Oh, Really? ‘Harry’s Law’ and legal reality
In ‘Oh, Really?’ the Biederman Blog’s editors — voracious consumers of all matters pop culture — cast a curious, skeptical, fanciful, fun and smart end-of-the-week eye on popular productions, sharing their keen observations about legal matters these raise…
David E. Kelley’s new show, Harry’s Law, premiered on NBC late in January. Although the drama is likely to have infuriated lawyers, grossly misled its audience about the practice of law and set forth a blatant disregard for the ethical duties of lawyers, the show is highly entertaining; one’s heart warms to the characters almost instantly; the show embraces the challenges lawyers face as they walk the fine line between social and legal justice.
After a long career as a high-paid, top-level patent lawyer in a plush Cincinnati law firm, Harriet Korn, (Kathy Bates) and affectionately known as “Harry”, apparently just loses it one day: the first episode’s opening scene depicts Harry in her office with her feet up, watching cartoons, surrounded by candy wrappers and engulfed in a cloud of cannabis smoke. The senior partner enters her office and fires her on the spot, after Harry expresses her disgust and boredom with the monotony of her every day, mundane patent work.
Oh, really? Rule 8.3(a) Reporting Professional Misconduct of the ABA’s Model Rules of Professional Conduct requires one lawyer who knows that another attorney has committed a violation of the Rules of Professional Conduct — and it raises a substantial question as to the violator’s fitness as a lawyer — to inform the appropriate professional authority, like the American Bar Association. Although dope smoking usually would raise questions as to Harry’s fitness to practice law, resulting in a reported ethics violation and termination, she escapes only with being fired.
After a series of miraculous events, the show depicts Harry opening her own, new law firm in a gritty Cincinnati neighborhood. She calls the practice “Harriet’s Law and Fine Shoes,” because her secretary is a shoe aficionado who maintains it is imperative they sell the designer shoes, left by a previous tenant and discovered on the property, to supplement the firm’s income.
Although my search for any specific examples from the ABA’s Model Rules regarding this matter was fruitless, the sale of pricey footwear out of a law practice surely must violate some ethical cannon as it cannot be construed as maintaining the integrity of the profession.
Shortly after the doors of Harry’s firm open, Damien Winslow (Johnny Ray Gill), appears to introduced himself as a neighbor and self-proclaimed CEO of Damien Protection I.N.C. Though he first appears to be a sketchy character who bullies store owners for protection money, Winslow turns out to offers “protective services” that actually benefit folks in the area and the neighborhood; this becomes clear later when he goes on trial — and the entire neighborhood appears in court to back him up.
Harry initially declines Damien’s offer of protective services and pulls a pistol on him. She quickly bargains for his protective services, in exchange for legal services when he gets arrested. As Damian does employ extreme methods of protection — including beating and taunting attackers and tying up clients with anger-management issues — he becomes a regular client of Harry’s.
Alas, lucky Harry: Rule 1.2(b) Scope of Representation and Allocation of Authority between Client and Lawyer states that a lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
But her pistol packing and pointing it a potential client? Let’s call that not only a prosecutable crime but almost certainly an ethics violation.
Harry’s debut in criminal defense — quite a turn for a longtime IP practitioner, eh? — launches with her representing Malcolm Davies (Aml Ameen), who is charged with cocaine possession. At trial, Harry argues fervently for jury nullification on behalf of the budding African-American youth who is dying to attend college but also has admitted, yes, he possessed drugs. She delivers an emotional pitch, maintaining her youthful client needs rehab, not time in the slam.
Alas, lucky Harry benefits again as a lawyer under Model Rule 1.1 Competence Legal, which requires knowledge, skill and thoroughness. It does not require possession of expertise (as long as she can acquire the needed knowledge). Harry, then, stays within ethical bounds as she learns criminal practice on the fly and on the job by blundering about — and, as can only occur on TV, acquiring the skill and know-how she needs to represent her clients, competently, in the nick of time, every time.
Oops, one missing detail: the jury convicts client Malcolm. Harry’s bad. This calls for TV magic, electronic deus ex machina: The judge steps in to save the day by sentencing Malcolm to two years in prison — then suspends his imprisonment, if he will stay away from drugs and go to college. Oh, really? Can it be that easy to set aside a jury verdict, then give a drug felon a slap on the wrist? Maybe Harry and her on-screen jurist have consulted readily available web pages about drug possession, like this one or this one. (Judicial note — no endorsements in this citation of firms — of which many pop up in online search). Ah, but we’re looking at California and its drug case handling, which includes Proposition 36 diversion; the Ohio codes are complex and, while there are diversion programs as is common across the U.S., there also are mandatory drug sentences.
Harry, at least on the show, has the fortune to be pitted against another notable cast figure, Josh Peyton (Paul McCrane). He’s a prosecutor with a nervous habit of repeating himself three times over. His tics also include somehow always getting on cases with Harry. They often dive head long into heated arguments, apparently forgetting entirely that they are in the courtroom, while the judge and jury look on in amazement. The judge tries to step in several times but is ignored by both Harry and district attorney. Oh, really? Where are those contempt citations, bar sanctions — and more?