Suits (TV) and Ethics

SUITS AND ETHICS The dilemmas of law have long been dramatized in television and literature. The American hit legal drama Suits on USA Network provides a critical eye of analysis toward the motivations of characters and their ethical underpinnings within the commercial law. Garrett Epps, 'Suits' Does For Lawyers What 'Downton Abbey' Does For Aristocrats' (The Atlantic, 2013) <http://www.theatlantic.com/entertainment/archive/2013/01/suits-does-for-lawyers-what-downton-abbey-does-for-aristocrats/267280/> accessed 20 March 2016. While it has been tirelessly ridiculed as fantastical, what is most striking is that Suits serves as an effective lens to understand legal-ethical theories within the commercial context. This paper examines the series Suits and highlights its constant and measured narrative of the complex ethical dilemmas associated within a modern commercial law firm. This will be highlighted twofold. First, this paper draws a divide between two gradients of the Moral activist. Harvey Specter’s subdued moral-activism is contrasted against Mike Ross’s more intense approach, which will be called cause-lawyering. The two will highlight fundamental differences in ethical approaches to conflicts of interest when both are forced to retain clients who have goals which differ from their own. In both cases the protagonist’s own notions of justice drive ethical decisions. Their actions are contrast against series antagonist Travis Tanner to highlight a spectrum of ethical models ranging from neutral partisanship to cause-lawyering. Second, Suits attempts to examine the ethical dilemmas of the series, conflict of interests and confidentiality; against professional ethical models beyond the law, particularly those binding psychiatry and religion. The balancing surmounts to a weighting between deontological and utilitarian approaches to moral wrongs, beyond the punchy one-liners and office politics, the series provides a discussion of the varied approaches to professional ethical norms. I.ON AN ETHICAL SCALE OF LAWYERS To facilitate an analysis of how the series conveys legal ethics, the three characters will will be charted onto Christine Parker’s lawyer’s ethics graph, Christine Parker ‘A Critical Morality for lawyers: four approaches to lawyers’ ethics’ 30:1 (2004) Monash University Law Review, 56 using an episode in which all three lawyers select clients and wrestle resulting conflict of interest. The Adversarial advocate (the traditionalist or ‘neutral partisan’), and two intensities of the Moral Activist are portrayed within Suits, forming a gradient of ethical approaches capable of undertaking legal practice. Two primary differences exist between these two approaches; the traditionalist is governed by the adversarial system itself whilst the Activist applies general ethics to promote substantive justice defined by the lawyer. ibid Each approach wrangles with the legal-ethical dilemma of client selection and conflict of interest. Suits enables for a discussion regarding the value of each approach. Harvey Specter and Mike Ross fall within the category of Moral Activist. As Parker writes however, a lawyer may choose an approach á la carte or might mix-and-match. Mike and Harvey apply two distinct intensities of Activism. This is likely a result of Harvey’s formal training as a lawyer, enabling him to separate personal morality when needed. Regardless, they sit on opposite ends of the ‘activist’ scale. Harvey’s actions often fall within the traditionalist role but lapses of personal conceptions of ‘justice’ ought to categorise him as a moral activist. On the contrary, Mike acts as a cause-lawyer. His care for clients, their problems; and doing ‘the right thing’ might better categorise him within Parker’s ‘Ethics of Care’ category, where the relationship extends beyond merely legal. He is concerned with the well-being of the clients after a train crash, and the social consequences of the legal decisions. ibid 70 Regardless of their categorisation, Harvey and Mike adopt legal-ethics which incorporate personal notions of ethics. By examining these elements, one observes the ethical dichotomy existent in the legal practice, laid out through Suits. Through reflection, one might evaluate each approach by its benefits and shortfalls. Havey is both traditionalist, willing to do what is necessary to win; Suits Season 1, Episode 1 ‘Pilot’ (USA Network 2011-2016) and Activist, only willingly representing clients if he agrees ethically. The traditionalist model’s strength is in its capacity insulate the lawyer from personal-ethical values. His client selection is one of activism whilst his representation abides by a traditionalist model. This results in conflated priorities. ibid; cf SRA Code of Conduct 2011 (Version 15 2015), Outcome (3.4) The hallmark of Moral Activism is an application of personal ethics. Parker writes that Activism is an effective approach to ‘ethical lawyering’ in that it limits the lawyer’s actions to his own personal sense of duty. This can, on occasion, conflict with societal conceptions of justice. Parker (n 2); Donald Nicolson and Julian Webb Professional Legal Ethics (2000 OUP) 183 Harvey actively deceives, bullies and defrauds others with ‘hyper-zeal’ ibid to reach the ‘right’ conclusion and ‘win’. These actions time-and-again undermine his trustworthiness and even his effectiveness. It falls clearly within Luban’s description of partisanship, but his allegiance to neutrality ought to be questioned. A professor charged with accepting a bribe seeks Harvey’s help, he believes Harvey to adhere to neutral partisanship. Harvey refuses to represent the professor, morally disagreeing with the professors potential actions. Suits (n 5) S4 E12 ‘Respect’ (2015) However, for his clients, he actively employs a private investigator, digging up dirt on the opposition to strong-arm negotiations. Webb discuses the importance of neutral partisanship for maintaining the adversarial system. Nicholson and Webb (n 7); Andrew Boon and Jennifer Levin, The Ethics And Conduct Of Lawyers In England And Wales (2nd edn, Hart Publishing 2008). Undermining the system remains the primary criticism of moral activism and it is clear why. In the example, Harvey weights the ‘merits in relation to the merits of the claims and goals of others’, William H. Simon, ‘Ethical Discretion in Lawyering’ (1988) 101 Harvard Law Review 1093 within his own ethical decision-making process to allow his own concept of the ‘right’ outcome. Harvey violates core principles of the Solicitors code, Boon (n 10) 395 including suppressing client autonomy, SRA Code of Conduct (n 6), IB(1.25) recklessly misleading the court and counsel during negotiators, ibid O(5.1) and tacitly allowing witnesses to commit perjury. Harvey’s actions highlight the limits of the Activist whilst simultaneously discussing the danger of traditionalism. Traditional neutrality necessitates adhering to the rules regardless of personal morality Tim Dare ‘Mere Zeal, Hyper-Zeal and the Ethical Obligations of Lawyers’ 7 (2004) legal ethics 24; Boon (n 10) 378 in order to allow the legal system to resolve qualms of justice. Boon (n 10), 177 On the contrary, some commentators suggest traditionalism enables the lawyer to do whatever is necessary, and that neutral partisanship requires the adoption of a client’s morality so as to operate in the way the client would if he held the requisite knowledge. Dare (n 15) Later in the case, when his secretary is targeted by the District Attorney for stealing case documents, Harvey offers to drop his pending lawsuit in exchange for his secretary’s charges to also be dropped. Quite astutely, the D.A. comments on the dangers moral activism poses when he states ‘every time I run into you, you tell me whatever shady thing just went down was about the greater good’. Suits (n 5) S4 E15 ‘Intent’ 25:00 (2015) Harvey’s own notion of justice brings forth other integral dilemmas relevant to the legal practice. The result generates a conflict of interest and violates principals of justice. Nicholson and Webb (n 7) 147 Client autonomy is a crucial element of the client-attorney relationship, a key contrast between traditionalists and Activists. ibid As seen, the activist’s decision regarding cases might be driven, or at least limited, by the lawyer’s morality. For traditionalists, the client’s decision drives the direction of legal work, encouraging the lawyer to ‘do everything that the client would do for himself if he had the skill and knowledge’. Michelle N. Meyer ‘Plaintiff as person cause lawyering’ (2006) 118 Harvard Law review 1513; see text at f/n 13 This is just as likely to produce unethical results. Harvey’s feud with Travis Tanner evidences the contradictory issues of the two models. cf Parker (n 2) Harvey compares Tanner to himself, only without principle. Suits (n 5) S1 E9 ‘Undefeated’ (2011); cf Carrie Menkel-Meadow ‘The Lawyer as Problem Solver and Third-party neutral: Creativity and non-partisanship in lawyering’ 72 (1999) Temp L Rev 785 However, this is an unfair assessment. Tanner is neutrally partisan. His selection of clients reflects the traditionalist model and holds no regard for personal ethics in relation to the case. Rather, Tanner serves as a ‘tool’, translating the law so the company he represents may protect itself at any cost. Meyer (n 21) 1528 The conflict serves to differentiate Harvey from Tanner based upon the ‘principles’ of maintaining personal ethics within the legal practice. However as seen, personal principles occasionally run opposite to justice. This is especially true regarding client selection. Tanner’s ‘hired-gun’ characterisation is a bastardisation of the cab-rank rule found in the UK. Selection of clients should not be dependent upon personal morals. As Webb writes, the traditionalists selection upholds accessibility to justice. Tanner, while portrayed negatively, is merely defending his clients with hyper-zeal, he may not (in the confines of his home) agree with the methods he is taking nor the arguments he is forwarding. By contrast the moral activist exploits the SRA’s ambiguity SRA (n 6) Chapter 1: Client Care toward client selection, choosing clients based on their own moral reasoning. Parker (n 2); Boon (n 10); Nicholson and Webb (n 7) Steps taken to represent the client also differentiate the three lawyers. Tanner abides by strict directions from his clients. Whereas Harvey’s actions undermine the link between lawyer and client by dissolving it. Nicholson and Webb (n 7) 147 Inadequate regulation prevents clarification as to whether an action in the clients interest can override client desires. ibid 142 Substantive arguments in favour of traditionalist model of adhering to a client’s desires uses the argument that automatism is a crucial element of modern democracies. To do otherwise is paternalistic and tyrannical. The primary criticism of traditionalists is the ‘blind-devotion’ Meyer (n 21) 1513 toward a client’s goal. Tanner’s blind-devotion to helping his client avoid negligence nearly becomes illegal. Harvey, unlike Tanner, will not subjugate what is ‘right’ for the interests of the client when he refuses to ruin someone’s life in order to win a case. Activist academics cite a conviction to personal morals as a needed injection of morality within the legal practice. This notion of ‘right’ highlights issues with both traditionalism and activism. On the one hand, Tanner is blind to personal morals, while on the other, Harvey is blinded by them. Suits (n 5) S1 E9 ‘Undefeated’ (2011) The feud with Tanner is useful in further colouring Harvey’s position within the moral activist camp. Rather than allowing ‘the chips to fall where they may’ through the adversarial system, Harvey would rather negotiate a settlement, shoehorning his own notion of a correct resolution within the agreement. The suppressed client autonomy reflected in moral activism reveals the contradictory obligations of a lawyer, notably in regard to conflicts of interest. It calls to question the capacity and power a lawyer has regarding a client’s best interest. Contrariwise, Mike Ross’s ‘cause-lawyering’ is even more oppressive; dissolving a clients autonomy with his own moral notion of the good. Suits (n 5) Mike believes his actions are justified because they create good and better people’s lives. The approach mirrors Thomas Shaffer’s ‘humanist, relationship […] application of ethics’. Parker (n 2) 69 During Mike’s case, he often will often goes too far, reflective of the Vanguard cause-lawyering method, Thomas M. Hilbink ‘Categories of Cause Lawyering’ (2004) ABF Law & Social Inquiry, 664 avoiding a course of action which results in an unsavoury burden unto the client. He ignores client instructions; rejecting a settlement offer without consulting the client because he believes the defendant ought to admit wrong-doing. Nicholson and Webb (n 7), 125; SRA (n 6) Outcome 3.6 Mike’s desires are to resolve his ‘own ideological and redistributive project’. Hilbink (n 33) 659 The danger is that the project itself becomes the client, Meyer (n 21) 1512 translating the adjudicative process into a political one. Hilbink (n 33) While the existence of personal ethics can aid decisions, in superseding client wishes, he undermines client autonomy. Meyer (n 21) 1528 Opposite to Tanner, Mike uses the client as a tool to exact his own notion of justice. This is not to say that cause-lawyering is unethical. On the contrary, it is the pithy ethical nature of Mike’s cause that is justification. ibid 1530 Meyer suggests that the core of moral activism sits a conflict of interest between client and lawyer. Meyer (n 21), 1512 The requisite balancing of competing interests makes having a principled ethical approach all the more vital. Richard Moorhead, Victoria Hinchly, Christine Parker, David Kershaw, and Soren Holm ‘Designing Ethics Indicators for Legal Services’ (UCL Center for Ethics and Law 2012) 20 The polarisation between the two ethical models, personified in three gradients by Tanner, Harvey, and Mike; highlights the scope of legal-ethics and briefly examines issues pertaining to the specific portrayal of client selection and representation. Harvey and Mike approach lawyering through moral activism funded by their own conceptions of justice, cf Suits (n 5); Boon (n 10) determining a client’s best interests through paternalism. ibid; Hilbink (n 35) At the core of this discussion, is the reality that many of the dilemmas presented do not have a single resolvable answer, David Maister ‘Chapter 1: Real Professionalism’ in True Professionalism (2000 Simon & Shuster) 21 the nature of legal-ethics is such that both approaches have their inherent advantages and their drawbacks. II.ON CLERGY AND PSYCHIATRY The ethical dilemmas binding the lawyer might be contrasted with similar dilemmas presented outside the world of law, contrasting duties of confidentiality and conflicts of interest between extra-legal professions. In particular, this is reflected in the professions of psychiatry and clergy. As the risk of pretending to be a lawyer mounts, Mike hopes to morally justify his actions through Catholicism. Suits (n 5) S5 E13 He seeks to receive advice from a priest, hoping to be protected by confidentiality of the profession, a fact he heeds caution toward. He sees no wrong with defrauding the Bar because of the help he’s provided to others. His consequentialist ‘goods’ are contrasted against categorical imperatives of religious canon law. ibid This occurs on two levels. When he approaches Father Walker, he seeks to be protected by the sacrament of confession, a paramount protective veil of confidentiality which binds the profession of clergy. There are several similarities between lawyer and priest in regard to confidentiality, especially in the U.S. In England, the legal privilege which protects lawyer and client doesn't exist between priest-penitent. R v Griffin (1853) 6 Cox CC 219 set precedent for allowing conversations within the confessional to be admitted to evidence, despite the judge’s reservations that it ought not to be given. The priest holds a deontological duty to both the sacrament – keeping Mikes secret – and to reinforcing the moral wrongness of Mikes actions. Father Walker’s clarification that the actions are not wrong because they cased harm, they are wrong because they violate a deontological duty, underpins Christian notions of lying which categorically reprehend all forms as morally wrong. I R Torrance ‘Confidentiality and its limits: Some contributions from Christianity’ (2003) 29:1 Journal of Medical Ethics 8-9 However, rigorism in Christianity relating to lying cannot cope with the exceptionalism necessary for modern life. Russell v Jackson (1851) 9 Hare 391 (Sir George James Turner, Vice-Chancellor); cf Middleton v Crofts 44 E.R. 364; (1856) 8 De G.M. & G. 192 (Bonhoeffer suggested that the necessity of truth disclosure is dependent on the relationship. Ned O’Gorman ‘”Telling the Truth:” Dietrich Bonhoeffer’s Rhetorical Discourse Ethic’ 28 (2005) JCR 224-248; Nancy Berlinger ‘What is Meant by Telling the Truth: Bonhoeffer on the Ethics of Disclosure’ 16:2 (2003) Studies in Christian Ethics 80-92) Lying thus becomes necessary in exceptional circumstances, it is for the priest to decide when divulging the secret is necessary. For the priest, confidentiality operates in the interests of the sacrament between god and penitent, and thus his own, personal concepts of right and wrong must be subdued on behalf of the sacrament. ‘Canon Law’ (1854) 20:2 Law Mag. Quart. Rev. Juris, 210-233; The protections given to a legal relationship between solicitor and client is much stronger than that one held with a priest. Regardless, the priest still holds a moral duty, similar to a lawyer, to abstain from information, regardless of its utility to the public. Boon (n 10); A predominant proportion of people considered chaplains to be required to disclose information. The legal duty to disclose rubs opposite to the religious duty of confidentiality and the trust that confidence generates. This might link back to the legal practice, where confidentiality is similarly considered a paramount safeguard within the adjudicative system. Harvey’s appointments with psychiatrist Dr. Agard highlights the difficult balancing of professional obligations in the field of medicine. Two competing interests are set out by Radden & Sadler; duties as a provider of professional services, and those of a medical practitioner. Jennifer Radden, John Sadler ‘Psychiatric Ethics as Professional and Biomedical Ethics’ in The Virtuous Psychiatrist: Character Ethics in Psychiatric Practice (OUP 2010) 11-32 Psychiatrists have the power to treat non-consenting patients, and their intimate relationship with patients skirts dangerously close to violating the Hippocratic oath. Julia Rocca ‘Inventing an Ethical Tradition: A brief History of the Hippocratic Oath’ 11:1 (2008) Legal Ethics, 23; Julian C Hughes, Stephen J Louw ‘Confidentiality and cognitive impairment: professional and philosophical ethics’ 31 (2002) Age and Ageing 147-150 This exploitative risk forces the psychiatrist to ‘repel active and open seductiveness’. Daisy Bogg Values and Ethics in mental health practice (2010 Learning Matters Ltd) 93; cf Paul Barber, Robert Brown, and Debbie Martin, Mental Health Law in England and Wales (2012 SAGE Publications Ltd) 15-20, 55-61 In Suits, the relationship between Harvey and Dr. Agard highlights the danger of this intimate relationship. Suits (n 5) S5 E12 Dr. Agard’s duty of professionalism undermines the relationship of trust when she is asked to provide evidence in an unrelated case Harvey is working on. Interestingly at no point do either state there is a conflict of interest as the codes require. cf SRA chapter 1 In England & Wales, the practitioner’s confidentiality is limited; practitioners are frequently required to disclose information even if it is against the wishes of the client if it is done in the interest of the client’s health or safety. This creates irreconcilable friction between the trust necessary as a confidant and the duty owed as a doctor. Dr. Agard’s disclosure of Harvey’s information is ethically wrong. Confidentiality toward a client’s interests is crucial, but might be subservient to moral duties to justice or medicine. Dr. Agard has no justification for her disclosure. Critics disagree over whether it is justifiable for psychiatrists to disclose confidential information. Bogg (n 55); cf Radden (n 53) Bogg (n 55) 93 The US Supreme Court has set a highly restrictive standard for confidentiality in psychiatry, ‘destroying clinical judgement’. Barry Landau and Thomas Asher in ‘Ethics of Psychoanalysis: Confidentiality’ Reported by Ruth F. Lax 83 (2002) The International Journal of Psychoanalysis 457 This is seen in Suits, limiting the abilities of psychiatrists and conflates their duty to report illegal or dangerous actions. ibid The UK General Medical Council encourages information sharing between relevant bodies, but does not advocate arbitrary disclosure. Confidentiality remains a ‘sin qua non’, with some suggesting the solution being through phronesis, (translating to practical wisdom) to reduce vague duties. Radden (n 53) 29; cf ibid Dr. Agard not only discloses to him and to his colleague confidential information, Suits (n 5) S4, E15 she discusses a scenario where she authorised a patient’s release despite knowing that the patient was unsound. It is wrong both in intent and in outcome. Dr. Agard does this in order to earn Harvey’s trust, but it speaks to the conflated balancing between confidentiality and trustworthiness. Practitioner codes-of-conduct operate as multi-agency safeguards designed to facilitate informed consent and confidentiality, but they don't always work. Bogg (n 55) 83 Bogg acknowledges that personal values of the practitioners influence behaviour, resulting in the need for explicit acknowledgment of privacy through deontological remedies. Bogg (n 55) What is unanimously paramount is client autonomy –similar to the lawyer. In Suits Harvey’s interactions with Dr.Agard mirror the necessary trust virtues set out by Radden & Sadler, and yet simultaneously highlight the dangers trustworthiness harbours within the psychiatrist-client relationship. Radden (n 53) ‘Character Ethics in Psychiatric Practice’ 151 This trustworthiness is analogous to lawyer’s duty to client and system in that one weighs public-duties responsibilities against duties to patient/client. Nowhere in the medical field is this balancing more contentious. ibid Suits presents these overarching duties to test the strength of professional duties to confidentiality against those duties of lawyers and the normal citizen. III.CONCLUSION Suits conveys ethical dilemmas facing modern Commercial lawyers. It forwards debates surrounding the balances of conflicts of interest and confidentiality both within the practice and beyond. Using Christine Parker’s four models of ethical practices, this paper has explored the high expectations of a lawyer toward maintaining confidentiality, and avoiding conflicts of interest are reflected through three gradients of ethical norms. The traditionalist adversarial advocate, moral activist, and cause-lawyer; all attempt to explain legal approaches to the aforementioned ethical dilemmas. Harvey Specter, Mike Ross, and Travis Tanner imbue various avenues for resolving ethical dilemmas in the legal practice. Suits further explores how these duties pertaining to lawyers might be contrasted to practices in psychiatry and chaplaincy, concluding that many of the ethical dilemmas encountered within legal practice are mirrored within the practice of psychiatry. Trust, and a balance between the client’s interests and their own run parallel to the same dilemmas within the legal practice. When viewed in this way, Suits creates a dialogue regarding the obligations of modern professional practice.  Work Cited Table of Cases Russell v Jackson (1851) 9 Hare 391 (Sir George James Turner, Vice-Chancellor) R v Griffin (1853) 6 Cox CC 219 Middleton v Crofts 44 E.R. 364; (1856) 8 De G.M. & G. 192 Table of Books Barber P, Brown R, and Martin D, Mental Health Law in England and Wales (2012 SAGE Publications Ltd) 15-20, 55-61 Boon A, and Levin J, The Ethics And Conduct Of Lawyers In England And Wales (2nd edn, Hart Publishing 2008). 378 Radden J, Sadler J ‘Psychiatric Ethics as Professional and Biomedical Ethics’ in The Virtuous Psychiatrist: Character Ethics in Psychiatric Practice (OUP 2010) 11-32 Maister D ‘Chapter 1: Real Professionalism’ in True Professionalism (2000 Simon & Shuster) 21 Nicolson D and Webb J, Professional Legal Ethics (2000 OUP) 183 Table of Journals Bogg D, Values and Ethics in mental health practice (2010 Learning Matters Ltd) 93 Berlinger N, ‘What is Meant by Telling the Truth: Bonhoeffer on the Ethics of Disclosure’ 16:2 (2003) Studies in Christian Ethics 80-92 Canon Law’ (1854) 20:2 Law Mag. Quart. Rev. Juris, 210-233 Dare T, ‘Mere Zeal, Hyper-Zeal and the Ethical Obligations of Lawyers’ 7 (2004) legal ethics 24 Epps G, 'Suits' Does For Lawyers What 'Downton Abbey' Does For Aristocrats' (The Atlantic, 2013) <http://www.theatlantic.com/entertainment/archive/2013/01/suits-does-for-lawyers-what-downton-abbey-does-for-aristocrats/267280/> accessed 20 March 2016. Hilbink T, ‘Categories of Cause Lawyering’ (2004) ABF Law & Social Inquiry, 664 Hughes J, Louw S, ‘Confidentiality and cognitive impairment: professional and philosophical ethics’ 31 (2002) Age and Ageing 147-150 Landau B, and Asher T, in ‘Ethics of Psychoanalysis: Confidentiality’ Reported by Ruth F. Lax 83 (2002) The International Journal of Psychoanalysis 457 Menkel-Meadow C, ‘The Lawyer as Problem Solver and Third-party neutral: Creativity and non-partisanship in lawyering’ 72 (1999) Temp L Rev 785 Meyer M, ‘Plaintiff as person cause lawyering’ (2006) 118 Harvard Law review 1513 Moorhead R, Hinchly V, Parker C, Kershaw D, and Holm S, ‘Designing Ethics Indicators for Legal Services’ (UCL Center for Ethics and Law 2012) 20 O’Gorman N, ‘”Telling the Truth:” Dietrich Bonhoeffer’s Rhetorical Discourse Ethic’ 28 (2005) JCR 224-248 Parker C, ‘A Critical Morality for lawyers: four approaches to lawyers’ ethics’ 30:1 (2004) Monash University Law Review Rocca J, ‘Inventing an Ethical Tradition: A brief History of the Hippocratic Oath’ 11:1 (2008) Legal Ethics, 23 Simon, W ‘Ethical Discretion in Lawyering’ (1988) 101 Harvard Law Review 1093 Suits Season 1, Episode 1 ‘Pilot’ (USA Network 2011-2016) SRA Code of Conduct 2011 (Version 15 2015), I R Torrance ‘Confidentiality and its limits: Some contributions from Christianity’ (2003) 29:1 Journal of Medical Ethics 8-9 8 Suits and Ethics