In ‘Oh, Really?’ the Biederman Blog’s editors — 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.
In The Lincoln Lawyer, Lionsgate’s sly and appealing legal thriller, Matthew McConaughey plays the crafty, hustling defense attorney Mickey Haller (a character created by best-selling author Michael Connelly a one-time Los Angeles scribe). Mickey carries out most of his legal work from the backseat of his Lincoln town car (explaining the movie’s title) and seems to defend clients chiefly on their capacity to put up cash. This gives him a clientele of assorted dirt-bags and drug addicts but also happens to land him what he first thinks may be the case of a lifetime: He’s asked to defend Louis Roulet (Ryan Phillipe), the scion of a dripping in wealth Beverly Hills family, against a rape charge. While the case looks easy at the start, it fast slips into the iffy for Mickey and his investigator (William H. Macy) after Roulet lies about crime-scene evidence but maintains his innocence.
Mickey soon discovers evidence that ties Roulet to a murder that sent another of the attorney’s clients (Michael Pena) to prison. This thrusts Mickey’s professional ethics into a tailspin. Should he violate his personal ethics and the Model Rules of Professional Conduct by disclosing defendant information that could free a potentially wrongly imprisoned onetime client? Or does he preserve the attorney-client privilege, keep representing his loaded but worthless client and let another man’s life continue to be ruined? Or can he figure a way to do both?
We’ll try not to ruin this tightly plotted movie while taking on three instances where Mickey’s ethical obligations come into play and discussing the legal propriety of his course of actions:
Ethical concern No. 1: Where’s Mr. Green aka dilemmas on attorney’s fees
At the film’s outset, Mickey finds out about the potentially big and lucrative case involving Roulet. But to nab this business, he must dash to the other side of town by a certain time. There’s a problem, too: He’s stuck assisting a client jailed on a drug charge and he clearly doesn’t want to deal with him now. He goes down to his client’s cell and tells him he can’t free him this day because he hasn’t “filled up the tank” (he hasn’t been paid enough) Mickey repeats a Chicago court classic, appearing before a judge and seeking a case delay, explaining that a material witness “Mr. Green” (as in his fee or money) can’t be located; the prosecutor and judge agree to the delay. Now, while this tactic may be part of myth and legend in some venues, can Mickey really pull off such craven, cash-driven conduct?
Rule 1.5 of the ABA Model Rule of Professional Conduct discusses attorney’s fees. Comment 5 to Rule 1.5 specifically addresses our scenario above and says a lawyer cannot make a fee agreement that could curtail services in the middle of a relationship and therefore put the client at a bargaining disadvantage. The film, in fact, discloses that Mickey’s jailed client paid him $5,000 up front, a sum it seems that isn’t persuasive. Mickey later gets pulled over by a biker gang after refusing to help his client (who also is a gang member). He gets the gang to pay him $10,000 more to get on the case.
It seems, though, that under Rule 1.5, Mickey should have fully provided his services to his client rather than just the 5K up-front fronting. He later then could have dealt with his displeasure with his client about fees, demanding more in exchange for representation or even suing his client for additional sums (though, it seems there was no formal agreement put in place about his exact fees since Mickey collects them, yup, in cash, in a brown envelope on the side of the road).
Ethical Concern No. 2: Lawyer’s duties of competence, diligence
Under Model Rule 1.1 a lawyer, when representing a client, must act competently (e.g., with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation). Also, under Model Rule 1.3, a lawyer must act with reasonable diligence and promptness in representing a client. Both these rules come into play in the film when Mickey has a flashback about a former client charged with murder and facing a death sentence. Mickey was more concerned with ensuring his client, instead, received a life sentence instead of execution. Because of this, it becomes clear that he failed to listen to his client’s needs, especially since the prosecution’s factual case seemed so convincing. Mickey realizes he refused to even remotely hear or consider that his client might be innocent.
Under comment 5 to Rule 1.1, a lawyer must inquire into and analyze the facts and legal elements of the problem, applying the methods and procedures used by competent practitioners. Here, it seems as though Mickey rushed to judgment, refusing to hear out his client and consider the facts; he all but forces his defendant to plead guilty for a life sentence with possibility of parole after 15 years. This conduct definitely would violate comment 1 to Rule 1.3, which says a lawyer should act with dedication and commitment to the client’s interests and with zeal in advocacy on the client’s behalf. Mickey prejudges his client, persuades him to a wrong course believing he’s saving his life. Alas, the movie discloses — possible spoiler alert, or is it obvious? — the client is innocent.
Ethical Issue No. 3: Conflict of interest with current client, duty of confidentiality, attorney-client privilege
You are defending the same client that got your other client sent to jail for murder.
While Mickey is representing Roulet and catching him in a few lies, he decides something isn’t right with his client. Mickey is right, and, suffice it to say that Connelly and screenwriter John Romano more than earn their keep with the plot twists that allow the attorney to navigate successfully a thrilling set of plot twists and turns that put him in and out of various aspects of ethics and the law.
The main question here is whether Mickey violates ethical rules, including the attorney-client privilege, and, if so, could he have handled this situation in a better way?
You get your client off for battery, just to burn him for murder… whose side are you on anyway?
Under Model Rule 1.7(a) a lawyer must not represent a client if doing so creates a concurrent conflict of interest. That could include the significant risk posed to the attorney representing one client and finding himself materially limited by the lawyer’s own interest or to those a former client. Mickey, from the facts outline in the film, clearly cannot serve as Roulet’s lawyer, especially as details seep out about his involvement in the murder for which another of the attorney’s clients was charged and convicted. His client Roulet, of course, is crafty to choose Mickey as his attorney. That’s because, even if his lawyer gets forced off his case, everything Roulet had already told Mickey from the initial meeting onward was subject to the confidence of attorney-client privilege.
That privilege prohibits a court or other government tribunal from compelling the revelation of confidential communications between an attorney and a client (or their agents, including law clerks, paralegals etc.) if the subject of the communication concerns the professional relationship between the attorney and the client. Moreover, the client is the one that can claim or waive the privilege (unless the client is not present, then the lawyer can claim the privilege on behalf of his client) and the privilege continues forever. It does have a few exceptions. What’s the closest one pertinent to the facts in the film? The privilege does not apply if the client seeks the attorney’s services to engage in or assist in a future crime or fraud. Mickey’s conundrum, of course, concerns a past crime.
So it seems as though Mickey cannot break the privilege since he represents Roulet who has told him confidential, incriminating information. In both reality and in the tension-filled movie, it becomes clear that, perhaps, Mickey’s best escape from his moral and ethical dilemmas may be by coming to grips with the brutality and criminality of Roulet — pretty as he may be, he’s a rough thug who, arguably, poses the threat of and has caused both bodily harm and death.
Another issue outlined in this film involves the ethical duty of confidentiality, which prohibits an attorney from voluntarily revealing information relating to the representation of a client. Thus, as mentioned in comment 3 to Model Rule 1.6, it applies in every context that where the attorney-client privilege does not. It covers all information that relates to the representation of the client, regardless if it is privileged or not, and an attorney cannot disclose a client’s confidential information without informed consent (unless an exception applies) or use the confidential info to the disadvantage of the client. Based on a reading of this rule, it seems as though Mickey really is in the deeps regarding the disclosure of information. But there are exceptions to the rule.
Model Rule 1.6(b)(4) permits a lawyer to disclose enough of the client’s confidential information as is necessary to obtain legal ethics advice for the lawyer. Mickey could, without disclosing enough to reveal his client’s identity, talk to another attorney about his dilemmas, receiving better counsel and insight into how to resolves his perplexities; this course likely would not have created such a great outcome of events described in the film.
Model Rule 1.6(b)(1) permits a lawyer to reveal the client’s confidential information to the extent that the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm. This may work for Mickey regarding threats made against his family. But Mickey cannot reveal Roulet’s most heinous information since it is a completed crime; Mickey could be subject to discipline if he did.
So the legal canons seem to handcuff Mickey, threatening him with professional discipline — would it really be imposed if this twisted set of facts came to light? — if he violates the ethics rules to free an innocent client while imprisoning another who is both smarmy and too clever by half. For lawyers, the fast-pace of the Lincoln Lawyer just may provide not only entertainment but a thought-provoking mental workout — will counsel and aspiring lawyers watch this film for fun or to try to figure Mickey’s right and proper ethical and legal maneuvers?