement made to the client in a civil matter must also be communicated if it is a 'significant development' under rule 1.4." A $210,000 offer is certainly a significant development.

Best practice is to communicate all settlement offers to your clients. And then confirm, in writing, if the client declines your settlement recommendation.

Gavin's third ethical violation was impersonating someone else when trying to find a witness. He knew minimal information about the witness, and let his "fingers do the walking" by calling multiple numbers listed in the phone book for similar names. When one answerer appeared to know the witness, he told them that he worked for an accounting firm and found owed money for the witness to trick the person into giving the witness's current contact information.

CRPC 4.1(a) prohibits a lawyer from making "a false statement of material fact or law to a third person." CRPC 4.3 provides that when communicating on behalf of a client with a person who is not represented by counsel, a lawyer "shall not state or imply that the lawyer is disinterested." Here, Gavin broke both rules. He should have told the person that he is a lawyer who represents a party in the action for which the witness might be called to testify.

The next two ethical violations were made by defense counsel.

First, *Spoiler alert*, defense counsel hired a law student to seduce Gavin for inside information. This violated CRPC 8.4(c) because it was conduct "involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation." That the defense lawyer himself did not elicit the information from Gavin did not make a difference. Under CRPC 8.4(a), a lawyer may not "knowingly assist, solicit, or induce another" to violate the rules, or "do so through the acts of another."

Second, it was inferred that defense counsel paid Gavin's star expert witness to disappear on the eve of trial. Under CRPC 3.4(a) and (e), a lawyer shall not "unlawfully obstruct another party's access to evidence, including a witness" or "advise or directly or indirectly cause a person to secrete himself or herself or to leave the jurisdiction of a tribunal for the purpose of making that person unavailable as a witness therein."

So far, we have a tie - five ethical violations and five Academy Award nominations. Now go watch the film to spot the remaining ethical violations.

Presumed Innocent

In Presumed Innocent (1990), Assistant District Attorney Rusty Sabich (played by Harrison Ford) faces the trial of his life as the defendant in a murder case. He is accused of killing a coworker who also was his former secret lover.

Before being arrested, Sabich's first act after learning of the victim's death was to destroy a note from her that implicated him. After the District Attorney assigned Sabich to prosecute the case (not knowing about Sabich's prior relationship with the victim), Sabich steered the investigator away from other potential incriminating evidence and told the investigator not to pull the victim's phone records because they might show calls to Sabich's home. During the investigation, Sabich was distraught and not mentally up for the challenge of the case.

Along the way, he engaged in several rule breaking activities. Sabich was not competent (CRPC 1.1), was conflicted because of his own interests (CRPC 1.7(b)), suppressed evidence (CRPC 3.4), failed to withdraw when he knew his actions violated the rules (CRPC 1.16(a)(1)).

At one point, in the heat of the moment, Sabich barked at another ADA - "Yeah, I did it!" referring to the murder. That ADA wanted to testify about Sabich's excited utterance during trial. CRPC 3.7 provides: "A lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless: ... (1) the lawyer's testimony relates to an uncontested issue or matter. ..." The trial judge clearly knew the rule and gave the ADA a choice - either testify and you are off the case, or don't testify and you can continue to prosecute.

Unlike many of the other lawyers showcased in the CLE, Sabich's attorney Sandy Stern (played by Raul Julia), demonstrated appropriate professional conduct. In particular, Stern thoroughly explains to Sabich why he should not testify at trial.

This serves as a refresher for informed consent. Under CRPC 1.0.1(e), "'Informed consent'" means a person's agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct."

Here, Sabich and Stern are both lawyers and speak the same language. But that is not usually the case. For this, I refer you to ABA Opinion 500 (Language access in client-lawyer relationship). The key takeaway of Opinion 500 for me is to be mindful the client may view the situation through "the lens of cultural and social perspectives that are not shared by or familiar to the lawyer."

Final question - was Sabich guilty? Watch the film to find out.