Bad Practice - As Usual
by Taunya Lovell Banks, University
In this season's opener of
The Practice, the Boston-based law firm headed by Robert
"Bobby" G. Donnell (Dylan McDermott) continues to struggle
with the ethics of law practice. Ethical breaches on episodes
of The Practice provide law teachers with ample examples
of bad or unethical lawyering. The season's first episode, entitled
The Candidate, centers around Ellenor Frutt's (Camryn
Manheim ) representation of a friend, a well regarded Senator,
charged with murder. She also represents his wife and daughter,
witnesses to the murder.
The ethical problems with representing
multiple potential suspects, any one of whom might be responsible
for the murder, are readily apparent to even the most naive viewer
of lawyer shows. Rather than recite the litany of ethical breaches
that occur in this episode, a record number even for The Practice,
I want to focus on one particularly essential component of good
lawyering, trust. A lawyer must have trust in the legal system,
colleagues and clients. In turn, the lawyer must engender trust
in colleagues and clients. In this episode Ellenor proves herself
untrustworthy in every respect.
It is essential that a client
trust her lawyer so that the client will be forthcoming with
the lawyer. Trust is particularly important if the lawyer is
to fulfill her role as counselor. The lawyer as counselor helps
the client make crucial decisions over the life of the case.
Without all the information a client has to offer, the lawyer-counselor
cannot help her client make informed choices. The lawyer-advocate
also is severely handicap in preparing a defense. Yet, from the
beginning, Ellenor signals her client, Senator Keith Ellison,
that she cannot be trusted.
After being summoned to the
Senator's house and shown the murder scene, Ellenor tells the
Senator not to say anything that will prevent her from representing
him. Given this initial warning that she can not be trusted with
the truth, why would the Senator be forthcoming with the truth?
Unsurprisingly, the Senator responds, "if knowing the truth
would prevent you from representing me, you're not getting it."
He continues, saying that Ellenor must decide how much information
she wants from him.
A good lawyer might reply that
knowing the whole truth will help the lawyer to prepare an effective
defense. Even a guilty person is entitled to demand that the
prosecution prove its case. Ellenor appears to misconstrue the
lawyer's obligation. A good defense lawyer would make the state
prove its case beyond a reasonable doubt while preserving her
client's constitutional right against self- incrimination. Instead,
Ellenor tells the Senator to wash the blood spots off his naked
body, serious misconduct on her part.
By encouraging the Senator
to destroy evidence, Ellenor may have committed a felony, obstruction
of justice. It is one thing for a lawyer to advise a client on
how to avoid conviction, but quite another to give advice on
how to avoid detection. This is not quite the same as the classic
case of In Re Ryder where the lawyer took possession of
the weapon, but close enough.
Despite their friendship, there
is no lawyer-client trust between Ellenor and Senator Ellison
because Ellenor does not want to know the truth. She also is
unwilling to tell her partners the truth. She lies to Bobby saying
that the Senator came up with the idea of washing off the blood
spots. Bobby strongly suspects that Ellenor is lying to him about
her commission of not only an ethical breach, but a criminal
offense. Bobby, no paragon of ethical virtue, is really concerned
that Ellenor may have broken the law, not the canons of ethics.
Despite these limitations, the entire firm takes on the case.
Ellenor and her partners end
up lawyering in the dark, a problem that plagues their defense
of Senator Ellison throughout the show. Worried about his political
career, the Senator consistently refuses to tell his lawyers
what happens and actually misleads them. The witness clients,
the wife and daughter, also lie to the firm lawyers. Not knowing
the truth leads to the surprise ending. Perhaps this is dramatic
license, but it conveys a potentially dangerous message to the
viewing audience - truth is not a necessary corollary to justice.
Further, as is the case with too many episodes of The Practice,
the lawyers engage in bad lawyering without suffering any personal
adverse consequences. It's time to revoke their bar cards.
Posted October 18, 2001