Laurel Lance’s Drug Problem

This guest post was written by Tracy Douglas, who is an attorney in the Illinois Governor’s Office. The opinions expressed in this article are solely those of the author and not those of the Governor’s Office.

Arrow season 2 includes a plot about Laurel Lance’s drug and alcohol addiction. This raises several legal issues about public employees and legal ethics.

 

1. Can Laurel be fired?

In “Blind Spot,” Laurel investigates Sebastian Blood. After finding drugs in her apartment, the cops arrest Laurel for drug possession (she’s been using her dad’s prescription drugs). When she’s released from police custody, she’s kidnapped, and it appears a cop was behind everything, not Blood. Assistant District Attorney Adam Donner tells her the drug charges were dropped, but she’s being fired because she has a drug problem. He tells her it’s not coming from District Attorney Spencer but from him because he hired her.   Whether her firing is proper depends on if Laurel had a right to notice and a hearing.

In certain situations, public employees have a right to notice of termination and a hearing before they are terminated. This is guaranteed by the 14th amendment’s due process clause, which protects government employees from being fired without notice and a hearing if they have a protected property interest and can only be dismissed for cause. Bd of Regents v. Roth, 408 U.S. 564, 577, 578 (1972); Perry v. Sindermann, 408 U.S. 593, 602-603 (1972). In this analysis, it must be determined if the public employment at issue is a protected property interest. Roth at 571. A property interest can be created by “existing rules or understandings that stem from an independent source such as state law.” Roth at 577. Further, where a person’s reputation is at stake, notice and an opportunity to be heard are important. Roth at 573. A public employee who can only be dismissed for cause is entitled to a limited pre-termination hearing to be followed by a more extensive post-termination hearing. Cleveland Bd. Of Ed. v. Loudermill, 470 U.S. 532, 545-546 (1985). Therefore, to be a proper firing, Laurel needs notice and a hearing if she has a property interest in her job. To have a property interest, reputation can be looked at, but state law must be examined.

Arrow is not clear where Starling City is located. The DC comics have shown it as a stand-in for San Francisco or Seattle. For this discussion, California, Washington and Illinois law will be used to see how public employment and legal ethics are treated by different states. In Washington and California, Laurel would have more job protections as a county employee than in Illinois.

In California and Washington, Laurel has a protected property interest established by county rules and possibly the collective bargaining agreements. This means she has a right to notice and an opportunity to be heard. County attorneys in San Francisco county and King County, Washington (Seattle) are represented by unions. The collective bargaining agreements might include more protections than the county rules. In the absence of the labor agreement, her employment is protected by county civil service rules. She would have notice of her termination and a right to a hearing before she is officially terminated. San Francisco County Civil Service Rule 122.1.3; 122.1.4; King County Code 3.12.270.   This satisfies the 14th amendment’s due process requirement. So, if Starling City is in a state with laws like California and Washington, then Donner could not fire Laurel without a written notice and a hearing.   His informing her may be an informal hearing under Loudermill, but she has a right to a fuller hearing. This is important because under Roth her reputation is at stake and she needs the chance to tell her side.

On the other hand, if Starling City is in a state like Illinois, Laurel may not have those protections. The state’s attorney has complete control over the office, including the ability to hire and fire employees. 55 Ill. Comp Stat. Ann. § 5/3-9006 (West 2014). Laurel may have an argument based on Roth and Sindermann that she has a protected property interest in her job. However, both Roth and Sindermann talk about public employees who are protected from being fired without cause. Without a union or contract, Illinois assistant state’s attorneys are at-will employees, and that means Laurel likely won’t have a right to notice and a hearing because firing is not limited to for cause. She could claim a right because her reputation is at stake, but the firing seems proper under Illinois law.

 

II. Would a state bar investigation make her unemployable?

In “Tremors,” Laurel refuses to seek help through counseling, and she finds out from her colleague, Joanna, that she’s under investigation by the state bar. It is looking in to her fitness to practice based on her arrest. It’s not clear how much time has passed from her firing, so it’s not clear if this is an initial investigation or if charges have been filed. Joanna’s partner sits on the disciplinary committee of the state bar, and he found out Laurel was under investigation when they thought about hiring her.   This is probably its own violation because if it is not public information yet, then he is revealing confidential information. Joanna says that while the investigation is out there, they can’t hire her. Usually, only the most egregious violations of legal ethics result in disbarment. For other cases, there are suspension and censure punishments. Laurel’s actions may have violated professional rules, but punishment depends on the severity of the violation. If the investigation is beyond the beginning stages, then Laurel will know about it. If she knows about it, then she should tell potential employers. While there is an ongoing investigation, she would likely be unemployable unless the person is a friend doing her a favor or doesn’t care about the bad optics of hiring someone under investigation.   State legal ethics are overseen by the courts, but the process varies.

In California, the state bar court oversees the rules of professional conduct and disciplinary matters. Cal Bus. & Prof. §§ 6076, 6077 (West 2014).   Under the California rules, lawyers face discipline if they “intentionally, recklessly, or repeatedly fail to perform legal services with competence” or commit an “act involving moral turpitude, dishonesty or corruption.” Cal. Rules of Professional Conduct, Rule 3-110; Cal. Bus. & Prof. § 6106. When a lawyer is charged with a crime, the bar must be notified, and it could start its own investigation even when the charges are dropped. Cal. Bus. & Prof. § 6101; California Rules of the State Bar, Title 5, Rule 2402. Any of these might cover what Laurel does in the show. What’s problematic about this situation is that Laurel seems to not know about the investigation. It’s possible that Laurel would not know about it if it’s at the preliminary stage, before she’s been notified. However, the lawyer who is being investigated would eventually be notified when charges are filed, and that would be public information. California Rules of the State Bar, Title 5, Rule 2403; Rule 2604. So, being investigated by the bar and being rendered unemployable rings true, but she would probably know about the investigation.

Washington and Illinois have similar Rules of Professional Conduct. Washington’s misconduct rule says that misconduct includes “commit[ing] a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Washington Rules of Professional Conduct Rule 8.4(b); Illinois Rules of Professional Conduct Rule 8.4(b) (2010). Washington statute provides grounds for disbarment, including “any act involving moral turpitude, dishonesty, or corruption” and “gross incompetency in the practice of the profession.” Wash. Rev. Code Ann. 2.48.220 (West 2014). A criminal conviction is not required to begin disciplinary action. Washington Rules of Professional Conduct Rule 8.4(i). Washington’s rules also have a catchall “engage in conduct demonstrating unfitness to practice law.” Washington Rules of Professional Conduct 8.4 (n). In Illinois, however, the rules drafters clarified that lawyers are “professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.” Illinois Rules of Professional Conduct Comment 2 (2010). Laurel could face an investigation for any of these, especially if her arrest was reported to the bar and an investigation began. It’s possible that her arrest, even though the charges were dropped, would reflect adversely on her fitness as an attorney. If she was reported, an investigation would begin.

Washington and Illinois have similar investigation practices. The Washington Disciplinary Counsel investigates complaints against lawyers, and Laurel would have an opportunity to respond during the investigation. Washington Rules for Enforcement of Lawyer Conduct (ELC) 5.3 (a)(b) (2014). In Illinois, it is the Attorney Registration and Disciplinary Commission, which investigates when it receives a complaint and may give the accused an opportunity to respond. IARDC Rule 53. If sent to a hearing, then the attorney would receive notice of the filing of charges. ELC 10.3 (a) (1)(2) (2014); IARDC Rule 55. Complaints are also published on the ARDC’s website, so a potential employer who searched the attorney’s name would be able to find the complaint Like California, the point about being unemployable seems correct, but not knowing seems wrong unless it’s in the very beginning.

Substance abuse is a real problem among lawyers. Most states have Lawyer Assistance Programs to help deal with these problems. The Washington State Bar Association has one, and Illinois law provides one ran by the Supreme Court. 705 Ill. Comp. Stat. Ann. § 235/1. California seems to have a unique program, the Attorney Diversion and Assistance Program. Cal. Bus. & Prof. §§ 6230, 6231. The State Bar can refer the attorney under investigation to this program, but the attorney will be on either inactive status or have practice restrictions, which will be lifted when his time in the program is over. Cal. Bus. & Prof. § 6232.

 

III. Can she get her job back?

In “Birds of Prey,” Donner invites Laurel to prosecute Frank Bertinelli. Laurel mentions the bar investigation is ongoing, but Donner says he has a friend on the committee who can fix it. By saying this, he commits his own ethics violation in Washington and Illinois by “stat[ing] or imply[ing] an ability to influence improperly a government agency or official.” Rule 8.4 (e) Given that he was willing to put one criminal on trial in the hopes of getting another criminal to appear, it’s not surprising that he would commit an ethics violation. This is questionable because there is usually more than one person on the committees that hear lawyer complaints. He would need to convince others to vote with him. However, it turns out to be a plot by Donner to catch the Huntress, Frank’s daughter. The Huntress comes, takes hostages in the courthouse, and is eventually captured. In the aftermath, DA Spencer tells Laurel that Donner wasn’t authorized to rehire her, but Laurel manages to keep her job by pointing out that Spencer wouldn’t want the fact that Donner was behind the hostage crisis to get out. Whether this is realistic depends on the rules governing rehiring.

If Starling City is in a state with laws like California and Washington, then this part of the plot would not be realistic unless Laurel had gone through a due process hearing to get her job back after her termination. In San Francisco county, a termination could affect the ability to be rehired. San Francisco County Civil Service Rule 122.1.4. If she were to reapply, she would have to go through the examination process after completing a year of service outside the county, and her appointment would have to be approved by the Human Resources Director. San Francisco County Civil Service Rule 122.3.   Donner would not have the ability to rehire her. If she was properly fired and didn’t challenge it, then she would not be able to be rehired quickly given these rules.

Similarly, in King County, Washington, prosecuting attorneys are subject to a competitive process because they are not career employees. KCC 3.12.090. Laurel would not be able to be rehired unless she either challenged her dismissal or went through the competitive process again. Since the episode shows Donner offering her the job without a competitive process and without a challenge of the dismissal, then getting the job back quickly is not realistic. Depending on who is the appointing authority within the King County prosecuting attorney’s office, Donner may have had the ability to rehire her. But the process wouldn’t be as easy as shown on the show.

On the other hand, if Starling City is in a state like Illinois, then she would be able to get her job back without going through a competitive process because state’s attorneys control their offices. The state’s attorney is in charge of the office and can hire and fire assistants. 55 Ill. Comp. Stat. Ann. § 5/3-9006. However, a bar investigation would be a hindrance because it would reflect poorly on the state’s attorney. Donner said he hired her in the first place, so Laurel might have an argument that he had apparent authority through agency principles to re-hire her. In a state like Illinois, getting rehired quickly is more believable even if unlikely given the investigation.

 

IV. Conclusion

Arrow season 2 looks at Laurel’s professional descent and drug addiction. It skips some steps that would be required if it took place in some states (notice and a hearing before being fired, notice of an investigation, rehiring steps). These could have been mentioned, but not shown, if they were required, depending on state law. The writers may have had to ignore some things and not show them because it is not the main plot. The beauty of not defining which state Arrow takes place in is that the law might not be wrong because state law differs on this topic. In the real world, though, she would probably not be able to get her job back that easily, assuming her firing was proper. If the state bar investigation is beyond the initial phase, Laurel would know about it and would not find out from a colleague. Unless the person hiring her is okay with hiring someone under investigation, then the investigation would render her unemployable. And Donner should not imply that he can fix it with a friend on the committee. As a device to show character growth and continuing corruption in Starling City, it works.

12 responses to “Laurel Lance’s Drug Problem

  1. More dense than most LatM fair, but still an interesting and informative read.

    “Usually, only the most egregious violations of legal ethics result in disbarment”

    The fact that it took a decade of Jack Thompson harassing people, threatening to sue for making charity donations in his place after he retracted a charity offer, attaching gay porn to court documents and “spreading racial, hurtful stereotypes” about the Scottish to get disbarred is the best example of this.

  2. Well, there’s also a massive difference between what’s legal and what is actually done – especially in Illinois.

  3. When Laurel was fired, is it possible she was actually given the opportunity to resign? I know it wasn’t shown on camera, but perhaps Donner allowed her to quit before being officially terminated. That would avoid a bunch of the hearings and so forth, correct? And if given that opportunity, and knowing she had a pretty public problem, wouldn’t it make sense for her to do that?

    I’ve actually been terminated and offered the “opportunity” to resign (didn’t take it), so that’s why it sprang to mind.

  4. I don’t understand something: why should it make any difference what state one lives in? Doesn’t the US Constitution (under the 14th Amendment) require that ALL citizens stand equal before the law? And further, doesn’t the US Constitution require that all STATE Constitutions conform to it’s level as a condition of statehood?

    The same issue occurs (and sorry for going OT for a moment) with things like the Medicaid expansion “opt out” in the ACA. How can a state refuse to offer a Federal benefit to it’s citizens? Doesn’t that deny them their right to be treated equally by the laws?

    I thought the Civil War put all this “sovereign states” question to bed once and for all, whether you agree with the outcome or not.

    • Let me explain. … No, there is too much. Let me sum up.

      The United States follows a federal model of government. That means that sovereignty is divided between a central government (the United States federal government) and subsidiary governments (the governments of the states). As it happens the states all practice their own form of federalism, further devolving power to local governments such as counties and municipalities.

      Thus, the US Constitution gives states limited sovereignty and autonomy independent of the federal government. Within those limitations states are free to enact different (and even incompatible) laws. Something that may be legal in one state (e.g. a particular kind of hunting) may be illegal in another. Another concrete example: until fairly recently it was common for different states to have different legal drinking ages.

      The Equal Protection Clause of the 14th Amendment says “nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.” Note what that says and what it doesn’t say. It says that individual states cannot deny equal protection to any person within the jurisdiction of that particular state. It does not say that all people must be treated the same in all states. A person can be treated differently in different states, according to the laws of those states. But within a particular state, all people must be treated the same before the law.

      Does that make sense?

      (And from a legal perspective the issue that the Civil War forcibly decided was that states did not have the power to secede from the union. See Texas v. White. It did not mean the end of federalism.)

      • @James: Granted — but that federalism changed character with the adoption of the 14th Amendment. Prior to the Civil War, the Bill of Rights only explicitly applied to the federal government. After the 14th, its “equal protection” clause eventually resulted in most of them applying to the states as well. So even though equal protection may be interpreted differently in different jurisdictions, some bounds do exist that weren’t there before the 1860s.

      • Prior to the Civil War, the Bill of Rights only explicitly applied to the federal government. After the 14th, its “equal protection” clause eventually resulted in most of them applying to the states as well.

        First, the doctrine of incorporation relies on the Due Process Clause of the 14th Amendment, not the Equal Protection Clause.

        Second, any summary was bound to leave out some nuances. When I said “No, there is too much” I considered linking to a casebook on federal jurisdiction, such as Chemerinsky (1176 pages) or Doernberg & Lee (1324 pages). I took a course that used Chemerinsky’s book in law school, and it is a topic that very nearly defies summary. Even (the woefully out of date) Federal Jurisdiction in a Nutshell runs to 242 pages.

      • Prior to the Civil War, the prevailing opinion was that the states would protect the civil rights of the citizens from abuses by the federal government. After the Civil war, the prevailing opinion was that the federal government would protect the civil rights of the ctizens against abuses by the state. The 14th amendment expressly makes this change.

        States can (and do) make different laws that apply within their jurisdiction, so long as they don’t tread on powers reserved to the federal government. The federal government can cajole the states into doing its bidding by threatening to withhold spending… (this is why all the states now set 21 as the drinking age) but they can’t come right out and tell the states what to do outside of the powers granted to it in the Constitution. The intersection is interesting right now as the various marijuana laws get changed… medical marijuana in many states and outright recreational use is legal in Washington and Colorado… but not legal anywhere in the United States.

        Or take the issue of same-sex marriage… legal in several states, illegal in others. In theory, the different states are required to honor each other’s official acts… so I can’t marry one person in Oregon, and a different person in Washington, and then say “what bigamy?” Except… what if I married a person who is the same gender as myself in California, and a person who is not the same gender as myself in South Carolina? There’s a law review article or two in there somewhere.

        A lot of people (even people who write laws, who theoretically should know better) get it wrong, and courts have to strike laws because the entity (state or federal government) is treading on the power and authority of the other. So, a bunch of states attempting to make being an illegal entrant to the United States a state crime got their hands slapped, starting with Arizona. But the federal government gets ITS hands slapped from time to time, as well, such as when the federal government declared its intention to withhold prescribing privileges to controlled narcotics to doctors in Oregon who acted under Oregon’s “Death with Dignity” law.

      • SherlockedSarah

        @James Daily I just wanna say nice Princess Bride reference.

        About the post in general. I understand the desire to base the laws on our country and states but keep in mind that this is another universe, another Earth, with cities and genetics we do not possess in our own. So we do not know what laws they have in place even within their US’s Constitution

  5. Two things about the termination:

    Isn’t it possible that Laurel was still in a probationary period, which has a different standard of termination? She was with a separate organization in season 1, and was only recently hired as a prosecutor in season 2.

    Second, all that stuff about notice is only required if the employee fights the termination. If the boss says “you’re fired”, and the employee never comes to work again… are they fired?

  6. I’ve been catching up with “Arrow” since the debut of “Flash”. As for the Arrow series, I’m only halfway thru the 2nd season. (So question may be overtaken by narrative later. Oh well. I don’t mind spoilers…)

    The demotion of Detective Lance, Laurel’s father, seems more of an HR snarl than firing a junior attorney in the prosecutor’s office. (a) Cops are more likely to be unionized. (b) Public Employees (such as cops) often enjoy a “property right” to continued employment — at a particular assignment and paygrade. Moving a specialized employee with special, certified, skills– such as a civil servant passing a dectectives’ exam — to a position that does not require such skills and possibly with lower pay often requires “due process”

    • In my experience (limited, sharply) and knowledge (somewhat better) an officer can be assigned to a position beneath their skills and abilities as a punishment, without the union’s interference, so long as the wages and vacation are not changed…. similar to the way NYC assigns teachers accused of misconduct to “rubber rooms” where they have absolutely no tasks to perform, and are allowed no mechanism for passing the time… kind of like detention, only for the teachers, not the students.

      Law & Order SVU had one of its characters demoted back to a uniformed patrol position for part of this season, as well.

      I really think that Laurel’s hire was a probationary one, where the employer’s right to terminate employment is broader.

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