A recent plotline in The Good Wife bugged me so much that I did some research on the ethical conundrums it raised. When I got no satisfactory answer on my own, I did what every good writer should do – I called someone who knew what they were talking about. In this case, I used (or possibly misused) the Florida Bar’s Ethics Hotline. Most states have something similar, where lawyers can call up and get some advice when ethical issues arise. I confessed right away that I was calling about an ethical issue from a TV show, and was lucky enough to run into a lawyer on the hotline who happens to be a fan of The Good Wife. She knew exactly which two episodes I was talking about.
Confidentiality Within the Lawyer’s Firm
In the first episode that was bothering me, our heroine, a newbie lawyer, got drafted to represent a firm partner in a legal matter. In the midst of her representation, it came out that her client had Alzheimer’s. She now knows that a hotshot lawyer, a firm partner, is impaired, unable to represent clients competently, at least some of the time. Her supervisor is a different partner. The client/partner tells her that the existence of his disease is confidential, and she can’t tell anyone, even her boss. Any normal new associate would have been incompetent to handle the representation at that point. My ethics guru agreed that she probably should have insisted that she be allowed to get advice from her boss on how to proceed with the case. That would have solved most of the other issues. Plus, it’s extremely unlikely that such a high profile partner wouldn’t have had someone else figure out his condition by this point.
But, let’s give the writers the benefit of the doubt. Our heroine is a super-attorney who can handle tough cases with little supervision. She handled the case like a champ. Even though her firm represented the partner/client, the client is within his rights to instruct her to keep this information from the other lawyers in her firm. She would have to refrain from even writing it in the file, because the file is firm property, not hers. In this situation, the writers probably got it right.
However, any normal newbie lawyer would have had to either get the okay to go to the boss, or withdraw. The lawyer has a duty to withdraw if they can’t give competent representation. She couldn’t have told her boss why, only that she had a conflict.
The partner/client then announces that he’s leaving the firm and taking most of the clients, and reminds her she has to keep his condition confidential. She’s stuck. She can’t tell. That’s probably right, if she didn’t tell the supervisor while she was handling the case.
So I’ll give this first one to the writers.
Conflict of Interest With Former Client and Duty of Zealous Advocacy
Then comes the second episode with the same issue. Our heroine is handling a case. The former partner/client makes a surprise announcement that he’s the opposing counsel. Let’s assume for the sake of argument that the case came to our heroine’s firm after the partner/client left, because otherwise he can’t do it.
So our heroine now knows that she has a lawyer on the other side who has Alzheimer’s. He’s incompetent. Normally, she could probably get him tossed off the case. She has information advantageous to her current client. But she can’t use it because she got it from a former client and it’s confidential.
The writers found a clever way for her to get out of her dilemma. I won’t give it away. But the whole scenario really bugged me at that point, and the expert agrees. Because she had information she should have used as a zealous advocate but couldn’t, she had a non-waivable conflict. She had to withdraw from the case.
Could she tell her firm why she had to withdraw now that the client/partner is gone? I don’t know. Possibly, but maybe not. If she did, whoever she told couldn’t use the information. Could another member of the firm have taken the case after she had to get out? No. The whole firm is disqualified.
Ethics and Alzheimer’s
That puts the guy with Alzheimer’s in the catbird seat, storywise. He could stalk all their cases and tell the folks on the other side he knows how to get the other firm off the case. Would he be unethical to solicit those clients? Yes, most likely. But then he’s already unethical. He knows he’s impaired and he hasn’t done anything to protect his clients. He hasn’t even disclosed it to them. His staff doesn’t know, so they aren’t even watching his back. Just because he’s impaired doesn’t mean his ethical duties go away.
Why I’m Giving Them A Pass Even Though The Writers Got it Partly Wrong
In all, I think the writers did a decent job. They used a real ethical dilemma, dealt with it credibly, and it took two lawyers, including an expert, about 15 minutes of hashing out the rules and permutations to figure out that there was a problem and why. Alzheimer’s and other dementia-related issues are featured in this month’s ABA Journal because those of us who are boomer lawyers are getting freaking old and refuse to leave the profession. It’s something the Bars need to get a handle on. The issue is timely and I hope to see more of this interesting character.
If you are writing about the law and get this close to being right, I probably won’t change the channel. Both the expert and I agreed – we’ll keep watching The Good Wife. It’s a wonderful show for lawyers to watch, even if they do take some liberties.
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