Multimedia Ethics Extravaganza!

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MULTIMEDIA ETHICS EXTRAVAGANZA!

NANCY B. RAPOPORT Gordon Silver Professor of Law William S. Boyd School of Law University of Nevada, Las Vegas http://www.law.unlv.edu/faculty_nancyRapoport.html http://nancyrapoport.blogspot.com/ (713) 202-1881

State Bar of Texas rd 23 ANNUAL ADVANCED SUING AND DEFENDING GOVERNMENTAL ENTITIES COURSE July 21-22, 2011 Austin

CHAPTER 3

Nancy B. Rapoport is the Gordon Silver Professor at the William S. Boyd School of Law, University of Nevada, Las Vegas. After receiving her B.A., summa cum laude, from Rice University in 1982 and her J.D. from Stanford Law School in 1985, she clerked for the Honorable Joseph T. Sneed on the United States Court of Appeals for the Ninth Circuit and then practiced law (primarily bankruptcy law) with Morrison & Foerster in San Francisco from 1986-1991. She started her academic career at The* Ohio State University College of Law in 1991, and she moved from Assistant Professor to Associate Professor with tenure in 1995 to Associate Dean for Student Affairs (1996) and Professor (1998) (just as she left Ohio State to become Dean and Professor of Law at the University of Nebraska College of Law). She served as Dean of the University of Nebraska College of Law from 1998-2000. She then served as Dean and Professor of Law at the University of Houston Law Center from July 2000-May 2006 and as Professor of Law from June 2006-June 2007, when she left to join the faculty at Boyd.

Her specialties are bankruptcy ethics, ethics in governance, and the depiction of lawyers in popular culture. She has taught Contracts, Sales (Article 2), Bankruptcy, Chapter 11 Reorganization, Legal Writing, Contract Drafting, Corporate Scandals, and Professional Responsibility. Among her published works are ENRON AND OTHER CORPORATE FIASCOS: THE CORPORATE SCANDAL READER 2D (Nancy B. Rapoport, Jeffrey D. Van Niel & Bala G. Dharan, eds.), which addresses the question of why we never seem to learn from prior corporate scandals, and LAW SCHOOL SURVIVAL MANUAL: FROM LSAT TO BAR EXAM, co-authored with Jeffrey D. Van Niel (Aspen Publishers 2010). She is admitted to the bars of the states of California, Ohio, Nebraska, Texas, and Nevada and of the United States Supreme Court. In 2001, she was elected to membership in the American Law Institute, and in 2002, she received a Distinguished Alumna Award from Rice University. She is a Fellow of the American Bar Foundation and a Fellow of the American College of Bankruptcy. She currently serves as the Dean of Faculty of the American Board of Certification, the entity that develops, grades, and certifies lawyers for specialties in business bankruptcy, consumer bankruptcy, and creditors’ rights. In 2009, the Association of Media and Entertainment Counsel presented her with the Public Service Counsel Award at the 4th Annual Counsel of the Year Awards. She now co-chairs AMEC’s Law School Committee.

She has also appeared in the Academy Award®-nominated movie, Enron: The Smartest Guys in the Room (Magnolia Pictures 2005) (as herself). Although the movie garnered her a listing in www.imdb.com, she still hasn’t been able to join the Screen Actors Guild. In her spare time, she competes, pro-am, in American Rhythm and American Smooth ballroom dancing with her teacher, Sergei Shapoval. The best way to reach her is to call her on her cell phone.

Nancy B. Rapoport Gordon Silver Professor of Law William S. Boyd School of Law, University of Nevada, Las Vegas P.O. Box 451003 4505 S. Maryland Parkway Las Vegas, NV 89154-1003 [email protected] (c) 713-202-1881 SSRN author page: http://ssrn.com/author=260022 IMDB.com page: http://imdb.com/name/nm1904564/ Blog: http://nancyrapoport.blogspot.com

* “The” really is capitalized as part of The Ohio State University’s official name.

Multimedia Ethics Extravaganza! Chapter 3

TABLE OF CONTENTS

DRESSED FOR EXCESS: HOW HOLLYWOOD AFFECTS THE PROFESSIONAL BEHAVIOR OF LAWYERS ...... 1

I. SOCIALIZATION THROUGH THE DISCLOSURE OF FILMS ...... 8 A. WHAT DOES HOLLYWOOD “KNOW” ABOUT LAWYERS?...... 10 B. WHAT DOES HOLLYWOOD “TEACH” ABOUT LAWYERS? ...... 14

II. SOCIALIZATION THROUGH THE PARTICULAR CULTURE OF LAWYERS ...... 21

CONCLUSION: THE COGNITIVE DISSONANCE OF MOVIES AND LIFE ...... 25

MULTIMEDIA ETHICS EXTRAVAGANZA! (POWERPOINT PRESENTATION) ...... 27

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Multimedia Ethics Extravaganza!

Nancy B. Rapoport Gordon Silver Professor of Law William S. Boyd School of Law University of Nevada, Las Vegas http://www.law.unlv.edu/faculty_nancyRapoport.html http://nancyrapoport.blogspot.com/

University of Nevada, Las Vegas, William S. Boyd School of Law | (713) 202-1881 | www.law.unlv.edu

Setting the stage.

From SpongeBob SquarePants (Krabs vs. Plankton) (Paramount 2005).

[SNIP]

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Rapoport’s mantras:

 Clients “know” about lawyers from popular culture.  Popular culture doesn’t “know” much about legal ethics.

Our pause for some lawyer clichés.

 Theme songs we know and love.

Lawyer clichés: Perry Mason.

[SNIP]

Perry Mason (Paramount 2008; 50th Anniversary edition) (The Case of the Wary Wildcatter (1960))

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Our pause for some lawyer clichés.

 Outrageous arguments.

Lawyer clichés: Matlock.

[SNIP]

Matlock: The First Season (Paramount 2008) (Episode 1—Diary of a Perfect Murder (1986))

Our pause for some lawyer clichés.

 Lawyers as evil beings.

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Lawyer clichés: Michael Clayton.

[SNIP]

Michael Clayton (Warner Home Video 2008)

So what do clients “know” about lawyers?

 That we’re cynical.

Lawyer as cynic.

[SNIP]

A Civil Action (Buena Vista Pictures 1998)

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So what do clients “know” about lawyers?

 That we’re cynical.  That we’re greedy.

Greedy lawyer.

[SNIP]

15 Minutes (New Line Home Video 2001)

So what do clients “know” about lawyers?

 That we’re cynical.  That we’re greedy.  That we’re exceptionally aggressive.

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Aggressive lawyer.

[SNIP]

Caddyshack II (Warner Bros. 1988)

So what do clients “know” about lawyers?

 That we’re cynical.  That we’re greedy.  That we’re exceptionally aggressive.

So what do clients “know” about lawyers?

 That we’re cynical.  That we’re greedy.  That we’re exceptionally aggressive.  And, sometimes, that we’re good.

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Good lawyer.

[SNIP]

Flash of Genius (Universal Studios Home Entertainment 2009)

What popular culture “knows” about lawyers is mostly wrong.

 It’s wrong about competence.  MRPC 1.1: Competence (lawyers must provide competent representation, which requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”)

Competence, part 1.

[SNIP]

Defending Your Life (Warner Home Video 1991)

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Competence, part 2.

[SNIP]

Double Jeopardy (Paramount 1999)

What popular culture “knows” about lawyers is mostly wrong.

 It’s wrong about conflicts of interest.  MRPC 1.7: conflicts w/current clients (can’t represent if would be directly adverse OR even if there’s no direct adversity BUT lawyer can’t “provide competent and diligent representation to each affected client”); can’t represent if “here is a significant risk that the representation of one or more clients will be materially limited by . . . a personal interest of the lawyer.”

Conflict with lawyer’s own interest.

[SNIP]

Two and a Half Men (Warner Home Video 2007) (Season 1, Episode 21, 2004: “No Sniffing, No Wowing”)

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What popular culture “knows” about lawyers is mostly wrong.

 It’s wrong about conflicts of interest.  MRPC 1.9: conflicts w/former clients (can’t represent if same/substantially similar w/o informed consent OR even if new matter is different but would misuse former client’ s confidences).

Conflict with former client.*

[SNIP]

Legal Eagles (Universal Pictures 1986) *See also MRPC 1.11 (rules for gov’t lawyers).

What popular culture “knows” about lawyers is mostly wrong.

 It’s wrong about conflicts of interest.  MRPC 1.8: can’t do business w/a current client unless transaction is fair and reasonable and client has has chance for independent counsel; before the end of the representation , the lawyer can’t get rights to the story.

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Doing business with a client.

[SNIP]

15 Minutes (New Line Home Video 2001)

What popular culture “knows” about lawyers is mostly wrong.

 Surprisingly, it’s right about confidentiality (most of the time).  MRPC 1.6: a lawyer “shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b) [which includes preventing certain future harms—or, in certain circumstances, mitigating—past harms].”

Parsing out the limits of confidentiality.

[SNIP]

…And Justice For All (Columbia Pictures 1979)

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What popular culture “knows” about lawyers is mostly wrong.

 And it’s right about the fact that lying to the tribunal is unethical.  MRPC 3.3: a lawyer can’t knowingly make a false statement of fact or law to a tribunal or offer evidence that the lawyer knows to be false.  And now, one of my shortest examples.

Best “don’t lie to the court” clip ever.

[SNIP]

Liar Liar (Universal Pictures 1997)

What popular culture “knows” about lawyers is mostly wrong.

 It’s wrong about what lawyers are allowed to say to the press about their cases.  MRPC 3.6: Think Dragnet (“Just the facts, ma’am.”); don’t say things that you “know[ ] or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

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Trial publicity.

[SNIP]

A Civil Action (Buena Vista Pictures 1998)

What popular culture “knows” about lawyers is mostly wrong.

 The ethics rule about a lawyer being his own witness always gets abused in popular culture.  MRPC 3.7: lawyer can’t be a witness unless: “(1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.”

Lawyer as witness, part 1.

[SNIP]

Bananas (United Artists 1971)

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Lawyer as witness, part 2.

[SNIP]

Flash of Genius (Universal Studios Home Entertainment 2009)

What popular culture “knows” about areas of practice is wrong, too.

 Popular culture has problems with representing bankruptcy law accurately.

Bankruptcy law in the movies.

[SNIP]

The Rainmaker (American Zoetrope 1997)

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Bankruptcy law on television.

[SNIP]

The Office (Season 4) (NBC/Universal Home Entertainment 2005) (Episode 4 Money)

Sometimes, popular culture is pretty accurate.

[SNIP]

The Simpsons Season 20 (20th Century Fox Home Entertainment 2009) (Episode 12—No Loan Again, Naturally)

Popular culture sure makes law entertaining, though.

 What follows are two clips from The West Wing.  Try to guess what ethics issues are involved.

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The West Wing (Warner Home Video 2004), Bad Moon Rising (Season 2, Episode 19 (aired 2001):

[SNIP]

The West Wing (Warner Home Video 2004), Bad Moon Rising (Season 2, Episode 19 (aired 2001):

[SNIP]

In summary:

Lawyer jokes and If we don’t debrief our lawyer shows help people “know” about clients, we’re going to how lawyers have a lot of confused “behave.” clients. We need to explain to And we might just get clients that “Hollywood lawyering” confused sometimes is different from real ourselves. lawyering.

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But, don’t forget, in the end, fiction is just . . . fiction.

Disorder in the Court (Columbia [[]SNIP] Pictures 1936)

Rapoport’s “baker’s dozen” of top legal ethics movies (of the ones I’ve seen so far).

 Inherit the Wind (MGM/UA  The Devil’s Advocate (Warner Home Entertainment 1960). Bros. 1997).  To Kill a Mockingbird  A Few Good Men (Columbia (Universal International TriStar 1992). Pictures 1962).  The Firm (Paramount 1993).  …And Justice For All  Murder in the First (Warner (()Columbia Pictures 1979). Bros. 1995) .  The Client (Warner Bros.  The Rainmaker (American 1994). Zoetrope 1997).  Erin Brockovich (Columbia  The Verdict (20th Century Fox TriStar 2000). 1982).  My Cousin Vinny (20th Century  Chicago (Miramax 2002). Fox 1992).