The Good Wife, “Boom” (Season 1, Ep. 19) (4/27/2010): Mandatory Withdrawal Based on Lawyer's Mental Condition (MR 1.16(a)(2)): Conflict of Interest (1.7(a)(2))

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Contributed by Maryam Shafizadeh

Alicia Florrick (Julianna Margulies) represented Jonas Stern (Kevin Conway) in a DUI. During this representation, she discovered he suffered from progressive dementia. The information was covered by her professional duty of confidentiality, and Stern wished it to remain confidential.

In continuing to represent clients, Stern is in violation of MR 1.16(a)(2), which requires a lawyer not to represent a client if the lawyer's mental condition "materially impairs the lawyer's ability to represent the client." As the clip demonstrates, Stern is unable to represent his client competently, due to his mental issue (he is confused and loses his train of thought), constituting a violation of MR 1.1. Stern should not be practicing law, and at some level, he knows it, although he continues.

But in fact, Florrick's violation of the rules of professional responsibility is equally grave if not more so (since after all, she is not suffering from mental impairment).

As soon as Florrick realized she was representing someone engaged in a lawsuit with someone represented by Stern, Alicia was absolutely required to withdraw. This is a core example of a violation of MR. 1.7(a), which states that a lawyer "shall not represent a client if...there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to...a former client." Her responsibilities to keep Stern's "secret" results in a material limitation in her ability to represent her client. The clients have not consented in writing - in fact, it does not appear her client even knows Stern is a former client. So even if Stern would permit the representation, trusting her not to reveal his condition, her current client has not been properly informed. This is a violation of MR 1.4(a)(1), which requires a lawyer to "promptly inform the client of any decision or circumstance with respect to which the client's informed consent" is required. She does not do so.

Finally, she violates her duty to Stern, even though she makes no explicit disclosure of his condition, because she uses what she learned confidentially as a strategic tool against her own former client. Per Rule 1.9(c)(1), "A lawyer who has formerly represented a client in a matter...shall not thereafter: use information relating to the representation to the disadvantage of the former client." Here, she repeatedly objected during the cross examination in the hopes of triggering his dementia symptoms, to the benefit of her client.

The show takes place in Illinois, which has adopted the Model Rules relevant here.

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