Vol. 42 No. 3
ByAnna Stolley Persky
Anna Stolley Persky is a freelance writer in the Washington, D.C. area.
From the enshrined-in-our-culture Perry Mason to the more contemporary Saul Goodman, fictional lawyers, and the writers behind them, provide hours of amusement as they muddle through outrageous imaginary ethical dilemmas.
After all, real-life lawyers never face the same scenarios. Or do they?
“Actually, the situations may be exaggerated, but they are often still based in real life,” said Michael Asimow, a visiting professor at Stanford Law School, who teaches classes on pop culture and the law. “Law students can learn more watching how a great actor deals with a situation than they would listening to a dry lecture on ethics.”
Asimow is not alone in believing that fictional lawyers can provide guidance to law students on appropriate attorney behavior and the boundaries of ethical rules. In fact, several law schools throughout the country offer classes in which students study legal and ethical situations as presented in television and other mediums.
“Being a lawyer means that you will confront ethical dilemmas,” said Asimow. “Sometimes the rules of conduct will guide you, but sometimes the rules are vague. Your own moral code should tell you what to do, but remember that the area of ethics is a tremendous minefield for lawyers.”
Law students can also study fictional lawyers, with their varying styles and flourishes, to determine what characteristics they want to emulate as they launch their own careers. Fictional lawyers also provide many bad examples to learn from.
Rex R. Perschbacher, former dean of University of California, Davis School of Law, warns that law students should never forget that what they are watching is drama and, while instructive, certainly doesn’t tell the whole story of what it means to be a lawyer.
“Nobody wants to show you a lawyer spending two years in document review,” said Perschbacher, who teaches professional responsibility and pop culture and the law. “The day-to-day law practice can be just tedium.”
Perschbacher said law students should remember that television, novel, and movie writers generally ignore the mundane realities of practicing law in favor of dramatic trial moments or riveting ethical tangles.
Over the decades, television legal dramas have captured the imagination and idealism of the American viewing public. Perry Mason will always be remembered for defending clients in seemingly indefensible cases.
And then there was criminal defense lawyer Ben Matlock who wowed viewers with his folksy mannerism and courtroom cleverness.
In the 1980s and early 1990s, America was hooked on L.A. Law, a TV series that ran for eight seasons. The popular drama focused on the struggles of lawyers working at a boutique law firm. Each episode presented the firm’s savvy, driven lawyers with a variety of ethical dilemmas and plenty of sex and intrigue.
In the late 1990s and early 2000s, Ally McBeal entertained viewers. The cast of quirky, unconventional, and seemingly unlawyer-like characters often found themselves dancing into some fairly bizarre situations. . In the mid to late 2000s, Boston Legal offered the morally ambiguous Alan Shore as something of an anti-hero for the typical lawyer drama.
Meanwhile, Law & Order reigned for 20 years. A police procedural and legal drama series, the show’sfirst half usually concentrated on the investigation of a crime. The second half generally focused on twists and turns in the prosecution.
The show had its last season in 2010, after inspiring countless future lawyers to take the LSAT and pursue a legal career.
“Law & Order? I watched it a lot in high school. At that time I thought I might want to be a lawyer and wanted a way to experience what that might be like,” said Adam Cohen, a 2L at University of Pittsburgh School of Law. “I now realize that the show was hugely inaccurate, but at the time it seemed realistic. I admired [how the prosecutors on the show] sometimes pushed the rules, pushed the limits of the law to achieve an ethical or moral end.”
Cohen also said that the show taught him that to be a good lawyer. He would always have to be prepared and know his case “inside and out.”
Today, legal dramas remain popular, but some fictional lawyers don’t even bother to try to “do the right thing.” In the case of Suits, the show’s entire premise is based upon an initial unethical choice to misrepresent the firm and all clients.
In the show, Harvey Specter, a partner and self-assured closer at a well-heeled New York law firm, is interviewing for a firm associate. Specter ends up hiring drug-dealing and brilliant slacker Mike Ross as an associate, even though he knows Ross did not graduate law school. Specter passes off Ross as a lawyer with a Harvard Law School degree.
“Well, of course, the show starts off with a big secret that is also a breach of ethics and a legal problem,” said Christine Corcos, an associate professor at Louisiana State University Paul M. Hebert Law Center, in Baton Rouge, who teaches courses in media and entertainment law. “Lawyering is often about client confidentiality, about being the keeper of a client’s secrets, but this secret is one the lawyer has manufactured, and it leads to enormous problems for him and his law firm.”
Law students, according to Corcos, can learn from this show the importance of being honest in their own dealings.
“If you make mistakes, you have to admit them,” said Corcos. “In this show, they start with a major misrepresentation that creates a problem in episode after episode. This partner should never have made the hire. This is a classic example of the cover-up being worse than the initial lie. Of course, without the lie, and the cover-up, the show wouldn’t be nearly as provocative or entertaining.”
Perschbacher found the show’s premise to be “preposterous” with “terrible” lessons. In addition, he is offended by Specter’s lawyering style . The show’s website describes Specter as a “slick character” who doesn’t play by the rules.
“I guess what a law student learns is that an incredibly cocky, driven, and arrogant attitude can bring you great success,” said Perschbacher. “Yes, there are lawyers like that, but it’s not a good way to be. Television tends to portray the arrogant lawyer style as invariably successful.”
Angela Elizabeth Perry, a 3L at University of California, Irvine School of Law, thought that “a little bravado” is a good thing, but certainly not enough to make a good lawyer.
“Of course, I do wish that I could be like Harvey Specter [and] just walk into a courtroom with a good suit and a confident attitude and win my case,” said Perry. “But it doesn’t really happen that way. You need a legal strategy, too.”
While it’s not primarily a legal drama, Breaking Bad presents its viewers with another unforgettable and ethically challenged lawyer. Saul Goodman, the scene-stealing counsel for drug dealers, is known for his overbearing manner and shady appearance. Goodman, displays a propensity to propose the most criminal solutions to any snags in his clients’ drug-dealing and money-laundering operations.
“There’s nothing good about this lawyer,” said Perschbacher. “He engages in every unethical and criminal conduct he can. He’s not above bribing. He’s a caricature of a mob lawyer. He’ll do anything for money.”
Still, Perry can find some good qualities in Goodman. Perry said she is impressed with how quickly he can help untangle his client from a mess.
“He’s probably not the most ethical guy to model yourself after, obviously, but he is really well connected,” said Perry. “He is a lawyer that has figured out networking and really knows how to use it to his advantage. That is a guy that always knows a guy, and that is valuable to his clients.”
Goodman also demonstrates a lawyer’s role as problem solver. Clients tend to be results oriented. Good lawyers find a way to achieve their client’s desired result. Goodman demonstrates the value of creative thinking. Of course, lawyers have an ethical obligation to work within the law’s boundaries.
While recently concluded, the legal thriller Damages focused on a young lawyer struggling with her ideals and intrinsic moral sense. The show focused on the relationship between two lawyers, ruthless Patty Hewes and her seemingly naïve protégée, Ellen Parsons.
In the first season, Parsons, a recent law school graduate, is specifically warned to stay clear of Hewes, but she fails to follow the advice she is given.
“Law students should learn from this that they should seek advice from experienced lawyers, people that they trust and who know them, and then listen thoughtfully to their advice, and probably take it,” said Corcos. “[Parsons] got excellent advice, but she didn’t take it, and she should have.”
This also highlights the importance of reputation. A lawyer whose reputation inspires colleagues to advise others to avoid her will not likely have a successful career.
For an example of a legal drama depicting slightly more realistic ethical challenges, law students can watch The Good Wife.
The show depicts the complexities of big firm politics. According to Perschbacher, in many episodes, the lawyers find themselves in classic ethical dilemmas, such as what to do if you know that your client is lying on the stand.
Fictional lawyer Alicia Florrick is often shown struggling with how to follow the rules of ethics and her own moral conscience and do right by her client.
In the episode entitled “Executive Order 13224,” Florrick represents a former translator for a military contractor suing the U.S. government for false imprisonment and torture. Florrick becomes entangled in a terrorism-related executive order that could require her to break attorney-client privilege.
“They find a way to wiggle out of it, but this episode presented very effectively the tension between the lawyer’s duty to maintain confidentiality and modern terrrorism laws,” said Asimow. “There are, in fact, a whole array of situations involving charges of material support of terrorism where lawyers find they can’t act in the way they are accustomed to acting.”
Certainly, television isn’t the only medium to present modern lawyers and their ethical issues. Films likeRunaway Jury and The Lincoln Lawyer provide viewers with situations of lawyers who have crossed over ethical boundaries.
In the 2007 film Michael Clayton, a high-priced fixer at a prestigious law firm has to cope with a colleague’s mental breakdown and corruption involving his law firm’s client.
During the course of the film, the title character learns that the firm’s client manufactured a weed killer it knew to be carcinogenic and attempted to hide the evidence, with its counsel’s help. Clayton’s friend, one of the firm’s leading lawyers, attempts to expose the company’s “smoking gun” document, but is murdered before he can do so.
Clayton is offered money in exchange for his silence. The film asks the question, “How far are you willing to move that line of ethics in order to justify how you live your life?”
“This movie presents discovery abuse on one side and betrayal of the client on the other,” said Asimow. “But even when you discover that the client is hiding documents, you can’t disclose it to the public. You have to withdraw from the case.”
Finally, novels throughout the centuries have depicted legal systems and their relationship to morality. Franz Kafka’s The Trial, for example, depicts the arrest and trial of Josef K., a man who apparently believes he has committed no crime. Josef K. struggles throughout the novel to navigate a secretive and seemingly arbitrary legal system.
Novels like Harper Lee’s To Kill a Mockingbird and John Grisham’s The Pelican Brief idealize lawyers and law students who struggle against the system to fight for justice. While many legal novels have been made into movies, the originals are often worth reading.
“There is a great deal to learn about the practice of law from To Kill a Mockingbird,” said Perschbacher. “There is a place for the heroic lawyer, even if no one can live up to Atticus Finch in practice.” n