Tuesday, November 27, 2007

Clooney v. Clayton, Part 6

This is my last post about the movie Michael Clayton. I've been devoting some of my recent posts to law practice-related themes and issues in the movie, and I have had a lot of fun with it. In fact, it is a movie I enjoy thinking about. I actually enjoy thinking about it more than I enjoyed watching it. For more comments in that vein, see my original review of the movie. My other posts about the movie have focused on Hollywood's distorted representation of big law firm practice (what a shock!), the mythical law firm "fixer" (lives with Bigfoot?), how law practice shapes people, and not always for the better, and how law practice can interfere with family life. Not happy subjects, I know—but an ordinary commute back and forth to a 14-hour-a-day job would not be that exciting to watch. The subject of this final movie post is the topic of legal ethics.

Specifically, is Michael Clayton's job as a "fixer" unethical?

The old Model Code of Professional Responsibility used the phrase "appearance of impropriety" in a variety of contexts. Canon 9's EC (Ethical Consideration) 9-6 provided as follows:

Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect for the law and for the courts and the judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to public service; to cooperate with his brother lawyers in supporting the organized bar through the devoting of his time, efforts, and financial support as his professional standing and ability reasonably permit; to conduct himself so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of his clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.

The newer Model Rules of Professional Conduct do not use the phrase "appearance of impropriety," but the rules' preamble does state, among other things, that "[a] lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice."

There's nothing in either set of model rules about being a fixer. And there's nothing per se wrong with helping to get your firm's clients (and partners) out of trouble, is there? After all, when one of Clayton's law partners gets arrested, Clayton posts bond for him. He does not bust the guy out of jail, Rambo style.

On the other hand, the tone and tenor of the movie clearly suggest that Clayton's job is not honest, and that Clayton does not like what or who he has become. Does that make what he does unethical? If not, does that suggest that the legal ethics rules are too narrow in some way? Or are the legal ethics rules intended primarily to govern behavior, and not the subjective beliefs of law practitioners?

In any event, the movie clearly tells us what the "right thing to do is," but it does not tell us how Clayton feels about it.

The last scene of the movie is of Clayton, having just done the "right thing" (plot spoiler!), riding around in a cab. He's just turned his client over to the authorities--a client who has committed (and will continue to commit) the fairly heinous act of willfully marketing a lethal commercial product to the public. Presumably this violation of client confidentiality falls well within the scope of Model Rule 1.6(b)(1), which permits a lawyer to breach client confidentiality "to the extent the lawyer reasonably believes necessary . . . to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm . . . ."

So Clayton turns the client in, and according to the movie that perhaps sets him morally "free." The last scene is a single shot that is several minutes long, during which the credits role, and the camera stays on Clooney, who does an excellent job of looking conflicted. He knows he has just done the right thing, but he is clearly having trouble feeling any emotions about it. Is that a symptom of modern law practice, at least at big firms?

Perhaps--in a highly exaggerated way. Lawyers sometimes represent clients whose positions give them pause. Is that wrong? What about advocating aggressively for those clients? Don't they deserve their day in court? But what if we do not like the outcome? Should lawyers simply not represent those clients? What is better?

I tell my classes that all too often the answer to legal questions is "it depends." That's technically true, I suppose, and I firmly believe that it is important for law students to understand that the law is generally not black and white in its application. And yet such grayness and ambiguity can lead to moral uncertainty. So that even when we clearly "do the right thing," we're not always clear how we should feel about it. Clooney's Michael Clayton embodies that in spades.


Clay B said...

A recent Law and Order episode dealt similarly with this problem. A lawyer was representing a man who kidnapped a little girl and held her for ransom, threatening the family with her death if they did not pay. When the police caught up with him, the officer slapped him around and shoved his head in a toilet to obtain the location of the little girl.

The "off the record" discussion between the prosecutor and the defense attorney was enlightening, especially when viewed as a backdrop for their courtroom and in-chambers arguments for the people and the defendant respectively. The defense was repulsed by his client, and toasted the cop who used "torture" to find the little girl. Yet in the courtroom, he argued passionately that such tactics cannot be allowed and did his best to get the case dismissed on those grounds. The prosecutor was privately conflicted at where the line was on good vs. bad coercive questioning, but he brushed aside the relevance in his presentation of the case. The assistant prosecutor remained conflicted throughout.

As a law student, I know I have to learn how to do this. But I must admit I don't know if I can. Could I argue passionately to free a kidnapper, robber, murderer? As I sit, the answer is no. Truthfully, at some point in my indoctrination, I'm sure I will be able to. But as a human being, is that a good thing? Interesting question.

Emily said...

Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect for the law and for the courts and the judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession

Anonymous said...

I have just seen Michael Clayton. I think it's a great movie,but I'm a little puzzled as to the reason the character takes the side road to the hill with the horses, and then gets out of the car to go and look at them. Do you know? I realize that it has nothing to do with whether or not law firms use "fixers", but for me it's a loose end on an otherwise wel constructed and well acted movie.

Anonymous said...

Other ethical issues raised by Michael Clayton: what is the obligation of the lawyer, either in house or outside counsel, who discovers a smoking gun document during the course of responding to discovery? May they settle the case without turning over the document? What if the document surfaces after the initial response and there is a continuing duty to produce, may counsel rush to settlement without turning over the document?

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