Professional Documents
Culture Documents
1
Garrett Epps, 'Suits' Does For Lawyers What 'Downton Abbey' Does For Aristocrats' (The Atlantic, 2013)
<http://www.theatlantic.com/entertainment/archive/2013/01/suits-does-for-lawyers-what-downton-abbey-does-
for-aristocrats/267280/> accessed 20 March 2016.
2
Christine Parker ‘A Critical Morality for lawyers: four approaches to lawyers’ ethics’ 30:1 (2004) Monash
University Law Review, 56
3
ibid
4
ibid 70
Suits and Ethics 2
Havey is both traditionalist, willing to do what is necessary to win; 5 and Activist, only
willingly representing clients if he agrees ethically. The traditionalist model’s strength is in its
capacity insulate the lawyer from personal-ethical values. His client selection is one of activism whilst
his representation abides by a traditionalist model. This results in conflated priorities. 6 The hallmark
of Moral Activism is an application of personal ethics. Parker writes that Activism is an effective
approach to ‘ethical lawyering’ in that it limits the lawyer’s actions to his own personal sense of duty.
This can, on occasion, conflict with societal conceptions of justice. 7
Harvey actively deceives, bullies and defrauds others with ‘hyper-zeal’ 8 to reach the ‘right’
conclusion and ‘win’. These actions time-and-again undermine his trustworthiness and even his
effectiveness. It falls clearly within Luban’s description of partisanship, but his allegiance to
neutrality ought to be questioned. A professor charged with accepting a bribe seeks Harvey’s help, he
believes Harvey to adhere to neutral partisanship. Harvey refuses to represent the professor, morally
disagreeing with the professors potential actions. 9 However, for his clients, he actively employs a
private investigator, digging up dirt on the opposition to strong-arm negotiations. Webb discuses the
importance of neutral partisanship for maintaining the adversarial system. 10 Undermining the system
remains the primary criticism of moral activism and it is clear why. In the example, Harvey weights
the ‘merits in relation to the merits of the claims and goals of others’, 11 within his own ethical
decision-making process to allow his own concept of the ‘right’ outcome. Harvey violates core
principles of the Solicitors code, 12 including suppressing client autonomy, 13 recklessly misleading the
court and counsel during negotiators,14 and tacitly allowing witnesses to commit perjury.
Harvey’s actions highlight the limits of the Activist whilst simultaneously discussing the
danger of traditionalism. Traditional neutrality necessitates adhering to the rules regardless of
personal morality15 in order to allow the legal system to resolve qualms of justice. 16 On the contrary,
some commentators suggest traditionalism enables the lawyer to do whatever is necessary, and that
neutral partisanship requires the adoption of a client’s morality so as to operate in the way the client
would if he held the requisite knowledge.17
Later in the case, when his secretary is targeted by the District Attorney for stealing case
documents, Harvey offers to drop his pending lawsuit in exchange for his secretary’s charges to also
be dropped. Quite astutely, the D.A. comments on the dangers moral activism poses when he states
‘every time I run into you, you tell me whatever shady thing just went down was about the greater
good’.18 Harvey’s own notion of justice brings forth other integral dilemmas relevant to the legal
practice. The result generates a conflict of interest and violates principals of justice. 19 Client autonomy
is a crucial element of the client-attorney relationship, a key contrast between traditionalists and
5
Suits Season 1, Episode 1 ‘Pilot’ (USA Network 2011-2016)
6
ibid; cf SRA Code of Conduct 2011 (Version 15 2015), Outcome (3.4)
7
Parker (n 2); Donald Nicolson and Julian Webb Professional Legal Ethics (2000 OUP) 183
8
ibid
9
Suits (n 5) S4 E12 ‘Respect’ (2015)
10
Nicholson and Webb (n 7); Andrew Boon and Jennifer Levin, The Ethics And Conduct Of Lawyers In
England And Wales (2nd edn, Hart Publishing 2008).
11
William H. Simon, ‘Ethical Discretion in Lawyering’ (1988) 101 Harvard Law Review 1093
12
Boon (n 10) 395
13
SRA Code of Conduct (n 6), IB(1.25)
14
ibid O(5.1)
15
Tim Dare ‘Mere Zeal, Hyper-Zeal and the Ethical Obligations of Lawyers’ 7 (2004) legal ethics 24; Boon (n
10) 378
16
Boon (n 10), 177
17
Dare (n 15)
18
Suits (n 5) S4 E15 ‘Intent’ 25:00 (2015)
19
Nicholson and Webb (n 7) 147
Suits and Ethics 3
Activists.20 As seen, the activist’s decision regarding cases might be driven, or at least limited, by the
lawyer’s morality.
For traditionalists, the client’s decision drives the direction of legal work, encouraging the
lawyer to ‘do everything that the client would do for himself if he had the skill and knowledge’. 21 This
is just as likely to produce unethical results. Harvey’s feud with Travis Tanner evidences the
contradictory issues of the two models. 22 Harvey compares Tanner to himself, only without
principle.23 However, this is an unfair assessment. Tanner is neutrally partisan. His selection of clients
reflects the traditionalist model and holds no regard for personal ethics in relation to the case. Rather,
Tanner serves as a ‘tool’, translating the law so the company he represents may protect itself at any
cost.24 The conflict serves to differentiate Harvey from Tanner based upon the ‘principles’ of
maintaining personal ethics within the legal practice. However as seen, personal principles
occasionally run opposite to justice. This is especially true regarding client selection. Tanner’s ‘hired-
gun’ characterisation is a bastardisation of the cab-rank rule found in the UK. Selection of clients
should not be dependent upon personal morals. As Webb writes, the traditionalists selection upholds
accessibility to justice. Tanner, while portrayed negatively, is merely defending his clients with hyper-
zeal, he may not (in the confines of his home) agree with the methods he is taking nor the arguments
he is forwarding. By contrast the moral activist exploits the SRA’s ambiguity 25 toward client
selection, choosing clients based on their own moral reasoning. 26
Steps taken to represent the client also differentiate the three lawyers. Tanner abides by strict
directions from his clients. Whereas Harvey’s actions undermine the link between lawyer and client
by dissolving it.27 Inadequate regulation prevents clarification as to whether an action in the clients
interest can override client desires. 28 Substantive arguments in favour of traditionalist model of
adhering to a client’s desires uses the argument that automatism is a crucial element of modern
democracies. To do otherwise is paternalistic and tyrannical. The primary criticism of traditionalists is
the ‘blind-devotion’29 toward a client’s goal. Tanner’s blind-devotion to helping his client avoid
negligence nearly becomes illegal. Harvey, unlike Tanner, will not subjugate what is ‘right’ for the
interests of the client when he refuses to ruin someone’s life in order to win a case. Activist academics
cite a conviction to personal morals as a needed injection of morality within the legal practice. This
notion of ‘right’ highlights issues with both traditionalism and activism. On the one hand, Tanner is
blind to personal morals, while on the other, Harvey is blinded by them. 30 The feud with Tanner is
useful in further colouring Harvey’s position within the moral activist camp. Rather than allowing ‘the
chips to fall where they may’ through the adversarial system, Harvey would rather negotiate a
settlement, shoehorning his own notion of a correct resolution within the agreement. The suppressed
client autonomy reflected in moral activism reveals the contradictory obligations of a lawyer, notably
in regard to conflicts of interest. It calls to question the capacity and power a lawyer has regarding a
client’s best interest.
Contrariwise, Mike Ross’s ‘cause-lawyering’ is even more oppressive; dissolving a clients
autonomy with his own moral notion of the good. 31 Mike believes his actions are justified because
20
ibid
21
Michelle N. Meyer ‘Plaintiff as person cause lawyering’ (2006) 118 Harvard Law review 1513; see text at f/n
13
22
cf Parker (n 2)
23
Suits (n 5) S1 E9 ‘Undefeated’ (2011); cf Carrie Menkel-Meadow ‘The Lawyer as Problem Solver and Third-
party neutral: Creativity and non-partisanship in lawyering’ 72 (1999) Temp L Rev 785
24
Meyer (n 21) 1528
25
SRA (n 6) Chapter 1: Client Care
26
Parker (n 2); Boon (n 10); Nicholson and Webb (n 7)
27
Nicholson and Webb (n 7) 147
28
ibid 142
29
Meyer (n 21) 1513
30
Suits (n 5) S1 E9 ‘Undefeated’ (2011)
31
Suits (n 5)
Suits and Ethics 4
they create good and better people’s lives. The approach mirrors Thomas Shaffer’s ‘humanist,
relationship […] application of ethics’. 32 During Mike’s case, he often will often goes too far,
reflective of the Vanguard cause-lawyering method, 33 avoiding a course of action which results in an
unsavoury burden unto the client. He ignores client instructions; rejecting a settlement offer without
consulting the client because he believes the defendant ought to admit wrong-doing. 34 Mike’s desires
are to resolve his ‘own ideological and redistributive project’. 35 The danger is that the project itself
becomes the client,36 translating the adjudicative process into a political one. 37 While the existence of
personal ethics can aid decisions, in superseding client wishes, he undermines client autonomy. 38
Opposite to Tanner, Mike uses the client as a tool to exact his own notion of justice. This is not to say
that cause-lawyering is unethical. On the contrary, it is the pithy ethical nature of Mike’s cause that is
justification.39 Meyer suggests that the core of moral activism sits a conflict of interest between client
and lawyer.40 The requisite balancing of competing interests makes having a principled ethical
approach all the more vital.41
The polarisation between the two ethical models, personified in three gradients by Tanner,
Harvey, and Mike; highlights the scope of legal-ethics and briefly examines issues pertaining to the
specific portrayal of client selection and representation. Harvey and Mike approach lawyering through
moral activism funded by their own conceptions of justice, 42 determining a client’s best interests
through paternalism.43 At the core of this discussion, is the reality that many of the dilemmas
presented do not have a single resolvable answer, 44 the nature of legal-ethics is such that both
approaches have their inherent advantages and their drawbacks.
32
Parker (n 2) 69
33
Thomas M. Hilbink ‘Categories of Cause Lawyering’ (2004) ABF Law & Social Inquiry, 664
34
Nicholson and Webb (n 7), 125; SRA (n 6) Outcome 3.6
35
Hilbink (n 33) 659
36
Meyer (n 21) 1512
37
Hilbink (n 33)
38
Meyer (n 21) 1528
39
ibid 1530
40
Meyer (n 21), 1512
41
Richard Moorhead, Victoria Hinchly, Christine Parker, David Kershaw, and Soren Holm ‘Designing Ethics
Indicators for Legal Services’ (UCL Center for Ethics and Law 2012) 20
42
cf Suits (n 5); Boon (n 10)
43
ibid; Hilbink (n 35)
44
David Maister ‘Chapter 1: Real Professionalism’ in True Professionalism (2000 Simon & Shuster) 21
45
Suits (n 5) S5 E13
46
ibid
Suits and Ethics 5
privilege which protects lawyer and client doesn't exist between priest-penitent. R v Griffin47 set
precedent for allowing conversations within the confessional to be admitted to evidence, despite the
judge’s reservations that it ought not to be given. The priest holds a deontological duty to both the
sacrament – keeping Mikes secret – and to reinforcing the moral wrongness of Mikes actions. Father
Walker’s clarification that the actions are not wrong because they cased harm, they are wrong because
they violate a deontological duty, underpins Christian notions of lying which categorically reprehend
all forms as morally wrong.48 However, rigorism in Christianity relating to lying cannot cope with the
exceptionalism necessary for modern life. 49 (Bonhoeffer suggested that the necessity of truth
disclosure is dependent on the relationship.50) Lying thus becomes necessary in exceptional
circumstances, it is for the priest to decide when divulging the secret is necessary. For the priest,
confidentiality operates in the interests of the sacrament between god and penitent, and thus his own,
personal concepts of right and wrong must be subdued on behalf of the sacrament. 51 The protections
given to a legal relationship between solicitor and client is much stronger than that one held with a
priest. Regardless, the priest still holds a moral duty, similar to a lawyer, to abstain from information,
regardless of its utility to the public. 52 A predominant proportion of people considered chaplains to be
required to disclose information. The legal duty to disclose rubs opposite to the religious duty of
confidentiality and the trust that confidence generates. This might link back to the legal practice,
where confidentiality is similarly considered a paramount safeguard within the adjudicative system.
Harvey’s appointments with psychiatrist Dr. Agard highlights the difficult balancing of
professional obligations in the field of medicine. Two competing interests are set out by Radden &
Sadler; duties as a provider of professional services, and those of a medical practitioner. 53
Psychiatrists have the power to treat non-consenting patients, and their intimate relationship with
patients skirts dangerously close to violating the Hippocratic oath. 54 This exploitative risk forces the
psychiatrist to ‘repel active and open seductiveness’. 55 In Suits, the relationship between Harvey and
Dr. Agard highlights the danger of this intimate relationship. 56 Dr. Agard’s duty of professionalism
undermines the relationship of trust when she is asked to provide evidence in an unrelated case
Harvey is working on. Interestingly at no point do either state there is a conflict of interest as the
codes require.57 In England & Wales, the practitioner’s confidentiality is limited; practitioners are
frequently required to disclose information even if it is against the wishes of the client if it is done in
the interest of the client’s health or safety. This creates irreconcilable friction between the trust
necessary as a confidant and the duty owed as a doctor. Dr. Agard’s disclosure of Harvey’s
information is ethically wrong. Confidentiality toward a client’s interests is crucial, but might be
subservient to moral duties to justice or medicine. Dr. Agard has no justification for her disclosure.
47
(1853) 6 Cox CC 219
48
I R Torrance ‘Confidentiality and its limits: Some contributions from Christianity’ (2003) 29:1 Journal of
Medical Ethics 8-9
49
Russell v Jackson (1851) 9 Hare 391 (Sir George James Turner, Vice-Chancellor); cf Middleton v Crofts 44
E.R. 364; (1856) 8 De G.M. & G. 192
50
Ned O’Gorman ‘”Telling the Truth:” Dietrich Bonhoeffer’s Rhetorical Discourse Ethic’ 28 (2005) JCR 224-
248; Nancy Berlinger ‘What is Meant by Telling the Truth: Bonhoeffer on the Ethics of Disclosure’ 16:2 (2003)
Studies in Christian Ethics 80-92
51
‘Canon Law’ (1854) 20:2 Law Mag. Quart. Rev. Juris, 210-233;
52
Boon (n 10);
53
Jennifer Radden, John Sadler ‘Psychiatric Ethics as Professional and Biomedical Ethics’ in The Virtuous
Psychiatrist: Character Ethics in Psychiatric Practice (OUP 2010) 11-32
54
Julia Rocca ‘Inventing an Ethical Tradition: A brief History of the Hippocratic Oath’ 11:1 (2008) Legal
Ethics, 23; Julian C Hughes, Stephen J Louw ‘Confidentiality and cognitive impairment: professional and
philosophical ethics’ 31 (2002) Age and Ageing 147-150
55
Daisy Bogg Values and Ethics in mental health practice (2010 Learning Matters Ltd) 93; cf Paul Barber,
Robert Brown, and Debbie Martin, Mental Health Law in England and Wales (2012 SAGE Publications Ltd)
15-20, 55-61
56
Suits (n 5) S5 E12
57
cf SRA chapter 1
Suits and Ethics 6
III.CONCLUSION
Suits conveys ethical dilemmas facing modern Commercial lawyers. It forwards debates
surrounding the balances of conflicts of interest and confidentiality both within the practice and
beyond. Using Christine Parker’s four models of ethical practices, this paper has explored the high
expectations of a lawyer toward maintaining confidentiality, and avoiding conflicts of interest are
reflected through three gradients of ethical norms. The traditionalist adversarial advocate, moral
activist, and cause-lawyer; all attempt to explain legal approaches to the aforementioned ethical
dilemmas. Harvey Specter, Mike Ross, and Travis Tanner imbue various avenues for resolving ethical
dilemmas in the legal practice.
Suits further explores how these duties pertaining to lawyers might be contrasted to practices
in psychiatry and chaplaincy, concluding that many of the ethical dilemmas encountered within legal
practice are mirrored within the practice of psychiatry. Trust, and a balance between the client’s
interests and their own run parallel to the same dilemmas within the legal practice. When viewed in
this way, Suits creates a dialogue regarding the obligations of modern professional practice.
58
Bogg (n 55); cf Radden (n 53)
Bogg (n 55) 93
59
Barry Landau and Thomas Asher in ‘Ethics of Psychoanalysis: Confidentiality’ Reported by Ruth F. Lax 83
(2002) The International Journal of Psychoanalysis 457
60
ibid
61
Radden (n 53) 29; cf ibid
62
Suits (n 5) S4, E15
63
Bogg (n 55) 83
64
Bogg (n 55)
65
Radden (n 53) ‘Character Ethics in Psychiatric Practice’ 151
66
ibid
Suits and Ethics 7
Work Cited
Table of Cases
Russell v Jackson (1851) 9 Hare 391 (Sir George James Turner, Vice-Chancellor)
Table of Books
Barber P, Brown R, and Martin D, Mental Health Law in England and Wales (2012 SAGE Publications Ltd)
15-20, 55-61
Boon A, and Levin J, The Ethics And Conduct Of Lawyers In England And Wales (2nd edn, Hart Publishing
2008). 378
Radden J, Sadler J ‘Psychiatric Ethics as Professional and Biomedical Ethics’ in The Virtuous Psychiatrist:
Character Ethics in Psychiatric Practice (OUP 2010) 11-32
Maister D ‘Chapter 1: Real Professionalism’ in True Professionalism (2000 Simon & Shuster) 21
Table of Journals
Bogg D, Values and Ethics in mental health practice (2010 Learning Matters Ltd) 93
Berlinger N, ‘What is Meant by Telling the Truth: Bonhoeffer on the Ethics of Disclosure’ 16:2 (2003) Studies
in Christian Ethics 80-92
Canon Law’ (1854) 20:2 Law Mag. Quart. Rev. Juris, 210-233
Dare T, ‘Mere Zeal, Hyper-Zeal and the Ethical Obligations of Lawyers’ 7 (2004) legal ethics 24
Epps G, 'Suits' Does For Lawyers What 'Downton Abbey' Does For Aristocrats' (The Atlantic, 2013)
<http://www.theatlantic.com/entertainment/archive/2013/01/suits-does-for-lawyers-what-downton-abbey-does-
for-aristocrats/267280/> accessed 20 March 2016.
Hilbink T, ‘Categories of Cause Lawyering’ (2004) ABF Law & Social Inquiry, 664
Hughes J, Louw S, ‘Confidentiality and cognitive impairment: professional and philosophical ethics’ 31 (2002)
Age and Ageing 147-150
Landau B, and Asher T, in ‘Ethics of Psychoanalysis: Confidentiality’ Reported by Ruth F. Lax 83 (2002) The
International Journal of Psychoanalysis 457
Menkel-Meadow C, ‘The Lawyer as Problem Solver and Third-party neutral: Creativity and non-partisanship in
lawyering’ 72 (1999) Temp L Rev 785
Meyer M, ‘Plaintiff as person cause lawyering’ (2006) 118 Harvard Law review 1513
Moorhead R, Hinchly V, Parker C, Kershaw D, and Holm S, ‘Designing Ethics Indicators for Legal Services’
(UCL Center for Ethics and Law 2012) 20
O’Gorman N, ‘”Telling the Truth:” Dietrich Bonhoeffer’s Rhetorical Discourse Ethic’ 28 (2005) JCR 224-248
Suits and Ethics 8
Parker C, ‘A Critical Morality for lawyers: four approaches to lawyers’ ethics’ 30:1 (2004) Monash University
Law Review
Rocca J, ‘Inventing an Ethical Tradition: A brief History of the Hippocratic Oath’ 11:1 (2008) Legal Ethics, 23
Simon, W ‘Ethical Discretion in Lawyering’ (1988) 101 Harvard Law Review 1093
I R Torrance ‘Confidentiality and its limits: Some contributions from Christianity’ (2003) 29:1 Journal of
Medical Ethics 8-9