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Recreation and the Code of Conduct

Recreation and the Code of Conduct

A few weeks ago, I shared a summer reading list compiled from our Red Mug Coffee Circles participants who discussed their proposed summer reading and their favourite books that they would recommend to their peers. You can find a copy of our list here.

Today, I want to talk about a different form of recreation—watching television—which many if not most of us engage in from time to time. Not surprisingly, I like to watch lawyer shows. That is, as long as they stay somewhat within the realm of reality.

I had the privilege of teaching a couple of courses in the old CPLED program (pre-PREP which was unveiled in 2020) one was on our Code of Conduct, and the other one was on avoiding Law Society complaints. We encouraged students to read the Code of Conduct because it is hard to comply with it if you are not familiar with the contents! But this can be hard to do solely in theory. Sometimes, it helps if you have case studies.

Fortunately, television provides many potential case studies for Code of Conduct analyses—but not always in a positive way. I developed a TV lawyer challenge that I called the Suits Drinking Game (as in drinking coffee!) The idea was simple. Every time Mike or Harvey (or anyone else) encountered an ethics issue, you take a swig of coffee and then look at our Code of Conduct for guidance about what an ethical lawyer should do (spoiler alert: there was a very low correlation with what Mike and Harvey would do!)

The very notion of Suits was rife with ethical issues. Young Mike has cheated his way into a high-end law firm without having written the LSAT, attended law school or passed the state bar. He relies on his photographic memory (and some deception) to pull off his various feats. I watched the show for a couple of seasons before becoming fully fed up with the way it presented lawyering in general but ethical issues in particular.

Whether we are aware of it or not, TV shows—even when we know they are fictional—seep ideas into our consciousness. If you have no context whatsoever, you will take everything presented to you at face value, like the fact that a client hires a lawyer the day before a trial is supposed to start, and the file looks like it has about 10 pages of documents. Every time I saw one of those thin manila folders being handed to someone as “the file,” I could feel a vein in my forehead beginning to pulse. And that was a fairly innocuous example.

I think that the straw that broke the camel’s back for me with Suits was an episode where Harvey—who seems to be a commercial litigator for the most part—is asked to complete a divorce for a client. The client is a very attractive woman, and the show plays up the sexual tension between Harvey and the client. The client finally tells Harvey that she would like to sleep with him but assumes that this is prohibited because she is a client. Harvey pushes the settlement documents in front of her and says something like “sign here and you will no longer be a client.” Was it great drama—not really. But more importantly, a retainer does not terminate simply because a client signs a settlement. The settlement has to actually be paid, for one thing! And there are all sorts of additional steps like reporting to the client, billing the client, getting paid, and complying with file closing procedures. But if you subconsciously assume the idea that once the substantive elements of a file are complete, the client is no longer a client, you could get yourself into trouble.

I suppose that the producers of legal dramas do not view compliance with ethical details as good television, or even their responsibility—they are not in the legal education business. So, we need to think critically about what we see happening in the realm of fiction (books, TV—all media) and remember that not all jurisdictions have the same codified rules of professional conduct. It is safe to assume that Hollywood rules are likely not the same as Alberta’s!

In Canada, we have a Model Code of Conduct which was created by the Federation of Law Societies, an association of provincial and territorial legal regulators, but each regulator’s individual Code has been customized by that jurisdiction’s benchers. Over the course of my career, I have had to look up how different jurisdictions handle the same issue and there can be quite a bit of difference. We know the old saying about what assuming does—it makes an ass out of you and me—so please don’t rely on your general memory and always check our Code!

If Suits isn’t your cup of tea (or coffee!) there are other TV lawyer dramas that feature ethically challenged lawyers. Check out Rake, an Australian production, streamed in Canada on Acorn TV. The main character is a complete reprobate who struggles with honesty and making good decisions. Bad lawyer, but his exploits are usually hilarious. The court scenes alone are worth watching—so if you could just program your TV to only shows scenes where characters are gowned and wigged, you could have a good evening’s entertainment. But like Suits, I had enough of it after a season or two. I haven’t watched Don’t Call Saul, but I hear that it provides excellent fodder for the legal drama ethics (coffee) drinking game, too.

This summer, I am watching the second season of The Lincoln Lawyer. A lawyer friend recommended both the books by Michael Connelly and the first season of the TV show, available on Netflix. I watched the first season with relatively low expectations but really enjoyed it. Whenever I see the word “Lincoln” in a title of an American program, I assume that there will be jingoistic references to a certain former president. But this isn’t that Lincoln (at least, directly.) The lawyer character, Mickey Haller, is a criminal defence lawyer in the Los Angeles area, and because he appears in courthouses throughout a large metropolitan area, he works out of his car, a Lincoln Continental, rather than an office. He has a driver who ferries him to the various courthouses, and he works in the backseat. I can live with that as a plot line more easily than non-lawyers fraudulently practicing a la Suits!

The first season presents a typical law show scenario. The lawyer is acting for a client accused of murder, and the evidence against the client is compelling and strong. We want our lawyer hero to win the case, regardless of what we think of the client (or various clients because each episode has a single case unfolding as well as the season arc.)

But so far (disclaimer: I haven’t finished the season yet!) Season 2 presents something that many lawyer shows lack: it presents ethical issues as ethical issues and shows how the protagonist is attempting to achieve the goal of an acquittal for a client without violating the Rules of Professional Conduct (as they seem to be called in California.)  Indeed, the first three episodes of Season 2 are titled “The Rules of Professional Conduct,” “Obligations” and “Conflicts,” respectively, featuring a clash between a lawyer’s duty to advocate for one client to the best of their abilities while complying with confidentiality duties owed to another client.

Elliott Gould, an older actor known to many of us older lawyers, plays a friend of the main character’s lawyer father who offers advice and support to youngish Mickey. This man is referred to as the Legal Seigel! He is worth the price of admission (or a month of streaming fees) alone.

So far in Season Two, we have seen issues with respect to confidentiality and conflict of interest. And, because it is TV, we have a similar issue faced by Harvey and the divorce client—can a lawyer have a sexual relationship with a client. I don’t know exactly what the California Rules of Professional Conduct say about a lawyer having a sexual relationship with a client, but does ending the relationship (or putting it on ice until the matter is completed) satisfy a lawyer’s professional duties?

Here is a fun fact: did you know that our Code of Conduct does not explicitly refer to sexual relationships between lawyers and clients? I was told once that the reason for this was that many lawyers conduct legal work on behalf of their spouses, but regardless of the reason, I think that our focus on relationships where objectivity is compromised makes more sense. There are many types of relationships, including but not restricted to sexual relationships, which could affect our objectivity and decision-making.

In our Code, “conflict of interest” is defined as “the existence of a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person. (Rule 1.1-1)

Rule 3.1-1 defines a lawyer’s duty of competence as including: “complying in letter and spirit with all rules pertaining to the appropriate professional conduct of lawyers.”

So, we must avoid conflicts of interest, and not take a legalistic interpretation of how to do this. Does Mickey Haller’s solution to this issue work?

Perhaps we can chat about this at an upcoming Red Mug Coffee Circle. We have wonderful peer support volunteers with experience in analyzing conduct issues and who sometimes share anonymized stories. Watching a show that recognizes ethics issues can be a fun way of furthering our understanding of our professional duties using case studies acted out by well-qualified casts. Please let me know if this interests you as a Red Mug Coffee Circle topic, and then catch up on Season 2 of The Lincoln Lawyer! I can’t say for sure, but you may want to look at whether attending our session (as well as playing your version of the Legal Drama (Coffee) Drinking Game) constitutes a CPD activity.

Of course, every lawyer who encounters an ethical issue is encouraged to call the Practice Advisors. You can reach the Practice Advisors at 1.866.440.4640 or you can send a webmail from this page.   Assist’s discussions of TV drama ethical issues are educational in a broad sense but will never take the place of a careful review of the Code and a discussion with a Practice Advisor.

Watch for more details about The Lincoln Lawyer Coffee Drinking Game—or email me if you have a suggestion for a legal drama we should consider in the future.