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2020 SC BAR CONVENTION
Breakfast Ethics
Sunday, January 26
SC Supreme Court Commission on CLE Course No. 200528
Real Ethics Issues in Reel Time: Exploring Ethics from the Portrayal of Lawyers, Judges, and Justice in 1958 novel and 1959 film, Anatomy of Murder
The Honorable Penny White
Breakfast Ethics
Sunday, January 26
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REAL ETHICS ISSUES IN REEL TIME:
Exploring Ethics from the
Portrayal of Lawyers, Judges, and Justice
in the 1958 Novel and 1959 Film
“ANATOMY OF A MURDER”
Presenter: Penny J. White
I. Introduction
Survey a room full of lawyers about why they became lawyers. The answers will vary, of
course, ranging from “my parents were lawyers,” to “I wanted to make a difference in the lives of
others,” to “I couldn’t get into medical school.” But no matter the variety of explanations, in every
group a sizeable number of people will confess, perhaps apologetically, that they became lawyers
because of Atticus Finch (“To Kill a Mockingbird”) or Erin Brokovich (“Erin Brokovich”) or Paul
Newman (“The Verdict”) or Tom Cruise (“A Few Good Men”) or even Reese Witherspoon
(“Legally Blonde”).
Images of lawyers and judges portrayed in literature, film, and on television not only
motivate some to become members of the legal profession, but those same portrayals may impact
the public’s view and opinion of judges and lawyers and their respect for the legal system. While
lawyers and judges know that many of the representations in the media are far from real, the
portrayal in reel time can create an image or foster opinions that are hard to shake. Furthermore,
even when the media versions of lawyers and judges are fictionalized, the underlying story line
may raise serious ethical quandaries that lawyers actually do confront in practice, creating an
interesting backdrop for discussion.
II. Objectives
The objectives of this program are two-fold: (1) to explore ethical issues that lawyers and
judges face against a backdrop of their portrayal in film and literature and (2) to discuss the impact
of being a member of a profession that is alluring to authors and filmmakers.
III. The Film Backdrop
The ethical issues raised and discussed will be viewed through the lens of the 1959 Otto
Preminger film, “Anatomy of a Murder.” If we view the now sixty-year old film with “2020”
vision, we will find an ample share of stereotypical missteps. At the time the film was produced,
however, critics described the film as the “first truly realistic courtroom drama.” Sixty years later,
Professor Michael Asimow, who studies and writes about lawyers in popular culture, describes the
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film as the “finest pure trial movie ever made.” In 2012, the film was selected for preservation in
the National Film Registry by the Library of Congress.
The film was based on a novel written by Robert Traver, a pseudonym used by former
Michigan Supreme Court Justice John D. Voelker and was constructed around a Michigan case
that Voelker tried in 1952. The author’s professional experience may explain why so many of the
scenes feature realistic evidence, trial practice, and ethics issues, albeit in an all-white courtroom,
with all male judges, and a femme fatale. If we set aside these unfortunate stereotypes, the film
offers a medium by which we can delve into ethics issues that lawyers regularly face. Although
the ethics issues raised in the film are simple and straightforward (undoubtedly chosen to make
the book and the film more understandable and appealing to non-lawyer audiences), the discussion
will extrapolate ethical principles that arise in more complex, current, and sophisticated scenarios.
“The Anatomy of a Murder” is the story of an army officer on trial for murder in a small
town. Lieutenant Manion is accused of murdering a man named Barney Quill in Quill’s Bar.
There is no question that Manion killed Quill; rather, the issue raised and explored both outside
and inside the courtroom is why Manion committed the murder. The prosecution’s theory of the
case is that Manion killed Quill in a jealous rage upon learning of his wife Laura’s affair with
Quill, but the defense theory, which is developed by the attorney and client during representation,
is that Manion acted out of an irresistible impulse that arose upon Manion learning that Quill had
raped his wife. The “irresistible impulse” defense is recognized by dated Michigan precedent, not
used since 1896, and is discovered by Biegler, Manion’s attorney, and his sidekick during a
marathon research session. During the investigation, Biegler has thought-provoking interactions
with his alcoholic buddy, Manion’s wife, and other witnesses that raise practical and ethical issues;
additionally, the interactions between Manion’s attorney, the prosecutors, and the trial judge,
played by Joseph N. Welch, a real-life lawyer famous for dressing down Joseph McCarthy during
the Army-McCarthy hearing, raise other issues worthy of discussion.
IV. Ethics and Professionalism Issues
A. Competent Representation – South Carolina Rules of Professional Conduct
1.1
Issues related to the duty of competent representation arise most obviously for the newly-
licensed attorney, but questions as to competency can also arise when attorneys undertake to
mentor or supervise new attorneys, to expand their practice areas, or when attorneys become
convinced to take a case by the extreme level of confidence that the client, or the client’s agents,
express in the attorneys’ abilities.
1. Duty of Competent Representation
Rule 1.1 of the South Carolina Rules of Professional Conduct (hereafter SCRPC) requires
that a lawyer provide “competent representation” to a client and elaborates that competence
requires “the legal knowledge, skills, thoroughness, and preparation reasonably necessary for the
representation.” Comment 1 to the Rule provides further that, in determining whether a lawyer
possesses the legal knowledge and skill to represent a client, “relevant factors include the relative
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complexity and specialized nature of the matter, the lawyer’s general experience, [and] the
lawyer’s training and experience in the field in question . . . .” A lawyer does not necessarily have
to have prior experience or special training in the type of legal matter presented.
The Rules also address the duties of a supervising attorney. Rule 5.1 provides that
supervisory lawyers may have responsibility for the conduct of those attorneys who they supervise.
Section (b) of the Rule provides that a lawyer “having direct supervisory authority over another
lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of
Professional Conduct.” SCRPC 5.1 (b). Additionally, when a lawyer orders or ratifies the conduct
of another lawyer, the lawyer may be responsible for the other lawyer’s conduct. See SCRPC
5.1(c).
TAKE 1 – Anatomy of a Murder 1959
In the early scenes of the movie, while Paul Biegler is off on a fishing trip, two
individuals - his unpaid legal assistant and his alcoholic sidekick who serves as
his investigator - are trying to reach him to convince him to take a first-degree
murder case. Biegler is a seasoned attorney, who has spent most of his life
practicing as the local prosecutor, as we learn from his potential client, Lieutenant
Manion, but Biegler has recently lost his reelection bid. During their initial
interview, Manion asks Biegler, “How do I know you can handle my case?”
What level of communication about background, skill, and experience should a
lawyer share with a prospective client?
What duty, if any, does a lawyer have to make a potential client aware of her lack
of experience in a given subject matter?
How does a lawyer express an appropriate amount of self-confidence about the
representation without risking that the prospective client will misinterpret the
expression of confidence as a prediction of outcome?
TAKE 2 – Lowcounty, South Carolina July 17, 2019
In the summer of 2019, Channel 5 WVSC reported that members of the “immigrant
community in the Lowcountry . . . have seen an increase in ICE presence in their
communities” and fear “mass raids close to home.” As reported by an ICE
spokesperson, the Al Cannon Detention Center in North Charleston is used as “a
staging center to temporarily hold ICE detainees.” Nineteen individuals were
arrested in South Carolina in coordinated immigration raids in late 2017, with
several hundred others arrested nationwide in workplace raids in 2018 and 2019.
In many communities, immigrant parents were taken into custody at work, while
their children were at school with no knowledge of their parents’ plight and no
alternative living arrangements. When the raid is in a small community, few
lawyers may have relevant immigration law experience and, as a result of the lack
of experience, may feel incompetent to provide legal services to the children and
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families, thus leaving the bulk of the representation to fall on a disproportionately
small number of lawyers and law firms.
What considerations come into play when there is a great need for legal services in
an area that is beyond the expertise of most lawyers in a geographic area?
What are possible responses that are both realistic and ethical?
2. Duty of Competent Representation - Undertaking Representation in
New or Novel Practice Areas
Comments to Rule 1.1 provide that a lawyer may acquire competence to provide legal
services in new and novel practice areas in three ways. First, a lawyer may become competent in
a “wholly novel field through necessary study.” Comment 2, SCRPC 1.1. Second, a lawyer can
provide competent representation by associating with counsel who has “established competence
in the field in question.” Id. Third, a “lawyer may accept representation where the requisite level
of competence can be achieved by reasonable preparation.” Comment 4, SCRPC 1.1. Thus,
counsel who wish to represent clients in new or novel legal areas may do so providing they engage
in either additional study or preparation or associate a counsel with the requisite competence.
The decision to associate additional counsel may trigger additional ethical obligations. For
example, by its nature, the decision to associate additional counsel is a decision for the client, not
for counsel. For example, the client would have to consent before information could be shared
with associated counsel. Expenditures would have to be approved by the client, as would any
agreement to share fees with attorneys who are not members of the original counsel’s firm. SCRPC
1.5 (e). As is true of all situations in which the client’s informed consent is required, the client’s
consent should be documented in writing after a full explanation to the client, sufficient to allow
the client to give informed consent. Explaining to the client that you recommend that the client
hire an additional lawyer, while maintaining your attorney-client relationship, may present an
awkward situation in light of your obligations of candor and confidentiality to the client.
3. Duty of Competent Representation – Emergency Representation
Sometimes the nature and seriousness of the legal need creates an immediate need for legal
services, such as the situation presented in TAKE 2. This situation may trigger reliance on another
nuance of competency – the level of competency required to represent a client in an emergency
situation. Comment 3 to Rule 1.1 provides that in an “emergency a lawyer may give advice or
assistance in a matter in which the lawyer does not have the skill ordinarily required where referral
to, or consultation or association with, another lawyer would be impractical. Even in an
emergency, however, assistance should be limited to that reasonably necessary in the
circumstances, for all considered action under emergency conditions can jeopardize the client’s
interest.” The Rules do not define what constitutes an emergency situation; moreover, few judicial
interpretations of Comment 3 exist.
It is easy to understand why lawyers might choose not to undertake even limited
representation in an emergency legal matter, particularly considering the caution expressed in the
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last sentence of Comment 3. Perhaps a more difficult question is whether a lawyer should
undertake emergency representation when the lawyer is not skilled in the practice area. The answer
to that question may seem more personal than professional, but in fact the Rules of Professional
Conduct anticipate that lawyers will engage in protecting society and challenging “the rectitude of
official action,” when appropriate. The Preamble to the Rules provides that “[a] lawyer, being a
member of the legal profession, is a . . . public citizen having special responsibility for the quality
of justice.” Preamble, SCRPC. Comment 6 speaks broadly about the role of lawyer as “public
citizen” who “should seek improvement of the law, access to the legal system, the administration
of justice and the quality of service rendered to the legal profession.”
Most specifically, Comment 6 imposes an obligation on lawyers to help identify and
correct inadequacies in the legal system:
A lawyer should be mindful of deficiencies in the administration of justice and of
the fact that the poor, and sometimes persons who are not poor, cannot afford
adequate legal assistance. Therefore, all lawyers should devote professional time
and resources and use civic influence to ensure equal access to our system of justice
for all those who because of economic or social barriers cannot afford or secure
adequate legal counsel.
4. Duty of Competent Representation – Maintaining Competence
Finally, one of the most pressing challenges for lawyers is the ever-changing nature of the
law and legal practice. Maintaining competence in substantive legal issues involves the range of
skills that lawyers presumably learned in law school – identifying and analyzing legal issues and
synthetizing case precedent and statutory and regulatory provisions – but the duty to maintain
competence also requires that lawyers maintain technological competence.
In 2012, the American Bar Association voted to amend Comment 8 to the Model Rules of
Professional Conduct to include a comment pertaining to technological competence. Since 2012,
thirty-eight states have added a comment or rule referencing the duty of lawyers to maintain
technological competence, with South Carolina being the most recent.
The driving force for the adoption of the ABA Comment was to assure that clients were
being properly served by counsel who understand and can leverage technology to represent clients
competently, efficiently, and economically. Thus, most descriptions of what the ABA intended as
the facets of technological competence include: (1) competence in cyber security and safeguarding
electronically stored client information; (2) competence in electronic discovery, including
preservation and production of electronically stored information; (3) competence in the use of
technology to deliver legal services efficiently and economically; (4) understanding how clients
use technology in their fields; (5) using of technology in courtroom and other forums; and (6)
conducting internet-based investigations.
On November 27, 2019, effective immediately, the South Carolina Supreme Court
approved some amendments to the state’s Rules of Professional Conduct, including an additional
comment to Rule 1.1. Comment 6 in the South Carolina Rules. Comment 6 to Rule 1.1 provides:
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To maintain the requisite knowledge and skill, a lawyer should keep abreast of
changes in the law and its practice, including a reasonable understanding of the
benefits and risks associated with technology the lawyer uses to provide services to
clients or to store or transmit information related to the representation of a client,
engage in continuing study and education and comply with all continuing legal
education requirements to which the lawyer is subject.
In re Amendments to Rules 1.0, 1.1, and 1.6, Rules of Professional Conduct, Rule 407,
South Carolina Appellate Court Rules, Appellate Case No. 2019-00318 (November 27,
2019).
Comment 6 differs from Comment 8, the Comment adopted by most states and proffered
by the American Bar Association, in one significant aspect. While the ABA Rule provides that “a
lawyer should keep abreast of changes in the law and its practices, including the benefits and risks
associated with relevant technology,” the South Carolina version specifies that the requirement
applies only to “technology the lawyer uses to provide services to clients or to store or transmit
information related to the representation of a client.” Some commentators have expressed concern
that the limitation disserves clients by not requiring lawyers to understand more than the
technology that lawyers themselves are using. Rather, those critics suggest, lawyers should
understand the technology their clients use and should broadly understand how technology might
impact their clients and their clients’ cases.
B. Formation of an Attorney-Client Relationship
In addition to the duty of competence, the formation of an attorney-client relationship
activates a host of lawyer duties, all of which are significant, and many of which are enduring,
including the duty of loyalty, the duty of confidentiality, and the duty of candor. Thus, it is critical
to know when and how an attorney-client relationship is created.
1. Formation of an Attorney-Client Relationship
An attorney-client relationship is easily identified when the relationship is created
formally, by the signing of an engagement letter or the exchange of a retainer fee for services, but
an attorney-client relationship can also be formed unwittingly, when no fee is paid or negotiated,
and when the attorney does not intend to represent the client. This is because most courts interpret
whether an attorney-client relationship exists from the perspective of the prospective client and
ask: would a reasonable person have believed that the attorney was rendering legal services? If
so, an attorney-client relationship may be found to exist, regardless of how brief or unlucrative the
relationship is. “Essentially, an attorney-client relationship can develop as soon as a person
believes the relationship exists – even if the attorney has no intention of representing the person
and no desire to become that person’s legal counsel.” When an individual asks an attorney for
advice, and the attorney provides that advice, an attorney-client relationship may be formed, even
though no payment has been made and no contract for legal services has been signed or is
anticipated. The South Carolina courts have found an existence of an attorney-client relationship,
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even when the attorney failed to recognize the existence of the relationship. In re Carter, 400 S.C.
170, 733 S.E.2d 897 (2012).
Additionally, South Carolina decisions emphasize that a lawyer has a duty to clarify the
nature of any relationship between the parties when a client may be confused about the
relationship. See In re Larkin, 320 S.C. 512, 466 S.E.2d 355 (1996); In re Warder, 316 S.C. 449
S.E.2d 489 (1994). The payment or nonpayment of a fee or the existence or non-existence of a
written representation agreement are not necessarily litmus tests for determining whether an
attorney-client relationship has been formed, but they are factors that are considered in the overall
assessment of the situation. See e.g., S.C. Bar Ethics Adv. Ops. #88-11, 89-19 (holding that a
relationship may arise even without a formal engagement agreement); S.C. Bar Ethics Adv. Op.
#97-45.
TAKE 3 – Anatomy of a Murder 1959
After Biegler returns from his fishing trip, his receptionist – who we learn has not
been paid regularly because of Biegler’s lack of initiative – tells him that an
individual has been trying to reach him about a case. Biegler gets the phone call,
is encouraged mightily by his fishing buddy to take the case, is pressed by the
potential client’s wife during the call, and eventually travels with the caller to visit
the potential client in the local jail.
Has Biegler accepted Manion’s case at the time of the first visit? If so, what duties
does he now owe to his client?
TAKE 4 – Anytown, USA 2020
At church (or a local pub, take your pick), a fellow parishioner or fellow
connoisseur of fine libations, or perhaps, a fellow Jaycee, Jr. Leaguer, or Rotarian,
at the monthly meeting says: “A friend of mine,” – it always starts that way –
“thinks that s/he is experiencing workplace discrimination. If s/he quits, s/he
wonders if s/he can still sue for the discrimination?” Or, conversely, “I really need
to fire this person and I have a host of good reasons, but because the person is
_______ (old, female, gay, African American), I am afraid of a lawsuit. If I have
good reasons, can I fire?”
When do we cross the line from listening and commiserating to advising and
representing? What are the best practices to avoid accidentally entering into an
attorney-client relationship?
2. Duties to Prospective Client – SCRPC 1.18
Once an attorney-client relationship is formed, a full range of lawyer obligations to the
client attach. The lawyer has the duty to provide competent representation, to communicate
regularly and in an understandable manner, to maintain confidentiality, and to provide conflict-
free representation. But what if counsel needs to secure and provide information from the
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prospective client before undertaking the representation? Do the Rules of Professional Conduct
provide mechanisms by which an attorney may engage with a prospective client without forming
the relationship and creating the myriad of ethical duties that flow from the relationship?
Rule 1.18 sets out the mechanism by which a lawyer may consult with a client before
undertaking the representation and outlines the duties that attach, even though no relationship is
ultimately formed. The lawyer who is deciding whether to undertake representation may receive
both information and documents from the prospective client but will owe certain duties to the
prospective client even if the parties do not ultimately agree to the representation. For example,
Section (b) of the Rule defines the nature of the confidential relationship that inures to a
prospective client. The information that the lawyer receives from a prospective client is protected
by the duty of confidentiality, no matter how brief the interaction between the prospective lawyer
and the client. Comment, 3 SCRPC 1.18.
In the course of interviewing a prospective client, the lawyer may receive information that
is related to the representation of an existing client. The receipt of this disqualifying information
means that the lawyer and the lawyer’s firm will be disqualified from representation unless one of
two conditions is met. Either the lawyer must secure written consent from both the prospective
and existing client in order to undertake the representation, SCRPC 1.18 (d) (1), or the lawyer must
be screened from participation, “must have taken reasonable measures to avoid exposure to the
information, and must give written notice to the prospective client.” SCRPC 1.18(d) (2). To avoid
this situation, Comment 5 allows a lawyer and a prospective client to agree in advance that “no
information disclosed during the consultation will prohibit the lawyer from representing a different
client in the matter.” But such an agreement must be made with the prospective client’s informed
consent.
TAKE 5 – Anatomy of a Murder 1959
Over a lunch of hard-boiled eggs (it is, after all, 1959), Biegler has a discussion
with his friend and tracker about Manion, the case, and the defense. The
conversation suggests that Biegler has still not decided whether he will take the
case, placing Manion squarely in the role of prospective client. Yet Biegler
converses openly about the case with others.
After talking to a prospective client, but before deciding whether to take the case,
what duties do we owe the prospective client? What information can we share with
others in deciding whether to undertake representation? Has Biegler crossed the
line in discussing the case with his sidekick?
TAKE 6 – New York, New York 2019
“Moral myopia” is not a condition that most lawyers would enjoy being used to
describe them, but it is the condition that Professor Deborah L. Rhode, Director of
the Center on the Legal Profession at Stanford University, used in a November 9,
2017, NEW YORK TIMES Op Ed to describe David Boies, former lawyer for Harvey
Weinstein and lawyer for the New York Times. According to Rhode, Boies
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“personally signed a contract with a private investigation organization, Black Cube,
to unearth, as the contract specified, ‘intelligence which will help the client’s efforts
to completely stop the publication of a new negative article in a leading NY
Newspaper;’” at the same time, Boies’ firm represented the Times in a major libel
suit. Boies defended his actions based on a provision in the firm’s contract with
the Times that waived all conflicts of interest on matters unrelated to cases in which
the newspaper had retained the firm. Rhode’s reaction:
Such moral myopia is particularly dispiriting when it involves leaders of the
bar. Mr. Boies is a renowned litigator, a champion of same-sex marriage
and, according to his own statement, an attorney with a long history of
“protecting the rights of women.” When leaders with such high visibility
cut ethical corners, it sends a powerful and corrosive message. Already less
than a fifth of Americans rate the honesty and integrity of lawyers as high
or very high. The sort of conduct here is one reason why.
Do the Rules allow inclusion of such blanket waivers of potential conflicts of
interests, such as the ones described, in order to allow law firms to interview
prospective clients and facilitate new business development?
Absent such a provision, what steps must a lawyer take in interviewing prospective
clients to avoid discussion of matters that may relate to existing matters being
handled by the lawyer or the lawyer’s firm?
3. Scope of the Relationship – SCRPC 1.2
The Rules of Professional Conduct define the scope of the lawyer-client relationship so as
to differentiate between the role of the client and the role of the lawyer and to further distinguish
between the objectives of the representation – defined by the client – and the means of obtaining
the objectives – as determined by the lawyer after consultation and subject to limitations imposed
by law. Because the client retains control over the objectives of the representation, the Rule
undertakes to provide an explanation – or perhaps a justification – for some legal objectives that
lawyers may pursue at the direction of their client.
a. Identification with the Client
Recognizing the need in an adversary system for all parties to be represented, Section (b)
of Rule 1.2 provides that “[a] lawyer’s representation of a client, including representation by
appointment, does not constitute an endorsement of the client’s political, economic, social, or
moral views or activities.” See Comment 5, SCRPC 1.2 (b) (providing that “[l]egal representation
should not be denied to people who are unable to afford legal services, or whose cause is
controversial or the subject of popular disapproval.” By the same token, representing a client does
not constitute approval of the client’s views or activities.”).
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TAKE 7 – Anatomy of a Murder 1959
During that same hard-boiled-egg lunch, Biegler worries about whether he is the
“right lawyer” for Manion, given Manion’s demeanor, attitude, and character. His
comrade counsels him on the duty of representation in a surly way, stating “you
don’t have to love him, just defend him.”
Can a lawyer who is repulsed by his client or his client’s cause provide competent
representation?
Is it an ethical violation to represent a client who you find to be distasteful or
untrustworthy?
TAKE 8 – New York, New York 2019
In January 2019, a Harvard Law Professor entered an appearance on behalf of
Harvey Weinstein. Professor Ron Sullivan, Director of the Criminal Justice Clinic
at Harvard, was joined by Jose Baez (lawyer for Casey Anthony) and Pamela
Mackey (lawyer for Kobe Bryant). Within a few months, Professor Sullivan would
be removed from his post as Dean of Winthrop House, a residential hall, by Harvard
University, largely in reaction to verbal and written attacks about Sullivan’s
representation made by Harvard students. Weinstein is no longer represented by
any of those three lawyers, but the fallout for some remains.
Most lawyers who are regularly asked the question, “How can you defend those people?”
have a well-rehearsed, defensible answer. But some cases are so controversial or notorious that
lawyers’ personal and professional lives suffer from the mere fact of representation.
Given that our system of justice presumes that everyone will be represented, do we,
as members of the profession, have a duty to react when lawyers who represent
unpopular clients are vilified?
If so, what is the appropriate response?
b. Limitations on Advice and Counsel – Specific Delineations
In some situations, the line between objectives and means is clear. For example, Rule 1.2
(a) provides that “[a] lawyer shall abide by a client’s decision whether to make or accept an offer
of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after
consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the
client will testify.” The lawyer has a duty to communicate with the client in a manner that will
allow the client to make these decisions. See SCRPC 1.4.
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c. Limitations on Advice and Counsel – Crime-Fraud Exception
to the Attorney-Client Privilege
What Rule 1.2 lacks in specificity in delineating between means and objectives, it makes
up for in clarity about what a lawyer may not do. Section (d) of Rule 1.2, the so-called crime-
fraud exception to the attorney-client privilege, provides that a lawyer:
shall not counsel a client to engage, or assist a client, in conduct that the lawyer
knows or reasonably should know is criminal or fraudulent, but a lawyer may
discuss the legal consequences of any proposed course of conduct with a client and
may counsel or assist a client to make a good faith effort to determine the validity,
scope, meaning, or application of the law.
The justification for the crime-fraud exception to the attorney-client privilege was
explained by the United States Supreme Court in the 1989 decision of United States v. Zolin, 491
U.S. 554 (1989). There, the Court emphasized the key element of the attorney-client privilege.
The attorney-client privilege is not without its costs. Since the privilege has the effect
of withholding relevant information from the factfinder, it applies only where
necessary to achieve its purpose. The attorney-client privilege must necessarily
protect the confidences of wrongdoers, but the reason for that protection–the
centrality of open client and attorney communication to the proper functioning of
our adversary system of justice–ceases to operate at a certain point, namely, where
the desired advice refers not to prior wrongdoing, but to future wrongdoing. It is the
purpose of the crime-fraud exception to the attorney-client privilege to assure that
the “seal of secrecy” between lawyer and client does not extend to communications
made for the purpose of getting advice for the commission of a fraud or crime.
United States v. Zolin, 491 U.S. at 562-63 (emphasis added). Thus, the crime-fraud exception to
the attorney-client privilege applies when the client is seeking the attorney’s aid in committing
some future crime or fraud, but not when counsel is representing a client based on alleged past
wrongdoing.
Although the justification for the crime-fraud exception may be straightforward, the
application of the exception can be quite complex. The exception applies when a lawyer knows
or reasonably should know that the client is using the lawyer’s services to engage in future or
ongoing criminal or fraudulent conduct and prohibits counsel from counseling the client to engage
in and engaging with the client in the conduct; a lawyer is also prohibited from facilitating or
assisting with the criminal or fraudulent conduct. But, the crime-fraud exception does not
“preclude the lawyer from giving an honest opinion about the actual consequences that appear
likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of
action that is criminal or fraudulent in and of itself make a lawyer a party to the course of action.”
Comment 9, SCRPC 1.2 (d). Comment 9 adds that the distinction to be drawn is “between
presenting an analysis of legal aspects of questionable conduct and recommending the means by
which a crime or fraud might be committed with impunity.” Id. See generally In re Harte, 395
S.C. 144, 716 S.E.2d 918 (2011) (disbarring counsel for conspiring with others to hide and conceal
12
client’s assets); In re Kenyon, 327 S.C. 307, 491 S.E.2d 252 (S.C. 1997) (finding that lawyer
assisted in transfer of assets that amounted to a fraud on creditors); In re Dobson, 310 S.C. 422,
427 S.E.2d 166 (1993) (finding that lawyer assisted client’s fraudulent scheme by signing blank
document).
In addition to prohibiting a lawyer from assisting the client initially in criminal or
fraudulent conduct, Rule 1.2 (d) also requires that lawyers take certain actions if the conduct began
before the lawyer undertook the representation and continues after representation begins. For
example, the Rule prohibits the lawyer from “drafting or delivering documents that the lawyer
knows are fraudulent” and from “suggesting how wrongdoing might be concealed.” Comment 10,
SCRPC 1.2 (d). If the lawyer learns that conduct that was originally believed to be legal is actually
criminal or fraudulent, the lawyer must withdraw from representation and, at times, must take
actions to give notice of the withdrawal and to disaffirm any opinion, document, affirmation, or
prior conduct. Id.; see also SCRPC 1.16 (a) & 4.1.
TAKE 9 – Anatomy of a Murder 1959
One of the most poignant scenes in the movie takes place while Biegler and Manion
are talking about possible defenses. Encouraged by his buddy, Biegler delivers
what is often referred to as “The Lecture” to Manion, encouraging Manion to think
about what led him to kill Barney Quill. Some of Manion’s explanations are
discounted by Biegler, but ultimately Manion hits upon a reason for the killing that
constitutes a legal defense to the crime.
Did Biegler’s “lecture” cross the line from advice into facilitation? Was Biegler
simply explaining the law to the client or was he prompting the client to adopt a
version of the story that fit within an existing legal framework?
If Biegler was urging the client to adopt a legally defensible version of the story,
was that conduct within his duty as counsel or did it veer unacceptably into
encouraging or facilitating a fraud upon the court?
Does Biegler’s conversation with Manion require Biegler to seek to withdraw?
d. Limitations on Advice and Counsel – Crafting a Case
The limitations on attorney assistance set out in Rule 1.2(d) are counter-balanced with the
lawyer’s duty to communicate with a client. Rule 1.4 of the Rules of Professional Conduct
provides a duty to communicate, which includes a duty to “reasonably consult with the client about
the means by which the client’s objectives are to be accomplished,” SCRPC, Rule 1.4(a)(2), and a
duty to “explain a matter to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation.” SCRPC, Rule 1.4(b). Comment 5 expands on the duty,
suggesting that a lawyer should not only explain strategy, but should also advise the client about
the prospects of success. “The guiding principle is that the lawyer should fulfill reasonable client
expectations for information consistent with the duty to act in the client’s best interests, and the
client’s overall requirements as to the character of representation.” Comment 5, SCRPC Rule 1.4.
13
TAKE 10– Anatomy of a Murder 1959
How does Biegler’s duty to communicate, explain, and advise his client, under Rule
1.4 of the South Carolina Rules of Professional Conduct, inform an analysis of
Biegler’s lecture?
How, if at all, does the duty of competence, under Rule 1.1, inform the analysis?
Would Biegler have been providing competent representation if he had not
informed Manion that Manion’s first explanations for his conduct would not
constitute legal defenses, while an irresistible impulse defense would?
e. Limitations on Attorney-Client Privilege – Presenting False Testimony
Beyond whether counsel has engaged in conduct that aids the client in the perpetration of
a crime or fraud is the issue of whether counsel knows that the client intends to testify falsely or
to implore the lawyer to offer false evidence. Rule 3.3 (a) (3) of the Rules of Professional Conduct
provides that “[a] lawyer shall not knowingly offer evidence 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.” The South Carolina rule also imposes this
obligation on a lawyer who “knows that a person intends to engage, is engaging or has engaged in
criminal or fraudulent conduct related to the proceeding . . . .” SCRPC 3.3 (b). These duties trump
the lawyer’s duty of confidentiality set out in Rule 1.6, except as provided in criminal cases.
SCRPC 3.3 (c); see Comments 7 & 9. Additionally, the Rule prohibits a lawyer from affirming
the validity of or using “any evidence the lawyer knows to be false.” SCRPC 3.3 (c).
In addition to these limitations on the offering of false evidence, Rule 3.3(a) (3) also allows
a lawyer “to refuse to offer evidence, other than the testimony of a defendant in a criminal matter,
that the lawyer reasonably believes is false.” SCRPC 3.3(a)(3).
Comments 7 and 9 elaborate on the specific rules for criminal defense lawyers whose
clients wish to testify despite the lawyer’s reasonable belief that the client’s testimony is false.
Comment 7 provides that counsel may “allow the accused to give a narrative statement if the
accused so desires, even if counsel known that the testimony or statement will be false.” But,
counsel may not “examine the witness or use the false testimony in closing argument.” Comment
7, SCRPC 3.3.
TAKE 11 – Anatomy of a Murder 1959
Assume that Manion tells Biegler he wants to testify and that his testimony will be
consistent with his defense of irresistible impulse that he discovered in his
conversation with Biegler. Does Biegler have a duty to “seek to persuade” Manion
“that the evidence should not be offered,” as set out in Comment 6 to Rule 3.3. of
the South Carolina Rules of Professional Conduct.
14
Assume that Manion insists on testifying consistent with his defense of irresistible
impulse that he discovered during his conversation with Biegler. Must Biegler offer
this testimony as an undirected narrative? May Biegler argue the statement in his
efforts to convince the jury to acquit Lieutenant Manion?
4. Duty of Confidentiality – SCRPC 1.6
Separate from the attorney-client privilege, but equally significant, is the lawyer’s duty of
confidentiality to the client. SCRPC 1.6. The Rule protects “information related to the
representation of a client” from disclosure without informed consent or unless disclosure is implied
to allow counsel to carry out the representation. SCRPC 1.6 (a) (1) & (2). While the attorney-
client privilege and work-product doctrine apply in proceedings where lawyers are being asked to
reveal information or documents, the duty of confidentiality extends beyond protecting a client
from disclosure or testimony about the client’s confidences. The confidentiality rule applies to
“not only [] matters communicated in confidence by the client but also to all information relating
to the representation, whatever its source.” Id.
A lawyer may not disclose such information except as authorized or required by the Rules
of Professional Conduct or other law. Comment 3, SCRPC 1.6. Lawyers may reveal information
if the revelation is done in a way that cannot be linked to the client. In particular, a lawyer may
discuss issues related to representation by using hypotheticals “so long as there is no reasonable
likelihood that the listener will be able to ascertain the identity of the client or the situation
involved.” Comment 4, SCRPC 1.6.
TAKE 12 – Anatomy of a Murder 1959
Biegler discusses Manion’s case with Manion’s wife, Biegler’s friend, and
Biegler’s receptionist. At one point, Biegler takes Manion’s wife to the jail but
stops short of talking to Manion in her presence. Biegler’s conduct is not
aberrational. Many lawyers talk about their cases to friends and family; similarly,
many lawyers receive their fees from individuals other than the client.
What is your assessment of Biegler’s conversations with others about Manion’s
defense? Has Biegler violated his duty of confidentiality?
Issues sometimes arise when a third-party either pays counsel or solicits counsel and, as a
result expects to receive updates and information about the case. The Rules of Professional
Conduct address the potential conflicts that may arise when a third party secures the lawyer’s
services. Rule 1.8(f) provides that “a lawyer shall not accept compensation or direction in
connection with the representation of a client from one other than the client unless: (1) the client
gives informed consent; (2) there is no interference with the lawyer’s independence of professional
judgment or with the client-lawyer relationship; and (3) information relating to representation of a
client is protected as required by RPC 1.6.” When a third-party payor’s interest differs from a
client’s interests, even though the client has consented, the lawyer may have to withdraw from the
representation. See also RPC 5.4(c) (prohibiting interference with a lawyer’s professional
15
judgment by one who recommends, employs or pays the lawyer to render legal services for
another).
What if any, limitations are imposed by the duty of confidentiality when the lawyer
receives payment from a third-party who wants to remain informed about the
representation? For example, if Manion’s defense had been paid for by Manion’s
wife, how would Biegler’s duty of confidentiality to Manion have been altered?
5. Duty of Candor, Fairness, and Fair Dealing – SCRPC 3.4
In addition to client obligations, various Rules of Professional Conduct provide for a host
of duties that lawyers owe to others - a duty of candor to the court, fairness to represented and
unrepresented parties, and fairness to opposing counsel and third parties, as well as special
responsibilities that apply to prosecutors in criminal cases. At trial, Rule 3.4 limits conduct of all
counsel, prohibiting counsel from (1) alluding to matters that counsel does not believe is relevant
or supported by admissible evidence; (2) asserting personal knowledge of facts; (3) stating a
“personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil
litigant or the guilt or innocence of an accused;” or (4) requesting that a person other than a client
refrain from giving relevant information in most circumstances. SCRPC 3.4 (e). Do those ethical
obligations impose limitations on a lawyer’s cross-examination? If a lawyer knows that a witness
is telling the truth, may a lawyer nonetheless cross-examine and impeach with tactics that suggest
otherwise? In fact, if a lawyer does not cross-examine an adversary witness, based on the lawyer’s
knowledge or belief that the witness has told the truth, has the lawyer provided competent
representation or, in a criminal case, effective representation as required by the Sixth Amendment
to the United States Constitution?
As provided by the South Carolina Rules of Evidence, pretrial Motions in Limine can be
used by counsel to inform their decision to refer to certain evidence in opening statements. S.C.
R. Evid. 103. If counsel does not seek a pretrial ruling in order to determine what evidence will
be admitted, then counsel must abide by existing precedent in determining what evidence can be
referenced, rather than gamble on whether certain evidence will be deemed admissible and
relevant.
Take 13 – Anatomy of a Murder 1959
During the trial of Lt. Manion, both defense counsel and the prosecutors push the
limits of advocacy. Despite the judge’s admonitions, both sides fail to restrict their
evidence objections, as required by the Rules of Evidence, and seem to use every
opportunity to take advantage of their opponent.
What is opposing counsel’s appropriate reaction to counsel’s conduct?
What is the judge’s appropriate reaction to counsel’s conduct?
Do counsel’s actions justify a judge in taking more serious actions to deter
counsel’s conduct?
16
Take 14 – Anatomy of a Murder 1959
When a witness for the defense presents a pair of ripped panties that she found at
the Quill Bar, seemingly supportive of Manion’s defense, the prosecution cross-
examines the witness vigorously, suggesting, without evidentiary support, that the
witness is a scorned lover of the deceased. The prosecutor then commits the classic
wrong of asking the question he does not know the answer to, learning to his
chagrin, that the witness was actually the daughter of the deceased.
Has the prosecution acted unprofessionally by cross-examining the witness in a
manner to insinuate untruthfulness, when the prosecution has no good-faith basis
for the cross-examination?
If a lawyer knows that a witness is telling the truth, may a lawyer nonetheless cross-
examine and impeach with tactics that suggest otherwise?
Does the answer differ if the lawyer is the prosecution, a defense attorney, or
counsel in a civil case?
6. Special Responsibilities of Prosecutor – Rule 3.8
Rule 3.8 (d) of the South Carolina Rules of Professional Conduct is based on the premise
asserted by the United States Supreme Court in Berger v. United States, 295 U.S. 78 (1935), that
the prosecutor is “the representative not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be
done.” Thus, as the Comments to Rule 3.8 portend a “prosecutor has the responsibility of a minister
and not simply that of an advocate.”
This responsibility carries with it specific obligations to see that the defendant is
accorded procedural justice and that guilt is decided upon the basis of sufficient
evidence. Precisely how far the prosecutor is required to go in this direction is a
matter of debate and varies in different jurisdictions. Many jurisdictions have
adopted the ABA Standards of Criminal Justice Relating to the Prosecution
Function, which in turn are the product of prolonged and careful deliberation by
lawyers experienced in both criminal prosecution and defense. Applicable law may
require other measures by the prosecutor and knowing disregard of those
obligations or a systematic abuse of prosecutorial discretion could constitute a
violation of Rule 8.4.
Take 15 – Anatomy of a Murder 1959
What if the police, rather than Biegler’s investigator, had discovered the ripped underwear?
Would the prosecution have had an obligation under Rule 3.8 (d) to make a timely
disclosure to the defense of the evidence?
17
This requires an evaluation of both the Rule’s obligation to “make timely disclosure to the
defense of all evidence or information known to the prosecutor that tends to negate the guilt of the
accused or mitigates the offense,” and the requirement of Brady v. Maryland, 373 U.S. 83 (1963).
Assume that the detectives located the ripped underwear during the initial investigation and turned
them over to the prosecution. The prosecution’s theory of the case, without an evidentiary basis,
is that Lt. Manion’s wife, Laura, and Barney Quill were engaged in a torrid love affair. Under this
theory, the prosecution may believe that the tangible evidence establishes the merit of its theory
and is evidence of an impassioned love-making session and nothing more.
Under Rule 3.8, would the prosecutor be ethically required to turn over the evidence to the
defense?
Should the prosecution be ethically required to turn over the evidence to the
defense?
V. Conclusion
What is the impact of being a member of a profession that seems so alluring to and invokes
such imagination in authors and film makers? Perhaps there is no impact. On the other hand,
perhaps movies inspire individuals to seek legal advice, to serve on juries, to vote in judicial
elections. Or, perhaps, it is as likely that movies perpetuate negative images of lawyers, judges,
and the justice system and generate more distrust, disrespect, and apathy for the profession and the
justice system. Regardless of the impact, it is unlikely that images from the legal profession will
disappear from literature and movies. Rather, we will likely continue to have legal heroes to
embrace and legal villains to challenge.
