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Dramatic License With "A Time to Kill"

By Lisa Fantino

Dramatic license doesn't paint with a broader brush than when it comes to Broadway, literally. Rupert Holmes' dramatic retake of John Grisham's first legal thriller, "A Time to Kill," hits the Great White Way for the fall season and is a well-staged production in the vein of "Twelve Angry Men".

I attended the show as a reviewer, but it also happens that I am a litigator, which made for very interesting observations. While the production is fantastic for many reasons (you can read my review at http://ladylitigator.wordpress.com/2013/10/31/a-time-to-kill-on-broadway/), what I think most attorneys will find noticeable is no less than six ethics violations in just the first act.

The nutshell version, for those who didn't read Grisham's classic or see the 1996 film with Matthew McConaughey and Sandra Bullock, revolves around a fictional account of a young black girl who is hung and raped by two drugged out white men in racially torn Mississippi. The girl's distraught father shoots the men at the courthouse following their arraignment, and is then tried for capital murder. He chooses a local lawyer to represent him rather than the politically charged NAACP, and so the trial proceeds. Toss in the assistance of a drunken disbarred attorney and a politically ambitious prosecutor, and the predominantly white jury finds the father not guilty by reason of insanity.

Act One is so full of ethics issues that I found myself scribbling in the dark theater, starting with the father, Carl Lee Hailey, plotting to murder the suspects and outlining his plan to his attorney, Jake Brigance. Any 1L student knows that the attorney-client privilege protects communication, except that "a lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime (see Rule 1.6(b)) Clearly, after hearing Carl Lee's detailed plot, even to the extent of selecting a jury and trial strategy, Brigance had an obligation to reveal such intent to the authorities. Yet, Brigance, who often takes the moral highground throughout the play, never once reflects on the fact that he could have prevented this had he revealed Carl Lee's intent. In passing, when the sheriff questions Brigance about his knowledge, he indicates that had such assertions been made, that Carl Lee was not acting in his right mind due to his emotional upheaval.

Disciplinary Rule 4-101.C(3) permits an attorney to reveal client confidences and such intent to commit a crime in order to prevent the crime itself. Yet the language is open to interpretation and the attorney's reasonable judgment as to whether or not to reveal such confidences. In "A Time to Kill" perhaps Brigance did not struggle with the dilemma because he believed Carl Lee to truly be distraught and speaking only in hypotheticals with no reasonable expectation to commit murder. Maybe Brigance was able to sleep at night, before the KKK burned his house to the ground, because he strongly suggested to Carl Lee NOT to even consider killing these men.

Holmes takes dramatic license in many other areas, most notably having the young, sexually harassed D-A intern then jumping ship to assist Brigance when her internship was over. She leaks everything from jury lists to strategy for the prosecution. Ahh, the stuff of fiction. Not to mention that a disbarred, drunken, down-on-his luck mentor to Brigance offers to buy him a hung jury. For the average theater-goer, "A Time to Kill" is an enjoyable night out. For an attorney, it's probably one of the few staged dramas to get us thinking.

Lisa Fantino is an award-winning journalist and solo practitioner who has just released her first book, "Amalfi Blue, lost & found in the south of Italy." She has a general practice firm in Mamaroneck, New York, where she focuses on entertainment as well as general transactional and litigation matters. She can be found at http://www.LisaFantino.com or blogging as http://ladylitigator.wordpress.com.

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