Michael Clayton--Again

Recently, I wrote a series of posts on the movie Michael Clayton. Six posts, to be exact. I thought the movie highlighted a number of important themes regarding the practice of law, and the posts were fun to write. They were:

Clooney v. Clayton--a review of the movie
Clooney v. Clayton, Part 2--about hyperbole in legal dramas
Clooney v. Clayton, Part 3--on whether there is such a thing as a law firm "fixer"
Clooney v. Clayton, Part 4--about the perverse incentive/reward structure of law practice
Clooney v. Clayton, Part 5--on how law practice affects your family life
Clooney v. Clayton, Part 6--regarding legal ethics

After the movie was nominated for seven academy awards recently, I was interviewed by the Chicago Tribune regarding post #3. The question posed was this: Is there such a thing as a law firm fixer? Answer: No, I don't think so. The Trib article can be linked to here.

Interestingly, an argument can be made that law firm fixers are economically justified in some cases. (For a good argument along these lines, see one of the comments made to post #3 above.) But I still think that the opportunity costs of having such a fixer are much greater than the benefits. Having another lawyer billing lots of money on big projects for years and years is far more profitable than having that person sit around waiting on calls to bail out clients.

But who knows. Maybe some day a fixer will show up at my door to tell me I am wrong. Until then, though, getting quoted in the Trib was a lot of fun.

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.

Clooney v. Clayton, Part 5

The Thanksgiving Holiday is again upon us. It is a time for family and for being thankful for what is truly important in our lives. And that subject brings to mind yet another theme from the movie Michael Clayton that I want to talk about. For those of you who have been following this blog recently, I have been writing posts about this film, with each post dedicated to one of the movie's law practice-related issues or themes. Previous posts in this series have provided a general review of the movie, as well as discussions of the movie's hyperbolic representation of big firm law practice, the myth of law firm "fixers", and the nature of law firm partners. Today, the subject is lawyers and family. And my point is this:

In this movie, Michael Clayton ignores his son.

Boy, this one hurt. Clayton is divorced (obviously--most lawyers in movies are divorced, right?), and the little time he spends with his son is spent not really paying attention to him. He drives the boy from point A to point B, and while his son talks Clayton says "Uh-huh" a lot. His son wants to discuss this really cool book he's been reading, and Clayton's response is "Uh-huh." Which does not mean that he does not love his son--he does. There is one scene in the film that drives that point poignantly home, as the two ride along in Clayton's car, and for once Clayton really tries to talk to the boy. But for the rest of the movie, the responsibilities of Clayton's job distract him at virtually all times from other, more important things like his son.

That phenomenon is not reserved for lawyers, of course, but it is an all too common phenomenon for practicing attorneys, and even a fair number of law professors too. In this respect, the movie does not engage in hyperbole at all. (See my previous point about hyperbole here.) Lack of real focus on family matters is a theme worth thinking about at any time, but perhaps especially during the Thanksgiving holiday.

Clooney v. Clayton, Part 4

This post is the fourth installment of my series discussing law practice issues raised by the movie Michael Clayton. My three previous posts in this series are located here (#1, which also reviews the movie), here (#2), and here (#3). In my prior posts I talked about the exaggerated, hyperbolic nature of the movie's plot and about how law firm "fixers" are like the Boogeyman: sort of scary, but not real. Today's topic is the terrifying subject of senior law firm partners--which, unlike the Boogeyman, are both scary and real.

Specifically, my point is that law firm partners are sometimes like "white tigers": they are fierce and elegant, but would have difficulty surviving outside their contained environment.

That observation (by a previous colleague of mine) is a wickedly accurate bit of profundity, and this movie illustrates it well. Senior partners are highly trained and very successful at what they do. But too often the distorted incentive-reward structures of law firms can result in skills sets, and even personality traits, that might not be rewarded in other, more natural settings.

Exhibit A in the movie is the junior partner, Barry Grissom, played by Michael O'Keefe. Barry is an arrogant jerk. Clayton does not like him, and Barry does not like Clayton. Sydney Pollack's senior partner Marty Bach does not like Barry either. But Barry bills and collects a lot of hours, and he successfully manages and retains paying clients, and that is ultimately what counts. Would he survive in another environment that depended more on interpersonal skills? One would hope not.

Even more intriguing is Exhibit B, Marty Bach. Pollack plays him with a great deal of ambguity, and to me that makes this character both the most realistic and most compelling one in the entire movie. Obviously he is a highly successful senior partner, with a lot of money, a lot of power, and an enviable lifestyle. That much is clear. What is less clear is how his mind works. How has he managed to achieve such success without cracking, like Tom Wilkinson's character Arthur Edens does? Marty professes to care for Michael Clayton and be a true mentor for him, but is Marty really a mentor and protector? Is Marty even in touch with his own internal tensions? Has he come to terms with them, or does he just bury them (as people often do) under a mountain of work?

One of the most disturbing scenes in the movie for me was that of Arthur Edens' wake (sorry, plot spoiler): Marty speaks of Arthur's death with sadness in one breath, and then in the next acknowledges that the firm has "caught a break" because of the death, since Arthur can't do anything more to harm the firm. How does Marty manage to balance the two poles of his thinking? Is the compassion just an act? Or can he somehow segregate compassion from business? And if the latter, then what affect does that have on his psyche?

The question I do not want to ask, let alone answer, is this: if I were in practice for 40 years at a big firm, like Marty Bach, how would I strike this balance? Could I do it at all, or at what cost?

I think it is important to ask ourselves such questions. If we make conscious choices about our career paths, then we generally can live with them. But if we do not make conscious choices, sometimes we cannot. Practicing law, with a firm or otherwise, can be a marvelous career path. But I would hate for anyone to make this career path choice--or any career path choice--without thinking about and assessing the costs and benefits involved.

Clooney v. Clayton, Part 3

This post is my third installment about law career issues raised by the movie Michael Clayton. My two previous posts in this series are located here (#1) and here (#2). See #1 for my review of the movie. Today's subject of choice is George Clooney's role as a "fixer" in his law firm. And my point about this fixer role is this:

I think the law firm "Fixer" is like the Boogeyman: disconcerting and a bit scary, but also not real.

I practiced in a big law firm for a number of years. I never, ever heard of--let alone met--a law firm "fixer." I don't think they exist. And if they do, then like the Loch Ness Monster they probably want to stay hidden.

Think about it: the math just does not add up. There certainly are people in law firms who are good at fixing problems, but that does not mean problem-fixing rises to the level of a practice area, like complex litigation or corporate mergers and acquisitions. In fact, large firms are so driven by the billable hour that lawyers who do not bill most of their time would have a hard time surviving, let along thriving. Plus, in my experience, clients are not a bad set of people, and they get in trouble no more often than a firm's own lawyers. So is a full-time "fixer" really needed? I doubt it. If a law firm needs a fixer, surely it has bigger problems, like criminal indictments against its partners and the like.

However, Clayton's job as a fixer fits well into the hyperbolic landscape of the film. (See my previous post on this point.) Clayton is trapped in his job: the firm does not have to make him partner because he is stuck--he can't readily move to another firm--but the partners do not want him to leave because of all the secrets he knows. So while it does not comport with the facts of law practice, the role of fixer works within the confines of this movie, and it helps to move the plot along.

On second thought, though, perhaps solving problems is a separate law practice specialty. Except the people who specialize in it are not called "fixers"--they are called "management." The problems they grapple with, however, are things like how to staff a case, who to promote, how to fire someone, etc. Not sexy Hollywood stuff. Unlike Clooney the Boogeyman.

Clooney v. Clayton, Part 2

Several days ago I wrote a review of the movie Michael Clayton. In that post (which can be found here), I promised to write a series of sequel posts on law practice issues raised by the movie. This is the first of those sequel posts. Today's topic is none other than cinematic hyperbole.

Specifically, the basic thesis of this post is that the movie is all about HYPERBOLE!

OK, so that statement itself is hyperbolic. But in an important sense, the movie is indeed hyperbolic and filled with archtypes. Which is to say that it is a typical movie. At its core, the film is about a guy who is in a big law firm, who feels trapped in his job, is good at it but no longer has any passion for it, has perhaps backed into his career specialty, and is desperate to get out. In my opinion, that is the story of thousands of lawyers nationwide. To be quite honest, it was, in a way, my story a few years ago.

When experienced on the personal level, this sort of feeling is incredibly compelling, and there is more than a little anguish involved. And I am sure that in virtually every screening of this film there has been at least one lawyer sitting in the audience who knew exactly how Clayton felt. I suspect that some of this blog's readers do, too. But for the rest of the audience, being paid big bucks and not being happy just isn't that compelling of a story. And to be fair, who would want to go see a melodrama in which the protagonist sits at a desk for 14 hours a day? If I wanted that sort of entertainment, I could get it for free at any big law firm.

So in Michael Clayton, the story is far sexier. Clayton is not just a lawyer. He's a "fixer" who does the firm's dirty work. And he's not a partner, so he is at the beck and call of the firm's big dogs. And he's in debt, and apparently to shady financiers. And he has a gambling problem of some sort. And he'd be a lot happier if he were a prosecutor, like he used to be, making a lot less money. And to top it all off, there's murder, and a car bombing too.

All of which is to say that Michael Clayton does not represent a typical day at the office. But the exaggerations are intended, as they usually are, to amp things up in a way that makes the story more accessible, and perhaps even more understandable, to the general public. Again, in this sense the movie is no different than many other movies and TV shows. Who wants to watch a medical drama in which the doctors mostly scrub their hands and dictate reports? What about a cop show in which firearms are never drawn? Or science fiction with no aliens?

In this sense, then, Michael Clayton is best viewed as an accurate identifier of the broad theme of entrapment that pervades US big law firm culture. Here is a guy who is good at what he does but wants out, and does not know quite how to achieve the exit. The details of his predicament, as exciting as they are, are little more than window dressing for this all too common dilemma.

Clooney v. Clayton

When I started Law Career Blog, I made a solemn pledge to myself: I would review every movie in which the law and George Clooney played major parts. I started with a review of Syriana in 2005, which is located here. (The excellent Good Night and Good Luck just missed the cut; it came out right before I started this blog.) And then I stumbled, perhaps, when I did not review The Good German or Ocean's Thirteen. (It might have something to do with not having seen them yet--but they are in my Netflix queue. So much for timeliness.)

So I suppose I should recast my solemn pledge: I will review every movie in which the law and George Clooney play major roles, and about which I have something to say. That's a promise I can keep. And Clooney's latest, Michael Clayton, certainly gives me a lot to talk about.

So much, in fact, that instead of posting a single review, I will write a series of posts about the movie. This first post will be a general review; the posts that follow will focus in greater detail on various themes or issues in the movie that I found interesting.

My Review of Michael Clayton

In Michael Clayton, Clooney plays a lawyer at a big New York law firm who specializes in being a "fixer"--a lawyer who solves messy problems for his law firm. This means that his area of practice specialization is not a particular subject area per se. Rather, it consists of the skill of resolving awkward problems in a quiet, covert (but not necessarily unlawful) fashion. While it's a living, it's not a particularly rewarding one. And then Clayton discovers (for reasons I will not go into) that the firms' biggest client has been involved in a very serious, very illegal, very deadly cover-up. Clayton is thus faced with a choice: does he help the firm, or does he reveal the client's wrongdoing? Add to this the fact that Clayton (a) is not actually a partner in the firm (he is "of counsel" to the firm, with a contract that might or might not be renewed), (b) was originally a prosecutor (i.e., used to "do the right thing," but now works for the big evil law firm), and (c) is heavily in debt because he invested, not too wisely, in a restaurant that went belly-up, and you have the makings of classic drama. Does Clayton do what he needs to do to survive, regardless of what is right? Or does he perhaps sacrifice himself in the name of justice?

If this sounds like a somewhat conventional thriller, well, that is exactly how it struck me. Which is not to say it's a bad movie. It's not. It's actually quite good in many ways. It captures some of the feel of law practice at a big firm, and it features excellent performances by Tom Wilkinson as a bipolar attorney, Tilda Swinton as an evil (and perhaps slightly incompetent) in-house lawyer, Sydney Pollack as a corner office partner (my favorite character in the film), and Michael O'Keefe as a jerk of a junior partner (my second favorite character in the film). (All bios are available through IMBD's website for the film.)

On the other hand, the whole movie seemed less than the sum of its excellent parts--very good, but not great, as if it were trying to be more than it is. Which is not uncommon for serious-minded movies. After all, when someone is making a "message" movie, will people go see it if the message is "Gee, this is something you perhaps should think about?" Or are they more likely to see it if the message/issues cut directly to the heart and soul of society? Such as, say, the rule of law and how money and power might be above the law? Look at the movie poster for Michael Clayton and you have your obvious answer: the poster trumpets that "The Truth can be Adjusted," not that "Working for a Law Firm can be Not So Fun Sometimes." So in this manner, the movie overreaches a bit. (More on this in a subsequent post.)

Yet despite this--on the third hand, I suppose--I have been thinking about the movie a lot since I saw it. And that means that it struck some chords deep within me, despite my inherent cynicism. These chords will be the subjects of my posts over the next several days. Please stay tuned.

"Syriana" Misrepresents International Lawyers

This weekend I saw the movie Syriana, and it just begs to be blogged about. For one thing, much of the move is about lawyers and what scheisters they are. For another, it is about international lawyers and what scheisters they are. As an international lawyer turned international law professor, this movie is right up my alley.

So like a typical law professor, let me point out a few reasons why I think the movie is both good and bad, and then let you draw your own conclusions.

Why Syriana is Good:

1. Syriana makes you think. Writer/director Stephen Gaghan does not pander to the audience on the assumption that people are stupid, and his movie absolutely demands full attention every single moment. Do not take a pee break during this film or you will be hopelessly lost.

2. Syriana is overt social and political commentary. As Tarzan might say, "Commentary good, silence bad." You may find the message--that oil rules the world and warps our political decisions, personal values and business ethics--all too obvious and more than a little heavy-handed. But the movie offers a message other than "Blow up the bad guys and you get the hottie with the tattoo," so that alone is meritorious.

3. Syriana is the only movie, to my knowledge, that actually quotes the Foreign Corrupt Practices Act. In fact, the FCPA is the basis not only for a full scene in the movie, but for an entire subplot. I did a lot of FCPA work when I practiced law; if only it had been this exciting!

4. The movie illustrates that U.S. foreign policy decisions have enormous and far-reaching consequences. Should the U.S. back the movie's pro-democracy prince (a very good Alexander Siddig from Star Trek DS9) who wants to strengthen his Middle Eastern country's business ties with Iran? Or his playboy brother who obviously does not care about social progress but is willing to allow the U.S. to maintain a military presence in his country? The U.S. very clearly does reap what it sows when it makes foreign policy decisions like this. Don't forget that the U.S. strongly backed Saddam Hussein's regime against Iran in the 1980s.

Why Syriana is Bad:

1. Syriana is boring. I hate saying that, and I may catch flak for it, but so help me it is a boring movie. Well done, intricate, pretty to look at, disturbing--and boring. Someone actually fell asleep in the theater while I was watching it (no, it was not me). Maybe it was the direction: this was Gaghan's directorial debut. Traffic, which was written by Gaghan but directed by Stephen Soderbergh, was less pedestrian.

2. At least when it comes to lawyers, Syriana is hyperbolic. As I said, I did a fair amount of FCPA and other international work in practice--including a good bit of work for companies in the oil business. And never, ever did I see--or even hear about--associates sending their bosses to jail or senior partners working to effect a regime change abroad. I'm not saying it could never happen. I am saying that if it ever were to happen it would be the exception, not the rule. The story would have been far more accurate--and no less boring--had it been more nuanced. For example, based on a set of questionable facts the lawyer decides to go against his instincts to make a judgment call in favor of his client, and has to live with the potential amorality of this decision. All perfectly legal (lawyers are supposed to advocate for their clients after all), and all perfectly disturbing in such circumstances--since what you have is a lawyer making a living and a career out of such behavior. But no--this movie has to have lawyers shafting their bosses and up-ending foreign regimes.

So I leave it up to you to decide whether this is a good movie or a bad one. I think it is an excellent but boring movie, which is classic lawyer-speak for saying that I think it is both good and bad. Or neither.