Sunday, March 02, 2008

Is Michael Clayton Unfair to Lawyers?

I just got around to seeing Michael Clayton. Spoiler Alert: If you haven't seen the film, and intend to, stop reading!

All in all, it's a decent movie and, as this post by Patrick Radden Keefe on Slate astutely observes, a pretty bleak portrait of the lives of big-firm lawyers. But one must assume that the main point of the film (beyond entertaining its audience) is NOT simply to say that lawyering is a personally unfulfilling career. After all, most viewers of the movie are not lawyers or even New Yorkers, and so the verisimilitude will be lost on them. Indeed, the picture of the typical New York firm in Michael Clayton is so much more accurate than in common tv fare that lay audiences might think the film is inaccurate for its failure to conform to their Perry Mason/LA Law/Law & Order/Boston Legal-inspired mental image.

The core moral point of Michael Clayton is a familiar blood libel against lawyers (albeit nicely executed). The film's chief villain is the General Counsel to a gigantic corporation, icily depicted by Tilda Swinton. By the middle of the movie she has become so desperate to defeat a multi-billion-dollar class action lawsuit that she orders a couple of hits. Keefe reads these plot developments as "a nod to thriller convention," but in my view they're critical to the film's central claim: Lawyers like Swinton's character---and like George Clooney's Michael Clayton himself---already trade in the murder of innocents: to wit, the plaintiffs in the class action. It's shocking to see a well-heeled lawyer actually calling in hit-men, we're meant to think, but only because that seems like such a low-class way to go about what is otherwise all part of a day's work.

And now we come to the film's deep unfairness. The plot revolves around a top litigator in Clayton's firm who, during the course of a deposition of one of the plaintiffs, has a breakdown. The lawyer (played by Tom Wilkinson) is overcome by remorse for having labored so hard and for so long on the side of injustice. The immediate precipitating cause of his breakdown is his coming into possession of documents showing that the client anticipated the deaths its product would cause but made a cost-benefit decision to produce it anyway. (Ah Grimshaw, the case that keeps giving.) Most of the remainder of the action revolves around the efforts of the client and others with the firm to prevent Wilkinson's character from sabotaging the case by divulging the smoking gun to the plaintiffs.

However, to any actual lawyer, it should be clear that the firm and the client are legally obligated to disclose the document to the plaintiffs. In a climactic confrontation, Swinton's character mumbles something about attorney-client privilege but the document at issue does not appear to have been produced by or for an attorney. Thus, as an unprivileged and highly relevant document, it would be discoverable. There is no occasion for angst here: Wilkinson's character need not have suffered any breakdown at all; he could have handed over the smoking gun without giving his client cause to complain. Indeed he was legally obligated to do so.

Maybe I'm expecting too much here, but it does strike me that if you want to make a film with the message "being a lawyer means selling your soul to the devil," you should at least give the devil his due.

Posted by Mike Dorf


nmuirhead said...

Wilkinson's character need not have suffered any breakdown at all; he could have handed over the smoking gun without giving his client cause to complain. Indeed he was legally obligated to do so.

Well, technically all Wilkinson could have done is recommend his client turn the document over, and withdrawn the firm from the case if they didn't.

Turning the document over himself would be a breach of confidentiality, especially if the client was intentionally hiding it.

Mithras said...

And now we come to the film's deep unfairness. ... [T]he document at issue does not appear to have been produced by or for an attorney.

Okay, wait, you're saying that the deeply unfair part of a movie depicting lawyer-ordered contract killings is the "From" and "To" on a memo? That's not where I thought you were going with this. I imagine most audience members would consider the content of the document to be the thing that poses the moral dilemma.

Michael C. Dorf said...

1) In response to nmuirhead: The obligation to update discovery responses in Fed R Civ P 26(e) is placed on "the party," but lawyers do routinely make decisions relating to discovery without consulting the client. Thus, Wilkinson's character could have simply handed over the document without first seeking approval from the company, and that is what lawyers typically do. Seeking the client's permission to comply with the client's unequivocal duty with respect to every single document would be a colossal waste of the client's time. However, nmuirhead is right that if the client specifically objects to complying with its legal duty, then the lawyer has a dilemma, very similar to the dilemma of a lawyer whose client intends to commit perjury. The lawyer is supposed to remonstrate with the client and if that fails, withdraw. In the movie, however, the picture one gets is that wilkinson's character is simply switching sides.

2) For mithras: No, obviously my complaint was not about the heading of the memo but about the strong and false suggestion that being a lawyer inevitably means being a hired gun for evil. The false suggestion that the smoking gun might be privileged is simply another attempt to mislead the audience into seeing lawyering as fraught with evil in this way.

3) To be clear, there are circumstances in which legal duties of lawyers conflict with conventional morality, and they are the common stuff of film and tv fiction about lawyers. Where Michael Clayton goes further is to suggest that the lawyer's legal and moral duties almost always conflict.

Neil H. Buchanan said...

I imagine most audience members would consider the content of the document to be the thing that poses the moral dilemma.

Mike's point is that there is no moral dilemma. If Wilkinson has been working on the case unaware of his client's misdeeds, only to learn through this document that his client is culpable, then there is a clear (and clearly legal) path to doing the right thing. Wilkinson's character might feel guilty for having spent years of his life for what turned out to be an evil client. Regrets are powerful. But that's not a moral dilemma. Doing the right thing now might not wipe away the guilt, but it allows him to proceed ethically and morally from the point at which he comes into possession of the new evidence.

Marc said...

Hi, Mike. I happened to see the movie last night as well. One slight disagreement. The lawyer played by Wilkinson did not quite just have an ordinary old crisis of conscience. He had a manic depressive episode in combination with a sort of moment of lucidity. In fact, I thought that it was left ambiguous what kind of psychological state had finally overwhelmed his professional, law-conditioned (to borrow a phrase) sensibilities. "I am Shiva, the goddess of death." The phrase suggests that a greater power (perhaps a psychotic one, perhaps something else) broke through to overpower whatever conventional constraints Rule 26(e) and its ilk of moral rule imposes. Now, maybe we don't want anything more powerful than Rule 26(e) to constrain our morality. But the message I took away (one that, I suppose, I enjoyed about the movie), is that Shiva might just be out there waiting to intrude upon Rule 26(e). Even though Rule 26(e) usually wins, Shiva can sometimes show her face unexpectedly, even in a corporate butcher shop.

Caleb said...

I'd have to admit I wasn't thinking about the FRCP when I saw the film, but I just assumed that the tension was between cheating "a little" and making millions (since it was implied that they could probably get away with it), and doing the right thing and losing your career/lots of money. I assumed that Wilkinson's character had simply realized how far down the path he'd gone by just taking little steps.

As for being unfair to lawyers, I find it a bit cliche when the good guy invariably seems to have a working-class background that he's worked his way out of, but which leaves him with enough good sense (morals?) to do the right thing in the end. I'm not sure I'd identify more with it, but I'd love to see a movie about a rich spoiled kid who finds morals enough in his/her upbringing to do the right thing. (Now, if you'll excuse me, I'll return to my Ritchie Rich comics).

Tam said...

As a sidenote on the accuracy of the portrayal of a typical NY law office, if I have my information right, those scenes were shot at the offices of Dewey Ballantine (now Dewey & LeBoeuf, which, of course, is French for "Dewey and the Cow") where you moonlight, if I am recalling one of your recent posts correctly.

So my question is: did you get to meet George Clooney?!

Titan said...

Do you get to be a lead partner at a big NYC law firm by blowing cases?

I guess I'm asking whether a real lawyer (who was not suffering from a massive guilt attack) would really turn the doc over.

Tell me how life really works.

Tam said...

Ssssssshhhhhhhhhhhhh shhh shhhh shhh shhh... Less thinking, more Cyclopes-making.

Phukt said...

He could turn over the document, but that would risk his firms millions of dollars in fees. The main point of the movie is that all lawyers are scumsucking bastards that would sell their own mothers or children to move op the ladder and get a bigger Benz. Lawyers don't withhold evidence??? Anyone here ever hear of a turd named Mike Nifong? The difference between him and all the rest??? He got caught.

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Just saw the movie again. Regarding the question as to privilege and discoverability of the document, they point out that the document was signed by "Don Jeffries", who was introduced to us as having been the previous in-house counsel of the company before getting a seat on the board (leaving the position to Tilda Swinton). It is possible that the document was prepared as part of some request by him which was fulfilled by whatever scientist wrote it. Upjohn would apply as to communications between the scientist and other employees in the company and the house counsel if he had been acting in that capacity at the time.

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