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WHAT I LEARNED at the MOVIES ABOUT LEGAL ETHICS and PROFESSIONALISM by Anita Modak-Truran

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WHAT I LEARNED at the MOVIES ABOUT LEGAL ETHICS and PROFESSIONALISM by Anita Modak-Truran WHAT I LEARNED AT THE MOVIES ABOUT LEGAL ETHICS AND PROFESSIONALISM By Anita Modak-Truran HOW I GOT HERE I’ve been fortunate. I practice law. I make movies. I write about both. I took up my pen and started writing a film column for The Clarion-Ledger, a Gannett-owned newspaper, back in the late 90s, when I moved from Chicago, Illinois, to Jackson, Mississippi. (It was like a Johnny Cash song… “Yeah, I’m going to Jackson. Look out Jackson Town….”) I then turned my pen to writing for The Jackson Free Press, an indie weekly newspaper, which provided me opportunities to write about indie films and interesting people. I threw down the pen, as well as stopped my public radio movie reviews and the television segment I had for an ABC affiliate, when I moved three years ago from Jackson to Nashville to head Butler Snow’s Entertainment and Media Industry Group. During my journey weaving law and film together in a non-linear direction with no particular destination, I lived in the state where a young lawyer in the 1980s worked 60 to 70 hours a week at a small town law practice, squeezing in time before going to the office and during courtroom recesses to work on his first novel. John Grisham writes that he would not have written his first book if he had not been a lawyer. “I never dreamed of being a writer. I wrote only after witnessing a trial.” See http://www.jgrisham.com/bio/ (last accessed January 24, 2016). My law partners at Butler Snow have stories about the old days when Mr. Grisham would open the trunk of his car and give out copies of A Time To Kill. Since then, Mr. Grisham has become “the” master of the legal thriller, where his books have captured the imaginations of a global audience and movies based on his books are some of the finest in the Parthenon of all legal movies. I handled a zoning dispute (my own) against the City of Jackson before Judge Bobby DeLaughter. Before he took the bench, Judge DeLaughter’s chief claim to fame was his successful 1994 prosecution of Bryon De La Beckwith for the 1963 murder of civil rights leader Medgar Evers. Along the way, I got to know Mississippi Supreme Court Justice James Kitchens, who was one of the court-appointed legal representatives for Mr. Beckwith. If you saw Ghosts of Mississippi, these names should sound familiar. Ghosts of Mississippi, directed by Rob Reiner and starring Alec Baldwin, Whoopi Goldberg and James Woods, was based on the true story of the final murder trial against Mr. Beckwith. I’ve also met Gregory Peck, who played Atticus Finch in To Kill a Mockingbird, at the Cannes Film Festival. And I have countless other tales where law and film blend together. But what remains constant is that the best legally-based movies, like To Kill A Mockingbird, Ghosts of Mississippi, The Firm, The Client, The Pelican Brief, Inherit the Wind and My Cousin Vinny (which is still a personal favorite), explore very real professional and ethical dilemmas faced by practicing attorneys in business and litigation. These cinematic lawyers face what we face and sometimes their choices would not be ours. Sometimes our favorite cinematic lawyers falter in walking the line between right and wrong. Sometimes our favorite cinematic lawyers inspire us to be better than we thought possible. That’s the magic of movies. Before we can talk about legal ethics and professionalism on the screen, we need to refresh our memory on fundamental concepts. And for such fundamental concepts, I look to the ABA’s Model Rules of Professional Conduct (“Model Rules”). Every state has adopted these rules. See http://www.americanbar.org/groups/professional_responsibility/publications/model rules_of_professional_conduct/alpha_list_state_adopting_model_rules.html (last accessed January 24, 2016). But states have revised the rules for their own jurisdictions, and any specific inquiry of an ethical or professionalism issue requires a review of the applicable state law. For our purposes, we will be analyzing my favorite legal movies under the Model Rules. For ease of reading, I’ve structured this paper as follows. First, this paper outlines the Model Rules. It sets forth the preamble and scope of the Model Rules. It then sets forth the text of some of the rules that come up in day-to-day practice. This includes rules that define the client-lawyer relationship, transactions with persons other than clients, law firms and associations and information about legal services. It does not discuss rules on public service or maintaining the integrity of the profession. Against the backdrop of the Model Rules, the paper analyzes what I’ve learned at the movies about legal ethics and professionalism. A REVIEW OF THE MODEL RULES OF PROFESSIONAL CONDUCT The Preamble The Preamble to the Model Rules provides the starting point for understanding our ethical and professional responsibilities as lawyers. The words in the Preamble mean more to me now as a practitioner for nearly thirty years, then when I first started practice in 1987. Ethical dilemmas do not present themselves as a neat package of true or false questions on an exam. Rather, they arise unexpectedly in the guise of ambiguity. Ultimately, when all else fails, the answer comes down to what is the right thing to do? The Preamble in the Model Rules sets out the right thing to do by reminding us what a lawyer is, how a lawyer represents clients and how a lawyer interacts with the legal system and society as a whole. Under the Preamble, “[a] lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Model Rules, Preamble. Under this provision, lawyers are not ordinary sellers of services. Lawyers are part of a rich and noble profession charged with doing justice. To protect the integrity of the legal system, lawyers have special responsibility for ensuring, protecting and promoting this elusive concept of justice. Lawyers 2 represent not only clients, but they are officers of something bigger, a legal system that replaced the battlefield for settling disputes. Second, “[a]s a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.” Model Rules, Preamble. This section of the Preamble identifies the four main representational functions provided by a lawyer. A lawyer serves his or her client as: (1) an advisor; (2) an advocate; (3) a negotiator; and/or (4) an evaluator. I refer to this is the quadruple threat of “AANE”. Third, “[i]n addition to these representational functions, a lawyer may serve as a third- party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter….” Model Rules, Preamble. This section of the preamble recognizes the lawyer as a mediator or arbitrator in disputes. This is a professional function separate and apart of the lawyer’s representational function. Fourth, “[I]n all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.” Model Rules, Preamble. Keeping an open line of communication with a client is pivotal to the attorney client relationship. Indeed, many disciplinary actions are initiated simply because the client was not informed of what was going on in the represented matter. The lines of confidentiality are more difficult to draw, particularly when the representation involves criminal activity, such as in legal dilemmas raised in movies like The Firm, where Tom Cruise learns from the FBI that his law firm represents the mob. Fifth, “[a] lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.” Model Rules, Preamble (Emphasis added). This aspirational goal is replete in gray area. So what happens when your client asks you to delay the proceedings for no specific reason other than to wear down the other side? What happens if you know objecting to an attorney’s line of questioning at trial will throw them off their game? Is that legally acceptable? In A Civil Action, Robert Duvall’s character teaches his students at Harvard Law School the concept of the objection. Does this run afoul of the Model Rules? 3 Sixth, “[a]s a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.
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