In ‘Oh, Really?’ the Biederman Blog’s editors and alumni— voracious consumers of all matters pop culture — cast a curious, skeptical, fun and smart end-of-the-week eye on popular productions, sharing their keen observations about legal matters these raise. This guest post was contributed by Sherrie Fields, a former editor of the blog and new member of the California Bar.
How To Get Away With Murder is the latest prime time hit to be produced by television titan Shondra Rhimes’ and it has fast become a Thursday night staple following Grey’s Anatomy and Scandal. Similar to Rhimes’ other shows, Murder is chalk full of drama, suspense, love triangles, and sex.
Viola Davis portrays Annalise Keating, an emotionally messy and conflicted but cunning lawyer, a role for which she won Best Actress at the most recent Emmy awards. In between the steamy sex scenes, Keating finds time to teach a course on criminal law, while running a highly successful criminal defense practice. Five of her students have earned coveted internships with her law firm and must assist Keating in representing clients in each episode, in which they invariably find themselves in precarious and scandalous situations.
While the television series is highly entertaining, as a recent Southwestern Law School graduate, some aspects of the show require suspending knowledge of a true first-year law school experience. Do any 1L’s lead lives with this much drama? Oh, really?
Truth tougher than fiction
On average, a typical full-time 1L likley spends more time in the library briefing cases for class and figuring out how to create Blue Book citations, as opposed to tracking down witnesses in scary situations; digging up ditches to hide bodies; showing up in court just in the nick of time to hand their supervising attorney a note with evidence that fully exonerates their client or impeaches the witness on stand; or having wild sex with their classmates and hot supervisors.
Sure, there must be some 1Ls who can squeeze in high adventure between those long study sessions. …
But let’s put aside the salacious aspects of the show and look at the contrast between reality and entertainment as it was captured in the episode, “Two Birds, One Millstone.”
This show focuses on the fine line an attorney must tread when it comes to representing clients zealously, ensuring they do not engage in unethical legal behavior.
In this episode Keating receives a frantic call in the middle of the night from a client who says she killed her husband. When the client asks if she should call the police, Keating instinctively asks the client what happened and whether there were signs of a struggle or marks on the victim’s body.
Later, Keating learns that the client took her questions as cues as to how to stage the crime scene to appear as if a struggle occurred and she had acted in self defense. The prosecutor subsequently accuses Keating of coaching her client on how to cover up the crime.
Alas, in primetime television fashion, our clever counsel avoids charges by turning over evidence of a judge’s corruption, giving the prosecutor a platform to run for state’s attorney.
Assuming that an attorney actually gave her client cues to cover up a crime or counsel to give a false statement to the police, that unscrupulous lawyer would commit multiple legal-ethical violations.
For attorney Keating in the instance under consideration, the question as to whether she or her client broke any rules with the phone call is raised under The American Bar Association’s Model Rules of Professional Conduct. Model Rule 1.2(d) provides that:
“a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”
Model Rule 8.4 (c) also provides that: It is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
So while the client may call her lawyer before notifying the police after a crime has been committed, counsel must take care to only discuss the legal consequences of any action the client proposes. A lawyer may get into trouble if a judge finds she, in fact, intended to coach the client in criminal behavior such as staging a crime scene.
That would violate Model Rule 3.4 (a) which provides that a lawyer shall not
“unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act.”
Further, discussions between a client and counsel about previous acts are generally subject to the attorney-client privilege. Therefore, if a client confesses to her lawyer that she killed someone, the attorney cannot disclose the information baring an exception.
But as discussed before, if a client initiates communication with an attorney for the purpose of committing a crime or an act of fraud in the future, the attorney-client privilege will not apply.
Model Rule 1.6 (b) as well as many states such as California either permit or require attorneys to disclose information learned from a client that will prevent death or serious injury. Additionally under Rule 1.6 (b) an attorney may reveal otherwise confidential information that would prevent or remedy financial injury due to a crime or fraud.
While the fictional Keating seems to know how to get away with murder, in real law, her tactics would likely be a blueprint for disaster resulting in ethical violations for an attorney.
Fields, a member of the Biederman Blog’s Spring, 2013 Editorial Board, graduated from the Rochester Institute of Technology with a bachelor’s degree in Film and Animation. Her concentration at Southwestern Law School was Entertainment Law and she interned at MTV Networks, Mandalay Television, Avatar Records, Interscope Records, and Sony Music Entertainment. She has served as a law clerk at Plummer Law Group and joined the California Bar after passing its Summer 2015 exam.