"Its first four episodes this fall have produced crackling legal dramas, maintaining and often exceeding the high standard this Emmy-award winning show has set in its first two seasons."
"The show is always interesting, sometimes corny, often downright terrific. Check it out."
| SEVERED HEADS ON THE PRACTICE
By Professor Michael Asimow, UCLA School of Law (November 1998)
A distraught podiatrist rushes into the office demanding to see attorney Ellenor Frutt immediately. He says that the previous night he picked up a woman in a bar and they went to a motel together. Then he went home. The next morning, upon opening his medical bag, he discovered the woman's severed head. He claims he has no idea how it got there. Now what?
Just another day at Donnell, Young, Frutt and Dole, the home of TV's The Practice. Its first four episodes this fall have produced crackling legal dramas, maintaining and often exceeding the high standard this Emmy-award winning show has set in its first two seasons. Camryn Mannheim , who won the best actress Emmy for her portrayal of Ellenor Frutt, continues to turn in superb performances. In my view, the two current shows The Practice and Law and Order, and the superb 1960's era show The Defenders, are the finest legal drama series that have ever appeared on television.
For those who haven't seen The Practice (Sunday nights on ABC), it's all about the practice of a scrappy, bottom-end Boston law firm. The Practice was created by David Kelley who writes many of the episodes; astoundingly Kelley also created and still writes Ally McBeal, a relationship show set in a law office that I personally find unwatchable. Needless to say, Ally McBeal continues to pull in fabulous ratings; millions of young professional women relate passionately to its protagonist.
Originally the firm consisted of Bobby Donnell and his associates, but last year after an internal struggle, Bobby made Eugene Young, Ellenor Frutt, and Lindsay Dole partners. Jimmy Berlucci is still an associate, but his skill level seems to be improving. In a major surprise, overqualified receptionist Rebecca Washington passed the bar and became an associate (nobody knew she was going to law school). So far she seems to be a terrific lawyer. Rebecca's position as receptionist/secretary has been filled by Lucy Hatcher, who has had some very funny lines so far.
One of the best things about The Practice is that it thrashes out thorny issues of legal ethics on screen. In the case of the severed head, for example, the attorneys engage in a passionate debate about what to do. The lawyers seek a legal opinion from noted ethicist Anderson Pearson, who they happen to be representing in another murder case. Pearson says they have no obligation to turn over the head. Ultimately, the lawyers decide to deliver the head to the District Attorney and they surrender the client at the same time. This is largely a tactical decision. Since the client professes innocence, the best strategy is to cooperate with the police.
But what is the firm's ethical obligation in the severed head case? Must the attorneys turn over the head to the police? If so, must they identify the client as the source? Must they also turn over the client's medical bag (which will probably lead the cops to the client)? Can the attorneys represent the client but not deliver the head to the police by refusing to take custody of it? Under that scenario, how should they explain the situation to the client?
It seems clear that if the attorneys take custody of the head (or any other physical evidence of crime), they must turn it over to the police. Probably they must deliver the head in the medical bag in which the client claims he found it (otherwise they would be tampering with the evidence). Since the evidence came from the client, they should not disclose the source to the police. At trial the jury should not learn that the evidence came to the police from the defense attorney.
On the other hand, an attorney is not required to disclose the existence or location of evidence that he never took custody of, as long as the attorney does not move that evidence or make it more difficult for the police to find. The famous dead body case of People v. Belge, 376 N.Y.S.2d 771 (1975), held that attorneys who knew but failed to disclose where victims were buried committed no crime. A subsequent ethics opinion indicates that the lawyers in Belge violated no ethical rules either.
Cases like Belge may mean that the attorneys could avoid the whole problem by not taking possession of the head. They might first explain their ethical obligation to the client. The client can then simply pick up the head and take it away. Some would say that this course of action violates ethical canons because it is likely that the client will quickly dispose of the evidence. But others would respond that this case is no different from Belge, where the attorneys ethically avoided any obligation of disclosure of the location of bodies yet were allowed to represent the client.
In another show, a frantic client calls Ellenor on his cell phone. He's just run down a pedestrian and he had been drinking. In fact,. there's an open bottle of whiskey in the car. What should he do? Ellenor thinks a bit and advises him to start drinking it "to settle his nerves." Then when he flunks the breath test, the cops can't tell whether he was drinking before or after the accident.
It seems clear that Ellenor's advice was grossly unethical. It is like counseling the client on where to hide the gun that was used to commit a crime. She obstructed the police's access to evidence and unlawfully concealed material having potential evidentiary value, in violation of Model Rule 3.4. She also assisted the client in conduct that the lawyer knows is criminal or fraudulent under Rule 1.2.
But the ethical issue didn't disappear; everybody called Ellenor on her ethical lapse, including her boss Bobby Donnell (who was also the pedestrian struck by the client). This criticism triggers a serious identity crisis of the sort all lawyers must undergo from time to time. Ellenor wonders how she could have sunk to such depths. Fortunately, by the next episode, she is back to her usual self.
Anderson Pearson was Lindsay Dole's favorite professor at Harvard. Although the two were on opposite sides of a tobacco case last year, Pearson came to the firm when he was charged with killing an unarmed stalker who had terrorized his family and strangled his cat. The judge rules that self-defense is not available. Lindsay and Bobby try to argue that the shooting was involuntary (not an easy claim given that Pearson fired five times). Along the way, they browbeat or bribe an expert witness into supporting their claim of accidental shooting. But the jury doesn't buy it and Pearson is convicted of second degree murder. The appellate court criticizes Lindsay and Bobby for failing to attempt an interlocutory appeal of the judge's self defense ruling. Lindsay is afflicted with overwhelming feelings of guilt that she has let her professor down.
So far this season, The Practice has served up numerous tasty ethics puzzles and explored with great sensitivity the personal crises that practicing law can trigger. The show is always interesting, sometimes corny, often downright terrific. Check it out.