Any lawyers out there? Question about last night's Eli Stone

[Mom to Brandon and 2 cats]

So, the trial lawyer pretended to have a transcript from a M&M conference (they were trying an anesthesiologist who had a 15% higher than normal fatality rate). So the premise is that what is said in the M&M conference is privileged information, so it can't be shared in a trial. But yet they pretended to have a transcript of the trial, and tricked the head of the hospital into admitting that the anesthesiologist was a danger to the hospital.

My question is: does this stuff really happen in real life? Pretending to have false documentation seems kind of shady to me. But I'm not a lawyer, so....


Thanks for any insight. For some reason, this is kind of bugging me.

[bubbaray]

The ABA Model Rules of Professional Conduct says that a lawyer shall not knowingly make a false statement of fact or law to a tribunal (which would include in court at trial):

http://www.abanet.org/cpr/mrpc/rule_3_3.html

Rule dealing with opposing counsel and parties:
http://www.abanet.org/cpr/mrpc/rule_3_4.html

This rule governs dealings with non-clients:
http://www.abanet.org/cpr/mrpc/rule_4_1.html

Most states (not NY, CA or ME) follow the ABA model rules on PC.... We have similar rules of professional conduct in each province in Canada. The rules are based on centuries of practice in the UK, which is historical origins of the legal systems in the US, Canada, and the rest of the (current & former) Commonwealth countries.

As for the privilege issue, there is a difference at law between a privileged communication and a confidential one, with privilege being the "higher" hurdle. I'm in Canada and there is no such thing as doctor/patient "privilege" for example -- its dr/patient confidentiality and records/discussions in that context are compellable in court and other proceedings (nothwithstanding that drs, nurses, & patients here all *think* there is dr/patient privilege, there is not and that discussion is usually met with a lot of screaming and fist-pounding by the outraged medical professionals).

Lawyer/client records/discussions here are called solicitor-client privilege (IIRC, its called attorney-client privilege in the US, but its the same thing)and are, for the most part, not something that the courts will circumvent (in most cases, sometimes even this privilege is overridden in criminal trials -- but SC privilege is the highest order of privilege in western law).

An M&M conf. might be considered akin to settlement negotiations, and those usually aren't produceable at trial. Or there might be specific rules on those that vary by state.

I can't imagine myself relying on false documentation at trial. For starters, its unethical and a breach of my obligation as an officer of the court (our rules are very similar to the ABA rules). But, it just couldn't happen (here at least), because the documents produced at trial are shared between the parties far in advance of the actual trial itself, in a process called "discovery of documents". If I tried to question a witness at trial and rely on a false document, the opposing counsel would be objecting before the witness even got a chance to answer.

I'm curious to see if any of the US lawyers around here (ETA) have had a different experience....

[kellij]

If you are familiar with the law, you have to COMPLETELY suspend your knowledge in order to watch that show. My husband can't watch it because every few seconds he's screaming "what?!" at the tv, and going on a rant about how that could never/would never happen. I, on the other, can totally suspend it because I think it's a cute show.

Like in that first show, there is no way that you could switch sides, after already being engaged as the defendant's attorney, in addition to a whole host of other legal impossibilities that went along with that.

Also, not really a legal issue, but as far as a logical issue, he keeps winning millions and millions for his clients. I'm pretty sure you'd go out on your own and keep the millions for yourself, or your law firm would be pretty thrilled to have you. Crazy or not.

[dcmom2b3]

Didn't see the show that you're referring to, but I can tell you that it doesn't happen that way in the US either. First, as Melissa indicated, there's really no element of surprise. We each know our worst facts, and while we may pray that the other side doesn't find them among the millions of pages of documents we gave them, we always prepare as though they will have.

And we try to train our witnesses to follow our lead by listening to our objections, and not answering a question that we take issue with unless & until the judge directs them to do so. The blurted admission just doesn't happen. You can bet if the other side claims to have something I haven't seen or they shouldn't have in their possession, I shut down the questions (sometimes subtly, sometimes not) until I can get a look at the thing.

The bit about misrepresenting having a document? Wouldn't happen. Not to say that it couldn't, but nobody's that stupid. I have yet to meet the lawyer who wants to win (on someone else's behalf, no less) so badly that s/he commits such an egregious violation of our ethical rules. B/c that kind of (mis)conduct will get you disbarred, and possibly prosecuted for obstruction of justice, depending on where and to whom the misrepresentation was made. So, weighing the options, even the most venial of lawyers will stop short of making stuff up, because their personal and professional reputation (and hence their livelyhood) rests on the faith that the court and opposing counsel can have in their representations in the NEXT case, and the one after that, and the one after that, etc. And they'd certainly crawl away, claiming some sort of misunderstanding, if opposing counsel called them on it.

Put another way, none of us has met the client for whom we would commit professional suicide.

When I started practicing, my beloved mentor told me, "remember, when the client goes to jail, we go to lunch." Sounds harsh, but it's a very good (and colorful) reminder that lawyers only end up in jail along with our clients when we get so fixated on winning that we cross ethical and legal boundaries.

Or when we transport prostitutes across state lines and use NY citizen's tax dollars to follow them. Eliot Spitzer's a sharp one, he is. :rolleyes:

Edited to eliminate defense lawyer bias. Sorry to any plaintiffs' counsel out there. Old habits die hard.

[tarabenet]

If you are familiar with the law, you have to COMPLETELY suspend your knowledge in order to watch that show.

I've found that to be true of pretty much every TV show (and movie), no matter what the field. It is just TV, not reality, even when misleadingly tagged "reality TV". Heck, DH's favorite entertainment is to turn on the evening news and listen to me yell at the idiot reporters.

I really like "Eli Stone," especially because the silly fantasy elements and sequences.