NYSBA 2013 “REEL LIFE V. REAL LIFE ETHICS”
Total Page：16
File Type：pdf, Size：1020Kb
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. 1 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. 2 SCALISETHICS 2013 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 3 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? 4 SCALISETHICS 2013 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 5 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? 6 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 7 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.