Attorney Ethics Questions in the Film “Bridge of Spies”
Continuing Legal Education Presentation 1 CLE ethics credit will be applied for
April 17, 2018 Madison Solo Roundtable
The Film “Bridge of Spies”
“Bridge of Spies” is a 2015 film set during the Cold War. In the movie, insurance lawyer James Donovan (Tom Hanks) defends Rudolf Abel (Mark Rylance), who has been charged with espionage for the Soviet Union. Abel is convicted at trial. Although he avoids the death penalty, he is sentenced to a lengthy prison term.
Soon thereafter, U.S. pilot Francis Gary Powers is shot down and captured while flying a U-2 spy plane over the Soviet Union. Powers is sentenced to prison in a show trial. Donovan is recruited by the CIA to go to Berlin to negotiate a prisoner exchange of Abel for Powers. While Donovan is in Berlin, the Berlin Wall is erected, and an American graduate student, Frederic Pryor, is imprisoned by the East Germans. Donovan successfully negotiates the exchange of Abel for both Powers and Pryor. The exchange of Abel for Powers takes place at the Glienicke Brücke in Berlin, popularly known as the “Bridge of Spies.” Meanwhile, Pryor is simultaneously released through “Checkpoint Charlie” at the Berlin Wall.
In 2016, “Bridge of Spies” was nominated for six Academy Awards. The film won in one category: Best Supporting Actor for Mark Rylance, playing Rudolf Abel.
James Donovan and “Bridge of Spies” in Real Life
James Donovan graduated from Harvard Law School in 1940. During World War II, he served in the US Navy. After the war ended, he was a prosecutor at the Nuremberg war crimes trials.
During the 1950s, Donovan practiced insurance law in New York. In 1957, he defended accused spy Rudolf Abel at his espionage trial. Donovan also represented Abel on appeal, which ultimately reached the US Supreme Court. In Abel v. United States, 362 U.S. 217 (1960), the Court decided by a 5-4 decision that the search of Abel’s hotel room was legal, thus upholding Abel’s conviction.
In 1962, Donovan negotiated the release of Abel in exchange for US Air Force U-2 pilot Francis Gary Powers and American graduate student Frederic Pryor.
Donovan subsequently traveled to Cuba, where he negotiated the release of prisoners from the Bay of Pigs invasion and others held by the Castro regime. Donovan’s overseas missions had the support of President John F. Kennedy (pictured above with Donovan in the Oval Office). Donovan died of a heart attack in 1970, at the age of 53.
Abel returned to the Soviet Union, where he was welcomed as a hero and awarded the Order of Lenin. He died in Moscow in 1971 at the age of 68. In 1990, the Soviet Union issued a postage stamp honoring him. Powers went on to work as a helicopter pilot for a television station in Los Angeles. He died in a helicopter crash in 1977, at the age of 47, and is buried in Arlington National Cemetery. Pryor is the only major character from the movie who is still alive as of this writing. Pryor was born in 1933, earned his Ph.D. from Yale in 1962, and has been on the faculty at Swarthmore College since 1967. Excerpts from Wisconsin Supreme Court Rules and Comments
SCR 20:1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
ABA COMMENT
Legal Knowledge and Skill
[1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.
[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.
[3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill- considered action under emergency conditions can jeopardize the client's interest.
[4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person.
SCR 20:1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
ABA COMMENT
[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.
[Comments 2 and 3 are omitted here]
[4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 1.2.
SCR 20:6.2 Accepting appointments
A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
(a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;
(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client—lawyer relationship or the lawyer's ability to represent the client.
ABA COMMENT
[1] A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant. The lawyer's freedom to select clients is, however, qualified. All lawyers have a responsibility to assist in providing pro bono publico service. See Rule 6.1. An individual lawyer fulfills this responsibility by accepting a fair share of unpopular matters or indigent or unpopular clients. A lawyer may also be subject to appointment by a court to serve unpopular clients or persons unable to afford legal services.
Appointed Counsel
[2] For good cause a lawyer may seek to decline an appointment to represent a person who cannot afford to retain counsel or whose cause is unpopular. Good cause exists if the lawyer could not handle the matter competently, see Rule 1.1, or if undertaking the representation would result in an improper conflict of interest, for example, when the client or the cause is so repugnant to the lawyer as to be likely to impair the client- lawyer relationship or the lawyer's ability to represent the client. A lawyer may also seek to decline an appointment if acceptance would be unreasonably burdensome, for example, when it would impose a financial sacrifice so great as to be unjust.
[3] An appointed lawyer has the same obligations to the client as retained counsel, including the obligations of loyalty and confidentiality, and is subject to the same limitations on the client-lawyer relationship, such as the obligation to refrain from assisting the client in violation of the Rules.
SCR 20:3.5 Impartiality and decorum of the tribunal
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order or for scheduling purposes if permitted by the court. If communication between a lawyer and judge has occurred in order to schedule the matter, the lawyer involved shall promptly notify the lawyer for the other party or the other party, if unrepresented, of such communication;
[Omitted here are sections c and d, relating to ex parte contact with jurors after their jury service is completed, and relating to conduct that disrupts a tribunal.]