Suits Season 1 Episode 10 Part 1

Suits 1x10 - "The Shelf Life" - Part 1

Pearson Hardman uses Dreibach Accounting as their account firm; Dreibach Accounting is also their client. Having a business relationship with one of your clients is normally a conflict of interest in violation of Rule 1.8, but, as Mike Ross notes, if Dreibach has signed a conflict of interest waiver, then they have given written informed consent to enter into the agreement.  So long as (1) the terms were fair and reasonable, (2) Dreibach was given a reasonable opportunity to hire independent counsel to help with the contract, and (3) they gave written informed consent, then this relationship is ethical.

If Mike was a lawyer (and he's not) then he would have violated 1.6 when he revealed the results of Dreibach's background check to Stan Jacobson, a Senior Vice President at the accounting firm. Dreibach accounting is the client, not Stan Jacobson. Therefore, Mike "knowingly revealed a client's confidential document" according to Jessica, and Mike would have broken the confidentiality Dreibach had with Pearson Hardman if Mike were a lawyer. But he's not, and because Harvey did not order or ratify his conduct, Harvey is also not violating Rule 5.3. Harvey told Mike to print off the background check, he didn't tell him to reveal it to Stan.

Violation of 4.3, 8.4
When Stan is fired, he becomes a former employee and he is no longer represented in any capacity by Pearson Hardman. Stan becomes an unrepresented person and that becomes apparent when Harvey meets him outside of another law firm. At this point, Dreibach accounting's interests and Stan Jacobson's interests are in conflict, and Harvey is violating Rule 4.3 when he gives Stan the legal advice to sign the severance package. Specifically, Rule 4.3 states that "The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client." Harvey gave Stan legal advice when Stan was unrepresented and his interests were in conflict with those of Dreibach's, and so this is a violation of Rule 4.3. Additionally, Harvey threatens Stan with litigation, and in some jurisdictions this might be coercive enough to be criminal, which would violate Rule 8.4.

Possible Violation of 5.3
Stan is also upset when Harvey contacts him, because he thinks that if the firm he was going to told Harvey he was coming, that that was a breach of the attorney-client privilege. Regardless of whether or not this was a breach of attorney-client privilege, at first blush this could be a breach of confidentiality because Stan was a prospective client. Stan was a prospective client because he called them looking to be represented and according to Rule 1.18(a), "A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client." Therefore, according to Rule 1.18(b) "...a lawyer who has learned information from a prospective client shall not use or reveal that information..." and so even the fact that Stan Jacobson wanted to see the other firm is information protected by confidentiality. However, Harvey tries to get around this by saying that his assistant is part of a network of assistants, and so if an assistant leaked the information to Harvey, then it wouldn't be a violation of Rule 1.18 because the assistant wasn't a lawyer. However, it would then still possibly be a violation of Rule 5.3 because the other law firm's assistant, as a nonlawyer employee, did not receive the adequate training to avoid routinely breaking confidentiality. The way Harvey makes it sound, this does not sound like a one-time breach, and so most likely this would be a violation of 5.3 because the firm did not have reasonable measures in place to ensure that its nonlawyer employees were adequately complying with the rules of professional conduct.

Season 1 Episode 9 Part 2

Season 1 Episode 9 Part 2

Violation of 5.3(c)(1) and 8.3(a)
Harvey goes to see his private detective. She tells him she tapped the phones at Emerson Petroleum and that the executives and Travis Tanner were talking about intimidating Harvey's plaintiff. First, Harvey is violating 5.3(c)(1) because the private detective is working for him (as evidenced earlier in the episode when he pays her with a stuffed envelope) and so she is a nonlawyer employee, and he is her supervisor. She tells him she tapped Emerson's phones, which is a criminal act that violates the Rules of Professional Conduct (Rule 8.4(b)) and by accepting  the flash-drive containing the illegally wiretapped conversation, he is ratifying her conduct and therefore violating 5.3(c)(1), which states that "a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved." Additionally, because Harvey now has actual knowledge that Travis Tanner violated the Rules of Professional Conduct, he must report him, and because he does not, Harvey violates Rule 8.3, which states that "(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority." Because Harvey did not inform the appropriate professional authority, he is now violating 8.3(a).

Violation of 8.4(a) and 8.4(c)

We find out that Wakefield-Cady offered Jimmy a junior partnership position at their firm if he would leak the list, but when he did, they reneged on the offer. Wakefield-Cady violated Rule 8.4(a) and 8.4(c). First, they used Jimmy to violate Pearson Hardman's duty of confidentiality to its clients, and so  they violated 8.4(a) which states that it is professional misconduct for a lawyer to "(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another." Additionally, they lied to Jimmy, promising a promotion but reneging on that promise once he came through. Here, they violated Rule 8.4(c) which states that it is professional misconduct for a lawyer to "(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."

Suits Season 1 Episode 9 Part 1

Suits 1x9 - "Undefeated" - Part 1

Two Violations of 8.4(c)
First, Travis Tanner lies to Mike Ross, telling Mike he is a close friend of Harvey's so that he can find out where Harvey's office is. Second, Travis lies to Donna, telling her that a witness fainted so that she can leave her post and he can visit Harvey uninterrupted. These two lies technically violate 8.4(c) which says that an attorney commits professional misconduct when they "(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."

Violation of 1.6(a)
We find out that an associate at Pearson Hardman leaked a confidential witness list to Wakefield-Cady, a rival firm. Once that information was sent, Wakefield-Cady had to comply with 4.4b, even though the genie was already out of the bottle, so to speak. 4.4b dictates that "(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender." Even if they notified Pearson Hardman, Wakefield-Cady already received the information, so that's all that matters to them. The person who sent it, who we later find out was Jimmy, sent it intentionally and therefore broke a client's confidentiality, violating rule 1.6(a) which states that "(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)." Here, none of the exceptions applied and Jimmy violated 1.6(a).

Five violations of 8.4(a), violation(s) of 5.3(c)(1), possible violations of 4.1(a), 4.2, 4.4, 8.4(a), (b), and (c), two violations of 8.4(b), and 8.4(c)
Travis uses a proxy (a third party person) to intimidate Kenny, the lead plaintiff in Harvey's class action lawsuit, telling Kenny he needs to accept the settlement offer or the other side is going to tear the other plaintiffs apart in cross-examination. That person is probably violating 4.1(a), 4.2, 4.4(a), and 8.4(a), (b), and (c). Here, Travis is violating 8.4(a) because it is professional misconduct to "(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another." Because Travis and his client hired that person to intimidate Kenny, he was violating the rules through the acts of another, and was himself violating 8.4(a) for each action someone took on his behalf or per his orders. Additionally, assuming that third person was a nonlawyer, Travis was also violating Rule 5.3(c)(1) where "(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved." Here, Travis and his client ordered the nonlawyer to intimidate Kenny. The question becomes whether Travis simply violated 5.3(c)(1) because he ordered the conduct involved, or whether 5.3(c)(1) means Travis violated 4.1(a), 4.2, 4.4(a), and 8.4(a), (b), and (c) because he ordered the conduct involved. Please feel free to post in the comments below about your opinion on this and any other matters. Additionally, by ordering someone else to criminally intimidate Kenny, Travis is probably also guilty of criminal intimidation, and so this would be an independent violation of 8.4(b).

Two violations of 8.4(c)
We then find out later that Jimmy (1) impersonated Luis so he could (2) use Rachel's employee access codes to fax Wakefield-Cady the confidential witness list. Jimmy is twice violating 8.4(c), where an attorney violates the rules by committing professional misconduct when they "(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."

Violation of 8.4(a)
Travis Tanner then does something brilliant which is, at first blush, not a violation of the Rules. Tanner knows that speaking to Harvey's clients would violate Rule 4.2 because he cannot speak to them because they are represented- he can only speak to Harvey. So, someone hired by Tanner gathers all of Harvey's plaintiffs in a room and when Harvey gets there, Travis Tanner speaks loudly to Harvey, hoping that the other plaintiffs will hear them. This is technically not a violation of Rule 4.2 because Tanner is not "communicating" with the other plaintiffs, but only with Harvey. Whoever did contact the plaintiffs to gather them in the same room is violating Rule 4.2, and Tanner is violating Rule 8.4(a) again by violating the Rules of Professional Conduct "through the acts of another."

Violation of 1.8(e)
Harvey eventually decides to pay for, out of pocket, a cash advance to hedge the settlement offer Tanner is proposing. He thinks Tanner's offer is low, and so he wants the clients to rest assured that they should stay in the litigation because that money is already assured. This is an interesting issue (and I look forward to your comments below) but I think Harvey is violating Rule 1.8 by providing financial assistance for clients for things other than the cost of the litigation. Comment 10 of Rule 1.8 is insightful, stating that, "Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because...such assistance gives lawyers too great a financial stake in the litigation." Harvey is essentially promising to pay the plaintiffs if he settles for less or losses the case, and this seems to violate the spirit of the Rule, and therefore Harvey is most likely violating Rule 1.8(e).

Suits Season 1 Episode 8 - Part 2

Suits Season 1 Episode 8 - Part 2

Two violations of 5.3(c)(1), Violation of 8.4(a), Violation of 8.4(b)
Near the end of the episode, Mike solicits Lola Jensen to hack into all of the bank records in Lichtenstein to find out where Maslow and his company hid the money. She does this in Pearson Hardman's office with Harvey and Mike present. Hacking into bank records is almost definitely illegal. Accordingly, by inducing her to hack into bank accounts, Mike is also probably breaking the law and committing a criminal act. Mike is asking Lola to break the law to help Harvey's client. Mike would therefore be violating 8.4(a) and (b) if he were a lawyer. Harvey, however, is his supervising lawyer, and as such is responsible for Mike's actions as if Mike were a lawyer. If Mike and Lola were lawyers, both would be violating the rules of professional conduct, and both are being supervised by Harvey. Even though Lola is not employed by Harvey, she is a nonlawyer who is "associating" with him for the time being, and that is probably sufficient to be considered a nonlawyer being supervised by an attorney under Rule 5.3. Therefore, because Harvey accepts what they both are doing and have done, he is ratifying their conduct, and he is violating 5.3(c)(1) which states that "a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved." Additionally, Harvey asks Lola to search the hacked bank records to find the 150 million embezzled on the day the money was stolen from his client. Here, like Mike, he is violating Rule 8.4(a) and possibly 8.4(b). 8.4(a) states that it is professional misconduct for a lawyer to "(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another" and (b) states that it is profession misconduct for a lawyer to "(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."

Violation of 1.16(a)(1)
Robert Geller represents Maslow's company, and probably Maslow himself. Rule 1.13(g) states that this dual representation can be ok - that "a lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of Rule 1.7." However, once Robert Geller knew that Maslow had embezzled money from another company, a potential conflict of interest had arisen between Maslow and his company, and Geller, instead of representing Maslow through the negotiation, should have terminated the relationship and told Maslow to seek independent counsel. This idea can first be seen in comment 10 to Rule 1.13 which states that "There are times when the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged." More importantly, however, is that by continuing to represent Mr. Maslow through the negotiations with Harvey and Luis, Geller's conflict of interest means he is violating Rule 1.16(a)(1) because the continued representation will violate Rule 1.7 (which governs conflict of interest rules). Rule 1.16(a)(1) states that a lawyer shall withdraw from representation of a client when "(1) the representation will result in a violation of the rules of professional conduct or other law."

Suits Season 1 Episode 8 - Part 1

Suits 1x8- "Identity Crisis" - Part 1

Violation of Rule 4.4(a)
At the beginning of the episode, Luis decides not to wait for Harvey and begins deposing Elliot Perkins. He badgers Mr. Perkins, harassing him and throwing accusation after accusation. Luis asks questions like, "Do you sleep well at night?" and making statements like "When I take this public, you are gonna be disgraced." Luis' use of the deposition shows no other substantial purpose than to embarrass and harass Mr. Perkins, and so Luis is violating Rule 4.4(a). Rule 4.4(a) states that, "In representing a client [Here, Luis was representing Stable Shelters], a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person."

Later in the episode, Luis contacts Inez, an employee who works for Maslow. We know Maslow is being represented as a company because Luis refers to Mr. Perkins' lawyer as an "in-house" attorney, and the attorney for Mr. Perkins is the same attorney for Mr. Maslow. So, the attorney is representing Maslow's company, and Maslow is presumably the CEO. Comment 1 to Rule 1.13 states that, "Officers, directors, employees, and shareholders are the constituents of the corporate organizational client." Therefore, because Inez works for the company, she is a constituent of the company. However, even thought the company is represented by counsel, she is not a represented person of the company as explained by the comments to rule 4.2, which state that, "in the case of a represented organization, this Rule [Rule 4.2] prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter or has the authority to obligate the organization with respect tot he matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability." Inez, carrying dry cleaning out of the company building, is probably not someone who regularly consults with the company's counsel and probably is not someone who can make decisions on behalf of the company. Therefore, it was ethically appropriate for Luis to speak with her, because she did not represent the company, and therefore was not one of the organization's "represented persons" under Rule 4.2.

Violation of 3.4(b); Possible Violation of 8.4(b)
However, Luis bribes Inez, offering to get her a job at Pearson Hardman working for Jessica Pearson if she would testify for their side. This is a textbook violation of Rule 3.4(b) where a lawyer shall not "falsify evidence, counsel or assist a witness to testify falsely, of offer an inducement to a witness that is prohibited by law." Bribing a witness is probably also a criminal act (although Jessica later suggests that it isn't because no money exchanged hands) and so Luis is probably also violating 8.4(b) where it is professional misconduct for a lawyer to "(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." 

Two Violations of 8.3(a); Possible Violation of 8.4(b) 

Inez tells Robert Geller, the attorney for Maslow. Geller tells Luis and Harvey that Luis tried to bribe Inez, but that they can put this whole mess behind them if Harvey's client now settles the case. Harvey and Robert both know that Luis violated the ethics rules, and because neither of them report Luis they are both violating Rule 8.3(a) which states that "a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority." Additionally, Robert Geller is trying to gain an advantage in settling the civil suit by threatening Luis with an ethical or criminal violation. While "the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons" (see the preamble and scope of the rules) there is nothing in the language of the rules to suggest that threatening opposing counsel with legitimate ethical violations is a violation of the rules in and of themselves. Mostly, the rules have left that idea up to the states. However, this threat may rise to the level of extortion, which would be a criminal act, and Robert Geller would be violating 8.4(b) where it is professional misconduct for a lawyer to "(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." 

Violation of Rule 8.3(a) 

Harvey then tells Jessica that Luis tried to bribe Inez into testifying for them. Jessica reprimands Luis, telling him that if he tries that again, it will be his last day at Pearson Hardman. First, Jessica is not violating Rule 5.1(c)(1) because she did not ratify Luis' conduct here; she reprimanded him for trying to bribe a witness. However, because Harvey told her, Jessica has actual knowledge that Luis has violated the Model Rules, she is violating rule 8.3(a) because she has failed to report him to the appropriate professional authority. 

Suits Season 1 Episode 7

Suits 1x7 - "Play the Man"

Violation of 8.4(c)
There's actually only one ethical violation in this whole episode, so let's get to it. Kyle, another associate at Pearson Hardman, promises Mike he will settle a mock trial case with him before they get to mock court. However, once they get to court, he tells the mock court that there never was a deal. Normally other rules regarding candor to the court would be in play, but since this is a mock trial, the only ethical rule in play is 8.4(c) which states that it is professional misconduct for a lawyer (here Kyle) to "(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."By tricking Mike and lying to him about a settlement when Kyle did not plan on settling, Kyle has violated 8.4(c).

I'd like to also take a second look at another ethical issue in the episode which arguably does not lead to an ethical violation. Scottie, Harvey's female rival from Harvard, is in a merger agreement between the business she represents and the business Harvey represents. Scottie gets the financial books from Harvey's client, and uses that information to torpedo the merger and instead take over Harvey's client's business in a hostile takeover. First, we need to determine whether Harvey giving Scottie his client's financial records violated his duty of confidentiality under 1.6. Normally, "a lawyer shall not reveal information relating to the representation of a client", but they can when "the disclosure is impliedly authorized in order to carry out the representation." Here, Harvey is trying to merge his client's company and Scottie's client's company, and so showing the client's financial records is normally a part of these transactions. Therefore, Harvey was impliedly authorized to show Scottie the books because showing her the books was necessary to carry out the merger for his client. There is no violation of 1.6.

Second, and more importantly, Scottie misrepresents her interest in doing a merger in order to secure the financial records of Harvey's client. It could be argued that this misrepresentation is prohibited by 8.4(c), but because the word "misrepresentation" is not included in the terminology, we would have to rely on the word as used in substantive law, and normally in substantive law "misrepresentation" is only misrepresentation of a material fact. Here, Scottie's intentions in getting Harvey's books during the negotiations is probably not a material fact, and while outright lying or deception is still prohibited even in negotiations, this type of omission does not seem to rise to the level of misrepresentation required under the rules (again, feel free to disagree with me in the comments below!). This situation is different from the one in the first paragraph above, because in the paragraph above, Kyle is making affirmative statements that he knows are not true- he is making a promise he has no intention of keeping and that Mike relies on when they start the trial. Here, however, those affirmative statements are lacking, the only thing at issue here is that Scottie's intentions are not what they seem, and a lawyer can have different intentions than the ones they put on display during negotiations. Therefore, this omission does not seem to rise to the level of a misrepresentation and Scottie probably did not violate 8.4(c).

Suits Season 1 Episode 6

Suits 1x6- "Tricks of the Trade"

Possible Violation of 5.3(c)(1)
Mike goes to visit Bradley Reger to find out where Gabby Stone is. Gabby Stone, a trader on Wall Street, is accused of insider trading and was about to sign a plea deal when she ran away from the offices of Pearson Hardman. While talking with Bradley, Mike represents himself as someone from the Department of Justice. Normally this would be a violation of 8.4(b) (because impersonating a federal officer is a crime) and 4.3 (because Mike didn't explain his role in the matter to an unrepresented person), but again, Mike is not a lawyer, so while he could be subject to criminal penalties for impersonating a government officer, he is not technically breaking any rules of professional conduct here. Harvey is, however. Later in the episode, we realize that Harvey found out Mike had done this, and he warns Mike not to impersonate a federal agent again. Here, Harvey is violating Rule 5.3(c)(1), which states that "(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged by a lawyer if (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved." Here, Harvey has actual knowledge of the specific conduct because he asks whether Mike told Bradley he worked for the Department of Justice and Mike, after trying to beat around the bush and work around the question, admits to it. Even though Harvey warns him not to do it again, he is essentially accepting that Mike has violated the ethics rules and so he has ratified the conduct when he didn't reprimand Mike for his conduct.

Violation of 4.2
Now, we come to something I thought would have been violated by now. Harvey and Mike visit Gabby Stone in prison. Gabby Stone, seen earlier in the episode, is represented by a lawyer, Nick Zegan. Harvey knows that she is represented by Nick, and so she is a represented person under Rule 4.2. 4.2 states, "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Here, Harvey has not been authorized to see Gabby Stone by either the law or by a court order, and we know that he hasn't received the consent of her lawyer Nick Zegan because Harvey tells Nick he went to see Gabby later in the episode. During the jail meeting, Harvey, Mike, and Gabby discuss the matter at hand (her insider trading) and so Harvey has violated Rule 4.2.

Violation of 1.9(a), 8.4(c), 8.4(b)
Now, we get to some really interesting facts. Harvey Specter accuses Nick Zegan or representing both Burt Kimball in a civil suit twelve years agao and Lunardi Pharmaceuticals in their FDA approval suit. This matters because Nick Zegan represents Gabby Stone, who is accused of insider trading with information about Lunardi's FDA Approval. Gabby worked for a company of which Burt Kimball is an executive officer. Essentially, attorney Nick Zegan was giving Burt Kimball insider information about the FDA Approval and Burt was then giving that information to Gabby to trade on. When Gabby got caught, there was nothing to trace it back to either Burt or Nick and they cut her loose. Obviously we are dealing with a conflict of interest here. Nick's former clients are Burt and Lunardi Pharmaceuticals, and his current client is Gabby Stone. First, we need to determine whether Nick Zegan violated 1.9(a) by breaching a duty to his former client Burt Kimball when he represented Gabby Stone. Rule 1.9(a) states that "a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing." Harvey says that Nick Zegan represented Burt Kimball in a civil suit twelve years ago. Most likely, Burt's civil suit is not the same or substantially related to Gabby's case, and so he didn't have a conflict of interest with his former client when he took on Gabby's case. He did, however, have a conflict of interest representing Gabby Stone after representing Lunardi Pharmaceuticals. Nick represented Lunardi in their FDA approval proceedings, and Gabby Stone's case is about trading insider information concerning Lunardi's FDA approval proceedings. Therefore, the cases are the same or substantially related. Additionally, Gabby's interests are materially adverse to Lunardi's interests. Lunardi, even though it's not a party to the suit, has a material interest in ensuring that their inside information is not traded on and would want Gabby prosecuted to the full extent of the law. Gabby wants to defend herself from the suit. Therefore the party's interests are materially adverse and Nick Zegan violated 1.9(a) when he represented both of them. Additionally, by helping Burt use Gabby as a pawn in their insider trading scheme and then turning around and representing her, Nick has violated 8.4(c) which states that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." Furthermore, the securities violations are probably criminal acts, and so Nick has violated 8.4(b) which states that it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."

Violation of 8.4(e)
Harvey tells Nick, "You see my relationship with the DOJ [Department of Justice]. Do you want me to point them in your direction? Or do you want to admit to me that Burt Kimball's paying you off?" This is one of Harvey's favorite ethical violations, a violation of 8.4(e), which states that it is professional misconduct to "state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law." It's unclear whether the threat of criminal prosecution itself would be a violation, especially when the threat is based on reasonable facts that would warrant criminal charges. The older rules of conduct did have language to this effect, but the new rules took that language out, so under the Model Rules it doesn't appear that a threat of criminal prosecution, when the facts show that the criminal prosecution could happen, violate the ethical rules. Please feel free to comment below if you disagree with that summation.

Suits Season 1 Episode 5 - Part 2

Suits Season 1 Episode 5 - Part 2/2

At the end of the episode, Harvey visits a bunch of drug dealers who are keeping Mike's friend Trevor hostage. He tells them that his firm's security cameras have them leaving his firm, and so he will use that evidence against them, unless they agree to be his clients. He offers to sign them as clients so he can't testify against them. Trevor owes them money and so Harvey offers them $10,000, but he says that his retainer is $10,000 so he will keep the money. 

Let's unpack this situation one step at a time: First, Harvey says he is Trevor's attorney, even though Harvey says that "Trevor doesn't know he hired me." We need to determine whether an attorney-client relationship has formed between Trevor and Harvey. The scope of the Model Rules, in Clause [17] states that "Furthermore, for the purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship has been established. See Rule 1.18. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact." One side would argue that an attorney client relationship had formed because the circumstances were dire (Trevor was being held hostage), he didn't object when Harvey told the drug dealers he was Trevor's lawyer, Harvey represented himself as Trevor's lawyer and acted like Trevor's lawyer, and when Trevor was let go, neither he nor Harvey said anything about discontinuing the lawyer-client relationship. The other side will argue that an attorney client relationship had not formed because Harvey had never met or spoken to Trevor before meeting him at the drug dealer's house, neither Trevor nor Harvey signed anything, Harvey was only going to help out a friend of Mike's and really wasn't interested in being Trevor's lawyer, Harvey only said he was Trevor's lawyer so the drug dealers would eventually let him go, and Harvey never spoke with or otherwise communicated with Trevor- Harvey didn't talk to Trevor before he was kidnapped, and he didn't talk with him after Trevor was released. I think, however, it would be plausible if not reasonable for Trevor to believe, after being released, that Harvey was still his lawyer, and so I think an attorney-client relationship has formed here (feel free to agree or disagree with me in the comments). 

Violation of 4.3 and 1.7(a)(2)

This matters because if Trevor is Harvey's client, then he is first violating 4.3 by meeting with the drug dealers because they are unrepresented persons, and then he is violating Rule 1.7 because signing the drug dealers to be his clients should cause a conflict of interest between the interests of Trevor and his hostage takers, who are now all of Harvey's clients. 4.3 says in part that "the lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client." Here, Harvey is telling them to secure counsel but HE wants to be their counsel so he is, in effect, giving them legal advice, and he should know that their interests in kidnapping his client are directly in conflict with the interest of his client, who has been kidnapped by them. Harvey has a concurrent conflict of interest between two current clients when he signs the drug dealers to be his clients when Trevor is already his client. If Trevor decides to sue them, then "the interests of one client will be directly adverse to another client" which prohibits Harvey from representing both of them. More importantly, this likelihood of potential conflict between their two interests violates 1.7(a)(2) where a conflict occurs when "there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client..." Now if not directly adverse, Harvey could represent both parties, but he would need, among other things, both of their informed consents, signed in writing. Neither gave informed consent, signed in writing. There was nothing to suggest that Harvey's engagement letter had anything in it discussing the conflict of interests, and Trevor didn't sign anything. 

Violation of 7.3(b)(2);  Two Possible Violations of 8.4(b), Possible Violation of 1.16(a)(1)

Next, Harvey coerces them into signing the engagement letter, threatening them with prosecution if they don't sign. First, this violates 7.3(b)(2). Even though he isn't signing them for "pecuniary gain", 7.3(b)(2) states that a lawyer shall not solicit professional employment in-person if "the solicitation involves coercion, duress, or harassment." Here, by blackmailing them into signing the engagement letter, Harvey has solicited professional employment by coercion, in violation of this rule. Additionally, the blackmail here might be a crime, and so Harvey may be violating 8.4(b) by committing "a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." Additionally, by signing them so he doesn't have to testify agains them, Harvey may be obstructing justice, which would be another violation of 8.4(b) (this one was really tricky, so I would appreciate your comments below- namely, whether signing a client so you don't have to testify against them violates the rules of professional conduct). Consequently, the representation itself "will result in a violation of the rules of professional conduct or other law" and so because Harvey did not refuse the representation and did not withdraw from the representation, he is also violating 1.16(a)(1). 

Finally, let's talk about fees. An attorney definitely has the right to set his or her fees, so long as the fees are reasonable and comply with the ethical rules. Therefore, the question is whether a $10,000 retainer is "reasonable" (Rule 1.5(a)). Under the Model Rules the retainer is probably "reasonable," because under the model rules a retainer is merely an advanced payment that is given back to the client when the termination ends. So even though Harvey smugly puts the check back into his pocket, under the Model Rules, that money now belongs to the drug dealers, and Harvey is only holding it in trust for them until they use a part of it for his services. If they fire him, Harvey has to refund the retainer not used for his services under Rule 1.16(d). However, under many jurisdictions (but not the model rules), the idea of a "true retainer" exists, where the attorney earns the money as soon as the retainer is given to him- he is given the money simply for being available. If New York allows attorneys to have true retainers, then Harvey earned that money simply for being available to them, and so the money is now his. If the money is a true retainer, Harvey could be violating Rule 1.5 because the true retainer could possibly not be a reasonable fee. Then again, to have a Harvard-educated attorney at the best white-shoe law firm in New York available to you may make the fee reasonable. 

Suits Season 1 Episode 5 - Part 1

Suits 1x5 - "Bail Out"- Part 1

Harvey goes to visit Travis, the cab driver his limo driver Ray got into a car accident with. Travis is an unrepresented person under MR 4.3. Harvey then goes on to try and dissuade the man from suing his driver, condescendingly offering him cash for his emotional suffering. Harvey's statements and actions may amount to legal advice, and so he seems to be violating rule 4.3, which states "...The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client." Here, however, his driver is not yet his client, and Harvey was only named as a witness and not as a party to the suit. Therefore, he is not representing anyone with adverse interests to Travis when he first meets him, and therefore this is not a violation of Rule 4.3. If he was representing Ray, this gets more tricky, and the struggle of dealing with pro se litigants can be very ethically messy. On the one hand, Harvey is merely posturing his case, but on the other hand, he is strong arming a pro se litigant. The comments explain that the rule does not prohibit a lawyer from settling with a pro se litigant, so on balance, most likely this would be ethically appropriate.

Violation of 3.7(a)
Later however, it is suggested that Travis the cab driver is going to add Harvey Specter as a defendant in the civil suit. Harvey tells Ray, his limo driver, that he will be defending both of them in the suit. The suit first named Harvey as a witness, and so at this time he is probably a necessary witness. Under Rule 3.7(a) "a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness." There are three exceptions, but here, Harvey does not meet any of them. Therefore, it was a violation of 3.7(a) when Harvey took a case where he was likely to be a necessary witness.

Violation of 8.4(e)
Near the end of the episode, Harvey says, "The District Attorney happens to be number 3 on my speed dial." This is a clear violation of Rule 8.4(e), which explains that it is professional misconduct for a lawyer to "state or imply an ability to influence improperly a government agency or official..." Here, Harvey is implying that because he and the District Attorney are so close that he has an ability to improperly influence the District Attorney to hear and prosecute this case in Harvey's favor.

Suits Season 1 Episode 4

Suits 1x4- "Dirty Little Secrets"

In the past we have treated Mike Ross as a lawyer, but only when Harvey was supervising him, because when an attorney supervises a non-attorney the non-attorney's professional conduct violations are treated as the lawyer's professional conduct violations if the attorney had actual knowledge of the violations or if the violations occurred as a result of failing to adequately supervise the non-lawyer. Here, however, Mike is about to commit ethical violations that Harvey neither has actual knowledge of nor result from a failure to reasonably supervise him. Because Mike Ross is not a lawyer, then, the rules don't necessarily apply to him here. Therefore, there is no violation here. But just stretching the hypothetical, however, let's just entertain the idea that Mike was a lawyer. At the beginning of this episode we see Mike talking with Glinda, a state social worker. He threatens her, telling her that if she doesn't help him today, he is going to hire a private investigator to look into her background and make her life miserable. She then asks him what his name is and he lies, telling her he is Harvey Specter. With that lie, if Mike were a lawyer he would be violating 4.1 (a) for making a false statement to a third party when representing a client, and 8.4(c) by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. 

Violations of 1.7(a)(2)

"Because sometimes I do things that my clients don't like, and if their ex-wives are looking over my shoulder that's not really a problem, but when their ex-wives are also my managing partner, that hamstrings me, and if I'm gonna turn this loser into a winner I can't be hamstrung, I can't have that!"

                                                                                                                       - Harvey Specter

Throughout the episode, Harvey is worried that Jessica's interest in her former husband's case will hamstring Harvey and he won't have the freedom to do his job properly. This concern is exacerbated when Jessica decides to "stop staying out of it" and decides to join the case. Harvey and more likely Jessica are violating Rule 1.7(a)(2). The rule states that "except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if...(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer." Jessica took the case because she thought she knew her former husband well, and so she has a personal interest in the case. This creates a significant risk that her personal interest will materially limit and bias her husband's representation by Harvey, a fear Harvey has throughout the episode. Here, Harvey also has a personal interest because his boss' ex-husband is his client and he has a personal interest in staying on her good side while also winning the case. These conflicts of interests are violations of 1.7(a)(2). 

Violation of 1.13

At one point in the episode, Jessica advises her former husband, Quentin Sans, the CEO of a drug company, to join the lawsuit against his company because he has ALS. The payout from settling with his company should allow him to keep the drug on the market so he can stay alive. Harvey tells her, "Jessica, we're lawyers for the company. We can't advise him to do that." And lo and behold, Harvey is right and Jessica is probably violating 1.13, as seen in comment 10 to that rule, which states that "care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual." That representation includes legal advice. Here, by telling Quentin he should join the lawsuit against his company, Jessica is giving legal advice and therefore providing legal representation for someone who isn't her client. Their client is the company and not Quentin. The advice is directly in conflict with their  commitment to advocate for the interests of their client, the company, not Quentin. Though its hard to point the finger at any particular text in the rule, she is violating 1.13 when she gives him advice that is adverse to the representation of the client, which here is the company. 

Suits Episode 3

Suits Episode 1x3 - "Inside Track"

Possible Violation of 1.2(a)
From the get-go, we get to one of the more interesting ethical fact patterns in the season thus far: Harvey Specter represents McKernan Motors, and its new CEO, Robert Stensland, wants to ship the manufacturing of the company overseas. Harvey doesn't like that idea and wants to look through the bylaws to oust the CEO, because he believes its in the best interest of the company to stay in America. Let's start with the basics: the client here is not the CEO but the company, McKernan Motors. However, as CEO Stensland is a duly authorized constituent speaking on behalf of the company (MR 1.13(a)). While Harvey finds that the CEO's interests are adverse to the long term interests of the company, that's just his opinion, and the CEO is exercising his business judgment as CEO not as an individual. Therefore, the interests of the company are not adverse to the interests of the CEO, who is merely exercising his business judgment to ship labor abroad as CEO. As Jessica says to Harvey later in the episode, "That is not your call. You are an attorney. This is the internal business of McKernan Motors...I don't think you have any business telling that man how to run his company." And she is absolutely correct, as explained by comment [3] to Rule 1.13, "When constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning policy and operations, including ones entailing serious risk, are not as such in the lawyer's province." Harvey is acting in a way adverse to the company because he thinks its in their best interest to go another way, but in doing so, he is acting adverse to the client's wishes (because Stensland is speaking for the client) and so arguably, Harvey is violating Rule 1.2 where it says that "...a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued." Most likely Jessica would not be in violation of 8.3 here however, because Harvey's offense is probably not substantial enough to warrant punishing her for failing to report his offense.

Violation of 5.3(c)(1)
Near the end of the episode, Mike Ross says that because Dominic wasn't given three days notice, he wasn't actually fired, and can therefore petition the board of directors because he is an employee. This is a lie, that he tells Harvey he made up on the spot later. Mike, if he was a lawyer, would be violating 8.4(c) because by lying he has engaged in "conduct involving dishonesty, fraud, deceit, or misrepresentation." Furthermore, they are now representing the wealthy hedge fund investor who wants to buy the company, and so Mike is also more specifically violating 4.1(a), which states that in the course of representing a client a lawyer shall not knowingly "(a) make a false statement of material fact or law to a third person" (here, the board of directors). Harvey, as Mike's supervising attorney, now has knowledge of the specific fraudulent conduct but by doing nothing he is choosing to ratify the conduct, in violation of 5.3(c)(1).

Suits Episode 2- Part 2

Suits Episode 2- Part 2/2

Violation of 8.3(a)
After Harvey shuns Mike for being high, Mike barges into his office the next day and tells him that Luis coerced him into smoking pot with the client, or else Luis was going to use the failed drug test Mike took to fire Mike. Harvey now has actual knowledge that Luis has committed a criminal act of a nature which should seriously question his integrity as a lawyer in violation of 8.4(b). Because the transgression is substantial, Harvey has a duty under 8.3(a) to report Luis. Because he does not, Harvey is in violation of 8.3(a).

Violation of 8.4(c), 8.3(a)
Near the end of the episode, Mike finds out that not only did Luis use Mike's drug test to coerce Mike into smoking pot with a client, but the drug test was fake and Mike actually passed it. Therefore, not only was the coercion probably criminal and a violation of 8.4(b) as explained before, but this is is a textbook violation of 8.4(c), which explains that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." Here, by not only lying about Mike's drug results but also creating a fake drug report, Luis is in violation of 8.4(c). Harvey is now under a duty to report Luis again, and because he does not, he is violating 8.3(a).

Suits Episode 2- Part 1

Suits Season 1 Episode 2 (1x2) - "Errors and Omissions"

Violations of 1.1, 1.3, 5.3b, 5.5, 8.4(a), possibly 8.4(b).
At the beginning of the episode, Harvey wants Mike to go back to the office to file a patent. Mike says, "but I don't know how to file a patent." Harvey replies, "figure it out." Mike is demonstrating that he is not competent - he is violating MR 1.1, which states that competent representation (which lawyers are required to have) "requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." Here, Mike has demonstrated that he does not have the legal skill and preparation reasonably necessary to help this client when he cannot fill out the client's patent. Even though Mike is not a lawyer, the rules treat him like one when he is being supervised by an attorney (which here is Harvey Specter). Therefore, Harvey is violating rule 5.3b because Mike Ross is violating 1.1. Because Mike Ross is not competent to fill out a patent on his own and Harvey knows this, Harvey is not taking reasonable efforts to ensure that Mike is conforming with the Rules of Professional Conduct. In fact, when the patent is later denied, Harvey tells Mike that Harvey is responsible for him saying he told the client that it was his fault that the patent was not filed on time. Additionally, by asking Mike to fill out a patent he is assisting him in the unauthorized practice of law, which is a violation of MR 5.5 and MR 8.4(a). If helping Mike in his unauthorized practice of law is a criminal action, then Harvey is also violating MR 8.4(b) which states that it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other aspects." Finally, because the patent was not filled out in time, and the delay caused the client to lose the patent, it could be argued that Harvey is in violation of MR 1.3, which states, "a lawyer shall act with reasonable diligence and promptness in representing a client."

Violation of Model Canon of Judicial Conduct 1 and 2.
For a refreshing change, we depart from all of Harvey Specter's ethical violations and move to Judge Pearl, pictured above, in episode 2. Judge Pearl denies Harvey's motion because he believes Harvey slept with his wife. Listed below are two of the four Judicial Canons all Judges must abide by:

Canon 1: A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. Here, by denying Harvey's motion and embarrassing him in open court, Judge Pearl has not upheld the integrity and impartiality of the judiciary and is violating Judicial Canon 1.

Canon 2: A judge shall perform the duties of judicial office impartially, competently, and diligently. Here, Judge Pearl's duties included ruling on a patent motion. He ruled based on his feelings toward Harvey Specter, not based on the law, and so he is violating Judicial Canon 2.

Violation of Model Canon of Judicial Conduct 1, 2, and 3
Here, the judge is at it again. After Harvey returns to speak with Judge Pearl, Judge Pearl offers him a deal: if he will sign a paper saying that he slept with the judge's wife, the judge will grant his injunction.  Here, Judge Pearl again is violating Judicial Canons 1 and 2, and here he is even violating Judicial Canon 3, which states, "a judge shall conduct the judge's personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office." Here, he is using his potential ruling on the injunction to get a favorable ruling in his personal divorce action with his wife. This is in direct violation with three of the four judicial canons.

Normally there would also be a violation of 8.3(b) for Harvey here, because once Harvey knew of the illicit deal, he had a duty under 8.3(b) to report Judge Pearl. Surprisingly, Harvey Specter follows the rules and has the judge investigated at the end of the episode.

Violation of 8.4(b)
Louis Litt, another partner at Pearson Hardman, strong arms Mike into smoking pot with a potential client. Because marijuana possession and use is still illegal in New York, Louis is not only conspiring with Mike to break the law, but is actually coercing him to do it. While smoking marijuana in this day and age will probably not be considered a criminal act reflecting adversely on Mike's fitness as a lawyer (under MR 8.4), coercing Mike to do so will be, and so Louis will be violating 8.4(b), which states that it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."

Suits Episode 1- Part 3

Violation of 8.4(a) and 5.3(c)
Later in the episode, Harvey tells Mike he knows that Mike has been keeping a briefcase full of pot inside a file cabinet at Pearson Hardman. The amount of marijuana Mike has in the briefcase seems like it would lead to a felony drug possession charge. Now, this probably wouldn't be a violation of MR 8.3 because Mike is not a lawyer and 8.3 seems to only apply to other lawyer's misconduct. However, felony possession of marijuana is probably a violation of 8.4(b) as it is a "criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Therefore, even though Mike is not a lawyer he is using the firm's filing cabinet to hide the marijuana, and so Harvey may be criminally liable for knowing that Mike was using his firm to hide marijuana without reporting him. Therefore, if Harvey were to be criminally liable in New York for failing to report Mike for hiding marijuana at his firm, then Harvey himself might be violating 8.4(b) because this may impact his trustworthiness or fitness as a lawyer by concealing Mike's possession of pot.

Regardless of that outcome, Mike's violation of 8.4(b) is a violation of the rules of professional conduct, and so Harvey may now be in violation of 5.3(c) AND 8.4(a). Let's go through 8.4(a) first: 8.4(a) states that it is professional misconduct for a lawyer to "violate or attempt to violate the rules of Professional Responsibility, knowingly assist or induce another to do so, or to do so through the acts of another." It could be argued that by not reporting Mike, he was helping Mike conceal his pot, and therefore he was knowingly assisting Mike to violate the Rules of Professional Responsibility. Second, Harvey is in violation of 5.3(c). 5.3(c) states that a lawyer shall be reasonable for the conduct of a nonlawyer (here Mike Ross) when a lawyer, with knowledge of the specific conduct, ratifies the conduct involved. Here, Mike is probably violating the rules of professional conduct by hiding felony-degree amounts of marijuana in his law firm's filing cabinet, and Harvey, who has knowledge of that fact because he says he "knows what's in the briefcase" has arguably ratified that conduct by not confronting Mike or reporting his conduct earlier.

Possible violations of 4.3 and 8.4(b)
Near the end of the episode, Harvey visits Joanna Webster, a fake employee who hurt his case, and threatens her with jail time if she doesn't tell him the whole story. Here, Joanna Webster is unrepresented- there is nothing in the show to suggest that she is represented by another party in the litigation to which she is a witness to, even though Harvey suspects she is working for the other side to throw off his case. He tells her to tell him the whole story. If advising a witness to tell a lawyer the whole story is legal advice, then he is probably in violation of 4.3. 4.3 states that "the lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client." Here, because Harvey suspects that Joanna Webster is working for the opposing party by throwing off his case, he knows or reasonably should know that her interests are adverse to his party's interests. Therefore, asking her to tell him the whole story, if construed as "legal advice" is him giving legal advice to an unrepresented person with interests adverse to those of his client, and is a violation of 4.3. He also tells her that "Here's what you're gonna do..." before the scene changes, suggesting he gave her legal advice. Additionally, Harvey says that he doesn't have the wire transfer showing that the company paid Joanna Webster to lie, but once he does, she will be going to jail if she doesn't talk to him. This means he doesn't yet have knowledge, only a strong suspicion, that she is working for the other side. In some jurisdictions, threats like these without facts can amount to extortion and so he would also be in violation of 8.4(b) as a "criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects."

Violation of 8.4(e)

At the end of the episode, Harvey suggests that he knows an old buddy from law school who is a U.S. attorney that would be interested in hearing this witness tampering case. He and Mike imply that because Harvey is so close to the U.S. attorney it should be no problem for the attorney to hear the case- they were so close that Harvey attended the man's wedding and bachelor party. This is a flagrant violation of 8.4(e) which states that it is a violation to "state or imply an ability to influence improperly a government agency or official..." Here, the U.S. attorney is a government official, and Harvey is implying that because they are so close, he will have an ability to improperly influence him into hearing the case. It could be argued, however, that Harvey is not saying that the attorney will be biased when he hears the case, but that Harvey is only suggesting that the U.S. attorney would hear the case. But it's pretty strongly implied that their close ties means that it will be an uphill battle for the other side to win their case if it goes to trial. 

That wraps up the episode. Please feel free to enter any questions, comments or concerns you may have into the comment box below!

Suits Episode 1- Part 2

Now, I think we get to one of the more interesting PR fact setups of the episode: When Jessica takes away Harvey's promotion because he lied to his client, Gerald Tate, and then Mr. Tate fired the firm, Harvey visits Jessica in her office after talking to Mike. Harvey says that if Jessica doesn't give Harvey back his promotion, he will take her to the ethics board because she should have notified the board as soon as she knew he lied (MR 8.3). Essentially, he is threatening her with an ethics violation to get what he wants. I searched through 8.3 and the comments, and there is nothing in there to suggest that threatening a partner with a violation of the ethics rule, especially when that lawyer knows the ethics violation is true, is against the ethics rules themselves. There is some literature to suggest that threatening opposing counsel with an ethics violation in order to achieve a more favorable civil result may be an ethics violation, but here, Jessica is his boss, not opposing counsel, and this is about inter-office politics, not a civil matter. So, threatening Jessica with an ethics violation is probably not an ethics violation unless the threat opened up Harvey to criminal prosecution under the rules of that jurisdiction.

The second issue is now that Harvey knows that Jessica is violating Rule 8.3 because she failed to report him to the bar, does HE have a duty under Rule 8.3 to report her for failing to report him? Maybe technically, but the comments to Rule 8.3 shed light on this, saying that the rule limits reporting to substantial offenses. Here, while Jessica's failure to report Harvey's lying may be considered a substantial offense, an 8.3 violation for failing to report someone else for an 8.3 violation is probably not considered serious enough to warrant a violation in and of itself.

Violation of 5.3(b)

Mike's first case as an associate is helping a woman who is the victim of sexual harassment (pictured above). The Model Rules dictate that all non-lawyers (here, Mike Ross) have the same professional obligations as lawyers when supervised by lawyers (here, Harvey Specter, because he is Mike Ross' supervisor). This is explained by MR Rule 5.3(b) "a lawyer having direct supervisor authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer." Here, those professional obligations include Rule 1.1 and 5.5. Mike Ross, although a genius, may lack the competency required under Rule 1.1 - competent representation requires "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the preparation." Here, Mike Ross is not a lawyer, never went to law school, and cannot fill out a subpoena. Therefore, he is probably not competent. He is certainly in violation of 5.5 which is the unauthorized practice of law, because he does not have a license to practice anywhere because he has not gone to any law school. Harvey Specter has not made reasonable efforts to ensure that Mike Ross is fulfilling his professional obligations- he knows Mike Ross is not a licensed attorney and refuses to remedy the situation, and he refuses to teach Mike how to fill out a subpoena. Therefore, Harvey Specter is in violation of 5.3(b) because Mike Ross is violating 1.1 and 5.5, and Harvey is his supervisor.