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!