As a law professor who teaches law students to be lawyers by working with real clients, I like to watch television shows and films that depict lawyers behaving well. I get very excited when I see examples of transactional lawyers – lawyers who do everything from assisting clients with the purchase and sale of a small business, or piece of real estate, or draft a will or health care directive – since they are less frequently portrayed in entertainment than courtroom litigators. This is a shame since transactional lawyers in many areas of the country make up the majority of attorneys who practice law.
Depictions of lawyers in courtroom television and film dominate legal-themed entertainment. Television and film drama, and comedy, feature lawyers appearing before judges, negotiating with opposing counsel, and advising clients. Transactional lawyers negotiate and advise clients, though often from their offices, or over the telephone, tending to be in less visually dramatic settings as courtrooms. Of course there are dramatic moments in a transactional lawyers office that do get depicted in films – the reading of a will in the recent Oscar-nominated Manchester by the Sea, for instance – but we rarely see the transactional lawyer as hero, or villain, the way we do with the courtroom litigator, like Atticus Finch, or the character played by Keanu Reeves in The Devil’s Advocate.
As a law professor who teaches future lawyers everything from how to write professional emails to how to spot ethical issues by working with real clients, I watch attorney portrayals and sometimes refer to them when teaching students. Some legal-themed shows get it correct – others portray lawyers bending ethical rules to make for dramatic scenes, injecting energy into a dull story arc. Though too often, for dramatic purposes, writers have lawyers acting aggressively, and clearly unethically, in ways real practicing lawyers rarely, if ever, do.
A recent depiction of attorneys in the HBO Series Divorce, starring Sarah Jessica Parker and Thomas Haden Church jumped out at me, primarily because of how clearly unethical lawyers behaved. In the show, characters Frances DuFresne (Parker) and Robert DuFresne (Church) struggle with their marriage, family, and work lives in their Westchester County suburban home. After exploring marriage counseling, Frances and Robert find themselves meeting with a divorce mediator, and then they hire attorneys. By episode 5 (“Gustav”), which first aired on November 2, 2016, Robert has hired an aggressive, misogynistic, and it turns out extremely unethical attorney named Tony Silvercreek, played by Dean Winters. This is Robert’s second attempt at hiring a divorce lawyer. Though the first one, Gerald, played by Geoffrey Owens, demonstrates similarly awkward, if not unethical behavior. Both Silvercreek and Gerald call Frances over the phone once they have been hired by Robert, with different styles, though similar intents. Silvercreek is menacing in a late night call on Frances’ personal cell phone. Gerald, on the other hand, is fumbling, but also has called Frances’ cell phone directly. Both these instances are potentially violations of the Model Rules of Professional Conduct..
Model Rule 1.7 states that “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” This means that a lawyer representing one party cannot call, or write to, or email, or text, an opposing client that the lawyer knows is represented by a lawyer. To do so they need the lawyer representing the other party to give consent. Calling a client a lawyers know to be represented by an attorney specifically to intimidate is a violation of the rule.
In Divorce, Frances is not represented by an attorney yet when Gerald calls her. While his style (he insists he is making a prank call) is strange, and reason for calling unclear, he may not have broken any ethical rules. Silvercreek, on the other hand, makes his call late at night, when Frances is on her way home from a night out with friends, after she has hired an attorney. While it is possible Silvercreek does not yet know that Frances has hired an attorney – the show does not cover that – it seems unlikely he would not know since the couple’s failed divorce mediation leads both Frances and Robert to seek legal counsel. Although transactional lawyers push the bounds of ethical behavior in their practices in real life, the Silvercreek character’s garish tactics are overtly unethical, and likely designed more to make for interesting plot than to get at truth through fiction.
In Silicon Valley, another recent HBO series, we meet Ron LaFlamme, a colorful, young corporate lawyer who has a number of well-worded ethical teaching moments for transactional attorneys in training. LaFlamme, played by Mad Men cast member Ben Feldman, explains the complexities of business entity formation when asked by a tech start-up client why form a corporation in Delaware. He replies essentially that his clients should just trust his expertise. I usually talk about the “just trust me” explanation as an example of how not to explain corporate formation to client.
LaFlamme, who explains the difference between what he does – namely transactional law – and litigation, also has his high points. In episode 19 (“Founder Friendly”), the founder of digital media compression company Pied Piper, Richard Hendricks, is demoted from chief executive office to chief technology office by the board of the company. LaFlamme joins a board meeting with Hendricks. When Hendricks quits instead of taking the demotion and threatens to sue the company he asks LaFlamme to come with him. At this point, LaFlamme explains that he is Pied Piper’s corporate counsel, not Hendricks, the founder’s, personal attorney. This comes a shock to Hendricks.
When transactional lawyers are brought in to assist a new start-up business, their representation is with the company, and not any individual within the company. When a split occurs, as in the case of Hendricks and the Pied Piper board, the company’s attorney owes a duty to represent the company and not the individual. I use this example when I talk to my class about ethical duties of transactional lawyers (as I did again this week at Albany Law School, in the Capital Region of New York State). As pointed out elsewhere, it can be important for corporate officers working with corporate counsel to hire their own lawyers in situations where the officer’s interests could be adverse to the companies.
While I support depictions of transactional lawyers in entertainment, it is important to make sure that depictions show transactional lawyers behaving generally within ethical norms. When writers depict transactional lawyers behaving clearly outside of ethical norms without showing specific characters’ motivations for doing so it can color public perception about the critical role transactional lawyers play in preserving democratic institutions within our society. Transactional lawyers, and law students starting their career path to become transactional lawyers, lose out with such depictions, as do the consumers of transactional legal services – the public.