Disciplined in Sophisticated Defense and Insurance Litigation

October 13, 2015 | Publication| (Un)Reel Legal Ethics: Obscure Critiques of Ethical Issues in Hollywood Films About Civil Litigation

Dean S. Rauchwerger, Geoffrey M. Waguespack

Everyone loves a good legal drama.  Whether it’s a whimsical comedy, a whodunit, or a weighty social statement played out in the courtroom, they usually are wrought with dilemmas (often self-imposed) giving rise to sticky legal ethical questions, many of which go unresolved, if they are even recognized at all.  There are many formal articles, CLE courses, and even college courses dedicated to dissecting Hollywood films and the legal ethical situations that they conjure up.  Most films rely on criminal trials to get their thrills.  But, we wanted to explore the genre of film that embraces the civil side of the law, and we are thrilled about what we found!

Through our extensive and tiresome research into this genre, we discovered a pair of obscure Chicago columnists, C.S. Kel and ee Burt, who regularly contributed movie reviews to the chimerical, practically readable, and currently archived quarterly publication, At the Bar: Legal Ethics in America (A Weekly 50-State Survey of Legal Ethical Decisions in America), edited by the renowned G. Host Wryter.   We are pleased to present the only four movie critiques that Messrs. Kel and Burt ever wrote on movies involving civil, rather than criminal, litigation.  We hope that you appreciate as much as their reader did their competing styles that merge to provide a bounty of dry wit and a morsel of hidden legal prowess revealed by their application of the Model Rules of Ethics (the Rules) to the challenges regularly faced by attorneys engaged in civil litigation, as depicted on celluloid.  Enjoy!

Erin Brockovich – Review by ee Burt (2000)

Erin Brockovich is the quintessential Hollywood depiction of a (to paraphrase the movie) “David versus What’s-His-Name’s whole freakin’ family” story.  In this film, attorney Ed Masry (played by Albert Finney) allows the feisty and eponymous non-attorney Erin Brockovich (played by Julia Roberts in an Oscar-worthy performance) to flash a toothy smile (among other things) and laugh her iconic laugh in the face of the rules of legal ethics as she pursues claims against the Goliath utility, Pacific Gas and Electric (PG&E), which allegedly caused catastrophic health conditions for residents of Hinkley, California, by leaking toxic chemicals into the ground water.

Brockovich’s actions are imputed on Masry, whose reputation is on the line due to his lackadaisical approval of her investigating the actions of PG&E without reasonably and cautiously determining whether she is competent and adequately prepared to ethically execute the duties delegated to her, per Rule 5.3.  After being given the nod, Brockovich engages in a variety of actions while on questionable ethical footing under the Rules.

Decide for yourself whether Brockovich’s conduct is in violation of Rule 4.2 when she communicates with a PG&E employee who provides her with internal information that could be construed as PG&E’s admissions.  Do the moral considerations, the possibility of a cover-up, and the personal conviction of helping endangered, innocent people rescue Masry from sanctions under the rules?  Would the decision in Jorgensen v. Taco Bell Corp., 50 Cal. App. 4th 1398 (Ct. App. 1996), protect the communication from sanctions if the interview was pre-suit?  Should Masry have foreseen Brockovich’s actions and warned her that she should refuse to speak to certain PG&E employees?  By not informing Brockovich that her conduct might be proscribed conduct under the Rules, does Masry tacitly ratify her conduct, subjecting himself to discipline under Rule 5.3(c), which makes lawyers responsible for the actions of non-lawyer employees?

Watch as Brockovich walks a tightrope of misrepresentation and deceit when she tells a water department clerk that she is searching for documents for her boss who is in a “water dispute” and signs in using her maiden name to avoid future detection.  Will her actions come back to haunt Masry?  Has Rule 4.1(a)’s prohibition against making a false statement of material fact been violated because she failed to inform the clerk that her boss is actually contemplating litigation?  Does the use of her maiden name instead of her legal name on the sign-in sheet violate Rule 8.4’s prohibition against engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation? 

See whether Brockovich improperly solicit clients for Masry as she personally goes to see Pamela Duncan, in apparent violation of Rule 7.3, which advises an attorney to approach prospective clients by general advertising or written communication only.  Although Brockovich’s intentions can be viewed as noble in the face of many hurdles, including PG&E’s false propaganda machine, will Masry be held responsible for her actions under Rule 5.3(c) because he knows that his non-lawyer employee violated the rules? 

In a thrilling plot twist, Brockovich drags Masry with her into greater peril under Rule 5.5, when she arguably engages in the unauthorized practice of law.  By providing legal counsel to Duncan, Brockovich brings suspense and drama to the film as one questions whether she will be prosecuted for the unauthorized practice of law, in possible violation of Section 6125 of the California Business and Professions Code.  An unintended consequence of her actions, however, is that Masry could be professionally disciplined under Rule 5.5 by assisting her in the performance of that activity.  Will the fact that Brockovich was a gifted counselor who could connect with Duncan better than Masry allow Masry to exercise his professional judgment to appropriately give Brockovich the latitude to counsel Duncan while under his supervision?  Will Brockovich’s talented counseling and fiery determination inspire Masry’s vigilance on behalf of the people of Hinkley?

You’ll have to watch the movie to find out.  But, one thing is certain: This film is ripe for a thought-provoking sequel styled as a fictional courtroom drama that depicts bar counsel’s pursuit of both Brockovich and Masry for alleged ethical misconduct.  One can only hope that Roberts will reprise her role as Erin Brockovich, which I am willing to boldly predict earns her an Academy Award for this film.

The Rainmaker – Review by C.S. Kel (1997)

In The Rainmaker, Rudy Baylor (Matt Damon) is a young attorney who goes to work for an ambulance chaser. Before he tries a case of a lifetime, attorney Deck Shifflet (Danny Divito) teaches him the ropes. Daily, Deck’s police precincts contacts provide him accident reports from the previous evening. Deck takes Rudy to the trauma center at a local hospital for his first lesson: personally soliciting fresh accident victims as clients.

Rudy and Deck visit several patients. After passing individuals with “soft” injuries, they approach a man in a full body cast and solicit him for what could be a valuable personal injury case.

DECK: Insurance companies are afraid of us . . . . Any questions? Good, we’re gonna get you a bunch of money.

They seemingly will hit a jackpot if they gain this patient as a client, but will their luck run out if their conduct is unethical?

Rule 7.3 governs soliciting prospective clients. It states that a lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no prior relationship when the motive is the lawyer’s pecuniary gain. 

Here, Deck solicits professional employment from the patient because the patient may have a valuable case. His conduct seemingly violates Rule 7.3. This rule doesn’t only apply to ambulance chasers. It applies universally to all prospective clients, even in professional settings. Bar counsel pursue sanctions against attorneys who violate Rule 7.3, including admonitions, reprimands, suspensions, and disbarment.

Class Action – Review by ee Burt (1991)

The film Class Action is a dramatic portrayal of litigation, discovery, and a trial arising from horribly tragic deaths caused by explosions of cars designed by the fictitious Argo Motors.  The film presents corporate cover-ups and destruction of evidence that require the defense attorney, Maggie Ward, elegantly played by Mary Elizabeth Mastrantonio, to evaluate her legal ethics as an associate vying to make partner at a preeminent law firm. 

As if having to decide between ethical legal practice and her career was not enough, the tension in the film builds when Maggie Ward learns that her opposing counsel is her estranged father, Jedediah Tucker Ward, played by the venerable Gene Hackman, star of such classic films as The Birdcage, Heartbreakers, and Welcome to Mooseport.  This plot device adds another layer of conflict and emotion to an already explosive situation. 

Frustrations boil over and ethical issues percolate in a particularly exhilarating courtroom scene, where Jedediah moves to compel the defendant to supply the names and current addresses of all Argo employees who worked on the design of the subject vehicle during a relevant period.  Maggie argues that providing that information would be unduly burdensome, requiring thousands of hours, because a number of the individuals, not having worked for Argo in years, were scattered to the four winds.  After receiving a skeptical look from the judge, Maggie agrees to provide the names. 

Unsatisfied, Jedediah still wants the addresses.  In light of the judge’s indication that he favors Maggie’s position on the issue, Jedediah makes a Perry Mason-esque revelation.  He tells the court that he called Argo’s pension department and said that he was looking for a friend named John Smith and requested the clerk’s help.  Sure enough, in true Hollywood fashion, the overly eager Argo employee pulled up Smith’s computer file and disclosed his current address.  Not surprisingly, Argo maintains updated records of all former employees so that they can receive their pension statements.  One must wonder whether Erin Brockovich watched this film before employing her suspect evidence-gathering techniques! 

This short argument before the tribunal potentially places both Maggie and Jedediah in legal ethics peril.  But, the movie lacks in its exploration of these issues.  Should the judge have done more than raise an eyebrow at Maggie’s apparent lack of candor to the court, in violation of Rule 3.3’s prohibition against a lawyer’s knowingly false statement of fact to a tribunal?  Could Jedediah rightfully request sanctions for Maggie’s dilatory tactics under Rule 3.2, which requires lawyers to make reasonable efforts to expedite litigation?  At the very least, Maggie appears to have violated Rule 3.4(d) by failing in a pretrial procedure to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party. 

At first blush, Jedediah’s hands might not be so clean either.  Rule 4.2 prohibits lawyers from communicating with a person the lawyer knows to be represented by another in the matter without consent from that person’s lawyer.  Comment 7 of the rule prohibits communications with an organization’s constituent who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter, has authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization for the purposes of civil liability.  Demonstrating wisdom equivalent to his biblical namesake, however, Jedediah likely avoids violating Rule 4.2 because he contacted a low-level clerk who probably did not qualify as an employee protected from ex parte communications under the rule.

Despite lacking an exploration of the application of the Rules to the attorneys’ conduct, Class Action is a worthy film that certainly provides attorneys issues to ponder.

The Verdict – Review by C.S. Kel (1982)

The Verdict is a realistic portrayal of an alcoholic lawyer on a losing streak, Frank Galvin (Paul Newman), seeking redemption. He experiences a “transformative life event” when he is approached by the family of a comatose woman at a large hospital. The hospital’s chief surgeon administered the wrong anesthetic during her operation and she asphyxiated, suffering permanent brain damage. Due to foul play by Frank’s adversaries, he lacks legitimate evidence to present to the jury.

On the eve of trial, Frank—in a gripping search depicted in cinematographic montages of late nights, chain smoking, and binging on whiskey finds the “smoking gun” witness, Kaitlin Price. He confronts her and realizes she is a former nurse who worked under the chief surgeon during the operation. Kaitlin witnessed the chief’s negligence and was ordered to alter the medical intake records to cover up his misconduct. Frank convinces her to testify against the surgeon. Kaitlin’s testimony leads to Frank’s Davidian victory against the Goliath defendants.

But was Frank’s victory ethically obtained? Or, did he throw one too many stones?

Rule 4.2 prohibits lawyers from communicating with a person the lawyer knows to be represented by counsel in the matter, unless by consent of counsel or other legal authorization. This rule is applied to prohibit communications by or at the direction of an attorney with a party’s employees about the subject of the litigation. 

Courts and state legal ethics opinions recognize exceptions to the rule. A lawyer may communicate with employees of a represented organization only when the employee does not (1) supervise, direct, or regularly consult with the organization’s attorney; (2) have authority to obligate or bind the organization with respect to the matter; or (3) have acts or omissions in connection with the matter that may bind or be imputed onto the organization for liability purposes.

When Frank approached his star witness, he recognized that she lacked managerial authority over the defendant’s counsel. She also lacked authority within the organization to bind it.

However, she did act at the direction of the hospital to cover up negligence. This action directly binds the hospital for liability purposes—possibly making Frank’s interview a violation of the rules of legal ethics. Counsel can be sanctioned and evidence barred if obtained in violation of the Rules. Luckily for Frank, Kaitlin is a former employee of the defendant, and thus falls outside the purview of Rule 4.2. 

It’s a Wrap!

Wow! These movie reviews by Kel and Burt raise the curtain on how Hollywood legal eagles unwittingly manage to get into some overlooked ethical situations!  The themes common among the reviews are the legal ethical challenges attorneys face when interviewing a represented party’s employees and while developing a client base. Real attorneys can glean from the reviews practical tips to avoid violating the Rules.

Attorneys should immediately identify themselves to witnesses as representing a litigating party and advise witnesses of their right to decline being interviewed and to not disclose any privileged or confidential information. When garnering clients, attorneys should avoid direct, in-person solicitation, and should instead consider speaking at seminars, publishing papers in their practice areas, and sending mailings clearly marked as advertising. Good lawyering encourages creativity, so long as one keeps to the script written in the Model Rules of Legal Ethics.

[1] Dean S. Rauchwerger, Geoffrey M. Waguespack, and Jonathan M. Levy have just now been published and/or have edited work under the pseudonyms G. Host Wryter, ee Burt, and C.S. Kel, respectively.  The authors have been known to say that ghostwriting (which is allowed under Illinois Supreme Court Rule 137(e)) can be a useful tool for busy attorneys at law firms who wish to save time for other useful endeavors, such as tangoing with opponents—ethically, of course!

Dean S. Rauchwerger

A Partner at Butler Weihmuller Katz Craig LLP in Chicago, IL. Dean practices in our Aviation, Casualty Defense Litigation, Product Liability, and Subrogation & Recovery departments.

Geoffrey M. Waguespack

A Senior Associate at Butler Weihmuller Katz Craig LLP Chicago, IL. Geoffrey practices in our Appellate, Construction, Employment Law, Product Liability, and Subrogation & Recovery departments.

Jonathan M. Levy

An Associate at Butler Weihmuller Katz Craig LLP in Chicago, IL. Jonathan practices in our Product Liability and Subrogation & Recovery departments.

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If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationMCS90 Endorsements Provide Significant Subrogation Recovery Opportunities

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PublicationSubrogating The Spill: What Are An Insurer's Options For Recovering Claims Paid As A Result Of The Gulf Oil Spill?

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PublicationSignificant Recovery Opportunities Where An Insured Breaches Its Reimbursement Policy Obligations For Advanced Deductible, Self-Insured

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PublicationBig Daubert Hurdles In Fire & Explosion Litigation—Revisiting The Importance Of Testing An Expert's Theories

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PublicationMass Confusion in Transactional Business: Boilerplate Forms and Competing Contractual Terms Often Lead to a "Battle of the Forms"—Practical Considerations for Minimizing Litigation

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PublicationUnited States' Liability For Negligent Disaster Response Under The Federal Tort Claims Act

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PublicationUndue Delay In Pursuing Subrogation May Result In Missing The Recovery Boat

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PublicationFederal Tort Claims Act: Pursuing Uncle Sam's Deep Pockets By Unlocking The Right Doors

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PublicationRailroad Subrogation And Third Party Recoveries—"Getting Back On Track"

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PublicationWhen Businesses Compete Fiercely, Crossing Certain Boundaries May Give Rise To Tortious Interference Claims

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