NYSBA 2013 “REEL LIFE V. REAL LIFE ETHICS”

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SCALISETHICS 2013

NYSBA 2013

“REEL LIFE v. REAL LIFE ETHICS”

By Deborah A. Scalise, Scalise & Hamilton LLP1

INTRODUCTION

Hollywood’s portrayal of lawyers in the movies takes dramatic license when it comes to a lawyer’s ethical and professional responsibility obligations. Indeed, the audience can guess that the lawyer’s conduct is wrong, but the characters on the screen devote very little time to examining the ethical dilemmas they face. Using “reel life” film clips from popular movies, this program will examine the conduct of lawyer to analyze and discuss professionalism and ethics issues in real life. The Panelists will engage in a lively discussion involving the New York Rules of Conduct, precedent, and bar advisory opinions. Of course this course is not designed as an exhaustive overview, but rather as a presentation of selected ethical issues which are highlighted via the film clips.

1 SCALISE & HAMILTON, LLP, focuses its practice on the representation of professionals (lawyers, judges, accountants, doctors, dentists, pharmacists, social workers, and government employees) in professional responsibility and ethics matters, and white-collar criminal matters. Deborah A. Scalise is the Chair of the New York State Bar Association’s Continuing Legal Education Committee. She is a Past President of the White Plains Bar Association and the Westchester Women’s Bar Association and has served as Vice President of the Women’s Bar Association of the State of New York (WBASNY), where she also serves as the Co-Chair of the Professional Ethics Committee. She is the former Deputy Chief Counsel to the Departmental Disciplinary Committee for the First Judicial Department.

SCALISETHICS 2013

TO KILL A MOCKINGBIRD (1962)

Director: Robert Mulligan Written by: Harper Lee (Novel) and Horton Foote (Screen Play)

Actors:

Gregory Peck…………...Atticus Finch Paul Fix…………………Judge Taylor Mary Badhani…………..Jean Louise “Scout” Finch Philip Alford……………Gem Finch Bill Walker……………..as Reverend Sykes Brock Peters……………as Tom Robinson Robert Duvall…………..as “Boo” Radley

To Kill a Mockingbird is set in a rural town in the depression-era south. It inspired many who saw it or read the novel to become lawyers. After considering the examples of questionable or clearly unprofessional conduct, it is useful to close by looking at an example of the highest standards of professional conduct as depicted in film. Atticus Finch is a widower raising two small children in a small town, where he often accepts his fees as agricultural goods from clients who cannot afford to pay cash.

Scene 1: In this scene, Atticus accepts the request of the Judge to act as the assigned counsel in defending a black man accused of raping and assaulting a young white woman.

1. Is there an obligation to do pro bono work or accept pro bono cases?

2. How does handling pro bono work add specifics to our definition of professionalism?

Relevant Authorities:

Rule 6.1

Scene 2: Atticus Finch explains to his daughter why he took the assigned case after she has experienced taunts in school. In this case the entire town is convinced that the defendant is guilty and that the defense lawyer can only stand in the way of justice being done, which in one scene means standing in front of the jail facing the lynch mob frustrated with the slow pace of justice.

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1. Is Atticus really saying that he took this case in order to maintain his own self respect?

2. Can you think of other examples where professionalism means putting a commitment to a client ahead of popularity?

Relevant Authorities: Rules: 1.1; 1.2; 1.3; 1.7

Scene 3: This scene, at the beginning of the closing argument, is meant to reflect that, having taken the case on a pro bono basis, Atticus Finch brought to bear his best professional competence and proved that the defendant was incapable of committing the crime.

1. Clearly, some matters have greater stakes than others, for both the client and our careers. How do you decide how much time and talent and how much of yourself you give to a particular matter?

Relevant Authorities:

Rules: 1.1; 1.3

Scene 4: In his closing argument, Atticus Finch makes an impassioned statement of his belief in the reality of the jury system. In this case, it was a system that did not work.

1. When we say that part of professionalism is promoting respect for the judicial system, what does that really mean?

Relevant Authorities:

Rules 3.1; 3.3; 3.4; 3.5; 3.6

SCALISETHICS 2013

A FEW GOOD MEN (1992)

Directed by: ...... Rob Reiner Writing credits: ...... Aaron Sorkin (play) and (screenplay)

Actors: Tom Cruise ...... Lt. Daniel Kaffee Jack Nicholson ...... Col. Nathan R. Jessep Demi Moore ...... Lt. Cmdr. JoAnne Galloway Kevin Bacon ...... Capt. Jack Ross Kiefer Sutherland ...... Lt. Jonathan Kendrick Kevin Pollak ...... Lt. Sam Weinberg James Marshall ...... PFC Louden Downey

Tom Cruise plays a Navy JAG attorney assigned to defend marines charged with murder. The marines claim they were following the orders of their colonel played by Jack Nicholson.

Scene 1: Tom Cruise meets with his clients and advises them to take a plea.

1. Who controls the legal proceedings? What decisions can the lawyer make and what decisions are the client’s to make?

2. What is a lawyer obligated to do when he represents two clients?

3. What information must the lawyer convey to the client in order to make decisions?

4. Is there a conflict between the lawyer’s interest and those of the client?

5. Is the client’s admission with an explanation of “just following orders” a confidential communication?

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6. Can the lawyer allow the clients to take a plea even if they say that they would not be telling the truth by doing so?

Relevant Authorities:

Rules 1.2; 1.4; 1.6; 1.7; 2.1

Scene 2: Examination of Col. Jessup

1. Is a military lawyer’s zealousness inhibited by his position in the chain of command?

2. How far may a lawyer go in testing the credibility of a witness?

3. What is the lawyer obligated to do when he or she believes that a witness or a client is lying or has offered false evidence?

Relevant Authorities:

Rules 1.1; 1.2; 1.3; 3.1; 3.3; 3.4; 4.1; 4.4(a)

N.Y. State Bar Ethics Op. 837 (March 16, 2010) and N.Y. County Lawyers Ethics 741 (March 10, 2010). Confronting False Evidence and False Testimony

SCALISETHICS 2013

LEGAL EAGLES (1986)

Directed by: ...... Ivan Reitman Writing credits: ...... Jim Cash (also story); Jack Epps, Jr. (also story)

Actors: Robert Redford...... Tom Logan Debra Winger ...... Laura Kelly Daryl Hannah ...... Chelsea Deardon Brian Dennehy ...... Cavanaugh Terence Stamp ...... Victor Taft

The background to this Robert Redford-Debra Winger comedy are the 1968 events surrounding the birthday celebration of Chelsea Dearden (Daryl Hannah), then the 7 year old daughter of Sebastian Dearden, a famous painter. Later that night, her father and supposedly all of his paintings are consumed in a fire in their home, from which Chelsea barely escapes. Now, 18 years later, Chelsea has just been arrested and charged with attempting to steal a painting of her father's from Victor Taft (Terence Stamp), the proprietor of a well-known art gallery and one of her father's former business partners. Chelsea claims that her father gave her that painting as a birthday present on that fateful night 18 years ago.

Scene 1: In this first scene, Tom Logan (Robert Redford) is a talented assistant district attorney making his closing argument in a theft prosecution of Howard Marcheck and Laura Kelly (Debra Winger) is a criminal defense attorney who has presented a particularly creative defense.

1. Is Laura Kelly right in suggesting that a criminal defense lawyer is obligated to provide a defense to every criminal defendant, no matter how frivolous?

SCALISETHICS 2013

2. Is the defense of a civil lawsuit subject to the same rules regarding the assertion of a frivolous defense or claim? 3. How does "gatekeeping" relate to attorney professionalism? 4. Does "reputation" play a role in attorney professionalism? Relevant Authorities: Rules: 3.1; 3.3; 3.4; 3.6

Rule 11, Fed. R. Civ. P.

22 NYCRR Part 130

Scene 2: Tom Logan is giving the keynote speech at the district attorney's annual dinner celebration regarding his views about the prosecutor's job, when Laura Kelly and her client, Chelsea Dearden, barge in. 1. In his speech, Tom Logan declares: "A lawyer has to know the truth." Is he right? Does the answer depend upon whether the lawyer is a prosecutor? A criminal defense attorney? A civil. litigator?

2. Tom Logan also says that clients often lie to their lawyers. What can a lawyer do to induce a client's truthfulness?

3. What are the limits to the lawyer's duty of client confidentiality?

4. Is Logan right that truth and justice always go hand-in-hand?

5. Does Laura Kelly's press conference run afoul of the rules against pre-trial publicity?

Relevant Authorities:

Rules 1.0; 1 .2; 1.6; 3.1; 3.3; 3.6; 4.1; 8.4

Scene 3: In this scene, Debra Winger is visited early one morning by Police Officer Cavanaugh (Brian Dennehy), who has a confidential

SCALISETHICS 2013 insurance file that he assembled 17 years ago when he investigated the fire that killed Sebastian Dearden and supposedly burned all of Dearden's paintings. Cavanaugh believes that Dearden was murdered and that all of his paintings were not burned, and his file indicates that Dearden's partners, including Victor Taft, may have committed insurance fraud.

1. Can Laura Kelly ethically make use of this file?

2. Does this situation differ from receipt of an errant fax and, if so, how?

3. Does this situation differ from receipt of stolen evidence and, if so, how?

4. Did Tom Logan do anything unethical in allowing his assistant to continue cross-examination?

Relevant Authorities: Rules 3.3; 4.4(b);

NYSBA Formal Opinion 700

Scene 4: In this scene, Tom Logan and Laura Kelly, both concerned about the possible insurance fraud scheme regarding the Dearden paintings, follow Victor Taft to his art gallery warehouse. 1. Is it ethical to break the law in order to gather evidence to exonerate a criminal defendant?

2. Are there any other limits on the gathering of evidence to exonerate a criminal defendant?

3. Are the rules any different for civil litigators?

4. Does Tom Logan have any conflicts of interest in teaming up with defense counsel in this manner?

Relevant Authorities: Rules: 1.7; 1.8; 1.2; 3.1; 3.3; 8.3; 8.4

SCALISETHICS 2013

Scene 5: Chelsea Dearden seeks refuge at Tom Logan's apartment one night, explaining that she went to Victor Taft's apartment with a gun in order to get one of her father's paintings, a fight ensued, and Taft threatened her with criminal charges. 1. What ethical problems are created when Logan allows Chelsea into his apartment?

2. What should Tom Logan have done when he opened the door and Chelsea Dearden appeared?

3. Can Logan avoid any conflict of interest problems by seeking consent?

Relevant Authorities: Rules 3.7; 1.7; 1.8; 4.2; 4.3

Scene 6: Later that night at Logan's apartment, Chelsea Dearden climbs into bed with Tom Logan, What's portrayed in the next scene is the public reaction. 1. Does Logan's sexual encounter with Chelsea violate DR 5- 111?

2. Is it otherwise unprofessional?

Relevant Authorities: Rule 1.8

Scene 7: As the result of his sexual involvement with Chelsea, Logan is suspended from the District Attorney's office. Meanwhile, Victor Taft has been killed and murder charges have been brought against Chelsea Dearden. In the next scene, Tom Logan is cleaning out his office when Laura Kelly makes him a business proposition.

1. Is it ethical for Logan to take up the defense of Chelsea Darden on the murder charges? 2. Will his association with the defense disqualify Laura Kelly from representing Chelsea as well?

SCALISETHICS 2013

Relevant Authorities: Rules 1.10; 1.11; 1.18; NYSBA Formal Op. 502 NYSBA Formal Op. 748

Scene 8: Tom Logan's opening statement to the jury in the murder trial of Chelsea Dearden. 1. Does Logan's opening violate any ethical rules? 2. Has Logan acted professionally? 3. Can Logan and the prosecutor agree to waive objections to the jury? Relevant Authorities: Rules 3.3; 3.5

SCALISETHICS 2013

THE RAINMAKER (1997)

Directed by: Francis Ford Coppola Writing credits: John Grisham (novel); Francis Ford Coppola (screenplay)

Actors: Matt Damon ...... Rudy Baylor Danny DeVito ...... Deck Shifflet Claire Danes ...... Kelly Riker Jon Voight ...... Leo F. Drummond Mary Kay Place ...... Dot Black Dean Stockwell ...... Judge Harvey Hale Teresa Wright...... Miss Birdie Virginia Madsen ...... Jackie Lemanczyk Mickey Rourke ...... J. Lyman “Bruiser’ Stone

This story is about an aspiring young lawyer who tries to sue an insurance company. Matt Damon plays Rudy Baylor, a Memphis St. Law School graduate who can’t seem to find a job anywhere, until he meets an ambulance chaser, who does whatever it takes, legal or not, to win a case. Rudy, as most law students are when they graduate, wants to take the high road, do everything by the book, and win. What he finds is that sometimes you need to get down and dirty to help your client. In this case, his client is a young man is dying of leukemia. The insurance company refuses to pay for a bone marrow transplant that would save his life. Rudy sets out to help the young man and his family, in what turns out to be one of the biggest cases Tennessee has ever seen. Along with his partner, Deck Shiffley (Danny DeVito), Rudy sets out to try and prove to the world that the insurance company is nothing more than a big time scam artist. Along the way, Rudy meets (and falls in love with) a young woman (Claire Danes).

Scene 1: In this scene, Matt Damon is seeking, on behalf of his employer, to have a client sign a client sign a retainer agreement.

SCALISETHICS 2013

1. Can attorney pay expenses of litigation?

2. Must terms of engagement be spelled out?

3. Can attorney solicit clients in person?

4. What if client is client of attorney’s employer?

Relevant Authorities:

Rules 1.1; 1.2; 1.5; 1.8; 7.3 Judiciary Law §479; 488; 489 22 NYCRR § 603.18 Champerty and Maintenance 22 NYCRR 1215 Letters of Engagement NYSBA Formal Op. 754 NYSBA Formal Op. 744 NYSBA Formal Op. 653

Scene 2: Attorney discussion with client’s son and daughter-in-law

1. Does the lawyer’s providing of information concerning his client violate his duty to maintain client confidences and secrets?

2. Is failure to reveal the whole truth, although for the benefit of the client, conduct involving fraud, deceit, dishonesty or misrepresentation?

Relevant Authorities:

Rules 1.6; 8.4

Scene 3: Attorney discussion with Danny DeVito who plays a non- lawyer

1. Can lawyer form partnership for the practice of law with a non-lawyer?

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2. Can an attorney surreptitiously remove his employer’s files?

Relevant Authorities:

Rules 5.4; 5.5; 5.7; 5.8; 8.4 NYSBA Formal Op. 752 NYSBA Formal Op. 753 NYSBA Formal Op. 755 NYSBA Formal Op. 557

Scene 4: Attorney with client after attorney subdues client’s husband; client kills husband after attorney leaves.

1. Where a lawyer is a participant in the event can he represent another participant?

2. Can a lawyer represent client in matter he is not then competent to handle?

3. Can a lawyer undertake representation where he may be called as a material witness?

4. Was it professional for the lawyer not to advise the client to leave with him or to take her with him?

5. Was it proper for the lawyer to remove evidence from the crime scene?

Relevant Authorities: Rules: 1.1; 1.2; 1.3; 1.7; 1.10; 1.18; 3.1; 3.3; 3.7; 4.2; 8.4

SCALISETHICS 2013

Liar Liar (1997)

Directed by………….Tom Shadyac Written by……………Paul Guay; Stephen Mazur

Actors: Jim Carrey…………...Fletcher Reede Maura Tierney………Audrey Reede Jennifer Tilly…………Samantha Cole Swoosie Kurtz……….Dana Appleton Amanda Donohoe…..Miranda Jason Bernard………Judge Marshall Stevens Mitchell Ryan………...Mr. Allan Anne Haney………….Greta Justin Cooper………..Max Reede Chip Mayer…………...Kenneth Falk Randall "Tex" Cobb….Skull Cary Elwes……..…….Jerry

Los Angeles lawyer Fletcher Reede (Jim Carrey) is a career- focused lawyer and divorced father. He loves spending time with his young son Max (Justin Cooper); they often play a game where Fletcher makes his hand into "the Claw" and pretends to chase Max with it. But Fletcher has a habit of giving precedence to his job, breaking promises to Max and his ex-wife Audrey (Maura Tierney), and then lying about the reasons. Fletcher's compulsive lying has also built him a reputation as one of the best defense lawyers in the state of California as he is climbing the ladder in the firm for which he works. Ultimately, Fletcher misses his son's fifth birthday party because he is having sex with his boss Miranda (Amanda Donohoe). Max makes a birthday wish that his father would be unable to tell a lie for an entire day; a wish that immediately becomes true and causes problems for Fletcher in his job.

SCALISETHICS 2013

Scene 1: Fletcher and another attorney Miranda met with their client Samantha Cole. They discuss the papers filed and the facts of the case.

1. What advocating on behalf of a client in submissions to the Court can a lawyer stretch the truth?

Relevant Authorities:

Rules: 1.1; 1.2; 1.3; 3.1; 3.3; 3.4; 4.1; 4.4(a); 8.4

N.Y. State Bar Ethics Op. 837 (March 16, 2010) and N.Y. County Lawyers Ethics 741 (March 10, 2010). Confronting False Evidence and False Testimony

Scene 2: Fletcher receives a telephone call from his client seeking legal advice but the advice he gives is less than diplomatic. .

1. Should a lawyer let his personal opinions influence his representation of the client?

Relevant Authorities:

Rules: 1.1; 1.2; 1.3; 1.4; 1.7; 4.1