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…
In an era when a movie called ‘No Strings Attached’ doesn’t merit so much as a blush, is it worth a reminder that the caveman-style casual hook-up can create ethical havoc for legal practitioners? How difficult can it be to adhere to the Bar’s cannons when those hormones call and lawyers and clients engage in, um, Californication, say as occurs in Season Four, Episode Six, “Lawyers, Guns, and Money?” How about a little adult discussion here on lawyers and ethics, prompted by one of cable television’s more frank and grown-up series. Those easily offended or prudish may exit the post here …
Our scenario starts with the attorney character of Abby Rhoads (Carla Gugino) deciding to drop her bad-boy client Hank Moody (David Duchovny) because he continues to disobey the law, a decision that then leads the DA to call off Hank’s plea-bargain in a pending statutory rape case. Concerned about the fate of her onetime boyfriend, character Karen van der Beek (Natasha McElhone), goes to talk with Abby to get her to reconsider. She’s so persuasive that during the scene, Karen’s words cause Abby to fall for Hank. At episode’s end, there’s this pertinent encounter, with Hank apologizing and Abby with drink in hand:
Hank: Enjoy your date.
Abby: Who says I’m on a date? Maybe I came here to see you…. Maybe I was a little rash this morning.
Hank: Are you saying what I think your saying?
Abby: Depends on what you think I’m saying.
Hank: That you are my lawyer again
Abby: Maybe. But tomorrow is another day … there is not a lot of legal work I can do tonight.
Hank (in a moment of realization): So …technically you are not my lawyer right now.
Abby: No, right now, I’m just a girl at a bar.
After this exchange and more banter, they end up in bed.
Let’s handle the legal worries that arise about a lawyer-client ‘sexual relationship’ later and more thoroughly. But, first up for consideration: Was lawyer Abby’s termination of Hank as her client ethical?
The ABA Model Rules of Professional Conduct, Rule 1.16(b)(1) states that an attorney may withdraw from representing a client for any reason if it can be done without having a material adverse effect on the client’s interests or if the client consents. Hank never consented to Abby dropping him so there needs to be a finding of ‘material adverse effect’ for Abby’s actions to be deemed appropriate. Fortunately for her, there are plenty.
Model Rule 1.16(b)(4) states that an attorney may withdraw from representing a client, if he insists of acting in a way that the attorney considers repugnant or fundamentally disagrees with. Abby may drop Hank, whom she specifically has told to stay away from the character of Mia (an underage girl with whom Hank has sex). Hank not only fails to follow his attorney’s instructions: He gets nailed on a blog that posts a picture of Mia with her hand in his pants. Surely, Hank’s disobedience of his lawyer is covered under Model Rule 1.16(b)(5), in which an attorney may withdraw if the client substantially fails to fulfill an obligation to the attorney. Although the rule does state that the client needs a warning of the consequences of disobeying, Abby likely would find safe harbor in this dictum.
But Abby, if she needed to, would find more grounds to deal with Hank under Model Rule 1.16(b)(6), where an attorney may withdraw from representing a client if he has made the attorney’s work unreasonably difficult. Hank’s No. 1 goal in life, as the series shows, is to make things unreasonably difficult for everyone.
So, legal ethicists, the verdict is clear: It’s reasonable and prudent for attorney Abby to ditch this client.
Lawyers and sexual loopholes
But let’s peer at what happens in “The Recused,” the show’s next episode. It opens with Hank and Abby waking in bed together with nothing on but a blanket and childish grins on their faces:
Abby: I need to recuse myself…. We had sex…. Now we have a serious conflict.
Hank: Now I’m not the greatest of legal minds, but last night when we made the beast with two back, I don’t believe you were technically my attorney so.… Res ipsa loquitur.
As the scene ends, Abby gives Hank an ultimatum: Either they can be lovers or she can be his counsel, but not both. Hank, who is both an English prof and a satyr, chooses the obvious and tells her, “Oh, you’re recused.”
Abby, later in the episode, duly hands Hank’s legal representation off to her boss, Lloyd Alan Philips Jr. (Alan Dale). She never tells him the actual reason why she is giving Hank up as a client, dissembling that she just needs help. But when the trio go on a golf outing so the boss can get up to ‘par’ on the pending case, the scene ends with Lloyd choking Hank for disgracing the game after he has urinated in a sand trap. Angry Hank at one point tells Lloyd: “[Y]ou need to give me back to Abby because this right here, this is not a love connection. But that sexy legal beagle right there is exactly what the doctor ordered.”
Oh, golly: Abby relents, they end up in bed again, though she insists that if she’s going to be his lawyer, Hank cannot be her lover.
Since the ethical ways that she could boot Hank are clear, what about Abby’s potential conflicts of interest under the canons?
Model Rule 1.7(a)(2) mentions that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest, that interest being whether there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s personal interest. Comment 4 to the rule states that if a conflict arises after representation has begun, the lawyer usually must withdraw from the representation, unless the lawyer has obtained informed written consent of the client under the conditions of Model Rule 1.7(b). It offers several exceptions to this rule and states that a lawyer can represent a client, if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; the representation is not prohibited by law; representation does not involve the assertion of a claim between two clients represented by the same lawyer in the same proceeding; and the affected client gives informed consent, confirmed in writing.
This comment is crucial because it refers to a conflict arises after representation has been undertaken. Technically, Abby removed herself as Hank’s attorney before their first sexual encounter. It’s debatable as to whether Abby didn’t agree to be Hank’s lawyer again until after they had sex for the last time or when she told Lloyd that she could handle the case after the scuffle in the sand pit. But did she break Model Rule 1.8(j), which states that a lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced?
Upcoming episodes may clarify whether Hank helps Abby break rule 1.8(j).
But even if she’s in the clear now, will her attitude and involvement in this case change? Comment 17 to Rule 1.8 states that when an attorney-client sexual relationship presents significant dangers due to a lawyer’s emotional involvement, she will be unable to represent the client without impaired independent judgment. At hand here, too, are attorney-client evidentiary privileges and fiduciary concerns regarding a lawyer’s ethical obligation not to use the trust of the client to the client’s disadvantage.
Verdict: Common sense and legal sagacity dictates that Abby should drop kick Hank as far as she can. But then, what kind of steamy television comedy-melodrama would be left — and who among us would still be munching popcorn and watching this popular show?