Bob Ingersoll: The Law Is A Ass #336: The Practice Makes Imperfect

Lara-Flynn-Boyle-image-lara-flynn-boyle-36103463-1466-2000I don’t care what the old saying says, in this case The Practice  makes imperfect.

David E. Kelly, the creator, producer and head writer of such shows as Picket Fences, Ally McBeal, and one – mercifully – unsold Wonder Woman  pilot was a practicing attorney in Boston, before he moved to Hollywood to become the creator, producer and head writer of such shows as Picket Fences and Ally McBeal. An interesting choice leaving the law for Hollywood producer. It’s one of the few career moves that wouldn’t be regarded as a step up.

One of Kelly’s biggest TV successes was The Practice, a show about a struggling criminal-defense and plaintiff’s personal injury law firm in Boston It was a show firmly rooted in Kelly’s own past, and a show which won both the Emmy and the Golden Globes award for best drama. By all accounts, it was a high-quality show.

I couldn’t watch it.

I tried, but I just couldn’t. Kelly seemed to forget his lawyer past in The Practice, and, as a result, we were condemned because he couldn’t repeat it. The show frequently opted for the highly dramatic in its situations and portrayals of the law, instead of the legally accurate. The Practice got the law so wrong, that, for me, it was more infuriating than entertaining.

Case in point: the January 5, 1998 episode “Line of Duty.” Bobby Donnell, the lead lawyer of the series played by Dylan McDermott, was sleeping with the enemy, in this case in the case in point, said enemy was prosecuting attorney Helen Gamble played by Laura Flynn Boyle. One night, while sleeping at Helen’s, Bobby learned the police were about to raid the drug house of a major drug dealer and arrest him. Problem for Bobby was said drug dealer was Bobby’s client. Bobby called his client to warn him of the impending raid and told the client to clear out and not be arrested. Then the problem for Bobby became the client decided to fight it out instead of clearing out and in the ensuing gun battle between drug dealers and police, a cop was killed.

So, ultimately the problem for Bobby was he found himself being prosecuted for aiding and abetting the murder of a cop. Surprisingly enough, we in the legal profession actually have a term for when this sort of thing happens; it’s, “Oh, this is not good.”

Aiding and abetting is a crime legislatures enact to keep people from helping criminals. It says that if you help a criminal commit a crime, you’re as guilty as the criminal who actually committed the act, even if you didn’t commit it yourself. In Massachusetts General Law Chapter 274 § 3, they call it being an accessory before the fact, but it’s the same thing. In Bobby’s case, the prosecution claimed that by warning his client of the impending arrest, Bobby helped him resist arrest so was equally responsible for the murders which occurred during the arrest.

Bobby had a normal defense he could have used. The law specifically says, “Whoever counsels, hires or otherwise procures a felony to be committed.” Bobby did none of these. He didn’t want his client to resist arrest or kill any police officers. All he wanted his client to do was clear out of his house so that he wouldn’t be arrested. Had he argued to the jury that he didn’t counsel his client to resist arrest or kill cops, a perfectly appropriate and legal defense, he probably would have been acquitted.

But Bobby didn’t argue the appropriate, even legal, defense to his case. That wouldn’t have be dramatic. Instead Bobby argued that under the Code of Professional Responsibility he had a duty to represent his client zealously, so he had an ethical obligation to inform his client of the impending raid. Bobby argued what he did wasn’t illegal but sanctioned by the law.

Guess what? It ain’t.

Oh, it’s true that Canon 7 of the Code of Professional Responsibility says, “A lawyer should represent a client zealously within the bounds of the law.” It is also true that zealous representation would include informing a client of things that could be injurious to the client. But there’s a catch in this legal obligation. It’s those pesky words, “within the bounds of the law.”

What that means is simple, a lawyer can’t break the law under normal circumstances and also can’t do it while representing a client. Indeed, the Code of Professional Responsibility specifically says a lawyer cannot knowingly engage in illegal conduct while representing a client. So, if warning his client about the impending arrest was be illegal, then Bobby had no ethical obligation to warn the client, because the Rules of Professional Responsibility require that a lawyer act within the boundaries of the law.

Would warning a client of an impending arrest be against the law? Do orcas poop penguins?

Every jurisdiction I know of has some sort of obstruction of justice law on its books. As I know of the jurisdiction of Massachusetts, it safe to assume Massachusetts has such a law. However, it’s even safer to check the Massachusetts General Laws to be sure. So I did. Chapter 274 § 4 of the Massachusetts General Laws, the accessories after the fact law, makes it a crime for someone to assist a person who has committed a felony, “with the intent that he shall avoid or escape … arrest.” Which brings us back to our problem child, Bobby.

He warned a client, not just a client but a felon, that said client was about to be arrested so that the felon could escape arrest. That’s a violation of the accessory after the fact law. So, under the Code of Professional Responsibility dictate that a lawyer act within the boundaries of the law, the fact that warning his client of an impending arrest would break the law obviated any duty Bobby thought he had to warn his client.

Still, Bobby made his argument that he had an ethical obligation to tell his client he was about to be busted. Worse the judge presiding over the case bought the argument and dismissed the charges against Bobby. Not surprising from a dramatic point of view, had Bobby been convicted, the show about his struggles to be a successful personal injury attorney would have ended. It’s kind of hard to chase ambulances within the confines of a 6 by 8 prison cell. But it was totally inaccurate from a legal point of view.

The outcome of Bobby’s case brings up another question. If Bobby didn’t know he had no ethical obligation to warn his client and the judge didn’t know Bobby’s argument was flawed, then what’s the deal with the Massachusetts legal system? Are Bostonian lawyers and judges participating in a totally different kind of Boston tea party? Maybe. That could be the reason judges and lawyers are always so high and mighty.

Author’s Note: Because of the Thanksgiving work week, which significantly shortened my work week this week, I took a column I once wrote as part of an introduction to a “The Law Is a Ass” book I was pitching back in the late 90s, edited it to bring it up to date and made it a stand alone column. But that’s why you’re suddenly getting a column about a 1998 TV show.