The Lincoln Lawyer

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.

V. Conclusion

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.

24 Responses to The Lincoln Lawyer

  1. Didn’t the issue of two lawyers being aware of a client’s guilt in a murder case (that another individual was arrested for) come up in real life?

  2. Chakat Firepaw

    Could not one argue that a serial killer is almost certain to, (attempt to), kill again and thus his continued freedom is “likely to result in death of, or substantial bodily harm to, an individual,” even though you have no indication of any specific plans?

    • For the answer to that you have to go further into the rule and the official discussion of the rule. The discussion makes it clear that “a member is not permitted to reveal confidential information concerning a client’s past, completed criminal acts” but rather only “disclosure to prevent a future or ongoing criminal act.” Thus, there’s nothing Haller can properly disclose, since he doesn’t know anything about future criminal acts Roulet may commit, or at least not anything “necessary to prevent the criminal act.”

      • Martin Phipps

        If a lawyer informs the police that his client committed a crime and the police charge the man with that crime, could a judge later dismiss the case on the grounds that the police obtained their information illegally?

      • Not solely on that basis, no. What would likely happen if Haller went to the police is that the police would get a warrant because probable cause can be based on inadmissible evidence. Then they would try to find enough independent evidence to charge—and hopefully convict—Roulet. Haller’s testimony would be inadmissible because Roulet could claim the attorney-client privilege. Without Haller’s testimony it’s possible there wouldn’t be enough evidence to sustain a case, though.

        Whether Roulet was convicted or not, Haller would be suspended or disbarred, probably the latter. He might also be liable for malpractice, although malpractice in a criminal case is hard to prove.

  3. Another fascinating read, thank you – IANAL, mostly because as a disabled person I couldn’t hack the long hours of articling, but find the blog absolutely unmissable. The story in the Lake Pleasant case is horrifying. I feel so deeply for Mr. Armani, who was put into a completely untenable position by a thoroughly amoral man.

    It seems to be one of the failings – though probably a necessary one – of our legal system that it can be manipulated by someone ruthless and conscienceless enough into putting some human parts of that system under intolerable stress. Death threats? Loss of one’s profession? All for standing by one’s word? Horrendous. I don’t think there’s a better way, necessarily, just sad that it can have such a devastating effect on someone who was basically just trying to be honourable.

  4. Melanie Koleini

    How does attorney client privilege apply when talking about a third person?
    For example, the client is a material witness that is refusing to tell police where a fugitive is hiding. The client tells his lawyer where the secrete hideout is. Assuming the lawyer has no specific information about future crimes, can the lawyer tell police where the fugitive is?

    • Martin Phipps

      I would imagine it would depend on whether the information would incriminate his client. Whatever information the client may know may be useful in that it could be exchanged for a lighter sentence. Of course, that would be something that would have to be negotiated with the prosecutor. (That happened every other week on Law and Order.)

      • Melanie Koleini

        Are there circumstances where the lawyer could be charged with a crime for not reporting what he knows? Could a lawyer be charged with conspiracy for not divulging the something relating to an ongoing crime?

        I haven’t heard of any lawyers getting caught in the net, but I understand the Supreme Court ruled even publishing an article in a newspaper can count as providing material support to terrorists in some circumstances.

      • Martin Phipps

        Seeing as how it actually is malpractice for a lawyer to say what he does know, I don’t think a lawyer could ever be charged for a crime simply by keeping his mouth shut. I know that the prosecution has to disclose evidence to the defense so that the defense has an opportunity to prepare a rebuttal. Does the defense have an obligation to turn over its evidence as well? Well, obviously not because evidence that would incriminate the client would -I imagine- be covered under lawyer-client privilege: the client can say that he provided evidence in confidence and that him giving the lawyer the evidence was the same as him telling the lawyer what he knew. I don’t even think a lawyer could properly secretly investigate his client and turn over evidence against his own client to the prosecution. If the lawyer could never tell anyone what he knows then he’s probably better off not knowing if his client is guilty or not. I imagine that there have been a lot of defense attorneys who have just gone through the motions in a trial because they believed their client was guilty and they secretly wanted their client to go to jail. But that’s not entirely fair: it’s up to the jury and/or judge to decide guilt, not the defense attorney.

      • Martin Phipps

        Oh there is at least one way a defense lawyer could be charged and that’s if he actually tampers with evidence. In the Lake Pleasant bodies case a lawyer actually was charged with evidence tampering because he not only went to the crime scene to take pictures but also moved the girl’s skull in order to get a better picture. Again it’s probably better off for a lawyer to not even know whether or not his client is guilty.

      • “Are there circumstances where the lawyer could be charged with a crime for not reporting what he knows? Could a lawyer be charged with conspiracy for not divulging the something relating to an ongoing crime?”

        The general rule is that lawyers only “may” disclose under the exceptions, not that they must. Further, these are only ethical rules, not criminal laws. It’s not a crime to break the ethical rules; the punishment is a professional one (e.g. disbarment), not a criminal one. However, if the privilege does not apply (because, e.g., the client has waived it), then the attorney could be held in contempt for refusing to testify if asked.

        “I know that the prosecution has to disclose evidence to the defense so that the defense has an opportunity to prepare a rebuttal.”

        The only evidence that the prosecution has an affirmative duty to disclose is evidence tending to exonerate the defendant. Everything else is subject to the normal discovery process.

    • That’s complicated, since that’s an ongoing crime. However, there’s no risk of harm to anyone in that scenario, so no, the attorney would not have to disclose anything.

      Bear in mind, however, that the client in that scenario is not a defendant in that case. Unless revealing the fugitive’s location would incriminate the client, then the court could compel the client to testify. If the client refused then the court could hold the client in contempt and have him or her jailed until he or she testified.

  5. Isn’t there a rule that prevents a miscarriage of justice? If there isn’t I’d imagine that would allow something to be done.

    • Martin Phipps

      The prosecution has an obligation to disclose evidence to the defense and I imagine that includes evidence that the prosecution decides not to use in trial because such evidence may actually exonerate the accused. As far as I know, the defense is not under any obligation to disclose anything because any evidence the defense collects during the course of their own investigation could be covered under lawyer-client privilege.

      Of course if a lawyer were to uncover evidence regarding a third party and disclosing that evidence couldn’t incriminate his client then perhaps he might be able to divulge that information. It depends. If it was simply a matter of passing on something his client told him then it would be considered hearsay if his client refused to testify himself. Besides, I think it would violate the spirit of lawyer client privilege if a lawyer passed on anything a client told him. Who’s to say what a jury would consider incriminating?

    • What do you mean by ‘miscarriage of justice?’

  6. Christopher A.

    The discussion about lawyers knowing their clients are guilty reminds me of an episode of “Rumpole of the Bailey” that I saw a long time ago. My (admittedly vague) recollection is that Rumpole told his client not to tell him whether he was guilty, as it would make defending him more difficult because he (Rumpole) would not be able to argue something in court that he knew to be a lie. Is this a real rule that I am remembering, and if so, does it apply in the U.S. and this case?

    • I have no idea what the rule is in the U.K. In the U.S. most jurisdictions have adopted ABA Model Rule 3.3 or something like it: “A lawyer shall not knowingly … offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.”

      In criminal cases there are two issues here. First, a lawyer must not knowingly offer evidence that the lawyer knows to be false. The various ethics committees and courts have decided that this is a very high bar, at least with regard to the testimony of a criminal defendant. As Monroe Freedman put it “By giving the ‘knowing’ requirement a highly restrictive meaning, the ABA and the courts have permitted lawyers to avoid concluding that a client is lying, despite the fact that the client has told the lawyer inconsistent versions of the truth, and despite the fact that the client’s testimony is far-fetched or preposterous, unsupported by other evidence, and dramatically contradicted by credible evidence.” Getting Honest About Client Perjury, 21 Geo. J. Legal Ethics 133, 135 (2008).

      Second, there’s an outright exception for the testimony of a criminal defendant that the attorney “reasonably believes” is false; an attorney may not refuse to offer that evidence.

      So in practice you have to let the client say what he or she wants to say, even if it’s almost certainly false. To give you a sense of how high the bar is, consider the Supreme Court of Wisconsin’s explanation in State v. McDowell: “Absent the most extraordinary circumstances, [an attorney’s knowledge that the client intends to testify falsely] must be based on the client’s expressed admission of intent to testify untruthfully. … it must be unambiguous and directly made to the attorney.” 681 N.W.2d 500, 514 (Wis. 2004). Even then, an attorney should attempt to dissuade the client from testifying falsely. After that, the attorney should attempt to withdraw. If that is unsuccessful, then the attorney should use open-ended “narrative style” questions instead of normal direct examination. It really is almost impossible for a criminal defense attorney to be required to say “Your Honor, my client is lying.”

      Ultimately, it is not the attorney’s job to be the judge and jury. The attorney’s role is to be a zealous and loyal advocate in an adversarial system.

  7. David Johnston

    I’ve read the book, and it ends with him facing lawsuits from both his clients that will financially ruin him, and having been reprimanded by the bar association and given a 90 day vacation from the legal profession. It would have been worse had they actually been able to establish what he specifically did. Details like that fall by the wayside in Hollywood adaptations.

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  9. What about when Roulet’s character broke into Haller’s house? Does attorney client privilege prevent Haller from calling the police? Why didn’t he call the police?

    • Haller’s duty of confidentiality didn’t extend that far, no. California Rule 3-100 provides that “A member 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.” The fact that a client was presently committing a crime against the attorney would probably qualify.

      But moreover, breaking into an attorney’s house isn’t probably a confidential communication between the client and the attorney in the first place.

      It’s been a pretty long time since I saw the movie, but as I recall Haller didn’t call the police because Roulet was threatening him, not because of the duty of confidentiality.

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