A couple of months ago we were asked about the movie The Lincoln Lawyer. It’s not a comic book film, but it’s still close enough to pop culture that we thought people might be interested in a short post about it. Spoilers follow, starting with the question itself.
“Benjamin Button” asks “is it feasible that any of [Mickey Haller’s] ‘legal obligations’ could prevent him from telling the courts that his client did in fact murder someone?”
In the film, Mickey Haller is the titular criminal defense lawyer. He discovers that one of his clients (Louis Roulet) is a serial killer, but attorney-client privilege apparently prevents him from disclosing information that could free a former client (Jesus Martinez) wrongly convicted of one of Roulet’s crimes. So the question really goes to the crux of the plot: is Haller actually in an ethical bind, and is his solution actually within ethical boundaries?
I. The Attorney-Client Privilege and the Duty of Confidentiality
The film is correct in stating that the privilege is held by the client, not the attorney, and that an attorney has an obligation to keep a client’s confidences. In California, where the film takes place, the Business and Professions Code § 6068(e)(1) states that attorneys must “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Confidentiality is a key part of being an attorney, and attorneys take that obligation very seriously, even in the face of death threats and criminal charges. Without Roulet’s permission Haller could not testify against Roulet in court, nor could he disclose what he knew to the police or anyone else.
There are narrow exceptions to the duty of confidentiality, but they do not apply here. In California, an attorney “may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.” California Rules of Professional Conduct 3-100. Although Roulet showed signs of being a serial killer he was careful not to overtly threaten anyone or indicate a planned future crime. Haller’s hands remain tied.
II. Haller’s ‘Solution’
Unfortunately, Haller’s solution is not free of ethical problems, to say the least. The biggest issue is that Haller inappropriately discloses confidential information to at least two people: Gloria and Margaret.
Gloria is the imprisoned client that he uses to relay information to a known jailhouse snitch; she alleges to the snitch that if he testifies against Roulet that the prosecutor will cut him a deal. There are several problems here. First, there’s the breach of confidence inherent in disclosing anything that Roulet told Haller. Second, he asked Gloria to solicit the snitch to commit perjury. This is a violation of Rule 1-120 and quite likely a crime as well.
Margaret is Haller’s ex-wife and a prosecuting attorney. Haller tells Margaret that his investigator, Frank, found information tending to exonerate Jesus Martinez and implicating Roulet in a prior murder. But Frank only found that information as part of his investigation into Roulet’s alibi, and therefore the information is privileged. Note that in many jurisdictions Margaret would be under an affirmative duty to report Haller’s ethical breach (ABA Model Rule 8.3), but California does not have a mandatory reporting rule for attorneys. Nonetheless, she could theoretically report him, although the movie suggests that would be out of character for her.
III. Haller’s Other Ethical Breaches and Crimes
Haller commits several other ethical breaches, but we’ll limit our discussion to three of the most egregious ones. First, he lies to a judge about the need to continue a trial by inventing a fictitious witness (“Mr. Green”) in order to extract payment from a client. This violates Rule 5-200: an attorney “Shall not seek to mislead the judge … by an artifice or false statement of fact.” It also violates § 6068: an attorney may not “encourage … the continuance of an action or proceeding from any corrupt motive of passion or interest.” It’s also almost certainly a crime.
Second, Haller commits an ethical violation when he promises to recommend Val Valenzuela’s bail bond services in exchange for being recommended as an attorney to Roulet. Rule 1-320(B) states “A member shall not compensate, give, or promise anything of value to any person … for the purpose of recommending … employment of the member … by a client, or as a reward for having made a recommendation resulting in employment of the member … firm by a client.” Although it ultimately comes out that Roulet had specifically requested Haller and that Valenzuela was simply trying to secure a recommendation for his bail bond service, Haller did not know that at the time that he made the deal with Valenzuela
Third, it is strongly implied that Haller contacted the biker gang and asked them to beat up Roulet. This is obviously a crime.
IV. The Good Stuff
We don’t want to sound too down on the movie. It’s an enjoyable court room drama with a nice twist, and it gets many of the legal details right, even if the protagonist is ultimately a scoundrel and a hypocrite. (Haller defends his career as a criminal defense lawyer on the basis of the sanctity of the justice system and criticizes a prosecuting attorney for going too far, yet Haller himself repeatedly acts outside the justice system.)
So, here’s some of the good stuff. Criminal defendants often do not get nice rooms alone with their attorneys; the movie’s portrayal of conversations between Haller and his clients are pretty accurate. Court is largely fairly boring, heated objections are rare, the jury is excused when discussing issues like whether a new witness can be put on the stand, and objections are made with reasons instead of simply by shouting ‘objection!’ Attorneys are usually collegial toward one another outside the courtroom.
The Lincoln Lawyer is a pretty good film as long as you don’t come away with the mistaken impression that Haller is just a slick attorney who knows how to work the system. Instead, he’s a flawed, conflicted attorney who often uses morally and legally questionable means to accomplish noble ends.