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