Suits Gaffe - Lawyer Noncompetes Are A Big No-No

If you're like me, you've been waiting for the Suits season finale where the battle between the contenders for managing partner of Pearson Hardman comes to a head. I won't spoil the result (although you find out in the first five minutes of the show), but I will say that the losers start muttering about taking as many lawyers with them and forming their own firm. But the one who keeps their calm says they can't. They have noncompetes.

At that point, they've lost me. I can't believe it! In Florida, lawyers can't have noncompetes, so I run to the computer and look up New York's code of professional conduct. Sure enough, I run across references to Karas v Katten Muchin Zavis Rosenman, a case saying that New York lawyers aren't allowed to restrict their ability to compete. In that case, a lawyer would be paid beau coup bucks in severance, if only he would refrain from working from a competing firm. The court found that “restrictions on the practice of law that include ‘financial disincentives’ against competition. . .are objectionable primarily because they interfere with the client’s choice of counsel.” When I find the actual rule, it says, “A lawyer shall not participate in offering or making: (a) a partnership, shareholder, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement. . . .” In case you're interested, it's Rule 5.6.

Most states follow the same rule. The idea is that, because the attorney-client relationship is so personal and so important, clients must not have any restrictions on their ability to choose which lawyer they use. This reasoning is bizarre to me in light of the fact that my gynecologist, your proctologist, and your psychiatrist can all be forced to sign noncompetes, at least in my home state. You may not be able to use your favorite doctor for a year or two, but god forbid you not be able to choose your lawyer. I can't think of a relationship more personal than the one I have with the person who checks out my hoo-ha every year and who delivered my kids.

Why are lawyers so special? Is it because we write the rules and pass the laws? You betcha.

The better question is, why can employers make most employees sign these agreements and force them into indentured servitude? Maybe it's time to revisit the whole concept of noncompete agreements in this country. In the meantime, when you're writing about lawyers, don't make the mistake of having them sign noncompete agreements.

The Good Wife Has A Conflict of Interest

In the season finale on The Good Wife, The Dream Team, the writers went completely off their rockers. They had the firm file a multi-million dollar class action lawsuit with multiple plaintiffs. The firm wins a $25 million judgment. Huzzah! But then it all goes terribly awry.

Two regular nemeses of the firm (played by Michael J. Fox and Martha Plimpton) team up and sue the firm. They say the firm must have bribed the judge or done something wrong. They ask the firm to drop the class action suit and they say they’ll then drop the suit against the firm. The firm says no. Later, the firm changes its mind and agrees to drop the class action if the lawyers will drop the suit against the firm. Fortunately, they say the deal is off the table.

Hello? Anybody home? If the writers wanted to end the show and have the firm shut down in disgrace, they could let the firm make this offer. Otherwise, it’s a non-starter.

The firm has a duty to act in the best interests of its clients. It can’t dismiss a suit without client permission. It can’t dismiss a suit because the dismissal benefits the firm. It can never, ever, act against the interests of the client.

This plot device was so colossally stupid I almost didn’t make it through the episode. Fortunately, they didn’t have the double-dealing dismissal actually go through.

How could they have made the plot as interesting without sacrificing any sense of real world attorney ethics? How about having the clients offer to dismiss their suit to save their beloved lawyers? Okay, I’ll try to stop laughing. What about having the firm notify their malpractice carrier about yet another suit, and have the insurance lawyers try to double-deal the firm? If their carrier hasn’t dropped them by now, it should. Maybe next season.

While we’re at it, can we all promise to stop having depositions and hearings happen the day after the suit is filed? No? Puh-leeze. I can’t get a hearing on even the smallest issue for at least 2- 3 weeks. I’d love to see shows that actually use the delays to help create tension in the show. But that’s a blog post for another day.

C’mon, Good Wife writers. I’m a lawyer and a fan. Try not to make me throw things at the TV. I’ll be watching in the fall. You have plenty of time over the break to catch up on your research.

Lawyer’s Suspension Is Not A Vacation, Good Wife Writers Should Know

I was disappointed in the last episode of The Good Wife because one of the main characters, Will Gardner (who is also the heroine’s off and on love interest) faced a disbarment hearing. He was offered a 6 months’ suspension instead and he took it. I can’t blame him. He was very likely to lose his license.

But the way it was written, he was so blasé. The other lawyers in his firm were blasé. They acted like he was going to get a vacation. The writers on this terrific show usually do their research, so I was surprised at this gaffe.

A lawyer’s suspension is not a vacation. It’s deadly serious. I looked up the Illinois disciplinary rules, and they’re almost as harsh as Florida’s. Here’s what a suspension comes with:

Notification to all clients: He will have to notify all his clients of his suspension and the reason for it (and it was stealing trust account money, so he could expect a bunch of clients to flee the firm).

Notification to all courts: He will have to notify all judges before whom he has pending matters of the suspension. He has to move to withdraw in all pending cases. His credibility with those judges is now shot.

Notification to all opposing counsel: Can you imagine? This is the worst of all. Can you imagine the humiliation he will face? He’ll be taunted and put down for the rest of his professional career. Opposing counsel are frequently vicious. Worse than any playground bullies you ever encountered.

Removal of any indication he is a lawyer: The writers got this one right. His name had to come off the firm. That means changing the front door, letterhead, brochures, website, advertising and business cards. For a big firm, it’s wildly expensive.

Court approval for payment: If he is to be paid for any work he did before the suspension, he needs court approval.

Supreme Court approval for law firm purchase or transfer: He just handed the firm to his partners with a wink and a “see ‘ya in 6 months.” Ha! The Illinois Supreme Court had to approve any transfer of his ownership interest in the firm first. If he’s still an owner but off the letterhead, will there be problems? After all, non-lawyers can’t own a law firm, and he certainly can’t do anything resembling the practice of law.

At least he’s lucky he’s not in Florida. Here, even though the suspension is for a set period, he’d have to petition for reinstatement. In Illinois he’s automatically reinstated at the end of the suspension period.

So, will we see the writers use this suspension to the fullest? Will we see the firm’s associates having to deal with taunts from opposing counsel about their dishonest former boss? Will we see judges ask why they should trust him ever again once he comes back? Will we see clients fleeing in droves? Will there be articles in the papers about the fallen powerful attorney?

Or will they continue to act like a suspension is a vacation? I hope they’ll get it right. I’ll be watching to see if they do.

How the Old Twin Stand-In Stunt Plays Out In Real Life

Writers love to show lawyers using twins to trick witnesses into false identifications. The plotline will have the witness asked, “Can you show me the man who attacked you?” The witness points to the person at the defense table. The defense lawyer will say, “Your honor, I move to dismiss. The witness has just identified the defendant’s twin brother.” Gasps arise. Gavel pounding. “Case dismissed.” The victim walks away sheepishly, and the defense lawyer gets slaps on the back for his cleverness.

Back to the real world. A lawyer tried a similar stunt recently, with quite different consequences. She had her client’s twin brother appear at a preliminary hearing instead of her client. The witness identified the twin. Case dismissed? Nope.

The prosecutors are moving to have her removed from the case, and the judge is talking about having her held in contempt of court. The prosecutor is also going to report her to the Bar for making misrepresentations to the court.

When she was caught (the arresting officer recognized the real perp hanging outside the courtroom) she denied she was trying to get the witness to identify the wrong person. So what was all that about? I’m betting that wasn't quite true. She probably saw some stupid TV show where a lawyer pulled a similar stunt.

If stunts like that worked in real life, no twin would ever end up in jail. The truth is simpler. Lawyers aren’t allowed to misrepresent anything to a judge or jury. That includes the identity of their client. If they do, they might end up in jail for a few days, or worse, lose their license to practice law.

Can we all agree to stop using the twin stand-in as a plotline now? On behalf of the 1.1 million lawyers who might read your book or watch your show, I thank you.

The Good Wife Tackles Political Discrimination

In the episode “Parenting Made Easy,” The Good Wife represents a professor who claims she was fired due to discrimination based upon her political beliefs. Whether or not such a claim would exist in the real world depends on whether the school is public or private.

There’s a real-life case going on right now about this very issue, so the show was timely. In this real case, a professor claims the University of Iowa College of Law (a state-run institution) refused to hire her because she’s a Republican, and cites the ratio of only 1 out of 50 professors at the school is Republican. She’s suing under 42 USC Section 1983, claiming her constitutional right of free speech was violated.

Going back to The Good Wife, the first theory the lawyers raised was that the professor was discriminated against due to sexual harassment. That claim kind of fell by the wayside (it was just shoulder-rubbing, so they were probably right to drop that one quickly).

Then they changed their theory to say it was because of her political and religious views on homosexuality. They said it was a civil rights violation. The person who fired her said he believed what she said was hate speech. Let’s forget a moment that they would have to amend their pleadings and give the other side a chance to switch gears as well. They actually did a good job handling this sticky issue by having it be an arbitration, where the rules are much more loose and informal.

The writers didn’t say whether the college was a private one. If it was private, then she has no civil rights and she can absolutely be fired for her political beliefs. They would have had to allege religious discrimination – that she was fired because of her religious beliefs, not for her conservatism or specific political views. So the plotline bothered me because political discrimination is mostly not illegal. I had to make the leap and assume it was a public institution. Personally, I think the religious discrimination angle would have been more interesting plot-wise.

The case result turned on opposing counsel stealing attorney-client communications out of Alicia’s purse, which was just dumb in my opinion. The lawyer would have been disbarred had Alicia complained, so it was a silly way to have him come up with the evidence. They had to show that he is unethical for plot purposes, and this was certainly unethical, but I don’t see Alicia letting him get away with it. It would have been much better had they shown him hiring a hacker to get the client’s personal emails.

Overall, I thought they handled the political discrimination issue pretty well. I would have liked them to say it was because the school was state-run that they could claim this, but I can see why the writers didn’t bother. As usual, The Good Wife’s writers handled a legal issue in a way that even a lawyer can enjoy watching.

For a Decent Summer Legal Show, Check Out Suits

            Suits, the new USA summer show about a guy passing himself off as a lawyer, had me worried at the beginning. The very first scene was a real lawyer lying to a client to get a deal closed. That’s a huge, disbarrable no-no. The writers redeemed themselves when the characters discussed how interested the Bar would be in that incident. Two characters threatened each other with mutually assured destruction if one reported the other. I was so happy. Maybe I’m easily amused.

            Then they had a sexual harassment case as our hero’s first case, and I cringed. Shows about my area of practice are always the most difficult for me to watch because they get so much wrong. But Suits did a really nice job. Sure, they took some license, but not too much. They got the concept of quid pro quo sexual harassment right. And then they showed what happens far too often in the real world. You see, the Supreme Court says sexual harassment victims have to report the harassment to Human Resources and give them a chance to fix it. If they don’t do it, they lose their right to bring a case.

            Here, the victim reported it. Sure enough, two months later, she was fired for alleged performance problems. Do you have any idea how many times I hear the same story in real life? Try about once a week. Again, I was unduly happy.

            They got big firm life down to a tee – the first year associates being treated like slaves, frowning on them leaving before 9 p.m., the bickering among partners, the competition, and the cutthroat atmosphere.

            I don’t usually comment on the actual writing, but I have to here because I really enjoyed this show. The characters were fun, dialogue snappy and the plot interesting. I’ve said before that I tend to watch all the USA shows, and this will apparently be no exception. Hopefully the writers will keep up the good work.

Franklin & Bash Get the Law (Mostly) Right

            I haven’t decided whether or not I’ll be watching Franklin & Bash on a regular basis. I do try to give the latest legal dramas and comedies a chance, and this one is a rare summer legal comedy. It stars Mark-Paul Gosselaar, who I remember fondly from the old Saved By the Bell series. He’s all grown up and playing a lawyer along with Breckin Meyer. They are two outlandish ambulance-chasing lawyers who get convinced by senior partner Malcolm McDowell (one of my favorite actors) to come work for a big fancy law firm.

            The first scene showed one of the bad boys of law disobeying a judge’s order. It made me very happy that this landed him in jail (briefly) for contempt. That’s exactly what should happen.

            The big plot line showed a junior partner plotting with a corporate client to throw their employee (also a client) under the bus. They wanted to blame what happened in the lawsuit on their employee so they could skate. Very realistic.

            Of course, I’ve ranted before about lawyers working against clients. Fortunately, our heroes found out about the plot to turn on a client, objected, and then engaged in silly antics to expose the plot and protect the employee-client. They pointed out that the firm had a duty to both clients. That kind of legal-correctness gives me goosebumps.

            The only major part they got wrong was that they also couldn’t turn on the corporate client. The firm had to withdraw from representing both clients and let them get separate representation. But compared to what happens in most legal shows, this one was almost a law school ethics class.

            The reason I don’t know whether I’ll watch regularly is that most of the plot was silly and the characters just aren’t that likeable. I’ll check it out another time or two and see if they can get me hooked.

            For now, I can label Franklin & Bash as (legally speaking) relatively safe for lawyers to watch.