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.

Relaying Settlement Offers to a Client is Never Just a Formality

On a recent episode of Suits, after a $15 million settlement offer was relayed, the lawyer declined huffily without speaking with his client. He told the client later that he was relaying it to them only as a formality. I should be glad that at least the lawyer in this show discussed the offer with the client. In too many shows and books, the lawyer refuses or accepts offers on their own.

The ABA Model Rules of Professional Conduct, which every state but California uses as the model for their own rules, say:

1.4(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

The comments to the rule explain:

  [A]lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer.

As to whether the lawyer has to accept the client's decision, the rules are clear:

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

Relaying the settlement offer to the client isn't a just a formality - it's a requirement. It's not that hard to write the scene correctly. The proper response is, "I'll relay it to the client, but I'll recommend against it." The only way the lawyer can shoot it down is if the client already said they wouldn't accept anything under x-amount and authorized the lawyer to turn down anything under that number.