Unscrupulous But Zealous Advocacy: Ethics Lessons From David E. Kelley’s Tv Lawyers
Abstract
Throughout the history of the legal profession, lawyers have been subjected to high ethical and professional standards. Following the Watergate scandal, the legal profession renewed its focus on ensuring that lawyers behave ethically. Unfortunately, in spite of the promulgation of new ethical rules and requirements that law schools teach classes on legal ethics, public perception of the legal profession’s ethical standards has remained consistently negative. By comparison, the fictional lawyers portrayed on television, who often commit many unethical acts, are held in much higher esteem by the American public. As a result of the near universal accessibility of law-themed television shows, new clients often come to a lawyer with unrealistic expectations. They expect their attorney to act like a television lawyer and demonstrate a willingness to cross ethical boundaries in the name of zealous advocacy. This creates a substantial problem: how do practicing attorneys maintain their ethical responsibilities when faced with a client who expects them to act like their favorite television lawyer? The answer comes from David E. Kelley. Kelley is the creator of The Practice, Ally McBeal, and Boston Legal, three of the most popular legal shows of all time. Despite certain inaccuracies within Kelley’s television series, this Note proposes a method for learning and understanding the Model Rules of Professional Conduct using David E. Kelley’s television series as the basis for a new analytical framework. The proposed method would require law students to watch specific scenes from Kelley’s shows. After watching one or more scenes, the students would apply the appropriate ethical rules to determine whether the observed behavior would be an ethical violation. The final step in the proposed method would require the professor and students to engage in discussion about what they saw on screen and its potential impact on public perception of the legal profession. Students would then propose steps that can be taken in legal practice to help improve public opinion about the ethics of lawyers.
Introduction
Brian Edmonds*
This business is not an ethical arena. Our legal system is adversarial by nature, where it is often the very function of a lawyer’s job to prevent the truth from ever coming out. We get paid to suppress and squash and conceal evidence; remember, this is the system that freed O.J. but also convicted Rubin ‘Hurricane’ Carter. Every first-year law student is taught don’t ever, ever equate legal ethics with morality. They’re almost always mutually exclusive. It’s an ugly world, where underhandedness is often celebrated.1
The actions undertaken by lawyers, both ethical and moral, have been discussed, debated, and regulated for at least 1,500 years.2 In the United States, a focus on ensuring that attorneys behave ethically came to the forefront of public opinion in the years following Watergate.3 Writing in early 2019, the ethical failures of real world attorneys continue to dominate the nightly news cycle.4 However, it is not just these news stories that should give legal professionals pause, but also the abundance of law-themed television shows produced every year.5 As a result of the pervasive influence of law-themed shows, new clients often have no knowledge about the substantial differences between television law and the real world.6 Herein lies the problem: how do those seeking to become practicing attorneys maintain their ethical responsibilities when faced with clients who expect them to act like their favorite television lawyers, lawyers who are willing to cross ethical boundaries all in the name of zealous advocacy?7
The answer comes from David E. Kelley.8 As a lawyer turned Hollywood writer, Kelley created, wrote, and produced three of the most popular law-themed television series of all time: The Practice, Ally McBeal, and Boston Legal.9 Despite notable inaccuracies, Kelley’s three television series provide valuable opportunities to grapple with complex concepts of legal ethics. The benefits of using these series in law school classrooms are twofold. These series present difficult moral and ethical issues that may come up in actual legal practice, enabling students to better learn ethical rules by applying the appropriate ethical rules to what is seen on screen and determining whether what is presented would be an ethical violation. Additionally, viewing these highly influential media portrayals will further educate students regarding client expectations and public opinion of the legal profession. Part I of this Note provides background information about the history of legal ethics, the development of the Model Rules of Professional Conduct, David E. Kelley, and Kelley’s three television series: The Practice, Ally McBeal, and Boston Legal. Part II discusses the problem of public perception of attorneys, including statistics showing that a majority of the public believes that fictional television attorneys are more ethical than their real- world counterparts. Part III proposes a method for learning and understanding the Model Rules of Professional Conduct using David E. Kelley’s television series. Part IV then puts that method into practice using specific examples from the Model Rules of Professional Conduct as applied to scenes from The Practice, Ally McBeal, and Boston Legal.
I. Background
A. History of Legal Ethics in the United States
Long before the existence of the United States, attorneys were subjected to ethical obligations.10 For example, early oaths required of lawyers in England demanded attorneys pledge to “do no falsehood.”11 Considering the connection between Great Britain and the United States, it is not surprising that U.S. attorneys have similar ethical obligations.12
In the United States, the ethical obligations of attorneys developed as a means of self- regulation.13 It is courts, rather than legislatures, that impose these rules on lawyers.14 Moreover, U.S. courts have asserted that the power to create these ethical rules belongs to the courts alone and cannot be usurped by lawmakers.15 However, most modern ethical rules are not created solely by the courts; instead, these rules are often adoptions or modifications of rules promulgated by bar organizations, with the American Bar Association serving as the dominant authority since the early twentieth century.16
In 1907, the American Bar Association (hereinafter “ABA”) promulgated the first set of national guidelines for legal ethics known as the 1908 Canons of Professional Ethics, which would not become formal rules unless adopted by a court.17 In 1969, the ABA promulgated the Model Code of Professional Responsibility, which amended and expanded upon the 1908 Canons.18 Portions of the 1969 Model Code were eventually adopted in all states.19
The Watergate scandal of the 1970s revealed to the legal community that the 1969 Model Code was inadequate and resulted in two major actions by the ABA.20 The first was requiring ABA-accredited law schools to include a legal ethics class as a prerequisite for graduation.21 The second was forming a commission to write new model ethics rules for the nation.22 The result was the adoption of the Model Rules of Professional Conduct (hereinafter “Model Rules”) in 1983.23 These Model Rules have been amended on numerous occasions and are formatted similarly to other Federal Rules.24
However, the Model Rules remain a model, a guide that must be adopted by courts in order to have binding effect.25 Various aspects of the Model Rules have been adopted in every state except California, but no two states have identical ethical rules.26 Despite these state-by- state differences, the Model Rules remain the default rules taught in law schools and legal ethics textbooks.27
B. David E. Kelley’s Boston Based Law-Themed Television Series
Aside from perhaps the creators and producers of the Law & Order franchise, no television show creator has impacted public perception of the legal system as much as David E. Kelley (hereinafter “Kelley”). In fact, he has personally written more episodes of legal fiction than any other television writer.28
Kelley’s career in television is of particular interest to those in the legal field, not only because the legal profession has most often been the subject of his television series, but also because he began his career as an attorney.29 After three years practicing law, Kelley was hired as a writer on L.A. Law.30 Early on, Kelley learned that the legal profession shown on television took certain liberties for the sake of entertainment.31 Kelley’s history as a lawyer proved to be a valuable asset when he left L.A. Law to create his own original content.32
Between the years of 1997 and 2008, Kelley created and produced The Practice, Ally McBeal, and Boston Legal.33 All three series focused on the practice of law and were set in Kelley’s hometown of Boston, Massachusetts.34 Kelley’s characters and the choices they made drove the stories and engaged audiences.35 Speaking about why the law is a recurring theme in his shows, Kelley once said, “I am fascinated by it [the law]. I think it’s a great vehicle for exploring the ethical and moral centers of people; the process is so flawed but it’s the best one we’ve got for legislating sort of moral behavior.”36
In creating and producing these series, Kelley personally wrote most episodes, and, as a result, he has influenced the public understanding of the legal system more than any other writer of law-themed fiction.37 The writing process for Kelley’s series often included basing arguments on actual cases seen in the news or even briefs submitted to the Supreme Court.38 The cultural relevance of Kelley’s work cannot be overstated, as demonstrated by a combined total of twenty-eight Primetime Emmy Awards between the three shows.39 During the 1999 Primetime Emmy Awards, The Practice and Ally McBeal won Outstanding Drama Series and Outstanding Comedy Series, respectively.40 Winning both categories for two separate series in the same year is an honor unique to Kelley.41
1. The Practice
The Practice was Kelley’s first Boston-based legal series.42 The Practice focused on a small criminal defense law firm led by Bobby Donnell, as played by actor Dylan McDermott.43 In addition to handling many unpleasant client matters, Bobby would often find himself fighting with clients over fees and struggling to keep his practice afloat.44
Due to the firm’s focus on criminal defense work, Bobby and the other characters would often be confronted with situations and ethical issues that would make an audience uncomfortable.45 Some of these issues included representing guilty clients, deceitful clients, and clients who were innocent despite all evidence to the contrary.46 One of the series’ dramatic strengths was that Hollywood norms were not always followed because the characters and the audience were not always comfortable with the outcome of a particular case; not to mention the fact that the characters did not always win.47
By the end of the series, the ethical, moral, and practical choices made by the characters impacted everyone, and although the characters parted ways amicably, the firm was dissolved.48 The series closed on a shot of McDermott’s Bobby Donnell crying in his former office, presumably reflecting on the toll that the practice of law took on his friends, which ultimately led to dissolution of the firm.49
2. Ally McBeal
Kelley’s second major series, Ally McBeal, differed from The Practice in that it aired on a different network and was completely different in tone.50 Although dramatic moments were sprinkled into the series, Ally McBeal was primarily a romantic workplace comedy about Ally McBeal, as played by Calista Flockhart.51 Ally was a young lawyer working at the law firm Cage & Fish and the self-proclaimed “victim of her own choices.”52
As opposed to The Practice’s more dramatic criminal cases, Ally McBeal’s cases, often rooted in civil matters, were substantially less likely to cause an audience discomfort.53 With regard to moral and ethical issues, Ally McBeal’s strongest point was its character dynamics, particularly when it showed case preparation, interaction between lawyers at the office, and how lawyers can make mistakes just like everyone else.54
It was during Ally McBeal’s first season that Kelley staged a two-part, multi-network, crossover event, which began on Ally McBeal and concluded on The Practice.55 This crossover allowed the characters from both shows to interact with one another and have fundamental disagreements about attorney behavior and how to best represent a client.56
The cultural significance of Ally McBeal is demonstrated by its continuing popularity and the fact that a revival is currently in development.57 Following the recent twentieth anniversary of the show, Ally McBeal star Calista Flockhart said she is often approached by fans who tell her that Ally is the reason they became lawyers.58 Flockhart noted that while she spoke the words, the credit for Ally inspiring many women to attend law school belongs to Kelley.59
3. Boston Legal
When ABC renewed The Practice for its eighth season, the network demanded drastic budget cuts, which resulted in many cast members being let go, including series lead Dylan McDermott.60 To make up for these losses, Kelley introduced actor James Spader as Alan Shore, an honorable but ethically challenged attorney.61 Shore quickly dominated the series and a spin- off, Boston Legal, was conceived rather than continuing The Practice.62 The seeds for the spin- off were planted in the second half of season eight, which saw Alan being fired from the series’ titular law practice.63 He found a new job at Crane, Poole & Schmidt where he met legendary attorney Denny Crane, played by the equally legendary William Shatner.64
Boston Legal was unique compared to Kelley’s other work because, while it was silly at times like Ally McBeal, the series was not afraid to tackle moral and ethical dilemmas and real world issues in a vein similar to its parent show, The Practice.65 Kelley was not afraid to use the show’s cases to address hot button political issues, and Kelley would often look to real world litigation for inspiration.66 For example, late in the fourth season of Boston Legal, Kelley and his team designed an episode based on the briefs filed in Kennedy v. Louisiana in order to comment on those issues, intending to show the American public a version of what happens when a case goes before the Supreme Court.67
The other staple of Boston Legal was the friendship that developed between Alan Shore and Denny Crane.68 Despite vastly different political beliefs and methods, the two developed a close friendship and nearly every episode culminated in the two sharing a drink and smoking cigars on the office balcony.69 This tradition allowed the characters to talk and reflect on the events of the episode, often touching on the episode’s various moral and ethical dilemmas.70
II. Fictionalized Representations of Attorneys Have Impacted Public Perceptions of the Legal Profession
Throughout the twentieth and twenty-first centuries, the legal profession has constantly been the subject of television shows.71 Indeed the vast majority of the American public receives most of its information about the legal system from legal television shows.72 Tens of millions of people watch law-themed television shows, with that number sometimes representing the viewing population of a single television show on a single night.73 Moreover, with the current popularity of streaming services, where a television episode’s viewership is not limited to its original broadcast, law-themed television shows surpass all other formats for explaining the legal system to the American public.74
As a general matter, these shows often depict lawyers doing unscrupulous, unethical, and often dishonest things all in the name of the greater good.75 Therefore, it should come as no surprise that when television lawyers were evaluated according to real world ethical standards, many of the evaluations were less than flattering.76
Unfortunately for those entering the legal profession, recent research indicates that the profession’s actual ethical standards are not held in high esteem by the American public.77 Since 1976, Gallup78 has conducted yearly polls asking a representative sample of the public to rate the ethics and honesty of various professions.79 According to recent polling data, only a combined 21% of those polled rated the honesty and ethical standards of the legal profession as “high” or “very high.”80 In the forty-five years that Gallup has been conducting this poll, the highest percentage of the public ranking lawyers’ honesty and ethics as “high” or “very high” was still only 29% in 1981.81 Moreover, according to an article published in 2015, a Pew Research Center Poll revealed that 34% of those polled said lawyers contribute “not very much” or “not at all” to society, as compared to the 18% of those polled who said lawyers contribute “a lot” to society.82 Another recent poll that asked respondents about their confidence and trust in the ethics of lawyers found that 29% of the respondents had “little” to “no” confidence and trust in the ethics of lawyers.83 Suffice it to say, this polling data indicates that the general public does not have the greatest perception of the legal profession.84
On the other hand, TV lawyers appear more respected for ethics and honesty than their real-world counterparts.85 A relatively recent poll conducted on behalf of the American College of Trial Lawyers asked respondents about the ethics of TV lawyers as compared to actual lawyers.86 The results of the poll revealed that an astounding 85% of those polled asserted that the dubious ethical practices displayed by television lawyers are “about the same” or “better” than the practices of real lawyers.87
These polling results should be concerning to law students and lawyers alike.88 With public perception of real attorneys holding at a relatively low threshold, and public perception of television attorneys seemingly much higher, it is plausible that television shows can be used to help law students understand the Model Rules of Professional Conduct. Accordingly, law students can become more proactive in creating a public image of ethics and honesty that is better than what is portrayed on television.89
III. The Work of David E. Kelley Presents a Viable Method for Recognizing Ethical Rules and Whether Those Rules Have Been Violated
This Note proposes a method for analyzing and understanding the Model Rules of Professional Conduct using scenes from The Practice, Ally McBeal, and Boston Legal as objects for student observation, analysis, and discussion.90 Such a method for teaching a complex legal subject is inconsistent with the traditional Socratic Method of law school instruction.91 However, scholarly discussion about the failings of the Socratic Method and the benefits of incorporating visual media into legal education indicates the viability of a framework for studying legal ethics grounded in Kelley’s three series.92
A. The Socratic Method Is Inadequate for the Modern Generation
In American legal education, the most traditional method by which students learn is the Socratic Method, a method that has recently been critiqued for being ineffective for modern law students.93 Until recently, students who did not thrive under the Socratic Method essentially fell through the cracks, where the students themselves were blamed for poor performance rather than the method.94 However, law schools and law professors have begun to recognize that many law students are visual learners who thrive when presented with visual or auditory stimuli.95 Additionally, even students that thrive in response to the traditional Socratic Method will likely be better served by a teaching method that incorporates visual media.96
Visual stimuli are particularly effective in classroom settings because the current generation of law students (hereinafter “visual generation”) grew up in a digital world and have been educated by visual media all their lives.97 Members of the visual generation grew up surrounded by electronic media as a regular part of their classroom experience.98 Moreover, in a world where almost everyone carries a smartphone in their pocket, practicing attorneys have begun using visual stimuli, such as video clips and computer generated models, to help judges and juries better understand evidence in formal legal proceedings.99
Based on this pervasive use of visual media in both regular classrooms and legal practice, the use of television to facilitate learning in law schools is a concept that should be further explored.100 Rather than remaining rooted in a teaching method of the past, the Socratic model of instruction must grow and adapt, just as legal doctrines have grown and evolved over time.101 Moreover, recent scholarship has specifically proposed that one such modification to the Socratic Method could be to incorporate visual media in the classroom by using popular culture as part of a framework for legal education.102 In the legal field, there is no single source of popular culture more influential or more appropriate for use in legal education than Kelley’s work.103
B. David E. Kelley’s Work Is Appropriate for Teaching Legal Concepts
The intersection of legal studies and legal representations on screen has been discussed in legal journals with increasing enthusiasm over the last twenty-five years.104 Moreover, the legal community continues to have relatively regular debates about the merits and pitfalls of the profession being a constant subject of entertainment.105 Despite these debates, some have recognized that film and television can be used to teach legal concepts, and with good reason.106
Television, in particular, resonates with the visual generation.107 When audience members watch a film or television series, they essentially see a fictional reality that is then used to rationalize the real world.108 Even though audience members recognize that the world on screen is fictional, what is seen on television “prompts, encourages, and refines views of social reality.”109 As a result, this media often becomes part of one’s personal reality; people will behave like television or movie characters would, and use those fictional realities to help process and evaluate information in their daily lives.110 Law students already ask questions based on TV shows because the students have a greater comprehension of these fictional events compared to real world events.111 Therefore, a law professor who taps into the fictional reality created by media portrayals of lawyers can help students create deeper connections to legal concepts.112 Kelley’s award-winning work is unparalleled and represents the most easily accessible examples of legal popular culture created and written by one single attorney.113 As such, the material is superior to other examples of legal fiction, and its use in the classroom is remarkably appropriate for the visual generation.
C. An Analytical Template for Legal Ethics Using David E. Kelley’s Work
Based on the foregoing discussion, this Note proposes the following multistep process for analyzing and teaching legal ethics using Kelley’s body of work.114 This method is not necessarily an exclusive method for interacting with legal ethics but could be supplemented with other curriculum in a legal ethics class.115
The first step in this proposed method is for a professor or discussion leader to present the class with a scene or scenes from one of Kelley’s series that tackles particular ethical issues.116 The clip presented should introduce the ethical problem and provide enough detail to implicate an appropriate rule.117 If additional context is necessary to understand the scene, the presenter should explain this information so students are not distracted by questions of context but instead are ready to identify the ethical issues.118 Moreover, before being shown the clip, the class should already have a minimal idea of what ethical issue is implicated based on previously assigned reading.119 While watching the video clip, students should engage in the process of issue spotting, where they identify ethical issues that have been implicated by the actions presented on screen.120 In choosing which scenes from Kelley’s series to show, the presenter should give consideration to how many ethical issues are implicated by the scene.121 In some situations, more simple excerpts implicating one or two issues may be appropriate.122 However, Kelley’s work has other examples that can be mined for a variety of more complex ethical issues, particularly once students have more knowledge in their metaphorical toolbox.123
The second step asks students to take the issues that they spotted in the video clip and consult the Model Rules and its corresponding comments.124 After identifying the Model Rule implicated by the conduct of the characters, the students should explain the ethical implication presented by the scene as related to the corresponding Model Rule.125 The key to a student’s success in step two is responding to the scene with detailed application of the appropriate Model Rule while also recognizing that there may be room for argument rather than a clear right or wrong answer.126
This process of reviewing a scene and spotting relevant issues is reminiscent of the traditional law school issue spotting exercise, but closer to experiences in actual legal practice.127 When a law student enters practice, it is unlikely that the attorney will be presented with a detailed fact pattern then asked to find the issues and propose a solution.128 More likely, a client will come to the attorney with a problem and tell a story, or, alternatively, a senior attorney will relay a client’s story and give the attorney directions.129 These face-to-face interactions are substantially different from spotting issues on a page and instead require a young attorney to notice things like tone of voice, body language, and places where a story lacks detail.130 Compared to the traditional fact pattern, analyzing video clips of legal scenes is a closer representation of these real-world interactions.131 Additionally, these clips are also more likely to be remembered by the visual generation and will likely solicit better analysis because students who feel they are doing what real lawyers do, rather than just talking about concepts, tend to provide a deeper analysis of the material.132
In step three, after students have considered the ethical issue originally presented to them, the professor or presenter should show a second scene or scenes demonstrating the outcome within the bounds of the series.133 These outcomes will be reflective of how popular culture has portrayed legal ethics, which likely correlates to the public’s perception of the legal profession.134 After the formal ethical issues have been analyzed and addressed, the class should engage in an open discussion about the implications of such media portrayals and perhaps what can be done by law students to change negative perceptions of legal ethics.135
IV. The Effectiveness of a Model That Teaches Legal Ethics Using David E. Kelley’s Body of Work Demonstrated Through Specific Examples
To demonstrate the effectiveness of the model proposed in Part III, Part IV will put this method into practice by applying the method to three specific episodes taken from each of Kelley’s series. These examples will show how using clips from Kelley’s shows can promote thoughtful discussion of legal ethics in the areas of: (1) duty of diligence and neglect of client matters; (2) candor toward the tribunal and opposing counsel; and (3) collaboration with other law firms. These examples are not necessarily the only appropriate examples from Kelley’s body of work but have been carefully chosen to demonstrate this method’s applicability to issues with varying degrees of complexity. A professor or presenter who chooses to embrace this proposed method should feel free to choose additional or different examples that suit the needs of his or her course.
A. Duty of Diligence and Neglect of Client Matters
One of the most important duties that an attorney owes a client is the duty of diligence, in that client matters must be handled in a timely and appropriate manner.136 An attorney’s neglect of client matters is one of the most common reasons for complaints against an attorney.137
A clip from an episode of Boston Legal provides an excellent opportunity to analyze this ethical duty.138 As context, the students should be informed that Edwin Poole, one of the firm’s founding partners, has taken a leave of absence for mental health reasons.139 The clip features key members of the firm engaged in a staff meeting, where managing partner Paul Lewiston asks, “Who’s doing the Holcomb case?”140 A subsequent discussion reveals that the case was being handled by Poole and has since been turned over to Denny Crane, another senior partner.141 After some questioning, Denny confirms that he is handling the Holcomb case.142 When Denny is asked if he is prepared to try the case, he responds, “I will be.”143 At which point, Paul responds, “You will be? Are you aware the trial begins tomorrow?”144
As to step two of the proposed method, this clip requires students to recognize that Model Rule 1.3 has been implicated and violated by the fact that the firm has a trial scheduled for the next day, and the firm has failed to adequately prepare for it.145 Model Rule 1.3 requires that lawyers “act with reasonable diligence and promptness in representing a client.”146 Additionally, the comments to the rule address attorneys’ obligations to take on a reasonable workload so as to not neglect a client and to pursue a client’s case in a timely manner so as to not prejudice the client.147 Here, this firm has neglected the client’s matter by not adequately preparing for trial, thus violating Model Rule 1.3 and likely giving rise to a malpractice suit against the firm.148
While Model Rule 1.3 is clearly implicated by the clip, the fact that the scene showed a staff meeting at a large firm where multiple attorneys demonstrated knowledge of the case also implicates Model Rule 5.1.149 Model Rule 5.1(a) essentially holds that the managerial authority within a law firm shall “make reasonable efforts to ensure the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the [Model Rules].”150 The fact that multiple attorneys were aware of and worked on the case implies that the firm did not have a procedure in place to ensure that the client’s matter was properly handled after the primary attorney went on medical leave.151 On the other hand, the argument could be made that because the attorneys looked to Denny, the firm had a procedure in place, and everyone had expected him to act diligently and serve as the lead attorney.152 As such, the firm’s management may not have violated Model Rule 5.1(a); however Model Rule 5.1(c)(2) is implicated and Paul could be held accountable, as the managing partner, if he failed to take action to rectify Denny’s lack of diligence.153
After students identify the ethical issues and corresponding rules, they should view two additional scenes which demonstrate how the firm dealt with the time crunch.154 The first scene shows Denny and Paul discussing options where Denny is in over his head preparing for trial, and Paul suggests going to the judge for a continuance.155 In the second scene, wherein Paul and Denny meet with the client, Paul states: “It is our recommendation that you discharge us as counsel. Ask the judge for time to find new attorneys. The only alternative is proceeding tomorrow, which I don’t think we want to do.”156
Here, it is important for the students to recognize that while Denny and Paul took appropriate action as fiduciaries of their client Holcomb Pharmaceuticals—in that their recommendation for discharge was against their own financial interests but in the best interests of the client—such discharge would still be governed by Model Rule 1.16.157 It is also important to recognize that the firm opened itself up to a potential malpractice suit in addition to sanctions for the ethical violations.158
The professor or presenter should then engage the class in a discussion about what these clips say about the public perception of lawyers and how students can combat any negative perceptions. The following points represent issues of importance that could potentially be addressed in the discussion. In terms of general public perception, these clips could imply to the public that lawyers are disorganized and have too much going on, which could result in a lawyer neglecting client matters.159 During this discussion, the professor should stress that in order for practicing attorneys to avoid this negative implication, they must focus on organizational skills and clear communication.160 It should be pointed out that within one’s practice, it is imperative to remain organized and make sure that every case is given proper attention.161 To deal with the possible public perception that lawyers are disorganized and overwhelmed, communication with clients is essential—so essential that the Model Rules have a rule specifically dedicated to communication with clients.162 Keeping a client dutifully informed about the actions being taken in a case, as required under Model Rule 1.4, will keep the client confident in the attorney’s diligence and is likely to prevent a violation of Model Rule 1.3.163 Even if one simply sends a brief email, regular communication and attention will help a client feel at ease, ensure that the client does not think the attorney is disorganized, and likely keep the case on the attorney’s radar.164
B. Candor Toward the Tribunal and Opposing Counsel
In addition to serving as advocates, attorneys are also officers of the court and have ethical obligations relating to both the court itself and opposing counsel.165 These obligations are thoughtfully depicted in a clip from The Practice, which requires little prefatory context because most facts are explained in the clip itself.166 The clip takes place after an arraignment hearing for a criminal defendant and shows attorneys for both sides having a discussion in chambers with the judge.167 The discussion is based on an allegation that the attorney for the defendant, Alan Shore, is in possession of a murder weapon because, according to the prosecution, the mentally ill defendant was heard in jail mumbling “about an evil knife that was in his lawyer’s office.”168 During the discussion, the judge asks Shore if the knife is in Shore’s office, to which Shore responds, “I don’t know . . . if there is a knife, your honor, and I’m not saying there is, I have no actual or constructive knowledge as to its whereabouts.”169 The clip then shifts to Shore’s office where his colleagues ask if he has the knife.170 Shore states, “It may be in the conference room so I would encourage us all not to go in there, because if we have actual knowledge that it’s in our possession we of course would have a duty to turn it over.”171
In applying step two, this scene requires recognition that Model Rule 3.3(a)(1) and Model Rule 3.4(a) were potentially implicated by Alan’s conduct.172 Model Rule 3.3(a)(1) requires that lawyers must not “knowingly . . . make a false statement of fact . . . to the tribunal.”173 As defined in Model Rule 1.0(f), knowingly “denotes actual knowledge of the fact in question,” which may be inferred from the circumstances.174 As presented in the scene, Alan’s conversation with the judge was likely not a violation of the rule.175 If Alan is taken at his word and the first time that he heard of the knife being in his office was when the prosecuting attorney referenced that defendant’s jailhouse statements, Alan told the judge the truth in that he did not know the knife’s location.176 However, the argument could also be made that Alan’s knowledge that the knife was in his office could be inferred by the circumstances because the defendant was previously pursued by police into Alan’s office, a fact mentioned in the scene.177
The scene also implicates Model Rule 3.4(a), which asserts that “a lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal . . . material having potential evidentiary value.”178 Model Rule 3.4(a) is limited by its use of the term “unlawful,” which puts the jurisdiction’s criminal statutes in play in order to conduct a proper analysis.179 With regard to physical evidence, many jurisdictions impose an obligation on attorneys to turn over evidence of a crime that comes into their possession.180 Some jurisdictions, however, allow attorneys to avoid that obligation if they never take possession of the evidence.181 It can be presumed based on Alan’s comments towards the end of the scene that Boston, Massachusetts, within the fictional world of The Practice, is the later.182 Therefore, taking Alan at his word, he has not violated Model Rule 3.4(a) so long as none of the firm’s attorneys take physical possession of the knife.183
After discussing the Model Rules implicated by Alan’s conduct with the judge and his colleagues, it would be beneficial for the professor or presenter to show additional scenes prior to further discussion regarding public perception of legal ethics.184 Although Alan initially appears to have followed the ethical rules, later scenes reveal that he actually committed ethical violations common to television lawyers.185 A scene later in the episode shows the judge once again asking Alan about the knife.186 Alan denies possession of the knife, denies knowledge of the knife’s whereabouts, and denies looking for the knife.187 The judge is forced to dismiss the charges and issues a bench warrant to search Alan’s office but the knife is not found.188 The second clip shows two members of the firm discussing Alan, where one remarks, “I see nothing redeeming about that man.”189 The other member of the firm responds, “You just have to know him,” as the scene transitions to Alan walking down the street and throwing a knife into a dumpster.190 The episode leaves it ambiguous as to when Alan searched the conference room for the knife, but the end result is clear191—at some point after the initial meeting with the judge, Alan violated Model Rule 3.3, Model Rule 3.4, or both.192
After viewing the second set of scenes, the discussion led by the professor regarding public perception of legal ethics, as suggested in step three, could touch on some of the following points.193 Here, Alan unethically fought for a defendant who apparently committed murder, but was also clearly mentally ill and in desperate need of treatment.194 Members of the public might condemn Alan’s unethical actions, which put a man in treatment rather than prison.195 However, it is important for students to discuss scenes that show television attorneys violating real ethical rules because they are relatively common and therefore contribute to a negative perception of attorneys.196 Furthermore, it should be brought to the students’ attention that Model Rules 3.3 and 3.4 apply in all cases, civil and criminal, and therefore this negative perception is not unique to criminal defense attorneys.197 Teachers could suggest to students that when they enter practice, the differences between television and the real world should be explained to any client who is unfamiliar with how the legal system works.198 For example, during a client’s initial consultation with the lawyer, a new client could be asked to explain the client’s understanding of the legal system.199 That way the lawyer may fill in gaps and correct misconceptions without being afraid to address the client’s television-based expectations regarding immoral acts.200 Relating to evidence and candor to the court, teachers should impart to students how essential it is to tell a client the exact obligations that the attorney has with regard to evidence and interactions with the court.201 This type of open and forthright communication will not only clear up any misconceptions that a client might have, but will also show how one can zealously advocate without being unscrupulous. This will ideally lead to better public opinion about the ethical standards of attorneys.202
C. Collaboration with Other Law Firms
It is not uncommon for a client to be represented by multiple lawyers or law firms.203 A client may retain different law firms for different legal matters, or a law firm may need to bring in co-counsel to help represent a client in particularly complex litigation.204 These situations create somewhat unique ethical obligations as governed by the Model Rules, which can be analyzed using the two-part crossover between Ally McBeal and The Practice.205 This is an example requiring the professor to provide students with additional context.206 Prior to presenting the scenes, it is necessary to explain that the eccentric lawyers from the Ally McBeal firm, Cage & Fish, primarily focus on civil work: they are inexperienced with criminal defense work and their client has been charged with the murder of her husband.207 A deeper analysis will be available by showing multiple scenes that, when viewed together, create multiple ethical conflicts.208
The first scene shows a discussion between the lawyers at Cage & Fish, where managing partner Richard Fish decides the firm does not have the necessary experience to try the case.209 As such, the scene transitions to Richard Fish and his partner John Cage approaching Donnell, Young, Dole & Frutt, the firm from The Practice, to serve as co-counsel on the case.210 The second scene shows the attorneys from both firms meeting to discuss the facts of the case and divide the workload.211 The third scene shows the attorneys viewing a statement made to the news by Richard Fish where he states, “What I do object to is every time a husband is found chopped to pieces we automatically say ‘had to be the wife.’ Marie Hansen is a rich woman, if she wanted her husband dead, she would have hired somebody, common sense.”212 This statement to the news is met with outrage from Bobby Donnell and his colleague Eugene Young, who exclaims, “What kind of lawyers are you people?”213 It is at this point that Bobby requests to meet with the client.214
The fourth scene shows Bobby Donnell, from The Practice, meeting with the client at which point he says, “This other firm, Cage & Fish, I don’t believe it is in your best interest to let them represent you. I’m very uncomfortable saying this, truth be known I’m betraying them here but my ethical obligation goes to the client.”215 Bobby admits to the client he has had this conversation with her before consulting the other attorneys.216 The client refuses to discharge either firm, at which point the scene shifts to a meeting between the attorneys from both firms.217 At this meeting, things are heated, and while Richard Fish seems only concerned with fees, the others are concerned with the client.218 While Bobby expresses concern about decision making authority, based on the lack of criminal law experience at Cage & Fish, Ally angrily counters by rhetorically asking, “Who said we weren’t prepared to defer to your judgement?”219 Bobby responds by pointing out previous ineffective communication between the two firms and defends his meeting with the client.220 He states unequivocally, “You brought me in, I’m in. She wants me out, fine. But while I’m in, everything I live and breathe goes into getting her acquitted; I’m not the selfish one here.”221
During step two, students should recognize that the collaboration between Cage & Fish and Donnell, Young, Dole & Frutt has resulted in numerous ethical questions related to duties of competence, confidentiality, communication with the client, trial publicity, the splitting of fees, and potentially obligations to report co-counsel to the proper disciplinary authority.222
The first major ethical issue implicated by the scenes is the duty of competency governed by Model Rule 1.1.223 This rule provides a requirement that an attorney must have the skill and knowledge necessary to provide their client with adequate representation.224 Ignoring Richard Fish’s comments about money and blaming co-counsel for a loss at trial—comments in keeping with his character, designed to exacerbate lawyer stereotypes for comedic purposes—he is correct in recommending co-counsel for the client because the firm’s attorneys do not have the criminal law experience necessary to handle the case on their own.225
Fish’s decision to engage Donnell, Young, Dole & Frutt as co-counsel likely implies a duty to communicate that decision to the client governed by Model Rule 1.4.226 Although Model Rule 1.4 does not specifically address bringing on co-counsel, Model Rule 1.4(a)(2) requires an attorney to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished,” and Model Rule 1.4(a)(3) requires the attorney to “keep the client reasonably informed about the status of the matter.”227 Model Rule 1.2(a), which deals with the scope of the attorney-client relationship, also references consulting with the client, and Comment 1 of the rule directly cross-references to Model Rule 1.4.228
In the episode, Fish made the tactical decision to bring in co-counsel, which directly impacts the means by which the client’s objectives would be accomplished.229 As a result, Model Rule 1.4 would likely create an obligation to “reasonably consult” with the client and keep the client “reasonably informed” about bringing in Donnell, Young, Dole & Frutt.230 However, it appears that neither Fish nor any of the other Ally McBeal attorneys consulted with the client before taking this action.231
With respect to communications between the Ally McBeal attorneys and The Practice attorneys, issues relating to client confidentiality were potentially raised when Fish and his partner, John Cage, approached Donnell, Young, Dole & Frutt about appearing as co-counsel.232 Confidentiality is governed by Model Rule 1.6, which, as a general matter, prevents attorneys from revealing a client’s information with only limited exceptions.233 One such exception is listed in Model Rule 1.6(a), which permits an attorney to reveal confidential information absent client consent “when disclosure is impliedly authorized in order to carry out the representation.”234 If the Cage & Fish attorneys had at least conferred with their client about their desire and intent to bring in co-counsel prior to approaching the other firm, it could be argued that revealing privileged information to get the other firm on board was impliedly authorized to carry out their client’s representation.235 However, based on the episode, there is no indication that the client was consulted or informed about this course of action until after co-counsel had been approached, and therefore it is difficult to argue that approaching the other firm was implicitly authorized.236 Instead, using guidance from Comment 4 to Rule 1.6, Richard Fish and John Cage could have used a hypothetical to discuss the matter with Bobby Donnell and his colleagues without violating any rules.237 But since Fish and Cage did not use a hypothetical, nor inform the client prior to visiting Donnell, Young, Dole & Frutt, the conversation likely violated the duty of confidentiality.238 However, once Bobby and his colleagues were brought on board as co-counsel, the duty of confidentiality extended to them, which made the other conversations between the two firms appropriate and not in violation of the ethical rules.239
With respect to Fish’s statement to the press, it is important to recognize that these kinds of statements implicate Model Rule 3.6 regarding trial publicity.240 Model Rule 3.6(a) prohibits an attorney from making an extra-judicial statement that will be disseminated to the public and has “a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”241 However, Model Rule 3.6(b)(1) permits a lawyer to publicly state “the claim, offense, or defense involved, except when prohibited by law.”242 Additionally, Model Rule 3.6(c) permits attorneys to make public statements to protect the client from the unduly prejudicial effect of recent publicity that was not initiated by the lawyer or the lawyer’s client.243 Comment seven indicates that these kinds of statements should be limited to information that will mitigate the harm caused by the statements of others.244
Giving Fish the benefit of the doubt, it could be argued that his statement was an attempt to state his client’s defense, that someone else committed the murder, as permitted under Model Rule 3.6(b)(1).245 Moreover, since the episode implies that the client had been receiving negative publicity in the news, it could be argued that Fish’s conduct was an attempt to mitigate that damage.246 These arguments supporting the legitimacy of Fish’s statement have some merit given the fact that real world attorneys make similar inflammatory statements to the media when representing well-known clients charged with high profile crimes.247 However, given Fish’s immediate, gleeful statement to all the other attorneys that “it’s never too early to contaminate a jury pool,” Bobby’s outrage is justified.248 In that context, Fish’s actions could be deemed a willful attempt to prejudice the judicial proceedings, in direct violation of Model Rule 3.6(a).249 This analysis creates interesting implications for Bobby’s actions in the scene where he is shown privately meeting with the client.250
During that meeting, Bobby is loyal to his client and takes action that is adverse to his co- counsel when he suggests that the client discharge them.251 While some might argue Bobby was taking action that was in his own interest, Bobby was more likely exercising his fiduciary duty to act in the best interests of his client.252 In expressing this concern, Bobby did not tell the client about specific ethical violations; he just asserted that the lawyers were odd, and he did not believe they would serve her interests.253
Interestingly, under the Model Rules, Bobby was likely not obligated to inform the client about the apparent misconduct by the Cage & Fish attorneys.254 As aforementioned, Bobby witnessed a number of apparent ethical violations by the Ally McBeal attorneys, particularly Fish.255 Under Model Rule 8.3, he may have been under an obligation to report such conduct to the proper disciplinary authority, but not necessarily the client.256 Model Rule 8.3(a) provides that improper behavior should be reported “to the appropriate disciplinary authority” if the conduct “raises a substantial concern as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer.”257 The rule as written “may suggest a policy of reporting unethical behavior to whomever is affected [i.e. the client], but as written it is not specifically crafted to require communicating with the client” about the misconduct of other attorneys.258 Therefore, within the context of the episode, Bobby was not violating the Model Rules by not telling the client about the specific conduct that raised his concerns.259 However, it could be argued that he did have a duty under Model Rule 8.3(a) to report his co-counsel, particularly Fish, to the appropriate disciplinary authority.260
The final major issue presented by the scenes, most notably through Fish’s continuous— albeit humorous—comments, is the issue of fees.261 Under Model Rule 1.5, it would be permissible for both Cage & Fish and Donnell, Young, Dole & Frutt to collect fees regarding their representation of the client in this murder case.262 Specifically, Model Rule 1.5(e)(1) allows lawyers from different firms to divide a legal fee only “if the division is in proportion to the services performed by each lawyer.”263 Moreover, in those situations, the total fee charged to the client must be reasonable and the client must consent, in writing, to splitting the fee among the firms.264 As presented, Fish’s concern about getting paid will be alleviated if the provisions of Model Rule 1.5(e) are followed.265 Although this formal action is not shown on screen, Fish will be permitted to collect fees, though likely lower fees than expected because the episode presents Bobby doing most of the work.266
As part of step three, the resolution of the conflicts between these different lawyers can be seen in two scenes from the second half of the crossover.267 Admittedly, the second half of the crossover is also filled with examples of unethical behavior, this time on the part of characters from The Practice, which could also be used to analyze and apply the Model Rules.268 However, there are two scenes that a professor could use to encourage a broader classroom discussion, as a social commentary on unethical behavior by attorneys.269 The first scene shows Ally taking Bobby to task for use of a trial tactic where there was no factual or reasonable basis for an assertion made during the examination of a witness.270 The two argue about the duties of a zealous advocate, and Ally tells Bobby, “You’re disgusting . . . . You make it sound so good, if I close my eyes I can almost see you as a hero. Too bad my eyes are open.”271 The final scene of the episode shows both Ally and Bobby clearly shaken by the outcome of the case even though their client who had not committed the crime was acquitted, and the real killer had committed suicide.272 Ally apologizes to Bobby for the negative things that she said to him during their time as co-counsel.273 However, there is an unspoken feeling from both characters: recognition that, in spite of a good outcome for the client, the difficult subject matter and the ethical lines crossed by the characters took a negative toll on everyone.274
After showing these scenes, the professor should focus class discussion and reflection on the valuable symbolic lessons for attorneys that can be gleaned from these two clips.275 The professor should touch on the fact that Kelley presented two characters clearly shaken by the ethical lines they crossed in the name of zealous advocacy.276 One could theorize that, in some instances, these characters violated the ethical rules without quite realizing that the line had been crossed.277 This can be inferred from Bobby’s response to Ally’s apology: “You haven’t said anything I haven’t heard before.”278 Actor Dylan McDermott’s sensitive delivery of this dialogue implies deep regret and further indicates that Bobby crosses these ethical lines regularly, perhaps without even realizing it, all in the name of good lawyering.279 Additionally, the fact that both of the actors are wrought with emotion allows the viewer to connect with the characters on a deeply emotional level.280
The professor could also point out that Kelley’s series are part of a fictional world, where the consequences for ethical violations are usually emotional rather than formal discipline.281 However, the ending of this crossover leaves audiences, both lawyers and nonlawyers alike, with an important realization that even when crossing ethical lines leads to a good outcome, the toll it can take on the attorneys may not be worth it.282 The professor should point out that these scenes are a reminder that while crossing the ethical line can be easy, coming back from it is much harder.283 Specifically, it should be stressed that while television lawyers are unlikely to lose their license to practice because they are needed for the next episode, real lawyers do not have that luxury.284 The professor could use this opportunity to encourage students to theorize on how to improve the ethical practices of lawyers because, whether we like it or not, knowledge and memory fade over time, and there is always the possibility that ethical rules can change.285 The professor could suggest a class discussion about the merits of continuous reminders of ethical responsibilities—possibly by way of regular ethics seminars through the ABA or a local Bar association—in order to continue the practice of law as a way to combat negative perceptions of legal ethics.286
Moreover, the professor could also point out that we live in an era of accountability, and students should walk away from these particular clips with an understanding of the ethical obligations that were implicated and hopefully a desire to change the public perception of attorneys.287 Students should recognize that in addition to reminding themselves of ethical responsibilities while practicing law, changing the public perception of attorneys must stem from communication.288 It must come from pointing out to our friends and clients all the good that the legal profession does for society.289 The professor or presenter should emphasize if students engage in clear, consistent communication with clients and each other about the good work lawyers do for society and the ethical responsibilities imputed on a member of the Bar, this will hopefully trickle out to the world at large and, as a result, improve the legal profession’s public image.290
Conclusion
In a time where the ethical standards of the legal profession are viewed in a negative light, the television work of David E. Kelley presents a unique opportunity to engage with the Model Rules and understand the ethical obligations of attorneys. There is no doubt that Kelley’s work takes certain liberties with real-word legal rules for the sake of entertainment. At the same time, Kelley’s history as an attorney, along with his unprecedented individual impact on the representations of lawyers in popular culture, is worthy of attention. By presenting scenes from Kelley’s series that implicate specific ethical considerations, the traditional law school issue spotter can be transformed to better accommodate the visual generation and simulate real world practice. After applying the Model Rules to scenes and making determinations about the propriety or impropriety of the conduct shown on screen, this method provides a unique opportunity to thoughtfully discuss the public opinion of the legal profession. Kelley’s work has had a dominant influence on the perception of lawyers, with some characters generally demonstrating appropriate responses to ethical issues and others demonstrating improper or illegal responses. By engaging with Kelley’s work, as both a learning tool and an opportunity for social commentary, the next generation of lawyers can hopefully have the chance to change public perception of legal ethics.
*✕ Juris Doctor, New England Law | Boston (2020). B.A., Political Science, University of Massachusetts Boston (2016). Thank you to my friends and family for their encouragement and support throughout the writing process. In fact, my family could not have been more gracious when they found out that I needed to watch TV as part of my research. I'd also like to thank to all my law school classmates and friends who took the time to read various drafts and offer feedback. Finally, thank you to the staff on the New England Law Review for all your work preparing this Note for publication. I hope you enjoy reading this piece and if nothing else it encourages you to sit back, relax, and enjoy watching at least one episode of a David E. Kelley TV show.
1✕ The Practice: The Case Against Alan Shore (ABC television broadcast Mar. 28, 2004) (quoting from Alan Shore’s closing argument where he defends himself in a wrongful termination lawsuit after being fired from his law firm for “unethical” behavior).
2✕ Stephen Gillers, Regulation Of Lawyers: Problems Of Law And Ethics 1 (11th ed. 2017).
3✕Id. at 9. See Generally Kathleen Clark, Legacy of Watergate for Legal Ethics Instruction, 51 Hastings L.J. 673, 673–78 (2000) (discussing the lasting legacy of the Watergate scandal on the instruction of legal ethics in law schools).
4✕ See Generally, e.g., David Jackson, Kevin Johnson & Bart Jansen, Robert Mueller Probe: Ex-Trump Lawyer Michael Cohen Pleads Guilty to Lying to Congress, Usa Today (Nov. 29, 2018, 9:22 AM ET), https://perma.cc/3NGG-P9JL.
5✕ See Generally, e.g., Stephanie Francis Ward, The 25 Greatest Legal TV Shows, 95 ABA. J., Aug. 2009, at 34, 34– 44 [hereinafter Ward, Greatest Legal TV Shows] (including The Practice, Ally McBeal, and Boston Legal on the list of television’s greatest legal shows).
6✕ See Victoria S. Salzmann & Philip T. Dunwoody, Prime-Time Lies: Do Portrayals of Lawyers Influence How People Think About the Legal Profession?, 58 Smu L. Rev. 411, 412–13 (2005).
7✕ See Generally Presentation Survey–Lawyers/Legal System in America: Final Data, Mcginn And Company, https://perma.cc/NHG3-U6EK (last visited Oct. 6, 2021) [hereinafter Presentation Survey] (announcing that a majority of those polled asserted a belief that fictional TV lawyers have higher ethical standards than real lawyers).
8✕ See Generally Josh Levine, David E. Kelley: The Man Behind Ally Mcbeal (1999) (detailing the life and early career of David E. Kelley).
9✕ Ally McBeal (FOX television series 1997–2002); Boston Legal (ABC television series 2004–2008); The Practice (ABC television series 1997–2004).
10✕ Gillers, supra note 2, at 1.
11✕ Gillers, supra note 2, at 1.
12✕ See Selena E. Molina, The Roots of Our Legal System: The Foundation for Growth, ABA, https://perma.cc/T78Y- GGKX (last visited Oct. 6, 2021).
13✕ See Gillers, supra note 2, at 6–8.
14✕ See Gillers, supra note 2, at 6.
15✕ See Gillers, supra note 2, at 6 (describing the courts’ “negative” inherent power to invalidate legislation that regulates lawyers even when such legislation does not contradict the courts’ rules).
16✕ See Gillers, supra note 2, at 8; see also The American Bar Association, ABA, https://perma.cc/AZ8B-KR98 (last visited Oct. 6, 2021); ABA Timeline, ABA, https://perma.cc/T7TJ-3XXJ (last visited Oct. 6, 2021).
17✕ ABA Timeline, supra note 16; See Gillers, supra note 2, at 6–9.
18✕ See Gillers, supra note 2, at 6–9; see also ABA Timeline, supra note 16.
19✕ See Gillers, supra note 2, at 8–9 (asserting that some provisions of the Model Code of Professional Responsibility were adopted in every state and explaining the ABA’s reaction to the Watergate scandal). See Generally Clark, supra note 3, passim (explaining the impact of Watergate on the instruction of legal ethics).
20✕ Gillers, supra note 2, at 9; Clark, supra note 3, 673–74.
21✕ Gillers, supra note 2, at 9; Clark, supra note 3, 673–74.
22✕ Gillers, supra note 2, at 9. See Generally Kutak Commission Drafts, ABA, https://perma.cc/S3ZC-3LHJ (last visited Oct. 6, 2021) (providing links to the various drafts of the rules promulgated by the ABA’s commission in response to the Watergate scandal).
23✕ Gillers, supra note 2, at 9.
24✕ Compare Model R. Prof’l Conduct (Am. Bar Ass’n 2018), with Fed. R. Civ. P., And Fed. R. Evid.(demonstrating a uniform format between them where the text of the rule is followed by comments designed to guide the interpretation of the rule). See Generally Model Rules of Professional Conduct, ABA, https://perma.cc/T4XE-J7E2 (last visited Oct. 6, 2021) [hereinafter About the Model Rules] (providing easy internet access to the complete list of Model Rules as promulgated by the ABA); ABA Timeline, supra note 16.
25✕ See Gillers, supra note 2, at 11.
26✕ See Gillers, supra note 2, at 11.
27✕ See e.g., Gillers, supra note 2, passim (serving as an example of a law school ethics textbook and using the Model Rules of Professional Conduct to educate law students on legal ethics and professional responsibility); see also Harvard Law Sch. Ctr. on the Legal Profession, Teaching Ethics and Professionalism, 4 The Practice, no. 3, Mar./Apr. 2018, https://perma.cc/2GVE-U36B (discussing what law schools are doing to “prepare the next generation of lawyers for the ethical and professional landscapes that await them beyond graduation,” which includes the ABA's mandate that a legal ethics course be taught to students).
28✕ See Jonathan Shapiro, Lawyers, Liars, And The Art Of Storytelling: Using Stories To Advocate, Influence, And Persuade 16 (2016); Carrie Menkel-Meadow, Is There an Honest Lawyer in the Box? Legal Ethics on TV, in Lawyers In Your Living Room!: Law On Television 37, 38 (Michael Asimow ed., 2009); see also Joyce Eng, If You Want to Win an Emmy, Work with David E. Kelley, Tv Guide (Jul. 19, 2017, 12:06 PM PT), https://perma.cc/6TXN-BQQS.
29✕ See Levine, supra note 8, at 7–10; Shapiro, supra note 28, at 16–17; Menkel-Meadow, supra note 28, at 38.
30✕ Editors, David E. Kelley Biography, Biography (Apr. 2, 2014), https://perma.cc/X7MJ-P9SC. See Generally Levine, supra note 8, at 10–24 (explaining how Kelley left his career as a lawyer in Boston to work on L.A. Law and discussing Kelley’s time on the series).
31✕ Levine, supra note 8, at 18–19.
32✕ Levine, supra note 8, at 23–24; See Lacey Rose, David E. Kelley Talks ‘Big Little Lies’ Season 2, Possible ‘Ally McBeal’ Reboot, Hollywood Rep. (May 11, 2018), https://perma.cc/JCA7-U9TR; Stacey Wilson Hunt, TV Hall of Fame: David E. Kelley on Which Series He’d Like to Bring Back and Transitioning to Half-Hour TV (Q&A), Hollywood Rep. (Mar. 6, 2014, 7:00 AM), https://perma.cc/WXW3-9R68.
33✕ Ally McBeal, supra note 9; Boston Legal, supra note 9; The Practice, supra note 9.
34✕ Ally McBeal, supra note 9; Boston Legal, supra note 9; The Practice, supra note 9.
35✕ See Charles B. Rosenberg, 27 Years as a Television Legal Advisor and Counting . . ., in Lawyers In Your Living Room!: Law On Television, supra note 28, at 15, 21–22.
36✕ Rose, supra note 32 (showing Kelley discussing his career in an additional video interview included at the end of the article’s transcribed interview).
37✕ Shapiro, supra note 28, at 151–52; See Ally McBeal, supra note 9; Boston Legal, supra note 9; The Practice, supra note 9.
38✕ See Shapiro, supra note 28, at 43–46; see also Stephanie Francis Ward, Making TV Legal: Behind Those Megahit Lawyer Shows Are Some Pretty Unusual Lawyers, 94 ABA J., no. 10, June 2008, at 52, 52–56 [hereinafter Ward, Unusual Lawyers].
39✕ Ally McBeal: Awards, IMDB, https://perma.cc/F7AM-VLHQ (last visited Oct. 7, 2022); Boston Legal: Awards, IMDB, https://perma.cc/S4VN-KDHE (last visited Oct. 7, 2021); The Practice: Awards, IMDB, https://perma.cc/X38G-FG79 (last visited Oct. 7, 2021).
40✕ Eng, supra note 28.
41✕ Shapiro, supra note 28, at 152; Eng, supra note 28; See Rose, supra note 32.
42✕ The Practice, supra note 9.
43✕ Jeffrey E. Thomas, The Practice: Debunking Television Myths and Stereotypes, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 129, 130; Stuart Levin, Kelley Acts as Judge, Jury for Series Quality, Variety (May 3, 2001, 7:41 PM PT), https://perma.cc/L4EZ-N6A8. See Generally The Practice, supra note 9.
44✕ Levin, supra note 43. See Generally The Practice, supra note 9.
45✕ See The Practice, supra note 9.
46✕ See Jeffrey E. Thomas, The Practice: Debunking Television Myths and Stereotypes, in Lawyers In Your Living Room!: Law On Television , supra note 28, at 135–36 (discussing multiple episodes of the series involving a client named Joey Heretic, who is found not guilty despite the eventual revelation of actual guilt); see also, e.g., The Practice: Pilot (ABC television broadcast Mar. 4, 1997) (showing a sympathetic client who tearfully professed her innocence despite evidence to the contrary).
47✕ See Jeffrey E. Thomas, The Practice: Debunking Television Myths and Stereotypes, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 129–39 (discussing both a number of storylines and characters that did not conform to Hollywood norms, subverted audience expectations, and potentially caused audience discomfort).
48✕ The Practice: Cheers (ABC television broadcast May 16, 2004).
49✕Id. (showing Bobby Donnell sitting in the firm’s office surrounded by moving boxes with tears in his eyes).
50✕ See Cassandra Sharp, Ally McBeal: Life and Love in the Law, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 221–32 (describing the themes and storytelling choices that permeated the five seasons of Ally McBeal). See Generally Ally McBeal, supra note 9.
51✕ See Cynthia Littleton, ‘Ally McBeal’ at 20: David E. Kelley on Feminism, Overnight Success and Calista Flockhart’s ‘Magical’ Performance, Variety (Sept. 8, 2017, 9:15 AM PT), https://perma.cc/GMX4-VN2L. See Generally Ally McBeal, supra note 9.
52✕ Ally McBeal: Pilot (FOX television broadcast Sept. 8, 1997) (quoting Ally’s internal dialogue where she calls herself the “victim of her own choices”).
53✕ Compare Ally McBeal, supra note 9, with The Practice, supra note 9.
54✕ See Cassandra Sharp, Ally McBeal: Life and Love in the Law, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 221–32.
55✕ Ally McBeal: The Inmates (Fox television broadcast Apr. 27, 1998); The Practice: Axe Murderer (ABC television broadcast Apr. 27, 1998); Levine, supra note 8, at 115–18 (discussing the effort that went into making the crossover happen and the tensions that erupted because the two series aired on competing networks).
56✕ Ally McBeal: The Inmates, supra note 55; The Practice: Axe Murderer, supra note 55. See Generally Levine, supra note 8, at 115–18.
57✕ See Craig Tomashoff, ‘Ally McBeal’ at 20: Calista Flockhart, David E. Kelley and More on Dancing Babies, Feminism and Robert Downey Jr., Hollywood Rep. (Sept. 4, 2017, 6:00 AM), https://perma.cc/GM8D-RYC5; Michael Ausiello, Ally McBeal Revival in Development; Calista Flockhart Eyed to Return, TV LINE. (Mar. 26, 2021, 9:44 AM PDT), https://tvline.com/2021/03/26/ally-mcbeal-reboot-calista-flockhart-revival/.
58✕Id.
59✕Id.
60✕ Gary Susman, James Spade Joins “The Practice,” Ent. Wkly., https://perma.cc/AT6E-PPTC (last updated June 12, 2003, 4:00 AM EDT).
61✕Id.
62✕ See Brian Ford Sullivan, ‘Practice’ Closes Doors with Spin-off in Mind, The Futon Critic (Mar. 10, 2004, 12:00 AM), https://perma.cc/4B6Z-YFQK.
63✕Id.
64✕ The Practice: War of the Roses (ABC television broadcast Mar. 21, 2004); The Practice: The Case Against Alan Shore, supra note 1.
65✕ Compare Boston Legal, supra note 9, with The Practice, supra note 9, and Ally McBeal, supra note 9.
66✕ E.g., Boston Legal: Schmidt Happens (ABC television broadcast Jan. 9, 2005) (addressing the genocide in Sudan); Boston Legal: Witches of Mass Destruction (ABC television broadcast Nov. 1, 2005) (addressing the war in Iraq and military conflict in the Middle East); See Corinne Brinkerhoff, Reality Bites: Boston Legal’s Creative License with the Law, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 253, 258–63 (2010); Ward, Unusual Lawyers, supra note 38, at 55.
67✕ Boston Legal: The Court Supreme (ABC television broadcast Apr. 22, 2008); Shapiro, supra note 28, at 43–46 (explaining the process that went into writing The Court Supreme; noting that the episode aired one week after oral arguments occurred in the actual case, despite the writers’ hope it would air one week before the case came before the Supreme Court; and noting that like in the show, the Supreme Court struck down the Louisiana law as unconstitutional). See Generally Kennedy v. Louisiana, 554 U.S. 407 (2008) (serving as the case upon which the Boston Legal episode The Court Supreme was based).
68✕ Brinkerhoff, Reality Bites: Boston Legal’s Creative License with the Law, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 254–55; See Boston Legal, supra note 9.
69✕ Rosenberg, 27 Years as a Television Legal Advisor and Counting . . ., in Lawyers In Your Living Room!: Law On Television, supra note 28, at 22; See Boston Legal, supra note 9.
70✕ See Rosenberg, 27 Years as a Television Legal Advisor and Counting . . ., in Lawyers In Your Living Room!: Law On Television, supra note 28, at 22; Boston Legal, supra note 9.
71✕ See Generally, e.g., Ward, Greatest Legal TV Shows, supra note 5, at 34–44.
72✕ Salzmann & Dunwoody, supra note 6, at 412–13.
73✕ Shapiro, supra note 28, at 16.
74✕ Shapiro, supra note 28, at 16 (asserting that legal television shows supersede all other formats for explaining and/or confusing the public about the legal system); See, e.g., Gary Levin, How Much Have Younger Viewers Bailed on Traditional TV? New Stats Are Alarming, Usa Today (Nov. 12, 2018, 8:15 AM ET), https://perma.cc/5NUL- 2H5A (explaining that television viewership is no longer limited to a particular episode’s broadcast and that in the case of particular programs, almost half the viewership watches the episode after the original broadcast on a website, app, or streaming service).
75✕ Menkel-Meadow, supra note 28, at 39–46; e.g., Boston Legal: Truth Be Told (ABC television broadcast Nov. 7, 2004) (showing Attorney Lori Coulson concealing information and lying to her terminally ill client to in order spare him the pain of learning that another man fathered his child. Lori defends her actions to the firm’s managing partner by admitting she “lied to him” while insisting that it was the right thing to do).
76✕ Jayne Reardon, Grading TV Lawyers: Ethics vs. Entertainment, 2civility (Oct. 6, 2015), https://perma.cc/X5Z9- 3462 (grading many fictional attorneys on their ethics where Eugene Young from The Practice received an A for legal ethics, Ally McBeal from Ally McBeal received a B for legal ethics, and where Shirley Schmidt from Boston Legal received a C+; other television attorneys received grades ranging from A to F).
77✕ See, e.g., id. (discussing relatively recent opinion polls indicating a negative perception about the ethical standards of practicing attorneys).
78✕ See Generally Who We Are, Gallup, https://perma.cc/W5SF-QF75 (last visited Oct. 7, 2021) (explaining that Gallup is “a global analytics and advice firm” that conducts polls and organizes data to learn what matters to different groups of people). 79 Honesty/Ethics in Professions, Gallup, https://perma.cc/G6BV-GZB5 (last visited Oct. 7, 2021) [hereinafter Honesty/Ethics in Professions 2020].
80✕Id.
81✕Id.
82✕ Reardon, supra note 76.
83✕ See Presentation Survey, supra note 7, at 2 (detailing the results of a nationwide survey conducted between February 29, 2012 and March 3, 2012).
84✕ See Presentation Survey, supra note 7.
85✕ See Presentation Survey, supra note 7.
86✕ Presentation Survey, supra note 7.
87✕ See Presentation Survey, supra note 7.
88✕ See, e.g., Presentation Survey, supra note 7; Honesty/Ethics in Professions 2020, supra note 79. See Generally Reardon, supra note 76 (grading the ethics of TV lawyers and discussing public opinion regarding legal ethics).
89✕ See supra Part II; infra Parts III–IV.
90✕ See infra Parts III–IV.
91✕ See The Socratic Method: Why It’s Important to the Study of Law, WASH. U. SCH. OF L. (May 29, 2013), https://perma.cc/4UAF-SCAX.
92✕ E.g., Benjamin V. Madison, III, The Elephant in Law School Classrooms: Overuse of the Socratic Method as an Obstacle to Teaching Modern Law Students, 85 U. Det. Mercy L. Rev. 293, passim (2008) (asserting law schools, in clinging to the Socratic Method, have failed to adapt to advances in educational theory and practice); see also, e.g., Victoria S. Salzmann, Here’s Hulu: How Popular Culture Helps Teach the New Generation of Lawyers, 42 Mcgeorge L. Rev. 297, passim (2011) (asserting the benefits of using popular culture and visual media to teach the current generation of law students).
93✕ Doretta McGinnis, Ahead of the Curve: What Is the Socratic Method?, Law. Sch. Toolbox (Apr. 20, 2017), https://perma.cc/P7YA-XGA2; Madison, supra note 92, passim; e.g., Joe Patrice, Former Law Prof Says, ‘The Socratic Method Is a Sh**ty Method of Teaching’, Above The Law. (June 25, 2014, 5:02 PM), https://perma.cc/R9TP-8A2M.
94✕ Salzmann, supra note 92, at 299; See Kristin B. Gerdy, Making the Connection: Learning Style Theory and the Legal Research Curriculum, 19 Legal Reference Services Q., no. 3-4, 2001, at 71, 72.
95✕ See Madison, supra note 92, at 309–20.
96✕ Salzmann, supra note 92, at 300.
97✕ Salzmann, supra note 92, at 299.
98✕ Salzmann, supra note 92, at 300–01; See Why Use Media to Enhance Teaching and Learning, Pedagogy In Action, https://perma.cc/B3G7-35CA (last visited Oct. 7, 2021) [hereinafter Why Use Media].
99✕ Salzmann, supra note 92, at 300.
100✕ See Why Use Media, supra note 98.
101✕ Madison, supra note 92, at 298–300.
102✕ E.g., Camille M. Davidson, Problems, Music, and Popular Culture: How I Teach Theory and Practice in Decedents’ Estates to Our Next Generation of Lawyers, 28 Quinnipiac Prob. L.J. 394, 397–410 (2015); Courtney Cox Hatcher & Courtney Chaipel Pugh, Note, From the Law’s Bearded Prophet to the Interactive Engager: Using Film to Teach Criminal Law, 17 Tex. Rev. Ent. & Sports L. 167, 167–83 (2016).
103✕ See Shapiro, supra note 28, at 151–52. See Generally Ally McBeal, supra note 9; Boston Legal, supra note 9; The Practice, supra note 9.
104✕ E.g., James R. Elkins, Popular Culture, Legal Films, and Legal Film Critics, 40 Loy. L.A. L. Rev. 745, 768 (2007) (discussing the intersection of law in popular culture and legal studies while referencing legal scholar Phil Meyer; asserting that Meyer was one of the earlier legal academics to discuss legal films in the early nineteen nineties).
105✕Id. at 749–90 (discussing a Variety of different approaches and perspectives regarding the merits and pitfalls of the prevalence of lawyers portrayed on screen).
106✕ E.g., Hatcher & Pugh, supra note 102, at 167–83 (proposing a method to teach criminal law using well known animated films).
107✕ Salzmann, supra note 92, at 308.
108✕ Salzmann, supra note 92, at 303–06.
109✕ David Ray Papke, The Impact of Popular Culture on American Perceptions of the Courts, 82 Ind. L.J. 1225, 1227 (2011).
110✕ Salzmann, supra note 92, at 303–06.
111✕ Salzmann, supra note 92, at 306–07.
112✕ See Salzmann, supra note 92, at 306–07.
113✕ See Shapiro, supra note 28, at 16–17, 151–52. See Generally Ally McBeal, supra note 9; Boston Legal, supra note 9; The Practice, supra note 9.
114✕ See supra Part III(A)–(B). See Generally Kimberlianne Podlas, Guilty on All Accounts: Law & Order’s Impact on Public Perception of Law and Order, 18 Seton Hall J. Sports & Ent. L. 1 (2008) (reporting an empirical study about the impact of Law & Order on the American public, which, in part, provided inspiration for this proposed method); Alexander Scherr & Hillary Farber, Popular Culture as a Lens on Legal Professionalism, 55 S.C. L. Rev. 351 (2003) (asserting that media portrayals of lawyers can be used to teach subjective legal concepts such as the moral aspects of legal practice and the psychic demands of an active legal practice, which served as partial inspiration for this proposed method); Ethics Lessons From TV Lawyers: “The Good Wife,” ST. B. OF WIS. (June 2015), https://perma.cc/L5EP-YGZN [hereinafter “Good Wife” Ethics] (presenting hypotheticals based on episodes of The Good Wife in order to analyze applicable ethical rules, which partly inspired this proposed method); Hatcher & Pugh, supra note 102 (proposing a method to teach criminal law using well-known animated films which partly inspired this proposed method).
115✕ See Hatcher & Pugh, supra note 102, at 170 (asserting the pure Socratic Method as originally envisioned is an illusion and that “many professors and law schools now Seek to modernize their way of teaching legal concepts by utilizing new and varying platforms”).
116✕ Ally McBeal, supra note 9; Boston Legal, supra note 9; The Practice, supra note 9. See Generally, e.g., Hatcher & Pugh, supra note 102.
117✕ Salzmann, supra note 92, at 313 (“The first mechanism of teaching is to use the video or film clip as a problem or hypothetical which the educator can use to elicit careful analysis.”); See Why Use Media, supra note 98. See Generally Jennifer Warren, The Value of Issue Spotting and Strategies to Improve Your Skills, Law. Sch. Toolbox (June 23, 2016), https://perma.cc/K7VS-55UK (discussing issue spotting skills often used in law school).
118✕ Salzmann, supra note 92, at 314–15; e.g., Scherr & Farber, supra note 114, at 367 (asserting that the relationship between the family lawyer and the head of the family as presented in The Godfather: Part II should be explained to students before showing them the relevant scene so that a more thorough analysis and discussion will ensue).
119✕ E.g., Gillers, supra note 2 (serving as an example of one of the many law school case books that could be supplemented with this proposed method). See Generally, e.g., About the Model Rules, supra note 24 (providing easy internet-based access to the full text of all the Model Rules, which could be assigned to students as pre-class reading material; other means are available for students to access the Model Rules as reading assigned prior to class).
120✕ See Generally Why Use Media, supra note 98 (“Students can hone their analytical skills by analyzing media using the theories and concepts they are studying.”); Warren, supra note 117 (explaining the concept of issue spotting and providing tips to help law students improve issue spotting skills).
121✕ See Generally, e.g., Hatcher & Pugh, supra note 102, at 170 (explaining what films are used for analytical purposes along with why the films were chosen).
122✕ See Generally, e.g., Hatcher & Pugh, supra note 102; “Good Wife” Ethics, supra note 114.
123✕ See Ally McBeal, supra note 9; Boston Legal, supra note 9; The Practice, supra note 9.
124✕ See, e.g., InternationalLaw Blogger, Legal Ethics as Shown in Movies and Television Shows, Int’l Law Prof. Blog (Oct. 27, 2017), https://perma.cc/9QQZ-2W5J [hereinafter International Law Blogger] (discussing an ABA seminar where panelists showed clips from movies and TV shows and then applied the appropriate Model Rule to the scenes). See Generally Model R. Prof’l Conduct (Am. Bar Ass’n 2018); Warren, supra note 117 (describing traditional issue spotting in law schools).
125✕ E.g., Salzmann, supra note 92, at 313 (explaining that when video clips are effectively used in the classroom, students “begin with concrete, identifiable facts and must then use them to solve a problem, rather than starting with a decided case and working through hypotheticals”); see also International Law Blogger, supra note 124.
126✕ E.g., International Law Blogger, supra note 124 (discussing a clip from The Client as applied to Model Rule 1.5(a) and discussing a debate about “whether a small fee could be an unreasonable fee”); See Gillers, supra note 2, at xxviii (“The rules here may be obscure, some may be counterintuitive, and they can be subtle in application. Application in turn calls for judgment, and judgement is mostly learned through experience.”).
127✕ Salzmann, supra note 92, at 313.
128✕ See Joseph R. Fleming, Sheri Warsh & Robert Williams, Here’s How Young Associates Actually Impress Law Firm Partners, Jdsupra (Nov. 22, 2013), https://perma.cc/P4PS-S7YN (discussing the life of a new attorney, just out of law school, and providing strategies for success when interacting with clients and colleagues).
129✕ See Eric R. Nitz, Playing the Long Game: Client Development Strategies for Young Lawyers, Law.Com (Sept. 10, 2019, 12:00 AM), https://perma.cc/PTT7-6Q3G (providing tips for meeting with a client for the first time).
130✕ See id.
131✕ Salzmann, supra note 92, at 313 (“[T]his presentation is a closer representation of practice and more likely to be remembered.”).
132✕ Salzmann, supra note 92, at 313.
133✕ See Generally, e.g., Hatcher & Pugh, supra note 102; “Good Wife” Ethics, supra note 114; Podlas, supra note 114.
134✕ See supra Part II.
135✕ See supra Part II.
136✕ See Model R. Of Prof’l Conduct 1.3 (Am. Bar Ass’n 2018); see also Gillers, supra note 2, at 60.
137✕ Gillers, supra note 2, at 60.
138✕ Boston Legal: An Eye for an Eye (ABC television broadcast Oct. 31, 2004).
139✕ Boston Legal: Head Cases (ABC television broadcast Oct. 3, 2004).
140✕ Boston Legal: An Eye for an Eye, supra note 138.
141✕ Boston Legal: An Eye for an Eye, supra note 138.
142✕ Boston Legal: An Eye for an Eye, supra note 138.
143✕ Boston Legal: An Eye for an Eye, supra note 138.
144✕ Boston Legal: An Eye for an Eye, supra note 138.
145✕ See Model R. Prof’l Conduct 1.3 (Am. Bar. Ass’n 2018); Boston Legal: An Eye for an Eye, supra note 138.
146✕ Model R. Prof’l Conduct 1.3.
147✕Id.
148✕Id.; See Gillers, supra note 2, at 60 (asserting that lacking diligence can potentially give rise to malpractice liability); see also Boston Legal: An Eye for an Eye, supra note 138.
149✕ See Model R. Prof’l Conduct 1.3, 5.1; Boston Legal: An Eye for an Eye, supra note 138.
150✕ Model R. Prof’l Conduct 5.1(a).
151✕Id.; See Boston Legal: An Eye for an Eye, supra note 138.
152✕ See Model R. Prof’l Conduct 5.1(a); Boston Legal: An Eye for an Eye, supra note 138.
153✕ See Model R. Prof’l Conduct 5.1(a), (c)(2).
154✕ Supra Part III(C).
155✕ Boston Legal: An Eye for an Eye, supra note 138.
156✕ Boston Legal: An Eye for an Eye, supra note 138.
157✕ See Model R. Prof’l Conduct 1.16 (outlining ethical obligations for the termination of an attorney-client relationship); Boston Legal: An Eye for an Eye, supra note 138. See Generally Breach of Fiduciary Duty Law and Legal Definition, US LEGAL, https://perma.cc/498R-URN6 (last visited Mar. 27, 2020) [hereinafter Fiduciary Duty Law] (describing the concept of fiduciary duty).
158✕ See Gillers, supra note 2, at 596–97.
159✕ See Boston Legal: An Eye for an Eye, supra note 138.
160✕ Erika Winston, The Organizational Skills Every Effective Lawyer Should Learn, Timesolv, https://perma.cc/SGE6-WUQC (last visited Oct. 7, 2021); 5 Communication Skills Lawyers Need and Why, Usc Annenberg, https://perma.cc/92XE-A898 (last visited Oct. 7, 2021) [hereinafter 5 Communication Skills].
161✕ Winston, supra note 160.
162✕ See Model R. Prof’l Conduct 1.4; 5 Communication Skills, supra note 160.
163✕ See Model R. Prof’l Conduct 1.3 cmt. 3 (asserting that procrastination and lacking clarity can “cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness”). See Generally id. R. 1.4 (outlining the communications requirements currently required under the Model Rules).
164✕ See 5 Communication Skills, supra note 160.
165✕ See Model R. Prof’l Conduct 3.3, 3.4. See Generally Officer of the Court, Law.Com, https://perma.cc/XU2M- XP7K (last visited Oct. 27, 2021) (providing a broad general description of “officer of the court”).
166✕ The Practice: Concealing Evidence (ABC television broadcast Nov. 23, 2003).
167✕Id.
168✕Id.
169✕Id.
170✕Id.
171✕Id.
172✕ Model R. Prof’l Conduct 3.3(a)(1), 3.4(a) (Am. Bar Ass’n 2018). See Generally The Practice: Concealing Evidence, supra note 166 (ignoring the issue of Tara Wilson, a paralegal, standing in for Alan before the hearing starts because he is running late).
173✕ Model R. Prof’l Conduct 3.3(a)(1).
174✕Id. R. 1.0(f).
175✕ See id. R. 3.3(a)(1); The Practice: Concealing Evidence, supra note 166.
176✕ The Practice: Concealing Evidence, supra note 166.
177✕ See Model R. Prof’l Conduct 3.3(a)(1); The Practice: Concealing Evidence, supra note 166.
178✕ Model R. Prof’l Conduct 3.4(a).
179✕ Gillers, supra note 2, at 375.
180✕ E.g., People v. Meredith, 631 P.2d 46, 54 (Cal. 1981) (“Whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence in question.”).
181✕ E.g., Wemark v. State, 602 N.W.2d 810, 817 (Iowa 1999) (“A defense lawyer has no legal obligation to disclose information about the location of an instrument of a crime when possession of the instrument is not taken.”).
182✕ See The Practice: Concealing Evidence, supra note 166 (“If we have actual knowledge that it’s in our possession we, of course, would have a duty to turn it over.”). See Generally, e.g., Wemark, 602 N.W.2d at 817.
183✕ See Model R. Prof’l Conduct 3.4(a); The Practice: Concealing Evidence, supra note 166. See Generally, e.g., Wemark, 602 N.W.2d at 817.
184✕ See supra Part III(C). See Generally The Practice: Concealing Evidence, supra note 166.
185✕ The Practice: Concealing Evidence, supra note 166.
186✕ The Practice: Concealing Evidence, supra note 166.
187✕ The Practice: Concealing Evidence, supra note 166.
188✕ The Practice: Concealing Evidence, supra note 166.
189✕ The Practice: Concealing Evidence, supra note 166.
190✕ The Practice: Concealing Evidence, supra note 166.
191✕ The Practice: Concealing Evidence, supra note 166.
192✕ Model R. Of Prof’l Conduct 3.3, 3.4 (Am. Bar Ass’n 2018); The Practice: Concealing Evidence, supra note 166.
193✕ See supra Part III(C).
194✕ The Practice: Concealing Evidence, supra note 166.
195✕ See Generally The Practice: Concealing Evidence, supra note 166.
196✕ E.g., The Practice: Concealing Evidence, supra note 166 (showing an attorney destroying evidence or taking deliberate action to move and conceal evidence). See Generally supra Part II.
197✕ See Model R. Prof’l Conduct 3.3, 3.4.
198✕ See Media Lawyers vs. Real Lawyers, Crosley Law, https://perma.cc/HJE3-27LL (last visited Oct. 7, 2021) (representing a blog post posted by a law firm on its website discussing the differences between the actual practice of law and what is Seen in fiction); see also Anthony Zangrillo, TV Lawyers vs. Real Life Lawyers, Fordham Intell. Prop. Media & Ent. L.J. (Dec. 26, 2016), https://perma.cc/JD27-Z5NF (commenting on the differences between law as Seen on television and the actual practice of law).
199✕ See Generally Susan Letterman White, How Lawyers Can Improve Client Communication for Results, Mass Lomap (Oct. 17, 2017), https://masslomap.org/lawyers-can-improve-client-communication-results/ (asserting that “improving client communication improves every aspect of your practice of law”); Media Lawyers vs. Real Lawyers, supra note 198.
200✕ See supra Part II. See Generally Media Lawyers vs. Real Lawyers, supra note 198; White, supra note 199.
201✕ See Generally Model R. Of Prof’l Conduct 3.3, 3.4; White, supra note 199.
202✕ See White, supra note 199. See Generally supra Parts II, IV(B).
203✕ Stephen C. Sieberson, Two Lawyers, One Client, and the Duty to Communicate: A Gap in Rules 1.2 and 1.4, 11 U.N.H. L. Rev. 27, 28 (2013).
204✕Id. at 29–31.
205✕ See Model R. Of Prof’l Conduct 1.1, 1.2, 1.4, 1.5, 1.6. See Generally Ally McBeal: The Inmates, supra note 55; The Practice: Axe Murderer, supra note 55; Sieberson, supra note 203, at 27.
206✕ See Ally McBeal: The Inmates, supra note 55; supra Part III(C).
207✕ Ally McBeal: The Inmates, supra note 55 (revealing that the firm lacks criminal law experience when the characters are called to the scene of the crime where their client has allegedly killed her husband with an axe). See Generally Ally McBeal, supra note 9 (demonstrating that the majority of cases presented are civil in nature).
208✕ See infra Part IV(C).
209✕ Ally McBeal: The Inmates, supra note 55.
210✕ Ally McBeal: The Inmates, supra note 55.
211✕ Ally McBeal: The Inmates, supra note 55.
212✕ Compare Ally McBeal: The Inmates, supra note 55, with Sarah Gray, R. Kelly’s Lawyer Says ‘I Think All the Women Are Lying’ as the Singer Is Arrested in Chicago on Sexual-Abuse Charges Involving 4 Women, Insider (Feb. 22, 2019, 11:24 PM), https://perma.cc/9CCA-N6FA (demonstrating that Fish’s statement is not as absurd as it may initially appear particularly when compared to a statement made by Attorney Steve Greenberg, who stated to the media “I think all the women are lying. Yes . . . This has become, ‘Hey I can say R. Kelly did something, boom.’”).
213✕ Ally McBeal: The Inmates, supra note 55.
214✕ Ally McBeal: The Inmates, supra note 55.
215✕ Ally McBeal: The Inmates, supra note 55.
216✕ Ally McBeal: The Inmates, supra note 55.
217✕ See Ally McBeal: The Inmates, supra note 55.
218✕ See Ally McBeal: The Inmates, supra note 55.
219✕ Ally McBeal: The Inmates, supra note 55.
220✕ Ally McBeal: The Inmates, supra note 55.
221✕ Ally McBeal: The Inmates, supra note 55.
222✕ See Generally Model R. Prof’l Conduct 1.1-1.2, 1.1.2, 1.4-1.6, 3.6 (Am. Bar Ass’n 2018); Ally McBeal: The Inmates, supra note 55.
223✕ Model R. Prof’l Conduct 1.1.
224✕Id.; Ally McBeal: The Inmates, supra note 55.
225✕ Model R. Prof’l Conduct 1.1; Ally McBeal: The Inmates, supra note 55. See Generally Levine, supra note 8, at 67–68 (discussing Greg Germann’s portrayal of Richard Fish).
226✕ Model R. Prof’l Conduct 1.4.
227✕Id. R. 1.4(a)(2), 1.4(a)(3).
228✕Id. R. 1.2(a), 1.2 cmt. 1.
229✕ See Generally Sieberson, supra note 203, at 45; Ally McBeal: The Inmates, supra note 55.
230✕ Model R. Prof’l Conduct 1.4(a)(2), 1.4(a)(3). See Generally Sieberson, supra note 203, at 45.
231✕ See Ally McBeal: The Inmates, supra note 55.
232✕ See Model R. Prof’l Conduct 1.6; Ally McBeal: The Inmates, supra note 55.
233✕ Model R. Prof’l Conduct 1.6.
234✕Id. R. 1.6(a).
235✕ See id. R. 1.6; Ally McBeal: The Inmates, supra note 55; Sieberson, supra note 203, at 30.
236✕ See Ally McBeal: The Inmates, supra note 55.
237✕ Model R. Prof’l Conduct 1.6 cmt. 4.
238✕Id. R. 1.6; Sieberson, supra note 203, at 30. See Generally Ally McBeal: The Inmates, supra note 55.
239✕ Model R. Prof’l Conduct 1.6; See Sieberson, supra note 203, at 35. See Generally Ally McBeal: The Inmates, supra note 55 (presuming, from context, that the client had not instructed Cage & Fish to withhold information from Donnell, Young, Dole & Frutt; had the client instructed Cage & Fish to withhold confidential information, discussing that information, even with co-counsel, would violate the duty of confidentiality).
240✕ See Model R. Prof’l Conduct 3.6; Ally McBeal: The Inmates, supra note 55.
241✕ Model R. Prof’l Conduct 3.6(a). 242 Id. R. 3.6(b)(1).
243✕Id. R. 3.6(c).
244✕Id. R. 3.6 cmt. 7.
245✕ See id.R. 3.6(b)(1); Ally McBeal: The Inmates, supra note 55.
246✕ See Model R. Prof’l Conduct 3.6(c); Ally McBeal: The Inmates, supra note 55.
247✕ E.g., Gray, supra note 212 (reporting on comments R. Kelly’s attorney made to the press).
248✕ Ally McBeal: The Inmates, supra note 55.
249✕ Model R. Prof’l Conduct 3.6(a).
250✕ See supra Part IV(C). See Generally Ally McBeal: The Inmates, supra note 55.
251✕ Ally McBeal: The Inmates, supra note 55.
252✕ Ally McBeal: The Inmates, supra note 55 (“I’m betraying them here, but my ethical obligation goes to the client.”). See Generally Fiduciary Duty Law, supra note 157 (describing the fiduciary duty of an attorney to his/her client in general terms).
253✕ Ally McBeal: The Inmates, supra note 55.
254✕ See Model R. Prof’l Conduct 8.3.
255✕ Supra Part IV(C). See Generally Ally McBeal: The Inmates, supra note 55.
256✕ See Model R. Prof’l Conduct 8.3. See Generally Sieberson, supra note 203.
257✕ Model R. Of Prof’l Conduct 8.3(a).
258✕ Sieberson, supra note 203, at 61. See Generally Model R. Prof’l Conduct 8.3.
259✕ See Model R. Prof’l Conduct 8.3; Ally McBeal: The Inmates, supra note 55.
260✕ See Model R. Prof’l Conduct 8.3; Ally McBeal: The Inmates, supra note 55.
261✕ See Ally McBeal: The Inmates, supra note 55.
262✕ See Model R. Prof’l Conduct 1.5; Ally McBeal: The Inmates, supra note 55.
263✕ Model R. Prof’l Conduct 1.5(e)(1).
264✕Id. R. 1.5(e).
265✕Id.
266✕ See id.; Ally McBeal: The Inmates, supra note 55.
267✕ See The Practice: Axe Murderer, supra note 55.
268✕ See The Practice: Axe Murderer, supra note 55. See Generally supra Part III(C).
269✕ See The Practice: Axe Murderer, supra note 55. See Generally supra Parts II, III(C).
270✕ The Practice: Axe Murderer, supra note 55.
271✕ The Practice: Axe Murderer, supra note 55.
272✕ The Practice: Axe Murderer, supra note 55.
273✕ The Practice: Axe Murderer, supra note 55.
274✕ See The Practice: Axe Murderer, supra note 55.
275✕ See supra Part II.
276✕ See The Practice: Axe Murderer, supra note 55.
277✕ See The Practice: Axe Murderer, supra note 55; see also Quentin B. Huff, The Practice Makes Perfect – Well, Almost, Popmatters (Sept. 12, 2007), https://perma.cc/DH8K-5V7X.
278✕ The Practice: Axe Murderer, supra note 55.
279✕ See The Practice: Axe Murderer, supra note 55.
280✕ See Tom Jacobs, Watching TV Can Boost Emotional Intelligence, Greater Good Mag. (Oct. 2, 2015), https://perma.cc/3MHD-YEXQ (“Both written and filmed fictional narratives demand that the audience understand the feelings and intentions of the characters.”); The Practice: Axe Murderer, supra note 55.
281✕ See, e.g., Brinkerhoff, Reality Bites: Boston Legal’s Creative License with the Law, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 255.
282✕ See The Practice: Axe Murderer, supra note 55. See Generally Jacobs, supra note 280.
283✕ See Gillers, supra note 2, at xxviii (“[D]o not believe that the right way to act—towards clients, courts, adversaries, or colleagues—will be intuitively obvious.”).
284✕ See, e.g., Brinkerhoff, Reality Bites: Boston Legal’s Creative License with the Law, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 255 (“[A] real-life lawyer needs to commit only one instance of bribery, extortion, or witness intimidation to get disbarred. Shore makes a sport of each of them–then bounds . . . on to the next episode.”). See Generally Gillers, supra note 2, at 589–90 (discussing the discipline of lawyers for violations of the applicable ethical rules).
285✕ See Gillers, supra note 2, at xxix, 8–11 (stating “you will enter a profession in greater transition than at any other time in U.S. history” and providing a cursory overview of evolving amendments to rules governing legal ethics and professional responsibility).
286✕ See Generally CLE Marketplace, ABA, https://perma.cc/6EMK-8MS8 (last visited Oct. 7, 2021) (discussing how the ABA offers unparalleled learning experiences and MCLE credit on timely topics with leading speakers both online and in person).
287✕ See Robert A. Clifford, Popular Media Paints Unrealistic Portrait of Lawyers (. . . And What We Can Do About It), CBA REC., Jan. 2005, at 44, 44–45.
288✕Id. at 45.
289✕Id. at 45.
290✕Id. at 45.
This business is not an ethical arena. Our legal system is adversarial by nature, where it is often the very function of a lawyer’s job to prevent the truth from ever coming out. We get paid to suppress and squash and conceal evidence; remember, this is the system that freed O.J. but also convicted Rubin ‘Hurricane’ Carter. Every first-year law student is taught don’t ever, ever equate legal ethics with morality. They’re almost always mutually exclusive. It’s an ugly world, where underhandedness is often celebrated.1 The actions undertaken by lawyers, both ethical and moral, have been discussed, debated, and regulated for at least 1,500 years.2 In the United States, a focus on ensuring that attorneys behave ethically came to the forefront of public opinion in the years following Watergate.3 Writing in early 2019, the ethical failures of real world attorneys continue to dominate the nightly news cycle.4 However, it is not just these news stories that should give legal professionals pause, but also the abundance of law-themed television shows produced every year.5 As a result of the pervasive influence of law-themed shows, new clients often have no knowledge about the substantial differences between television law and the real world.6 Herein lies the problem: how do those seeking to become practicing attorneys maintain their ethical responsibilities when faced with clients who expect them to act like their favorite television lawyers, lawyers who are willing to cross ethical boundaries all in the name of zealous advocacy?7
The answer comes from David E. Kelley.8 As a lawyer turned Hollywood writer, Kelley created, wrote, and produced three of the most popular law-themed television series of all time: The Practice, Ally McBeal, and Boston Legal.9 Despite notable inaccuracies, Kelley’s three television series provide valuable opportunities to grapple with complex concepts of legal ethics. The benefits of using these series in law school classrooms are twofold. These series present difficult moral and ethical issues that may come up in actual legal practice, enabling students to better learn ethical rules by applying the appropriate ethical rules to what is seen on screen and determining whether what is presented would be an ethical violation. Additionally, viewing these highly influential media portrayals will further educate students regarding client expectations and public opinion of the legal profession. Part I of this Note provides background information about the history of legal ethics, the development of the Model Rules of Professional Conduct, David E. Kelley, and Kelley’s three television series: The Practice, Ally McBeal, and Boston Legal. Part II discusses the problem of public perception of attorneys, including statistics showing that a majority of the public believes that fictional television attorneys are more ethical than their real- world counterparts. Part III proposes a method for learning and understanding the Model Rules of Professional Conduct using David E. Kelley’s television series. Part IV then puts that method into practice using specific examples from the Model Rules of Professional Conduct as applied to scenes from The Practice, Ally McBeal, and Boston Legal.
I. Background
A. History of Legal Ethics in the United States
Long before the existence of the United States, attorneys were subjected to ethical obligations.10 For example, early oaths required of lawyers in England demanded attorneys pledge to “do no falsehood.”11 Considering the connection between Great Britain and the United States, it is not surprising that U.S. attorneys have similar ethical obligations.12
In the United States, the ethical obligations of attorneys developed as a means of self- regulation.13 It is courts, rather than legislatures, that impose these rules on lawyers.14 Moreover, U.S. courts have asserted that the power to create these ethical rules belongs to the courts alone and cannot be usurped by lawmakers.15 However, most modern ethical rules are not created solely by the courts; instead, these rules are often adoptions or modifications of rules promulgated by bar organizations, with the American Bar Association serving as the dominant authority since the early twentieth century.16
In 1907, the American Bar Association (hereinafter “ABA”) promulgated the first set of national guidelines for legal ethics known as the 1908 Canons of Professional Ethics, which would not become formal rules unless adopted by a court.17 In 1969, the ABA promulgated the Model Code of Professional Responsibility, which amended and expanded upon the 1908 Canons.18 Portions of the 1969 Model Code were eventually adopted in all states.19
The Watergate scandal of the 1970s revealed to the legal community that the 1969 Model Code was inadequate and resulted in two major actions by the ABA.20 The first was requiring ABA-accredited law schools to include a legal ethics class as a prerequisite for graduation.21 The second was forming a commission to write new model ethics rules for the nation.22 The result was the adoption of the Model Rules of Professional Conduct (hereinafter “Model Rules”) in 1983.23 These Model Rules have been amended on numerous occasions and are formatted similarly to other Federal Rules.24
However, the Model Rules remain a model, a guide that must be adopted by courts in order to have binding effect.25 Various aspects of the Model Rules have been adopted in every state except California, but no two states have identical ethical rules.26 Despite these state-by- state differences, the Model Rules remain the default rules taught in law schools and legal ethics textbooks.27
B. David E. Kelley’s Boston Based Law-Themed Television Series
Aside from perhaps the creators and producers of the Law & Order franchise, no television show creator has impacted public perception of the legal system as much as David E. Kelley (hereinafter “Kelley”). In fact, he has personally written more episodes of legal fiction than any other television writer.28
Kelley’s career in television is of particular interest to those in the legal field, not only because the legal profession has most often been the subject of his television series, but also because he began his career as an attorney.29 After three years practicing law, Kelley was hired as a writer on L.A. Law.30 Early on, Kelley learned that the legal profession shown on television took certain liberties for the sake of entertainment.31 Kelley’s history as a lawyer proved to be a valuable asset when he left L.A. Law to create his own original content.32
Between the years of 1997 and 2008, Kelley created and produced The Practice, Ally McBeal, and Boston Legal.33 All three series focused on the practice of law and were set in Kelley’s hometown of Boston, Massachusetts.34 Kelley’s characters and the choices they made drove the stories and engaged audiences.35 Speaking about why the law is a recurring theme in his shows, Kelley once said, “I am fascinated by it [the law]. I think it’s a great vehicle for exploring the ethical and moral centers of people; the process is so flawed but it’s the best one we’ve got for legislating sort of moral behavior.”36
In creating and producing these series, Kelley personally wrote most episodes, and, as a result, he has influenced the public understanding of the legal system more than any other writer of law-themed fiction.37 The writing process for Kelley’s series often included basing arguments on actual cases seen in the news or even briefs submitted to the Supreme Court.38 The cultural relevance of Kelley’s work cannot be overstated, as demonstrated by a combined total of twenty-eight Primetime Emmy Awards between the three shows.39 During the 1999 Primetime Emmy Awards, The Practice and Ally McBeal won Outstanding Drama Series and Outstanding Comedy Series, respectively.40 Winning both categories for two separate series in the same year is an honor unique to Kelley.41
1. The Practice
The Practice was Kelley’s first Boston-based legal series.42 The Practice focused on a small criminal defense law firm led by Bobby Donnell, as played by actor Dylan McDermott.43 In addition to handling many unpleasant client matters, Bobby would often find himself fighting with clients over fees and struggling to keep his practice afloat.44
Due to the firm’s focus on criminal defense work, Bobby and the other characters would often be confronted with situations and ethical issues that would make an audience uncomfortable.45 Some of these issues included representing guilty clients, deceitful clients, and clients who were innocent despite all evidence to the contrary.46 One of the series’ dramatic strengths was that Hollywood norms were not always followed because the characters and the audience were not always comfortable with the outcome of a particular case; not to mention the fact that the characters did not always win.47
By the end of the series, the ethical, moral, and practical choices made by the characters impacted everyone, and although the characters parted ways amicably, the firm was dissolved.48 The series closed on a shot of McDermott’s Bobby Donnell crying in his former office, presumably reflecting on the toll that the practice of law took on his friends, which ultimately led to dissolution of the firm.49
2. Ally McBeal
Kelley’s second major series, Ally McBeal, differed from The Practice in that it aired on a different network and was completely different in tone.50 Although dramatic moments were sprinkled into the series, Ally McBeal was primarily a romantic workplace comedy about Ally McBeal, as played by Calista Flockhart.51 Ally was a young lawyer working at the law firm Cage & Fish and the self-proclaimed “victim of her own choices.”52
As opposed to The Practice’s more dramatic criminal cases, Ally McBeal’s cases, often rooted in civil matters, were substantially less likely to cause an audience discomfort.53 With regard to moral and ethical issues, Ally McBeal’s strongest point was its character dynamics, particularly when it showed case preparation, interaction between lawyers at the office, and how lawyers can make mistakes just like everyone else.54
It was during Ally McBeal’s first season that Kelley staged a two-part, multi-network, crossover event, which began on Ally McBeal and concluded on The Practice.55 This crossover allowed the characters from both shows to interact with one another and have fundamental disagreements about attorney behavior and how to best represent a client.56
The cultural significance of Ally McBeal is demonstrated by its continuing popularity and the fact that a revival is currently in development.57 Following the recent twentieth anniversary of the show, Ally McBeal star Calista Flockhart said she is often approached by fans who tell her that Ally is the reason they became lawyers.58 Flockhart noted that while she spoke the words, the credit for Ally inspiring many women to attend law school belongs to Kelley.59
3. Boston Legal
When ABC renewed The Practice for its eighth season, the network demanded drastic budget cuts, which resulted in many cast members being let go, including series lead Dylan McDermott.60 To make up for these losses, Kelley introduced actor James Spader as Alan Shore, an honorable but ethically challenged attorney.61 Shore quickly dominated the series and a spin- off, Boston Legal, was conceived rather than continuing The Practice.62 The seeds for the spin- off were planted in the second half of season eight, which saw Alan being fired from the series’ titular law practice.63 He found a new job at Crane, Poole & Schmidt where he met legendary attorney Denny Crane, played by the equally legendary William Shatner.64
Boston Legal was unique compared to Kelley’s other work because, while it was silly at times like Ally McBeal, the series was not afraid to tackle moral and ethical dilemmas and real world issues in a vein similar to its parent show, The Practice.65 Kelley was not afraid to use the show’s cases to address hot button political issues, and Kelley would often look to real world litigation for inspiration.66 For example, late in the fourth season of Boston Legal, Kelley and his team designed an episode based on the briefs filed in Kennedy v. Louisiana in order to comment on those issues, intending to show the American public a version of what happens when a case goes before the Supreme Court.67
The other staple of Boston Legal was the friendship that developed between Alan Shore and Denny Crane.68 Despite vastly different political beliefs and methods, the two developed a close friendship and nearly every episode culminated in the two sharing a drink and smoking cigars on the office balcony.69 This tradition allowed the characters to talk and reflect on the events of the episode, often touching on the episode’s various moral and ethical dilemmas.70
II. Fictionalized Representations of Attorneys Have Impacted Public Perceptions of the Legal Profession
Throughout the twentieth and twenty-first centuries, the legal profession has constantly been the subject of television shows.71 Indeed the vast majority of the American public receives most of its information about the legal system from legal television shows.72 Tens of millions of people watch law-themed television shows, with that number sometimes representing the viewing population of a single television show on a single night.73 Moreover, with the current popularity of streaming services, where a television episode’s viewership is not limited to its original broadcast, law-themed television shows surpass all other formats for explaining the legal system to the American public.74
As a general matter, these shows often depict lawyers doing unscrupulous, unethical, and often dishonest things all in the name of the greater good.75 Therefore, it should come as no surprise that when television lawyers were evaluated according to real world ethical standards, many of the evaluations were less than flattering.76
Unfortunately for those entering the legal profession, recent research indicates that the profession’s actual ethical standards are not held in high esteem by the American public.77 Since 1976, Gallup78 has conducted yearly polls asking a representative sample of the public to rate the ethics and honesty of various professions.79 According to recent polling data, only a combined 21% of those polled rated the honesty and ethical standards of the legal profession as “high” or “very high.”80 In the forty-five years that Gallup has been conducting this poll, the highest percentage of the public ranking lawyers’ honesty and ethics as “high” or “very high” was still only 29% in 1981.81 Moreover, according to an article published in 2015, a Pew Research Center Poll revealed that 34% of those polled said lawyers contribute “not very much” or “not at all” to society, as compared to the 18% of those polled who said lawyers contribute “a lot” to society.82 Another recent poll that asked respondents about their confidence and trust in the ethics of lawyers found that 29% of the respondents had “little” to “no” confidence and trust in the ethics of lawyers.83 Suffice it to say, this polling data indicates that the general public does not have the greatest perception of the legal profession.84
On the other hand, TV lawyers appear more respected for ethics and honesty than their real-world counterparts.85 A relatively recent poll conducted on behalf of the American College of Trial Lawyers asked respondents about the ethics of TV lawyers as compared to actual lawyers.86 The results of the poll revealed that an astounding 85% of those polled asserted that the dubious ethical practices displayed by television lawyers are “about the same” or “better” than the practices of real lawyers.87
These polling results should be concerning to law students and lawyers alike.88 With public perception of real attorneys holding at a relatively low threshold, and public perception of television attorneys seemingly much higher, it is plausible that television shows can be used to help law students understand the Model Rules of Professional Conduct. Accordingly, law students can become more proactive in creating a public image of ethics and honesty that is better than what is portrayed on television.89
III. The Work of David E. Kelley Presents a Viable Method for Recognizing Ethical Rules and Whether Those Rules Have Been Violated
This Note proposes a method for analyzing and understanding the Model Rules of Professional Conduct using scenes from The Practice, Ally McBeal, and Boston Legal as objects for student observation, analysis, and discussion.90 Such a method for teaching a complex legal subject is inconsistent with the traditional Socratic Method of law school instruction.91 However, scholarly discussion about the failings of the Socratic Method and the benefits of incorporating visual media into legal education indicates the viability of a framework for studying legal ethics grounded in Kelley’s three series.92
A. The Socratic Method Is Inadequate for the Modern Generation
In American legal education, the most traditional method by which students learn is the Socratic Method, a method that has recently been critiqued for being ineffective for modern law students.93 Until recently, students who did not thrive under the Socratic Method essentially fell through the cracks, where the students themselves were blamed for poor performance rather than the method.94 However, law schools and law professors have begun to recognize that many law students are visual learners who thrive when presented with visual or auditory stimuli.95 Additionally, even students that thrive in response to the traditional Socratic Method will likely be better served by a teaching method that incorporates visual media.96
Visual stimuli are particularly effective in classroom settings because the current generation of law students (hereinafter “visual generation”) grew up in a digital world and have been educated by visual media all their lives.97 Members of the visual generation grew up surrounded by electronic media as a regular part of their classroom experience.98 Moreover, in a world where almost everyone carries a smartphone in their pocket, practicing attorneys have begun using visual stimuli, such as video clips and computer generated models, to help judges and juries better understand evidence in formal legal proceedings.99
Based on this pervasive use of visual media in both regular classrooms and legal practice, the use of television to facilitate learning in law schools is a concept that should be further explored.100 Rather than remaining rooted in a teaching method of the past, the Socratic model of instruction must grow and adapt, just as legal doctrines have grown and evolved over time.101 Moreover, recent scholarship has specifically proposed that one such modification to the Socratic Method could be to incorporate visual media in the classroom by using popular culture as part of a framework for legal education.102 In the legal field, there is no single source of popular culture more influential or more appropriate for use in legal education than Kelley’s work.103
B. David E. Kelley’s Work Is Appropriate for Teaching Legal Concepts
The intersection of legal studies and legal representations on screen has been discussed in legal journals with increasing enthusiasm over the last twenty-five years.104 Moreover, the legal community continues to have relatively regular debates about the merits and pitfalls of the profession being a constant subject of entertainment.105 Despite these debates, some have recognized that film and television can be used to teach legal concepts, and with good reason.106
Television, in particular, resonates with the visual generation.107 When audience members watch a film or television series, they essentially see a fictional reality that is then used to rationalize the real world.108 Even though audience members recognize that the world on screen is fictional, what is seen on television “prompts, encourages, and refines views of social reality.”109 As a result, this media often becomes part of one’s personal reality; people will behave like television or movie characters would, and use those fictional realities to help process and evaluate information in their daily lives.110 Law students already ask questions based on TV shows because the students have a greater comprehension of these fictional events compared to real world events.111 Therefore, a law professor who taps into the fictional reality created by media portrayals of lawyers can help students create deeper connections to legal concepts.112 Kelley’s award-winning work is unparalleled and represents the most easily accessible examples of legal popular culture created and written by one single attorney.113 As such, the material is superior to other examples of legal fiction, and its use in the classroom is remarkably appropriate for the visual generation.
C. An Analytical Template for Legal Ethics Using David E. Kelley’s Work
Based on the foregoing discussion, this Note proposes the following multistep process for analyzing and teaching legal ethics using Kelley’s body of work.114 This method is not necessarily an exclusive method for interacting with legal ethics but could be supplemented with other curriculum in a legal ethics class.115
The first step in this proposed method is for a professor or discussion leader to present the class with a scene or scenes from one of Kelley’s series that tackles particular ethical issues.116 The clip presented should introduce the ethical problem and provide enough detail to implicate an appropriate rule.117 If additional context is necessary to understand the scene, the presenter should explain this information so students are not distracted by questions of context but instead are ready to identify the ethical issues.118 Moreover, before being shown the clip, the class should already have a minimal idea of what ethical issue is implicated based on previously assigned reading.119 While watching the video clip, students should engage in the process of issue spotting, where they identify ethical issues that have been implicated by the actions presented on screen.120 In choosing which scenes from Kelley’s series to show, the presenter should give consideration to how many ethical issues are implicated by the scene.121 In some situations, more simple excerpts implicating one or two issues may be appropriate.122 However, Kelley’s work has other examples that can be mined for a variety of more complex ethical issues, particularly once students have more knowledge in their metaphorical toolbox.123
The second step asks students to take the issues that they spotted in the video clip and consult the Model Rules and its corresponding comments.124 After identifying the Model Rule implicated by the conduct of the characters, the students should explain the ethical implication presented by the scene as related to the corresponding Model Rule.125 The key to a student’s success in step two is responding to the scene with detailed application of the appropriate Model Rule while also recognizing that there may be room for argument rather than a clear right or wrong answer.126
This process of reviewing a scene and spotting relevant issues is reminiscent of the traditional law school issue spotting exercise, but closer to experiences in actual legal practice.127 When a law student enters practice, it is unlikely that the attorney will be presented with a detailed fact pattern then asked to find the issues and propose a solution.128 More likely, a client will come to the attorney with a problem and tell a story, or, alternatively, a senior attorney will relay a client’s story and give the attorney directions.129 These face-to-face interactions are substantially different from spotting issues on a page and instead require a young attorney to notice things like tone of voice, body language, and places where a story lacks detail.130 Compared to the traditional fact pattern, analyzing video clips of legal scenes is a closer representation of these real-world interactions.131 Additionally, these clips are also more likely to be remembered by the visual generation and will likely solicit better analysis because students who feel they are doing what real lawyers do, rather than just talking about concepts, tend to provide a deeper analysis of the material.132
In step three, after students have considered the ethical issue originally presented to them, the professor or presenter should show a second scene or scenes demonstrating the outcome within the bounds of the series.133 These outcomes will be reflective of how popular culture has portrayed legal ethics, which likely correlates to the public’s perception of the legal profession.134 After the formal ethical issues have been analyzed and addressed, the class should engage in an open discussion about the implications of such media portrayals and perhaps what can be done by law students to change negative perceptions of legal ethics.135
IV. The Effectiveness of a Model That Teaches Legal Ethics Using David E. Kelley’s Body of Work Demonstrated Through Specific Examples
To demonstrate the effectiveness of the model proposed in Part III, Part IV will put this method into practice by applying the method to three specific episodes taken from each of Kelley’s series. These examples will show how using clips from Kelley’s shows can promote thoughtful discussion of legal ethics in the areas of: (1) duty of diligence and neglect of client matters; (2) candor toward the tribunal and opposing counsel; and (3) collaboration with other law firms. These examples are not necessarily the only appropriate examples from Kelley’s body of work but have been carefully chosen to demonstrate this method’s applicability to issues with varying degrees of complexity. A professor or presenter who chooses to embrace this proposed method should feel free to choose additional or different examples that suit the needs of his or her course.
A. Duty of Diligence and Neglect of Client Matters
One of the most important duties that an attorney owes a client is the duty of diligence, in that client matters must be handled in a timely and appropriate manner.136 An attorney’s neglect of client matters is one of the most common reasons for complaints against an attorney.137
A clip from an episode of Boston Legal provides an excellent opportunity to analyze this ethical duty.138 As context, the students should be informed that Edwin Poole, one of the firm’s founding partners, has taken a leave of absence for mental health reasons.139 The clip features key members of the firm engaged in a staff meeting, where managing partner Paul Lewiston asks, “Who’s doing the Holcomb case?”140 A subsequent discussion reveals that the case was being handled by Poole and has since been turned over to Denny Crane, another senior partner.141 After some questioning, Denny confirms that he is handling the Holcomb case.142 When Denny is asked if he is prepared to try the case, he responds, “I will be.”143 At which point, Paul responds, “You will be? Are you aware the trial begins tomorrow?”144
As to step two of the proposed method, this clip requires students to recognize that Model Rule 1.3 has been implicated and violated by the fact that the firm has a trial scheduled for the next day, and the firm has failed to adequately prepare for it.145 Model Rule 1.3 requires that lawyers “act with reasonable diligence and promptness in representing a client.”146 Additionally, the comments to the rule address attorneys’ obligations to take on a reasonable workload so as to not neglect a client and to pursue a client’s case in a timely manner so as to not prejudice the client.147 Here, this firm has neglected the client’s matter by not adequately preparing for trial, thus violating Model Rule 1.3 and likely giving rise to a malpractice suit against the firm.148
While Model Rule 1.3 is clearly implicated by the clip, the fact that the scene showed a staff meeting at a large firm where multiple attorneys demonstrated knowledge of the case also implicates Model Rule 5.1.149 Model Rule 5.1(a) essentially holds that the managerial authority within a law firm shall “make reasonable efforts to ensure the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the [Model Rules].”150 The fact that multiple attorneys were aware of and worked on the case implies that the firm did not have a procedure in place to ensure that the client’s matter was properly handled after the primary attorney went on medical leave.151 On the other hand, the argument could be made that because the attorneys looked to Denny, the firm had a procedure in place, and everyone had expected him to act diligently and serve as the lead attorney.152 As such, the firm’s management may not have violated Model Rule 5.1(a); however Model Rule 5.1(c)(2) is implicated and Paul could be held accountable, as the managing partner, if he failed to take action to rectify Denny’s lack of diligence.153
After students identify the ethical issues and corresponding rules, they should view two additional scenes which demonstrate how the firm dealt with the time crunch.154 The first scene shows Denny and Paul discussing options where Denny is in over his head preparing for trial, and Paul suggests going to the judge for a continuance.155 In the second scene, wherein Paul and Denny meet with the client, Paul states: “It is our recommendation that you discharge us as counsel. Ask the judge for time to find new attorneys. The only alternative is proceeding tomorrow, which I don’t think we want to do.”156
Here, it is important for the students to recognize that while Denny and Paul took appropriate action as fiduciaries of their client Holcomb Pharmaceuticals—in that their recommendation for discharge was against their own financial interests but in the best interests of the client—such discharge would still be governed by Model Rule 1.16.157 It is also important to recognize that the firm opened itself up to a potential malpractice suit in addition to sanctions for the ethical violations.158
The professor or presenter should then engage the class in a discussion about what these clips say about the public perception of lawyers and how students can combat any negative perceptions. The following points represent issues of importance that could potentially be addressed in the discussion. In terms of general public perception, these clips could imply to the public that lawyers are disorganized and have too much going on, which could result in a lawyer neglecting client matters.159 During this discussion, the professor should stress that in order for practicing attorneys to avoid this negative implication, they must focus on organizational skills and clear communication.160 It should be pointed out that within one’s practice, it is imperative to remain organized and make sure that every case is given proper attention.161 To deal with the possible public perception that lawyers are disorganized and overwhelmed, communication with clients is essential—so essential that the Model Rules have a rule specifically dedicated to communication with clients.162 Keeping a client dutifully informed about the actions being taken in a case, as required under Model Rule 1.4, will keep the client confident in the attorney’s diligence and is likely to prevent a violation of Model Rule 1.3.163 Even if one simply sends a brief email, regular communication and attention will help a client feel at ease, ensure that the client does not think the attorney is disorganized, and likely keep the case on the attorney’s radar.164
B. Candor Toward the Tribunal and Opposing Counsel
In addition to serving as advocates, attorneys are also officers of the court and have ethical obligations relating to both the court itself and opposing counsel.165 These obligations are thoughtfully depicted in a clip from The Practice, which requires little prefatory context because most facts are explained in the clip itself.166 The clip takes place after an arraignment hearing for a criminal defendant and shows attorneys for both sides having a discussion in chambers with the judge.167 The discussion is based on an allegation that the attorney for the defendant, Alan Shore, is in possession of a murder weapon because, according to the prosecution, the mentally ill defendant was heard in jail mumbling “about an evil knife that was in his lawyer’s office.”168 During the discussion, the judge asks Shore if the knife is in Shore’s office, to which Shore responds, “I don’t know . . . if there is a knife, your honor, and I’m not saying there is, I have no actual or constructive knowledge as to its whereabouts.”169 The clip then shifts to Shore’s office where his colleagues ask if he has the knife.170 Shore states, “It may be in the conference room so I would encourage us all not to go in there, because if we have actual knowledge that it’s in our possession we of course would have a duty to turn it over.”171
In applying step two, this scene requires recognition that Model Rule 3.3(a)(1) and Model Rule 3.4(a) were potentially implicated by Alan’s conduct.172 Model Rule 3.3(a)(1) requires that lawyers must not “knowingly . . . make a false statement of fact . . . to the tribunal.”173 As defined in Model Rule 1.0(f), knowingly “denotes actual knowledge of the fact in question,” which may be inferred from the circumstances.174 As presented in the scene, Alan’s conversation with the judge was likely not a violation of the rule.175 If Alan is taken at his word and the first time that he heard of the knife being in his office was when the prosecuting attorney referenced that defendant’s jailhouse statements, Alan told the judge the truth in that he did not know the knife’s location.176 However, the argument could also be made that Alan’s knowledge that the knife was in his office could be inferred by the circumstances because the defendant was previously pursued by police into Alan’s office, a fact mentioned in the scene.177
The scene also implicates Model Rule 3.4(a), which asserts that “a lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal . . . material having potential evidentiary value.”178 Model Rule 3.4(a) is limited by its use of the term “unlawful,” which puts the jurisdiction’s criminal statutes in play in order to conduct a proper analysis.179 With regard to physical evidence, many jurisdictions impose an obligation on attorneys to turn over evidence of a crime that comes into their possession.180 Some jurisdictions, however, allow attorneys to avoid that obligation if they never take possession of the evidence.181 It can be presumed based on Alan’s comments towards the end of the scene that Boston, Massachusetts, within the fictional world of The Practice, is the later.182 Therefore, taking Alan at his word, he has not violated Model Rule 3.4(a) so long as none of the firm’s attorneys take physical possession of the knife.183
After discussing the Model Rules implicated by Alan’s conduct with the judge and his colleagues, it would be beneficial for the professor or presenter to show additional scenes prior to further discussion regarding public perception of legal ethics.184 Although Alan initially appears to have followed the ethical rules, later scenes reveal that he actually committed ethical violations common to television lawyers.185 A scene later in the episode shows the judge once again asking Alan about the knife.186 Alan denies possession of the knife, denies knowledge of the knife’s whereabouts, and denies looking for the knife.187 The judge is forced to dismiss the charges and issues a bench warrant to search Alan’s office but the knife is not found.188 The second clip shows two members of the firm discussing Alan, where one remarks, “I see nothing redeeming about that man.”189 The other member of the firm responds, “You just have to know him,” as the scene transitions to Alan walking down the street and throwing a knife into a dumpster.190 The episode leaves it ambiguous as to when Alan searched the conference room for the knife, but the end result is clear191—at some point after the initial meeting with the judge, Alan violated Model Rule 3.3, Model Rule 3.4, or both.192
After viewing the second set of scenes, the discussion led by the professor regarding public perception of legal ethics, as suggested in step three, could touch on some of the following points.193 Here, Alan unethically fought for a defendant who apparently committed murder, but was also clearly mentally ill and in desperate need of treatment.194 Members of the public might condemn Alan’s unethical actions, which put a man in treatment rather than prison.195 However, it is important for students to discuss scenes that show television attorneys violating real ethical rules because they are relatively common and therefore contribute to a negative perception of attorneys.196 Furthermore, it should be brought to the students’ attention that Model Rules 3.3 and 3.4 apply in all cases, civil and criminal, and therefore this negative perception is not unique to criminal defense attorneys.197 Teachers could suggest to students that when they enter practice, the differences between television and the real world should be explained to any client who is unfamiliar with how the legal system works.198 For example, during a client’s initial consultation with the lawyer, a new client could be asked to explain the client’s understanding of the legal system.199 That way the lawyer may fill in gaps and correct misconceptions without being afraid to address the client’s television-based expectations regarding immoral acts.200 Relating to evidence and candor to the court, teachers should impart to students how essential it is to tell a client the exact obligations that the attorney has with regard to evidence and interactions with the court.201 This type of open and forthright communication will not only clear up any misconceptions that a client might have, but will also show how one can zealously advocate without being unscrupulous. This will ideally lead to better public opinion about the ethical standards of attorneys.202
C. Collaboration with Other Law Firms
It is not uncommon for a client to be represented by multiple lawyers or law firms.203 A client may retain different law firms for different legal matters, or a law firm may need to bring in co-counsel to help represent a client in particularly complex litigation.204 These situations create somewhat unique ethical obligations as governed by the Model Rules, which can be analyzed using the two-part crossover between Ally McBeal and The Practice.205 This is an example requiring the professor to provide students with additional context.206 Prior to presenting the scenes, it is necessary to explain that the eccentric lawyers from the Ally McBeal firm, Cage & Fish, primarily focus on civil work: they are inexperienced with criminal defense work and their client has been charged with the murder of her husband.207 A deeper analysis will be available by showing multiple scenes that, when viewed together, create multiple ethical conflicts.208
The first scene shows a discussion between the lawyers at Cage & Fish, where managing partner Richard Fish decides the firm does not have the necessary experience to try the case.209 As such, the scene transitions to Richard Fish and his partner John Cage approaching Donnell, Young, Dole & Frutt, the firm from The Practice, to serve as co-counsel on the case.210 The second scene shows the attorneys from both firms meeting to discuss the facts of the case and divide the workload.211 The third scene shows the attorneys viewing a statement made to the news by Richard Fish where he states, “What I do object to is every time a husband is found chopped to pieces we automatically say ‘had to be the wife.’ Marie Hansen is a rich woman, if she wanted her husband dead, she would have hired somebody, common sense.”212 This statement to the news is met with outrage from Bobby Donnell and his colleague Eugene Young, who exclaims, “What kind of lawyers are you people?”213 It is at this point that Bobby requests to meet with the client.214
The fourth scene shows Bobby Donnell, from The Practice, meeting with the client at which point he says, “This other firm, Cage & Fish, I don’t believe it is in your best interest to let them represent you. I’m very uncomfortable saying this, truth be known I’m betraying them here but my ethical obligation goes to the client.”215 Bobby admits to the client he has had this conversation with her before consulting the other attorneys.216 The client refuses to discharge either firm, at which point the scene shifts to a meeting between the attorneys from both firms.217 At this meeting, things are heated, and while Richard Fish seems only concerned with fees, the others are concerned with the client.218 While Bobby expresses concern about decision making authority, based on the lack of criminal law experience at Cage & Fish, Ally angrily counters by rhetorically asking, “Who said we weren’t prepared to defer to your judgement?”219 Bobby responds by pointing out previous ineffective communication between the two firms and defends his meeting with the client.220 He states unequivocally, “You brought me in, I’m in. She wants me out, fine. But while I’m in, everything I live and breathe goes into getting her acquitted; I’m not the selfish one here.”221
During step two, students should recognize that the collaboration between Cage & Fish and Donnell, Young, Dole & Frutt has resulted in numerous ethical questions related to duties of competence, confidentiality, communication with the client, trial publicity, the splitting of fees, and potentially obligations to report co-counsel to the proper disciplinary authority.222
The first major ethical issue implicated by the scenes is the duty of competency governed by Model Rule 1.1.223 This rule provides a requirement that an attorney must have the skill and knowledge necessary to provide their client with adequate representation.224 Ignoring Richard Fish’s comments about money and blaming co-counsel for a loss at trial—comments in keeping with his character, designed to exacerbate lawyer stereotypes for comedic purposes—he is correct in recommending co-counsel for the client because the firm’s attorneys do not have the criminal law experience necessary to handle the case on their own.225
Fish’s decision to engage Donnell, Young, Dole & Frutt as co-counsel likely implies a duty to communicate that decision to the client governed by Model Rule 1.4.226 Although Model Rule 1.4 does not specifically address bringing on co-counsel, Model Rule 1.4(a)(2) requires an attorney to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished,” and Model Rule 1.4(a)(3) requires the attorney to “keep the client reasonably informed about the status of the matter.”227 Model Rule 1.2(a), which deals with the scope of the attorney-client relationship, also references consulting with the client, and Comment 1 of the rule directly cross-references to Model Rule 1.4.228
In the episode, Fish made the tactical decision to bring in co-counsel, which directly impacts the means by which the client’s objectives would be accomplished.229 As a result, Model Rule 1.4 would likely create an obligation to “reasonably consult” with the client and keep the client “reasonably informed” about bringing in Donnell, Young, Dole & Frutt.230 However, it appears that neither Fish nor any of the other Ally McBeal attorneys consulted with the client before taking this action.231
With respect to communications between the Ally McBeal attorneys and The Practice attorneys, issues relating to client confidentiality were potentially raised when Fish and his partner, John Cage, approached Donnell, Young, Dole & Frutt about appearing as co-counsel.232 Confidentiality is governed by Model Rule 1.6, which, as a general matter, prevents attorneys from revealing a client’s information with only limited exceptions.233 One such exception is listed in Model Rule 1.6(a), which permits an attorney to reveal confidential information absent client consent “when disclosure is impliedly authorized in order to carry out the representation.”234 If the Cage & Fish attorneys had at least conferred with their client about their desire and intent to bring in co-counsel prior to approaching the other firm, it could be argued that revealing privileged information to get the other firm on board was impliedly authorized to carry out their client’s representation.235 However, based on the episode, there is no indication that the client was consulted or informed about this course of action until after co-counsel had been approached, and therefore it is difficult to argue that approaching the other firm was implicitly authorized.236 Instead, using guidance from Comment 4 to Rule 1.6, Richard Fish and John Cage could have used a hypothetical to discuss the matter with Bobby Donnell and his colleagues without violating any rules.237 But since Fish and Cage did not use a hypothetical, nor inform the client prior to visiting Donnell, Young, Dole & Frutt, the conversation likely violated the duty of confidentiality.238 However, once Bobby and his colleagues were brought on board as co-counsel, the duty of confidentiality extended to them, which made the other conversations between the two firms appropriate and not in violation of the ethical rules.239
With respect to Fish’s statement to the press, it is important to recognize that these kinds of statements implicate Model Rule 3.6 regarding trial publicity.240 Model Rule 3.6(a) prohibits an attorney from making an extra-judicial statement that will be disseminated to the public and has “a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”241 However, Model Rule 3.6(b)(1) permits a lawyer to publicly state “the claim, offense, or defense involved, except when prohibited by law.”242 Additionally, Model Rule 3.6(c) permits attorneys to make public statements to protect the client from the unduly prejudicial effect of recent publicity that was not initiated by the lawyer or the lawyer’s client.243 Comment seven indicates that these kinds of statements should be limited to information that will mitigate the harm caused by the statements of others.244
Giving Fish the benefit of the doubt, it could be argued that his statement was an attempt to state his client’s defense, that someone else committed the murder, as permitted under Model Rule 3.6(b)(1).245 Moreover, since the episode implies that the client had been receiving negative publicity in the news, it could be argued that Fish’s conduct was an attempt to mitigate that damage.246 These arguments supporting the legitimacy of Fish’s statement have some merit given the fact that real world attorneys make similar inflammatory statements to the media when representing well-known clients charged with high profile crimes.247 However, given Fish’s immediate, gleeful statement to all the other attorneys that “it’s never too early to contaminate a jury pool,” Bobby’s outrage is justified.248 In that context, Fish’s actions could be deemed a willful attempt to prejudice the judicial proceedings, in direct violation of Model Rule 3.6(a).249 This analysis creates interesting implications for Bobby’s actions in the scene where he is shown privately meeting with the client.250
During that meeting, Bobby is loyal to his client and takes action that is adverse to his co- counsel when he suggests that the client discharge them.251 While some might argue Bobby was taking action that was in his own interest, Bobby was more likely exercising his fiduciary duty to act in the best interests of his client.252 In expressing this concern, Bobby did not tell the client about specific ethical violations; he just asserted that the lawyers were odd, and he did not believe they would serve her interests.253
Interestingly, under the Model Rules, Bobby was likely not obligated to inform the client about the apparent misconduct by the Cage & Fish attorneys.254 As aforementioned, Bobby witnessed a number of apparent ethical violations by the Ally McBeal attorneys, particularly Fish.255 Under Model Rule 8.3, he may have been under an obligation to report such conduct to the proper disciplinary authority, but not necessarily the client.256 Model Rule 8.3(a) provides that improper behavior should be reported “to the appropriate disciplinary authority” if the conduct “raises a substantial concern as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer.”257 The rule as written “may suggest a policy of reporting unethical behavior to whomever is affected [i.e. the client], but as written it is not specifically crafted to require communicating with the client” about the misconduct of other attorneys.258 Therefore, within the context of the episode, Bobby was not violating the Model Rules by not telling the client about the specific conduct that raised his concerns.259 However, it could be argued that he did have a duty under Model Rule 8.3(a) to report his co-counsel, particularly Fish, to the appropriate disciplinary authority.260
The final major issue presented by the scenes, most notably through Fish’s continuous— albeit humorous—comments, is the issue of fees.261 Under Model Rule 1.5, it would be permissible for both Cage & Fish and Donnell, Young, Dole & Frutt to collect fees regarding their representation of the client in this murder case.262 Specifically, Model Rule 1.5(e)(1) allows lawyers from different firms to divide a legal fee only “if the division is in proportion to the services performed by each lawyer.”263 Moreover, in those situations, the total fee charged to the client must be reasonable and the client must consent, in writing, to splitting the fee among the firms.264 As presented, Fish’s concern about getting paid will be alleviated if the provisions of Model Rule 1.5(e) are followed.265 Although this formal action is not shown on screen, Fish will be permitted to collect fees, though likely lower fees than expected because the episode presents Bobby doing most of the work.266
As part of step three, the resolution of the conflicts between these different lawyers can be seen in two scenes from the second half of the crossover.267 Admittedly, the second half of the crossover is also filled with examples of unethical behavior, this time on the part of characters from The Practice, which could also be used to analyze and apply the Model Rules.268 However, there are two scenes that a professor could use to encourage a broader classroom discussion, as a social commentary on unethical behavior by attorneys.269 The first scene shows Ally taking Bobby to task for use of a trial tactic where there was no factual or reasonable basis for an assertion made during the examination of a witness.270 The two argue about the duties of a zealous advocate, and Ally tells Bobby, “You’re disgusting . . . . You make it sound so good, if I close my eyes I can almost see you as a hero. Too bad my eyes are open.”271 The final scene of the episode shows both Ally and Bobby clearly shaken by the outcome of the case even though their client who had not committed the crime was acquitted, and the real killer had committed suicide.272 Ally apologizes to Bobby for the negative things that she said to him during their time as co-counsel.273 However, there is an unspoken feeling from both characters: recognition that, in spite of a good outcome for the client, the difficult subject matter and the ethical lines crossed by the characters took a negative toll on everyone.274
After showing these scenes, the professor should focus class discussion and reflection on the valuable symbolic lessons for attorneys that can be gleaned from these two clips.275 The professor should touch on the fact that Kelley presented two characters clearly shaken by the ethical lines they crossed in the name of zealous advocacy.276 One could theorize that, in some instances, these characters violated the ethical rules without quite realizing that the line had been crossed.277 This can be inferred from Bobby’s response to Ally’s apology: “You haven’t said anything I haven’t heard before.”278 Actor Dylan McDermott’s sensitive delivery of this dialogue implies deep regret and further indicates that Bobby crosses these ethical lines regularly, perhaps without even realizing it, all in the name of good lawyering.279 Additionally, the fact that both of the actors are wrought with emotion allows the viewer to connect with the characters on a deeply emotional level.280
The professor could also point out that Kelley’s series are part of a fictional world, where the consequences for ethical violations are usually emotional rather than formal discipline.281 However, the ending of this crossover leaves audiences, both lawyers and nonlawyers alike, with an important realization that even when crossing ethical lines leads to a good outcome, the toll it can take on the attorneys may not be worth it.282 The professor should point out that these scenes are a reminder that while crossing the ethical line can be easy, coming back from it is much harder.283 Specifically, it should be stressed that while television lawyers are unlikely to lose their license to practice because they are needed for the next episode, real lawyers do not have that luxury.284 The professor could use this opportunity to encourage students to theorize on how to improve the ethical practices of lawyers because, whether we like it or not, knowledge and memory fade over time, and there is always the possibility that ethical rules can change.285 The professor could suggest a class discussion about the merits of continuous reminders of ethical responsibilities—possibly by way of regular ethics seminars through the ABA or a local Bar association—in order to continue the practice of law as a way to combat negative perceptions of legal ethics.286
Moreover, the professor could also point out that we live in an era of accountability, and students should walk away from these particular clips with an understanding of the ethical obligations that were implicated and hopefully a desire to change the public perception of attorneys.287 Students should recognize that in addition to reminding themselves of ethical responsibilities while practicing law, changing the public perception of attorneys must stem from communication.288 It must come from pointing out to our friends and clients all the good that the legal profession does for society.289 The professor or presenter should emphasize if students engage in clear, consistent communication with clients and each other about the good work lawyers do for society and the ethical responsibilities imputed on a member of the Bar, this will hopefully trickle out to the world at large and, as a result, improve the legal profession’s public image.290
Conclusion
In a time where the ethical standards of the legal profession are viewed in a negative light, the television work of David E. Kelley presents a unique opportunity to engage with the Model Rules and understand the ethical obligations of attorneys. There is no doubt that Kelley’s work takes certain liberties with real-word legal rules for the sake of entertainment. At the same time, Kelley’s history as an attorney, along with his unprecedented individual impact on the representations of lawyers in popular culture, is worthy of attention. By presenting scenes from Kelley’s series that implicate specific ethical considerations, the traditional law school issue spotter can be transformed to better accommodate the visual generation and simulate real world practice. After applying the Model Rules to scenes and making determinations about the propriety or impropriety of the conduct shown on screen, this method provides a unique opportunity to thoughtfully discuss the public opinion of the legal profession. Kelley’s work has had a dominant influence on the perception of lawyers, with some characters generally demonstrating appropriate responses to ethical issues and others demonstrating improper or illegal responses. By engaging with Kelley’s work, as both a learning tool and an opportunity for social commentary, the next generation of lawyers can hopefully have the chance to change public perception of legal ethics.
*✕ Juris Doctor, New England Law | Boston (2020). B.A., Political Science, University of Massachusetts Boston (2016). Thank you to my friends and family for their encouragement and support throughout the writing process. In fact, my family could not have been more gracious when they found out that I needed to watch TV as part of my research. I'd also like to thank to all my law school classmates and friends who took the time to read various drafts and offer feedback. Finally, thank you to the staff on the New England Law Review for all your work preparing this Note for publication. I hope you enjoy reading this piece and if nothing else it encourages you to sit back, relax, and enjoy watching at least one episode of a David E. Kelley TV show.
1✕ The Practice: The Case Against Alan Shore (ABC television broadcast Mar. 28, 2004) (quoting from Alan Shore’s closing argument where he defends himself in a wrongful termination lawsuit after being fired from his law firm for “unethical” behavior).
2✕ Stephen Gillers, Regulation Of Lawyers: Problems Of Law And Ethics 1 (11th ed. 2017).
3✕Id. at 9. See Generally Kathleen Clark, Legacy of Watergate for Legal Ethics Instruction, 51 Hastings L.J. 673, 673–78 (2000) (discussing the lasting legacy of the Watergate scandal on the instruction of legal ethics in law schools).
4✕ See Generally, e.g., David Jackson, Kevin Johnson & Bart Jansen, Robert Mueller Probe: Ex-Trump Lawyer Michael Cohen Pleads Guilty to Lying to Congress, Usa Today (Nov. 29, 2018, 9:22 AM ET), https://perma.cc/3NGG-P9JL.
5✕ See Generally, e.g., Stephanie Francis Ward, The 25 Greatest Legal TV Shows, 95 ABA. J., Aug. 2009, at 34, 34– 44 [hereinafter Ward, Greatest Legal TV Shows] (including The Practice, Ally McBeal, and Boston Legal on the list of television’s greatest legal shows).
6✕ See Victoria S. Salzmann & Philip T. Dunwoody, Prime-Time Lies: Do Portrayals of Lawyers Influence How People Think About the Legal Profession?, 58 Smu L. Rev. 411, 412–13 (2005).
7✕ See Generally Presentation Survey–Lawyers/Legal System in America: Final Data, Mcginn And Company, https://perma.cc/NHG3-U6EK (last visited Oct. 6, 2021) [hereinafter Presentation Survey] (announcing that a majority of those polled asserted a belief that fictional TV lawyers have higher ethical standards than real lawyers).
8✕ See Generally Josh Levine, David E. Kelley: The Man Behind Ally Mcbeal (1999) (detailing the life and early career of David E. Kelley).
9✕ Ally McBeal (FOX television series 1997–2002); Boston Legal (ABC television series 2004–2008); The Practice (ABC television series 1997–2004).
10✕ Gillers, supra note 2, at 1.
11✕ Gillers, supra note 2, at 1.
12✕ See Selena E. Molina, The Roots of Our Legal System: The Foundation for Growth, ABA, https://perma.cc/T78Y- GGKX (last visited Oct. 6, 2021).
13✕ See Gillers, supra note 2, at 6–8.
14✕ See Gillers, supra note 2, at 6.
15✕ See Gillers, supra note 2, at 6 (describing the courts’ “negative” inherent power to invalidate legislation that regulates lawyers even when such legislation does not contradict the courts’ rules).
16✕ See Gillers, supra note 2, at 8; see also The American Bar Association, ABA, https://perma.cc/AZ8B-KR98 (last visited Oct. 6, 2021); ABA Timeline, ABA, https://perma.cc/T7TJ-3XXJ (last visited Oct. 6, 2021).
17✕ ABA Timeline, supra note 16; See Gillers, supra note 2, at 6–9.
18✕ See Gillers, supra note 2, at 6–9; see also ABA Timeline, supra note 16.
19✕ See Gillers, supra note 2, at 8–9 (asserting that some provisions of the Model Code of Professional Responsibility were adopted in every state and explaining the ABA’s reaction to the Watergate scandal). See Generally Clark, supra note 3, passim (explaining the impact of Watergate on the instruction of legal ethics).
20✕ Gillers, supra note 2, at 9; Clark, supra note 3, 673–74.
21✕ Gillers, supra note 2, at 9; Clark, supra note 3, 673–74.
22✕ Gillers, supra note 2, at 9. See Generally Kutak Commission Drafts, ABA, https://perma.cc/S3ZC-3LHJ (last visited Oct. 6, 2021) (providing links to the various drafts of the rules promulgated by the ABA’s commission in response to the Watergate scandal).
23✕ Gillers, supra note 2, at 9.
24✕ Compare Model R. Prof’l Conduct (Am. Bar Ass’n 2018), with Fed. R. Civ. P., And Fed. R. Evid.(demonstrating a uniform format between them where the text of the rule is followed by comments designed to guide the interpretation of the rule). See Generally Model Rules of Professional Conduct, ABA, https://perma.cc/T4XE-J7E2 (last visited Oct. 6, 2021) [hereinafter About the Model Rules] (providing easy internet access to the complete list of Model Rules as promulgated by the ABA); ABA Timeline, supra note 16.
25✕ See Gillers, supra note 2, at 11.
26✕ See Gillers, supra note 2, at 11.
27✕ See e.g., Gillers, supra note 2, passim (serving as an example of a law school ethics textbook and using the Model Rules of Professional Conduct to educate law students on legal ethics and professional responsibility); see also Harvard Law Sch. Ctr. on the Legal Profession, Teaching Ethics and Professionalism, 4 The Practice, no. 3, Mar./Apr. 2018, https://perma.cc/2GVE-U36B (discussing what law schools are doing to “prepare the next generation of lawyers for the ethical and professional landscapes that await them beyond graduation,” which includes the ABA's mandate that a legal ethics course be taught to students).
28✕ See Jonathan Shapiro, Lawyers, Liars, And The Art Of Storytelling: Using Stories To Advocate, Influence, And Persuade 16 (2016); Carrie Menkel-Meadow, Is There an Honest Lawyer in the Box? Legal Ethics on TV, in Lawyers In Your Living Room!: Law On Television 37, 38 (Michael Asimow ed., 2009); see also Joyce Eng, If You Want to Win an Emmy, Work with David E. Kelley, Tv Guide (Jul. 19, 2017, 12:06 PM PT), https://perma.cc/6TXN-BQQS.
29✕ See Levine, supra note 8, at 7–10; Shapiro, supra note 28, at 16–17; Menkel-Meadow, supra note 28, at 38.
30✕ Editors, David E. Kelley Biography, Biography (Apr. 2, 2014), https://perma.cc/X7MJ-P9SC. See Generally Levine, supra note 8, at 10–24 (explaining how Kelley left his career as a lawyer in Boston to work on L.A. Law and discussing Kelley’s time on the series).
31✕ Levine, supra note 8, at 18–19.
32✕ Levine, supra note 8, at 23–24; See Lacey Rose, David E. Kelley Talks ‘Big Little Lies’ Season 2, Possible ‘Ally McBeal’ Reboot, Hollywood Rep. (May 11, 2018), https://perma.cc/JCA7-U9TR; Stacey Wilson Hunt, TV Hall of Fame: David E. Kelley on Which Series He’d Like to Bring Back and Transitioning to Half-Hour TV (Q&A), Hollywood Rep. (Mar. 6, 2014, 7:00 AM), https://perma.cc/WXW3-9R68.
33✕ Ally McBeal, supra note 9; Boston Legal, supra note 9; The Practice, supra note 9.
34✕ Ally McBeal, supra note 9; Boston Legal, supra note 9; The Practice, supra note 9.
35✕ See Charles B. Rosenberg, 27 Years as a Television Legal Advisor and Counting . . ., in Lawyers In Your Living Room!: Law On Television, supra note 28, at 15, 21–22.
36✕ Rose, supra note 32 (showing Kelley discussing his career in an additional video interview included at the end of the article’s transcribed interview).
37✕ Shapiro, supra note 28, at 151–52; See Ally McBeal, supra note 9; Boston Legal, supra note 9; The Practice, supra note 9.
38✕ See Shapiro, supra note 28, at 43–46; see also Stephanie Francis Ward, Making TV Legal: Behind Those Megahit Lawyer Shows Are Some Pretty Unusual Lawyers, 94 ABA J., no. 10, June 2008, at 52, 52–56 [hereinafter Ward, Unusual Lawyers].
39✕ Ally McBeal: Awards, IMDB, https://perma.cc/F7AM-VLHQ (last visited Oct. 7, 2022); Boston Legal: Awards, IMDB, https://perma.cc/S4VN-KDHE (last visited Oct. 7, 2021); The Practice: Awards, IMDB, https://perma.cc/X38G-FG79 (last visited Oct. 7, 2021).
40✕ Eng, supra note 28.
41✕ Shapiro, supra note 28, at 152; Eng, supra note 28; See Rose, supra note 32.
42✕ The Practice, supra note 9.
43✕ Jeffrey E. Thomas, The Practice: Debunking Television Myths and Stereotypes, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 129, 130; Stuart Levin, Kelley Acts as Judge, Jury for Series Quality, Variety (May 3, 2001, 7:41 PM PT), https://perma.cc/L4EZ-N6A8. See Generally The Practice, supra note 9.
44✕ Levin, supra note 43. See Generally The Practice, supra note 9.
45✕ See The Practice, supra note 9.
46✕ See Jeffrey E. Thomas, The Practice: Debunking Television Myths and Stereotypes, in Lawyers In Your Living Room!: Law On Television , supra note 28, at 135–36 (discussing multiple episodes of the series involving a client named Joey Heretic, who is found not guilty despite the eventual revelation of actual guilt); see also, e.g., The Practice: Pilot (ABC television broadcast Mar. 4, 1997) (showing a sympathetic client who tearfully professed her innocence despite evidence to the contrary).
47✕ See Jeffrey E. Thomas, The Practice: Debunking Television Myths and Stereotypes, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 129–39 (discussing both a number of storylines and characters that did not conform to Hollywood norms, subverted audience expectations, and potentially caused audience discomfort).
48✕ The Practice: Cheers (ABC television broadcast May 16, 2004).
49✕Id. (showing Bobby Donnell sitting in the firm’s office surrounded by moving boxes with tears in his eyes).
50✕ See Cassandra Sharp, Ally McBeal: Life and Love in the Law, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 221–32 (describing the themes and storytelling choices that permeated the five seasons of Ally McBeal). See Generally Ally McBeal, supra note 9.
51✕ See Cynthia Littleton, ‘Ally McBeal’ at 20: David E. Kelley on Feminism, Overnight Success and Calista Flockhart’s ‘Magical’ Performance, Variety (Sept. 8, 2017, 9:15 AM PT), https://perma.cc/GMX4-VN2L. See Generally Ally McBeal, supra note 9.
52✕ Ally McBeal: Pilot (FOX television broadcast Sept. 8, 1997) (quoting Ally’s internal dialogue where she calls herself the “victim of her own choices”).
53✕ Compare Ally McBeal, supra note 9, with The Practice, supra note 9.
54✕ See Cassandra Sharp, Ally McBeal: Life and Love in the Law, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 221–32.
55✕ Ally McBeal: The Inmates (Fox television broadcast Apr. 27, 1998); The Practice: Axe Murderer (ABC television broadcast Apr. 27, 1998); Levine, supra note 8, at 115–18 (discussing the effort that went into making the crossover happen and the tensions that erupted because the two series aired on competing networks).
56✕ Ally McBeal: The Inmates, supra note 55; The Practice: Axe Murderer, supra note 55. See Generally Levine, supra note 8, at 115–18.
57✕ See Craig Tomashoff, ‘Ally McBeal’ at 20: Calista Flockhart, David E. Kelley and More on Dancing Babies, Feminism and Robert Downey Jr., Hollywood Rep. (Sept. 4, 2017, 6:00 AM), https://perma.cc/GM8D-RYC5; Michael Ausiello, Ally McBeal Revival in Development; Calista Flockhart Eyed to Return, TV LINE. (Mar. 26, 2021, 9:44 AM PDT), https://tvline.com/2021/03/26/ally-mcbeal-reboot-calista-flockhart-revival/.
58✕Id.
59✕Id.
60✕ Gary Susman, James Spade Joins “The Practice,” Ent. Wkly., https://perma.cc/AT6E-PPTC (last updated June 12, 2003, 4:00 AM EDT).
61✕Id.
62✕ See Brian Ford Sullivan, ‘Practice’ Closes Doors with Spin-off in Mind, The Futon Critic (Mar. 10, 2004, 12:00 AM), https://perma.cc/4B6Z-YFQK.
63✕Id.
64✕ The Practice: War of the Roses (ABC television broadcast Mar. 21, 2004); The Practice: The Case Against Alan Shore, supra note 1.
65✕ Compare Boston Legal, supra note 9, with The Practice, supra note 9, and Ally McBeal, supra note 9.
66✕ E.g., Boston Legal: Schmidt Happens (ABC television broadcast Jan. 9, 2005) (addressing the genocide in Sudan); Boston Legal: Witches of Mass Destruction (ABC television broadcast Nov. 1, 2005) (addressing the war in Iraq and military conflict in the Middle East); See Corinne Brinkerhoff, Reality Bites: Boston Legal’s Creative License with the Law, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 253, 258–63 (2010); Ward, Unusual Lawyers, supra note 38, at 55.
67✕ Boston Legal: The Court Supreme (ABC television broadcast Apr. 22, 2008); Shapiro, supra note 28, at 43–46 (explaining the process that went into writing The Court Supreme; noting that the episode aired one week after oral arguments occurred in the actual case, despite the writers’ hope it would air one week before the case came before the Supreme Court; and noting that like in the show, the Supreme Court struck down the Louisiana law as unconstitutional). See Generally Kennedy v. Louisiana, 554 U.S. 407 (2008) (serving as the case upon which the Boston Legal episode The Court Supreme was based).
68✕ Brinkerhoff, Reality Bites: Boston Legal’s Creative License with the Law, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 254–55; See Boston Legal, supra note 9.
69✕ Rosenberg, 27 Years as a Television Legal Advisor and Counting . . ., in Lawyers In Your Living Room!: Law On Television, supra note 28, at 22; See Boston Legal, supra note 9.
70✕ See Rosenberg, 27 Years as a Television Legal Advisor and Counting . . ., in Lawyers In Your Living Room!: Law On Television, supra note 28, at 22; Boston Legal, supra note 9.
71✕ See Generally, e.g., Ward, Greatest Legal TV Shows, supra note 5, at 34–44.
72✕ Salzmann & Dunwoody, supra note 6, at 412–13.
73✕ Shapiro, supra note 28, at 16.
74✕ Shapiro, supra note 28, at 16 (asserting that legal television shows supersede all other formats for explaining and/or confusing the public about the legal system); See, e.g., Gary Levin, How Much Have Younger Viewers Bailed on Traditional TV? New Stats Are Alarming, Usa Today (Nov. 12, 2018, 8:15 AM ET), https://perma.cc/5NUL- 2H5A (explaining that television viewership is no longer limited to a particular episode’s broadcast and that in the case of particular programs, almost half the viewership watches the episode after the original broadcast on a website, app, or streaming service).
75✕ Menkel-Meadow, supra note 28, at 39–46; e.g., Boston Legal: Truth Be Told (ABC television broadcast Nov. 7, 2004) (showing Attorney Lori Coulson concealing information and lying to her terminally ill client to in order spare him the pain of learning that another man fathered his child. Lori defends her actions to the firm’s managing partner by admitting she “lied to him” while insisting that it was the right thing to do).
76✕ Jayne Reardon, Grading TV Lawyers: Ethics vs. Entertainment, 2civility (Oct. 6, 2015), https://perma.cc/X5Z9- 3462 (grading many fictional attorneys on their ethics where Eugene Young from The Practice received an A for legal ethics, Ally McBeal from Ally McBeal received a B for legal ethics, and where Shirley Schmidt from Boston Legal received a C+; other television attorneys received grades ranging from A to F).
77✕ See, e.g., id. (discussing relatively recent opinion polls indicating a negative perception about the ethical standards of practicing attorneys).
78✕ See Generally Who We Are, Gallup, https://perma.cc/W5SF-QF75 (last visited Oct. 7, 2021) (explaining that Gallup is “a global analytics and advice firm” that conducts polls and organizes data to learn what matters to different groups of people). 79 Honesty/Ethics in Professions, Gallup, https://perma.cc/G6BV-GZB5 (last visited Oct. 7, 2021) [hereinafter Honesty/Ethics in Professions 2020].
80✕Id.
81✕Id.
82✕ Reardon, supra note 76.
83✕ See Presentation Survey, supra note 7, at 2 (detailing the results of a nationwide survey conducted between February 29, 2012 and March 3, 2012).
84✕ See Presentation Survey, supra note 7.
85✕ See Presentation Survey, supra note 7.
86✕ Presentation Survey, supra note 7.
87✕ See Presentation Survey, supra note 7.
88✕ See, e.g., Presentation Survey, supra note 7; Honesty/Ethics in Professions 2020, supra note 79. See Generally Reardon, supra note 76 (grading the ethics of TV lawyers and discussing public opinion regarding legal ethics).
89✕ See supra Part II; infra Parts III–IV.
90✕ See infra Parts III–IV.
91✕ See The Socratic Method: Why It’s Important to the Study of Law, WASH. U. SCH. OF L. (May 29, 2013), https://perma.cc/4UAF-SCAX.
92✕ E.g., Benjamin V. Madison, III, The Elephant in Law School Classrooms: Overuse of the Socratic Method as an Obstacle to Teaching Modern Law Students, 85 U. Det. Mercy L. Rev. 293, passim (2008) (asserting law schools, in clinging to the Socratic Method, have failed to adapt to advances in educational theory and practice); see also, e.g., Victoria S. Salzmann, Here’s Hulu: How Popular Culture Helps Teach the New Generation of Lawyers, 42 Mcgeorge L. Rev. 297, passim (2011) (asserting the benefits of using popular culture and visual media to teach the current generation of law students).
93✕ Doretta McGinnis, Ahead of the Curve: What Is the Socratic Method?, Law. Sch. Toolbox (Apr. 20, 2017), https://perma.cc/P7YA-XGA2; Madison, supra note 92, passim; e.g., Joe Patrice, Former Law Prof Says, ‘The Socratic Method Is a Sh**ty Method of Teaching’, Above The Law. (June 25, 2014, 5:02 PM), https://perma.cc/R9TP-8A2M.
94✕ Salzmann, supra note 92, at 299; See Kristin B. Gerdy, Making the Connection: Learning Style Theory and the Legal Research Curriculum, 19 Legal Reference Services Q., no. 3-4, 2001, at 71, 72.
95✕ See Madison, supra note 92, at 309–20.
96✕ Salzmann, supra note 92, at 300.
97✕ Salzmann, supra note 92, at 299.
98✕ Salzmann, supra note 92, at 300–01; See Why Use Media to Enhance Teaching and Learning, Pedagogy In Action, https://perma.cc/B3G7-35CA (last visited Oct. 7, 2021) [hereinafter Why Use Media].
99✕ Salzmann, supra note 92, at 300.
100✕ See Why Use Media, supra note 98.
101✕ Madison, supra note 92, at 298–300.
102✕ E.g., Camille M. Davidson, Problems, Music, and Popular Culture: How I Teach Theory and Practice in Decedents’ Estates to Our Next Generation of Lawyers, 28 Quinnipiac Prob. L.J. 394, 397–410 (2015); Courtney Cox Hatcher & Courtney Chaipel Pugh, Note, From the Law’s Bearded Prophet to the Interactive Engager: Using Film to Teach Criminal Law, 17 Tex. Rev. Ent. & Sports L. 167, 167–83 (2016).
103✕ See Shapiro, supra note 28, at 151–52. See Generally Ally McBeal, supra note 9; Boston Legal, supra note 9; The Practice, supra note 9.
104✕ E.g., James R. Elkins, Popular Culture, Legal Films, and Legal Film Critics, 40 Loy. L.A. L. Rev. 745, 768 (2007) (discussing the intersection of law in popular culture and legal studies while referencing legal scholar Phil Meyer; asserting that Meyer was one of the earlier legal academics to discuss legal films in the early nineteen nineties).
105✕Id. at 749–90 (discussing a Variety of different approaches and perspectives regarding the merits and pitfalls of the prevalence of lawyers portrayed on screen).
106✕ E.g., Hatcher & Pugh, supra note 102, at 167–83 (proposing a method to teach criminal law using well known animated films).
107✕ Salzmann, supra note 92, at 308.
108✕ Salzmann, supra note 92, at 303–06.
109✕ David Ray Papke, The Impact of Popular Culture on American Perceptions of the Courts, 82 Ind. L.J. 1225, 1227 (2011).
110✕ Salzmann, supra note 92, at 303–06.
111✕ Salzmann, supra note 92, at 306–07.
112✕ See Salzmann, supra note 92, at 306–07.
113✕ See Shapiro, supra note 28, at 16–17, 151–52. See Generally Ally McBeal, supra note 9; Boston Legal, supra note 9; The Practice, supra note 9.
114✕ See supra Part III(A)–(B). See Generally Kimberlianne Podlas, Guilty on All Accounts: Law & Order’s Impact on Public Perception of Law and Order, 18 Seton Hall J. Sports & Ent. L. 1 (2008) (reporting an empirical study about the impact of Law & Order on the American public, which, in part, provided inspiration for this proposed method); Alexander Scherr & Hillary Farber, Popular Culture as a Lens on Legal Professionalism, 55 S.C. L. Rev. 351 (2003) (asserting that media portrayals of lawyers can be used to teach subjective legal concepts such as the moral aspects of legal practice and the psychic demands of an active legal practice, which served as partial inspiration for this proposed method); Ethics Lessons From TV Lawyers: “The Good Wife,” ST. B. OF WIS. (June 2015), https://perma.cc/L5EP-YGZN [hereinafter “Good Wife” Ethics] (presenting hypotheticals based on episodes of The Good Wife in order to analyze applicable ethical rules, which partly inspired this proposed method); Hatcher & Pugh, supra note 102 (proposing a method to teach criminal law using well-known animated films which partly inspired this proposed method).
115✕ See Hatcher & Pugh, supra note 102, at 170 (asserting the pure Socratic Method as originally envisioned is an illusion and that “many professors and law schools now Seek to modernize their way of teaching legal concepts by utilizing new and varying platforms”).
116✕ Ally McBeal, supra note 9; Boston Legal, supra note 9; The Practice, supra note 9. See Generally, e.g., Hatcher & Pugh, supra note 102.
117✕ Salzmann, supra note 92, at 313 (“The first mechanism of teaching is to use the video or film clip as a problem or hypothetical which the educator can use to elicit careful analysis.”); See Why Use Media, supra note 98. See Generally Jennifer Warren, The Value of Issue Spotting and Strategies to Improve Your Skills, Law. Sch. Toolbox (June 23, 2016), https://perma.cc/K7VS-55UK (discussing issue spotting skills often used in law school).
118✕ Salzmann, supra note 92, at 314–15; e.g., Scherr & Farber, supra note 114, at 367 (asserting that the relationship between the family lawyer and the head of the family as presented in The Godfather: Part II should be explained to students before showing them the relevant scene so that a more thorough analysis and discussion will ensue).
119✕ E.g., Gillers, supra note 2 (serving as an example of one of the many law school case books that could be supplemented with this proposed method). See Generally, e.g., About the Model Rules, supra note 24 (providing easy internet-based access to the full text of all the Model Rules, which could be assigned to students as pre-class reading material; other means are available for students to access the Model Rules as reading assigned prior to class).
120✕ See Generally Why Use Media, supra note 98 (“Students can hone their analytical skills by analyzing media using the theories and concepts they are studying.”); Warren, supra note 117 (explaining the concept of issue spotting and providing tips to help law students improve issue spotting skills).
121✕ See Generally, e.g., Hatcher & Pugh, supra note 102, at 170 (explaining what films are used for analytical purposes along with why the films were chosen).
122✕ See Generally, e.g., Hatcher & Pugh, supra note 102; “Good Wife” Ethics, supra note 114.
123✕ See Ally McBeal, supra note 9; Boston Legal, supra note 9; The Practice, supra note 9.
124✕ See, e.g., InternationalLaw Blogger, Legal Ethics as Shown in Movies and Television Shows, Int’l Law Prof. Blog (Oct. 27, 2017), https://perma.cc/9QQZ-2W5J [hereinafter International Law Blogger] (discussing an ABA seminar where panelists showed clips from movies and TV shows and then applied the appropriate Model Rule to the scenes). See Generally Model R. Prof’l Conduct (Am. Bar Ass’n 2018); Warren, supra note 117 (describing traditional issue spotting in law schools).
125✕ E.g., Salzmann, supra note 92, at 313 (explaining that when video clips are effectively used in the classroom, students “begin with concrete, identifiable facts and must then use them to solve a problem, rather than starting with a decided case and working through hypotheticals”); see also International Law Blogger, supra note 124.
126✕ E.g., International Law Blogger, supra note 124 (discussing a clip from The Client as applied to Model Rule 1.5(a) and discussing a debate about “whether a small fee could be an unreasonable fee”); See Gillers, supra note 2, at xxviii (“The rules here may be obscure, some may be counterintuitive, and they can be subtle in application. Application in turn calls for judgment, and judgement is mostly learned through experience.”).
127✕ Salzmann, supra note 92, at 313.
128✕ See Joseph R. Fleming, Sheri Warsh & Robert Williams, Here’s How Young Associates Actually Impress Law Firm Partners, Jdsupra (Nov. 22, 2013), https://perma.cc/P4PS-S7YN (discussing the life of a new attorney, just out of law school, and providing strategies for success when interacting with clients and colleagues).
129✕ See Eric R. Nitz, Playing the Long Game: Client Development Strategies for Young Lawyers, Law.Com (Sept. 10, 2019, 12:00 AM), https://perma.cc/PTT7-6Q3G (providing tips for meeting with a client for the first time).
130✕ See id.
131✕ Salzmann, supra note 92, at 313 (“[T]his presentation is a closer representation of practice and more likely to be remembered.”).
132✕ Salzmann, supra note 92, at 313.
133✕ See Generally, e.g., Hatcher & Pugh, supra note 102; “Good Wife” Ethics, supra note 114; Podlas, supra note 114.
134✕ See supra Part II.
135✕ See supra Part II.
136✕ See Model R. Of Prof’l Conduct 1.3 (Am. Bar Ass’n 2018); see also Gillers, supra note 2, at 60.
137✕ Gillers, supra note 2, at 60.
138✕ Boston Legal: An Eye for an Eye (ABC television broadcast Oct. 31, 2004).
139✕ Boston Legal: Head Cases (ABC television broadcast Oct. 3, 2004).
140✕ Boston Legal: An Eye for an Eye, supra note 138.
141✕ Boston Legal: An Eye for an Eye, supra note 138.
142✕ Boston Legal: An Eye for an Eye, supra note 138.
143✕ Boston Legal: An Eye for an Eye, supra note 138.
144✕ Boston Legal: An Eye for an Eye, supra note 138.
145✕ See Model R. Prof’l Conduct 1.3 (Am. Bar. Ass’n 2018); Boston Legal: An Eye for an Eye, supra note 138.
146✕ Model R. Prof’l Conduct 1.3.
147✕Id.
148✕Id.; See Gillers, supra note 2, at 60 (asserting that lacking diligence can potentially give rise to malpractice liability); see also Boston Legal: An Eye for an Eye, supra note 138.
149✕ See Model R. Prof’l Conduct 1.3, 5.1; Boston Legal: An Eye for an Eye, supra note 138.
150✕ Model R. Prof’l Conduct 5.1(a).
151✕Id.; See Boston Legal: An Eye for an Eye, supra note 138.
152✕ See Model R. Prof’l Conduct 5.1(a); Boston Legal: An Eye for an Eye, supra note 138.
153✕ See Model R. Prof’l Conduct 5.1(a), (c)(2).
154✕ Supra Part III(C).
155✕ Boston Legal: An Eye for an Eye, supra note 138.
156✕ Boston Legal: An Eye for an Eye, supra note 138.
157✕ See Model R. Prof’l Conduct 1.16 (outlining ethical obligations for the termination of an attorney-client relationship); Boston Legal: An Eye for an Eye, supra note 138. See Generally Breach of Fiduciary Duty Law and Legal Definition, US LEGAL, https://perma.cc/498R-URN6 (last visited Mar. 27, 2020) [hereinafter Fiduciary Duty Law] (describing the concept of fiduciary duty).
158✕ See Gillers, supra note 2, at 596–97.
159✕ See Boston Legal: An Eye for an Eye, supra note 138.
160✕ Erika Winston, The Organizational Skills Every Effective Lawyer Should Learn, Timesolv, https://perma.cc/SGE6-WUQC (last visited Oct. 7, 2021); 5 Communication Skills Lawyers Need and Why, Usc Annenberg, https://perma.cc/92XE-A898 (last visited Oct. 7, 2021) [hereinafter 5 Communication Skills].
161✕ Winston, supra note 160.
162✕ See Model R. Prof’l Conduct 1.4; 5 Communication Skills, supra note 160.
163✕ See Model R. Prof’l Conduct 1.3 cmt. 3 (asserting that procrastination and lacking clarity can “cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness”). See Generally id. R. 1.4 (outlining the communications requirements currently required under the Model Rules).
164✕ See 5 Communication Skills, supra note 160.
165✕ See Model R. Prof’l Conduct 3.3, 3.4. See Generally Officer of the Court, Law.Com, https://perma.cc/XU2M- XP7K (last visited Oct. 27, 2021) (providing a broad general description of “officer of the court”).
166✕ The Practice: Concealing Evidence (ABC television broadcast Nov. 23, 2003).
167✕Id.
168✕Id.
169✕Id.
170✕Id.
171✕Id.
172✕ Model R. Prof’l Conduct 3.3(a)(1), 3.4(a) (Am. Bar Ass’n 2018). See Generally The Practice: Concealing Evidence, supra note 166 (ignoring the issue of Tara Wilson, a paralegal, standing in for Alan before the hearing starts because he is running late).
173✕ Model R. Prof’l Conduct 3.3(a)(1).
174✕Id. R. 1.0(f).
175✕ See id. R. 3.3(a)(1); The Practice: Concealing Evidence, supra note 166.
176✕ The Practice: Concealing Evidence, supra note 166.
177✕ See Model R. Prof’l Conduct 3.3(a)(1); The Practice: Concealing Evidence, supra note 166.
178✕ Model R. Prof’l Conduct 3.4(a).
179✕ Gillers, supra note 2, at 375.
180✕ E.g., People v. Meredith, 631 P.2d 46, 54 (Cal. 1981) (“Whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence in question.”).
181✕ E.g., Wemark v. State, 602 N.W.2d 810, 817 (Iowa 1999) (“A defense lawyer has no legal obligation to disclose information about the location of an instrument of a crime when possession of the instrument is not taken.”).
182✕ See The Practice: Concealing Evidence, supra note 166 (“If we have actual knowledge that it’s in our possession we, of course, would have a duty to turn it over.”). See Generally, e.g., Wemark, 602 N.W.2d at 817.
183✕ See Model R. Prof’l Conduct 3.4(a); The Practice: Concealing Evidence, supra note 166. See Generally, e.g., Wemark, 602 N.W.2d at 817.
184✕ See supra Part III(C). See Generally The Practice: Concealing Evidence, supra note 166.
185✕ The Practice: Concealing Evidence, supra note 166.
186✕ The Practice: Concealing Evidence, supra note 166.
187✕ The Practice: Concealing Evidence, supra note 166.
188✕ The Practice: Concealing Evidence, supra note 166.
189✕ The Practice: Concealing Evidence, supra note 166.
190✕ The Practice: Concealing Evidence, supra note 166.
191✕ The Practice: Concealing Evidence, supra note 166.
192✕ Model R. Of Prof’l Conduct 3.3, 3.4 (Am. Bar Ass’n 2018); The Practice: Concealing Evidence, supra note 166.
193✕ See supra Part III(C).
194✕ The Practice: Concealing Evidence, supra note 166.
195✕ See Generally The Practice: Concealing Evidence, supra note 166.
196✕ E.g., The Practice: Concealing Evidence, supra note 166 (showing an attorney destroying evidence or taking deliberate action to move and conceal evidence). See Generally supra Part II.
197✕ See Model R. Prof’l Conduct 3.3, 3.4.
198✕ See Media Lawyers vs. Real Lawyers, Crosley Law, https://perma.cc/HJE3-27LL (last visited Oct. 7, 2021) (representing a blog post posted by a law firm on its website discussing the differences between the actual practice of law and what is Seen in fiction); see also Anthony Zangrillo, TV Lawyers vs. Real Life Lawyers, Fordham Intell. Prop. Media & Ent. L.J. (Dec. 26, 2016), https://perma.cc/JD27-Z5NF (commenting on the differences between law as Seen on television and the actual practice of law).
199✕ See Generally Susan Letterman White, How Lawyers Can Improve Client Communication for Results, Mass Lomap (Oct. 17, 2017), https://masslomap.org/lawyers-can-improve-client-communication-results/ (asserting that “improving client communication improves every aspect of your practice of law”); Media Lawyers vs. Real Lawyers, supra note 198.
200✕ See supra Part II. See Generally Media Lawyers vs. Real Lawyers, supra note 198; White, supra note 199.
201✕ See Generally Model R. Of Prof’l Conduct 3.3, 3.4; White, supra note 199.
202✕ See White, supra note 199. See Generally supra Parts II, IV(B).
203✕ Stephen C. Sieberson, Two Lawyers, One Client, and the Duty to Communicate: A Gap in Rules 1.2 and 1.4, 11 U.N.H. L. Rev. 27, 28 (2013).
204✕Id. at 29–31.
205✕ See Model R. Of Prof’l Conduct 1.1, 1.2, 1.4, 1.5, 1.6. See Generally Ally McBeal: The Inmates, supra note 55; The Practice: Axe Murderer, supra note 55; Sieberson, supra note 203, at 27.
206✕ See Ally McBeal: The Inmates, supra note 55; supra Part III(C).
207✕ Ally McBeal: The Inmates, supra note 55 (revealing that the firm lacks criminal law experience when the characters are called to the scene of the crime where their client has allegedly killed her husband with an axe). See Generally Ally McBeal, supra note 9 (demonstrating that the majority of cases presented are civil in nature).
208✕ See infra Part IV(C).
209✕ Ally McBeal: The Inmates, supra note 55.
210✕ Ally McBeal: The Inmates, supra note 55.
211✕ Ally McBeal: The Inmates, supra note 55.
212✕ Compare Ally McBeal: The Inmates, supra note 55, with Sarah Gray, R. Kelly’s Lawyer Says ‘I Think All the Women Are Lying’ as the Singer Is Arrested in Chicago on Sexual-Abuse Charges Involving 4 Women, Insider (Feb. 22, 2019, 11:24 PM), https://perma.cc/9CCA-N6FA (demonstrating that Fish’s statement is not as absurd as it may initially appear particularly when compared to a statement made by Attorney Steve Greenberg, who stated to the media “I think all the women are lying. Yes . . . This has become, ‘Hey I can say R. Kelly did something, boom.’”).
213✕ Ally McBeal: The Inmates, supra note 55.
214✕ Ally McBeal: The Inmates, supra note 55.
215✕ Ally McBeal: The Inmates, supra note 55.
216✕ Ally McBeal: The Inmates, supra note 55.
217✕ See Ally McBeal: The Inmates, supra note 55.
218✕ See Ally McBeal: The Inmates, supra note 55.
219✕ Ally McBeal: The Inmates, supra note 55.
220✕ Ally McBeal: The Inmates, supra note 55.
221✕ Ally McBeal: The Inmates, supra note 55.
222✕ See Generally Model R. Prof’l Conduct 1.1-1.2, 1.1.2, 1.4-1.6, 3.6 (Am. Bar Ass’n 2018); Ally McBeal: The Inmates, supra note 55.
223✕ Model R. Prof’l Conduct 1.1.
224✕Id.; Ally McBeal: The Inmates, supra note 55.
225✕ Model R. Prof’l Conduct 1.1; Ally McBeal: The Inmates, supra note 55. See Generally Levine, supra note 8, at 67–68 (discussing Greg Germann’s portrayal of Richard Fish).
226✕ Model R. Prof’l Conduct 1.4.
227✕Id. R. 1.4(a)(2), 1.4(a)(3).
228✕Id. R. 1.2(a), 1.2 cmt. 1.
229✕ See Generally Sieberson, supra note 203, at 45; Ally McBeal: The Inmates, supra note 55.
230✕ Model R. Prof’l Conduct 1.4(a)(2), 1.4(a)(3). See Generally Sieberson, supra note 203, at 45.
231✕ See Ally McBeal: The Inmates, supra note 55.
232✕ See Model R. Prof’l Conduct 1.6; Ally McBeal: The Inmates, supra note 55.
233✕ Model R. Prof’l Conduct 1.6.
234✕Id. R. 1.6(a).
235✕ See id. R. 1.6; Ally McBeal: The Inmates, supra note 55; Sieberson, supra note 203, at 30.
236✕ See Ally McBeal: The Inmates, supra note 55.
237✕ Model R. Prof’l Conduct 1.6 cmt. 4.
238✕Id. R. 1.6; Sieberson, supra note 203, at 30. See Generally Ally McBeal: The Inmates, supra note 55.
239✕ Model R. Prof’l Conduct 1.6; See Sieberson, supra note 203, at 35. See Generally Ally McBeal: The Inmates, supra note 55 (presuming, from context, that the client had not instructed Cage & Fish to withhold information from Donnell, Young, Dole & Frutt; had the client instructed Cage & Fish to withhold confidential information, discussing that information, even with co-counsel, would violate the duty of confidentiality).
240✕ See Model R. Prof’l Conduct 3.6; Ally McBeal: The Inmates, supra note 55.
241✕ Model R. Prof’l Conduct 3.6(a). 242 Id. R. 3.6(b)(1).
243✕Id. R. 3.6(c).
244✕Id. R. 3.6 cmt. 7.
245✕ See id.R. 3.6(b)(1); Ally McBeal: The Inmates, supra note 55.
246✕ See Model R. Prof’l Conduct 3.6(c); Ally McBeal: The Inmates, supra note 55.
247✕ E.g., Gray, supra note 212 (reporting on comments R. Kelly’s attorney made to the press).
248✕ Ally McBeal: The Inmates, supra note 55.
249✕ Model R. Prof’l Conduct 3.6(a).
250✕ See supra Part IV(C). See Generally Ally McBeal: The Inmates, supra note 55.
251✕ Ally McBeal: The Inmates, supra note 55.
252✕ Ally McBeal: The Inmates, supra note 55 (“I’m betraying them here, but my ethical obligation goes to the client.”). See Generally Fiduciary Duty Law, supra note 157 (describing the fiduciary duty of an attorney to his/her client in general terms).
253✕ Ally McBeal: The Inmates, supra note 55.
254✕ See Model R. Prof’l Conduct 8.3.
255✕ Supra Part IV(C). See Generally Ally McBeal: The Inmates, supra note 55.
256✕ See Model R. Prof’l Conduct 8.3. See Generally Sieberson, supra note 203.
257✕ Model R. Of Prof’l Conduct 8.3(a).
258✕ Sieberson, supra note 203, at 61. See Generally Model R. Prof’l Conduct 8.3.
259✕ See Model R. Prof’l Conduct 8.3; Ally McBeal: The Inmates, supra note 55.
260✕ See Model R. Prof’l Conduct 8.3; Ally McBeal: The Inmates, supra note 55.
261✕ See Ally McBeal: The Inmates, supra note 55.
262✕ See Model R. Prof’l Conduct 1.5; Ally McBeal: The Inmates, supra note 55.
263✕ Model R. Prof’l Conduct 1.5(e)(1).
264✕Id. R. 1.5(e).
265✕Id.
266✕ See id.; Ally McBeal: The Inmates, supra note 55.
267✕ See The Practice: Axe Murderer, supra note 55.
268✕ See The Practice: Axe Murderer, supra note 55. See Generally supra Part III(C).
269✕ See The Practice: Axe Murderer, supra note 55. See Generally supra Parts II, III(C).
270✕ The Practice: Axe Murderer, supra note 55.
271✕ The Practice: Axe Murderer, supra note 55.
272✕ The Practice: Axe Murderer, supra note 55.
273✕ The Practice: Axe Murderer, supra note 55.
274✕ See The Practice: Axe Murderer, supra note 55.
275✕ See supra Part II.
276✕ See The Practice: Axe Murderer, supra note 55.
277✕ See The Practice: Axe Murderer, supra note 55; see also Quentin B. Huff, The Practice Makes Perfect – Well, Almost, Popmatters (Sept. 12, 2007), https://perma.cc/DH8K-5V7X.
278✕ The Practice: Axe Murderer, supra note 55.
279✕ See The Practice: Axe Murderer, supra note 55.
280✕ See Tom Jacobs, Watching TV Can Boost Emotional Intelligence, Greater Good Mag. (Oct. 2, 2015), https://perma.cc/3MHD-YEXQ (“Both written and filmed fictional narratives demand that the audience understand the feelings and intentions of the characters.”); The Practice: Axe Murderer, supra note 55.
281✕ See, e.g., Brinkerhoff, Reality Bites: Boston Legal’s Creative License with the Law, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 255.
282✕ See The Practice: Axe Murderer, supra note 55. See Generally Jacobs, supra note 280.
283✕ See Gillers, supra note 2, at xxviii (“[D]o not believe that the right way to act—towards clients, courts, adversaries, or colleagues—will be intuitively obvious.”).
284✕ See, e.g., Brinkerhoff, Reality Bites: Boston Legal’s Creative License with the Law, in Lawyers In Your Living Room!: Law On Television, supra note 28, at 255 (“[A] real-life lawyer needs to commit only one instance of bribery, extortion, or witness intimidation to get disbarred. Shore makes a sport of each of them–then bounds . . . on to the next episode.”). See Generally Gillers, supra note 2, at 589–90 (discussing the discipline of lawyers for violations of the applicable ethical rules).
285✕ See Gillers, supra note 2, at xxix, 8–11 (stating “you will enter a profession in greater transition than at any other time in U.S. history” and providing a cursory overview of evolving amendments to rules governing legal ethics and professional responsibility).
286✕ See Generally CLE Marketplace, ABA, https://perma.cc/6EMK-8MS8 (last visited Oct. 7, 2021) (discussing how the ABA offers unparalleled learning experiences and MCLE credit on timely topics with leading speakers both online and in person).
287✕ See Robert A. Clifford, Popular Media Paints Unrealistic Portrait of Lawyers (. . . And What We Can Do About It), CBA REC., Jan. 2005, at 44, 44–45.
288✕Id. at 45.
289✕Id. at 45.
290✕Id. at 45.
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