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Practicing Ethics with The
Practice
By Carrie Menkel-Meadow
The first episode of the 2001 television season for The Practice
(The Candidate, September 23, 2001) was a veritable issue-spotter
of legal ethics. Improbable and as badly decided as some of the
ethical choices were, Ellenor, Helen, Jimmy and new prosecutor
Alan Low, gave us a two-hour whirlwind tour through the complexities
of legal ethics. The ethics issues are especially difficult when
the context is murder, the client is both a state senator and
a childhood friend (of Ellenor's), and the prosecutor and the
defending attorney are roommates.
This season opener, a two-hour special episode that will continue
into the next week of the season, promises that The Practice
will continue to be a legal ethics teacher's delight (if not
for the pleasantness of the stories, but for the instructional
possibilities). Lawyers, law students and law professors alike
should watch each episode of The Practice with either
the Model Rules of Professional Conduct or a pen and paper in
hand, to jot down the many legal ethics issues dramatized and
to test one's own knowledge of the right answer under the rules,
if not the right answer of morality or advocacy.
While I acknowledge my perhaps warped reviewer's eye as a legal
ethicist, The Practice season opener was carried for me
by the ethical dilemmas, if not by the obvious take-off of the
Gary Condit affair. (Indeed, this cynical Washington-scandal
watcher guessed the surprising denouement to the plot within
the first 15 minutes of air time.)
Ellenor is called to the home of State Senator Keith Ellison
(who by the way was a brilliant casting choice as an immediate
Gary Condit look-alike, just in case any viewer missed the source
of the tale) whom the TV viewer first sees in his skivvies, as
his wife showers and his daughter throws up after we all view
the bloody body of a nude man in the Ellison marital bed. Ellenor
is called before the police are, the bloody clothes are in the
washing machine and all have showered and composed themselves
before the police finally come (at least 10 minutes after Ellenor's
arrival and first strategy is planned). Is this unethical? Absolutely!
Ellenor has tampered with or advised tampering with evidence
at a crime scene and obstructed justice.
Clients Keith Ellison and his wife Marsha and daughter Allison
are clearly up to something together. Can Ellenor represent them
all? Not in any criminal court of which I am aware in real life.
The conflicts are so obvious, especially when Ellenor is informed
she will not be told any of the story by the client(s) because
Keith doesn't want to tell you anything that would prevent you
from representing me. That's because she is in the great criminal
law firm of Bobby Donnell et al. Plan B, perjured testimony,
or something more sinister may be necessary for this candidate's
defense. If this doesn't alert an otherwise clever defense lawyer,
I don't know what would. But David E. Kelley likes to move those
dramatic plots along, so having the judge later threaten to deal
with the conflict but not doing so (as most any real judge would
in such a case) is supposed to satisfy us lawyer-watchers that
Kelley at least knows he is portraying something problematic.
Just to even up the ethical score, Ellenor's roommate, the steely
prosecutor Helen Gamble, is up to her own ethical high jinks.
Calling wife Marsha a material witness (a little scary that Kelley
would be so prescient about how much the public would know about
material witnesses at air time, one week after the horrific September
11 terrorist attacks), Helen has a body cavity search done on
Marsha (no self-incrimination, of course, under current search
law) in quest of the telltale sperm to prove the wife's affair
and give a motive to Senator Ellison for a murder. (Nice twist
on the Condit rumors, yes?) Alas, Helen then violates the clearest
ethical rule known to prosecutors, as she talks directly to a
represented party (wife Marsha) (Model Rule 4.2 for those of
you who want chapter and verse).
She then proceeds to do even worse, by giving advice to said
represented party B and absolutely wrong advice at that: Your
silence could incriminate you. Now, how is the public supposed
to learn about the 5th and 6th amendments with such bad information?
Our knowledgeable wronged party (Marsha) cites the right amendments
so you would think Helen would get a bit nervous now that she
might be in trouble beyond being sued for misconduct. Helen can't
get sued for misconduct, but she can be disciplined by the Bar
or lose her job. Indeed, in this case her behavior is so egregious
any normal criminal judge, not to mention her own superiors,
would have ordered her off the case.
Helen, who each year is more experienced, seems increasingly
desperate to win at all costs and frequently becomes emotionally
involved in her cases. Her flouting of ethics rules is getting
so brazen, at least this viewer is finding them increasingly
hard to believe. Helen is too smart for all this -- and she loves
her job too much to risk it so often just to move the plot to
its dramatic fights between her and the Donnell team. (She is
now joined by a more good-looking sidekick, Alan Low, than last
season's killed-off Richard Bey. Please Hollywood, do so many
of the lawyers have to be mindless beauties? Richard seemed endearingly
real.)
On it goes, in the now formulaic trial scenes of fights and arguments
between Helen and Alan and Bobby, Jimmy and Ellenor (only Hollywood
would permit so many lawyers on each side of a case with so few
real witnesses and none of them difficult experts to manage.)
Daughter Allison Ellison is questioned in a strange combination
of criminal interview and civil deposition with lawyers advising
her what not to say (the same lawyers representing her parents)
while Helen objects, as if a client or witness can't talk to
a lawyer before talking to the prosecutor (what is this, English
procedure?). Both sides try the case in the press (credits to
Chandra Levy's parents and demerits to both sets of lawyers who
repeatedly violate Rule 3.6) and the charming politician-defendant
continues to believe he can sway a jury as he has seduced his
constituency. (Turns out that's not all he's seducing! Surprise,
surprise!). His claim is that he shot an intruder, not an adulterer.
(Interestingly, the show might have explored the vagaries of
justified homicide when husbands shoot the men having affairs
with their wives -- long a legal practice in many states --that
might have made a more interesting defense argument).
In case any viewer missed the obvious Condit allusions, the key
witness turns out to be a Ms. Levy, an employee of the murdered
victim, who provides the wrongly admitted speculative evidence
that she thought something fishy was going on between the murder
victim and Mrs. Ellison. And sadly, Jimmy commits yet another
act of both legal malpractice and ethical violations of incompetence,
when he incompletely interviews Ms. Levy and is therefore shocked
to learn the answer to a question he didn't know the answer to
(because he didn't ask it).....
Stay tuned for next week's effort to free the innocent Senator.
Not only is he in fact innocent, but if this isn't ineffective
assistance of counsel, I don't know what is. Of course, Ellenor
will be hampered by the fact that she learned the real story
from a privileged client contact. Although everyone is upset
with Jimmy's malpractice, sage Bobby chastises his firmmates,
not to do better, but never to criticize another law firm member
in front of the client (think about the possible malpractice
claims!).
The surprising testimony of Ms. Levy shocks the judge into thinking
our favorite defenders are up to another of their now-familiar
stunts and he threatens to take their bar cards. Dramatic for
the audience, and thanks Mr. Kelley for letting the public know
that judges do care about lawyers' ethics, but this wouldn't
be the way it happens as the writers of The Practice well
know from past shows. Disciplinary matters are handled in separate
administrative proceedings before a different tribunal and not
in the case at issue.
Oh, well, I don't want to complain too much. Though the plot
was obvious to this viewer (but I suspect was experienced by
most lay viewers as a total surprise, as intended), and the scripts
are getting a bit formulaic (what lawyer TV show isn't?), The
Practice continues to be the single best vehicle I know for
teaching about legal ethics and motivating law student viewers
to see the context and consequences of choices made by lawyers
in practice as they steer between the rocks and hard places of
good advocacy and the requirements of good ethics. I look forward
to a season full of more ethical issue spotters, even if the
stories ripped from the headlines (sorry, Law and Order)
are themselves all too familiar.
Posted October 25, 2001
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