How to Get Away With Murder – A Lawyer’s View
September 26, 2014
It Was a Fun Show…But: How to Get Away With Murder
This post has spoilers! (If you haven’t seen the show, you can watch it online for free on ABC’s website.)
Viola Davis is a powerhouse. When she was on the screen you couldn’t take your eyes off her. There will be a lot of reviews talking about how wonderful she was. I’d like to write about something else. I’d like to grade How to Get Away With Murder from a lawyer’s perspective. So let’s take a look at some (but not all) of the issues.
During the first scene of the show, Viola Davis’ character, Annalise Keating, is teaching students on the first day of class. Davis does a wonderful job showing what the first day of class is like. The professors want to scare the students. The first year of law school is very much about shaking out the people who can’t cut it. The attitude of disdain, calling on people and roughing them up, that is exactly what my first day of school was like. Check out this scene from the 1973 movie “The Paper Chase.” It will remind you very much of the beginning of “How to Get Away with Murder.”
It Went Off the Rails – Confidentiality
Ethically speaking, it didn’t take very long for “How to Get Away with Murder” to go right on off the rails and over the bridge into the water. We learn that Keating is discussing a real, active case. A case in which she is representing the defendant who is accused of murder. Not only is she discussing her client’s case, she is giving out confidential information about that case to an entire room of people. One of the most basic rules for lawyers is that our clients are protected by attorney/client confidentiality. Without the client’s permission, a lawyer may not share information about a case. Nor may the lawyer ever share anything that could harm the case. At one point, Keating gives away her entire plan to the classroom.
Rule 1.6 Confidentiality Of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
Part (b) deals with exceptions. None of the exceptions are to run a contest to determine who will become employed at your law firm.
I get that the show needs to move quickly. However, you should know, a judge would never decide to just admit stolen evidence. Nor would she ignore the issue of whether the evidence was stolen. Instead, the jury would be removed from the room and there would be an argument about whether the evidence should be admitted.
Behavior in Questioning a Witness
It is acceptable for defense counsel (and related parties) to question witnesses. However, it is not acceptable for the person to go to a witness and lie about who he is. This happens when an IT person gets questioned by one of the students.
Rule 4.1 Truthfulness In Statements To Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Managing the Students
Keating is responsible for any improper behavior by her students. Lawyers are responsible for the conduct of any person they set to work on a case.
Rule 5.3 Responsibilities Regarding Nonlawyer Assistance
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Inexperienced Students? Really?
I’m curious how you would feel if you learned that your lawyer was using a bunch of first semester law students to defend your case. If I hired a lawyer, I would expect that lawyer to defend me. I would not expect her to bring in a bunch of folks who haven’t got the first clue how the legal system works, don’t know anything about a valid defense, and are running around with confidential information about my case that they could share with anyone. I would also wonder if she billed for any time involving these kids. I won’t even go into the issue of whether it is appropriate to use her paid position as a professor to hold a contest to determine who she will hire to work at her firm.
It Goes Further Off the Rails (If that is Possible)
Keating has an affair. We all see that. Then it turns out, in a huge moment in the case, the man Keating is sleeping with is the detective in the case. She essentially blackmails her “boyfriend” into lying on the stand about whether the police are dishonest about evidence. (We don’t know if Keating had the affair with the detective in order to set him up on the stand or if she was already having an affair.)
Lawyers are not allowed to put people on the stand if they know those people will lie. Keating intentionally forced a lie. The police officer himself has a problem. He is having an affair with Keating, the defense lawyer in an active case. He either should not be on the case or she should not be on the case. She certainly shouldn’t be forcing him to lie on the stand.
Rule 3.3 Candor Toward The Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(3) offer evidence that the lawyer knows to be false.
“How to Get Away with Murder” was entertaining. I discussed it this morning with a paralegal in my office and we enjoyed the conversation. However, as an example of appropriate attorney behavior, this show gets an F. It will be interesting to see if next week gets any better.