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Apr. 9th, 2008 09:42 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
liptonrm_backupJust got out of my final Professional Responsibility lecture. OMG, I hate that class so much. The professor is incoherent and statutes make my eyes bleed and if lawyers weren't unethical jackasses I wouldn't have to take a class that's entire purpose is to teach lawyers how to be excellent to each other.
However, I did find a great way to get through many parts of class, and that was by relating Winchester situations to what I was learning (FYI: I also did this in Crim Law). And then in my head I count up all the ways that SPN's legalese is wrong. I like to call this:
The Procedural Problems of 'Folsom Prison Blues' or How Mara Daniels Is Not a Good Lawyer
Disclaimer: I am a law student, not a lawyer, so if you know I'm wrong about something please let me know. Not only do I have no pride to hurt but my final exam grades will thank you.
For the record, I know a lot of the problems I'm about to enumerate were writer short-cuts used for a variety of reasons. While I recognize the story reasons for the choices made that doesn't excuse the inaccuracies perpetrated on the viewing public.
Let's start off with that great scene between Dean and Henricksen. It's a classic interrogation scene and one of my personal favorites in SPN canon. And then the lawyer shows up and shuts everything down. But there's a problem with all of that. I'm sure Dean was apprised of his 4th Amendment rights with the normal Miranda warnings that nearly all of us can recite (thanks Law & Order) and since Henricksen is in there talking to him it's fairly evident that Dean didn't avail himself of his right to an attorney because once a suspect's done so police interrogation is supposed to shut down. If Dean didn't ask for an attorney then Mara Daniels had no right to barge in there and shut everything down. You don't have an automatic right to an attorney until adversarial judicial proceedings have begun and your rights under the 5th Amendment kick in.
I suppose Sam could have requested that she see his brother, but that still doesn't mean she had the capacity to walk in and shut everything down. It's a personal right and Dean has to act to avail himself of it during an interrogation. Henricksen could have shown her the door and continued with the verbal beatdown. Of course, at that point Dean probably would have asked to have his lawyer back and that would have been that, but you get the picture.
The next problem is how Daniels was representing both Dean and Sam at the same time. A multiple client situation tends to scream conflict of interest and this case would've been a doozy. Any lawyer worth her salt would've been trying to throw Dean to the wolves to better Sam's case and vice versa. Dean is not Sam and Sam is not Dean and no one lawyer could best represent their individual interests at the same time.
Of course, being accurate on that account would have complicated something that wasn't at the heart of the plot, so I understand the shorthand, but I still needed to point it out.
But the big legal problem with the episode comes at the end. You know when Sam said that Daniels would have to tell Henricksen about the information she gathered for them? Yeah, not so much. See, Sam, this is the big difference between being pre-law and actually going to law school. Actually, now that I replay the scene in my head, it's kind of funny how Dean was in the right on this issue. Heh.
Confidentiality can be divided into two categories, the ethical duty and evidentiary privilege. What we commonly hear referred to as the attorney-client privilege arises under the rule of evidence that says that an attorney cannot be forced to testify about communications between attorney and client. This extends to anything that arises out of those communications.
The ethical duty is broader and applies to more than just the court room setting. It says that an attorney can't divulge confidential information about a client to anyone at any time. Included in confidential information would, of course, be any communications between attorney and client. There are two exceptions to this duty: If the attorney knows that the client is going to physically injure or kill someone the attorney may warn the victim or if the attorney knows that the client is going to injure someone's property interests and the client used the attorney's services to enact this injury then the attorney may warn the victim. Note the use of the word, 'may,' it's not a requirement that the attorney warn the victim, but rather she is permitted to do so. Also, the second exemption about property interests is generally understood to refer to fraud or theft. Though, I guess if Daniels had called to warn the cemetary owner that some guys were coming to dig up a corpse that might be permissible.
Either way, Daniels didn't have a duty to inform anyone about whatever supposition she formed about the Winchesters' intent, nor did she have a duty to disclose the subject matter of her inquiry to any legal authority. Actually, her communication to Henricksen is considered to be a voluntary disclosure and that's expressly prohibited. And then she decided to lie about it! I think it's great that she believed the Winchesters or wanted to get back at Henricksen for his little crack about the grown-ups having work to do or whatever, but she could've accomplished both by just keeping her mouth shut and doing her duty.
So Daniels did not have to tell Henricksen anything and she certainly didn't have to lie about it. Moral of this story is not to take legal advice from a television show. Actually, the real moral of this story is that I can be a really annoying person to watch tv with because I will undoubtedly start ranting about things like this and everyone else in the room will yell at me to shut up.
Now I kind of want to write a scene where Dean finds out that Sam was totally wrong about Daniels' duty to disclose and he gives Sam grief about it. Mostly because it's fun to imagine the looks on their faces, Dean being all, 'ha HA look at me I really am smart,' and Sam being all, 'facepalm, now he'll never shut up about this ever.' I may be easily amused.
So, yeap, this is what I think about during lecture. It's amazing the lengths I'll go to keep from clawing my eyes out. =D
However, I did find a great way to get through many parts of class, and that was by relating Winchester situations to what I was learning (FYI: I also did this in Crim Law). And then in my head I count up all the ways that SPN's legalese is wrong. I like to call this:
The Procedural Problems of 'Folsom Prison Blues' or How Mara Daniels Is Not a Good Lawyer
Disclaimer: I am a law student, not a lawyer, so if you know I'm wrong about something please let me know. Not only do I have no pride to hurt but my final exam grades will thank you.
For the record, I know a lot of the problems I'm about to enumerate were writer short-cuts used for a variety of reasons. While I recognize the story reasons for the choices made that doesn't excuse the inaccuracies perpetrated on the viewing public.
Let's start off with that great scene between Dean and Henricksen. It's a classic interrogation scene and one of my personal favorites in SPN canon. And then the lawyer shows up and shuts everything down. But there's a problem with all of that. I'm sure Dean was apprised of his 4th Amendment rights with the normal Miranda warnings that nearly all of us can recite (thanks Law & Order) and since Henricksen is in there talking to him it's fairly evident that Dean didn't avail himself of his right to an attorney because once a suspect's done so police interrogation is supposed to shut down. If Dean didn't ask for an attorney then Mara Daniels had no right to barge in there and shut everything down. You don't have an automatic right to an attorney until adversarial judicial proceedings have begun and your rights under the 5th Amendment kick in.
I suppose Sam could have requested that she see his brother, but that still doesn't mean she had the capacity to walk in and shut everything down. It's a personal right and Dean has to act to avail himself of it during an interrogation. Henricksen could have shown her the door and continued with the verbal beatdown. Of course, at that point Dean probably would have asked to have his lawyer back and that would have been that, but you get the picture.
The next problem is how Daniels was representing both Dean and Sam at the same time. A multiple client situation tends to scream conflict of interest and this case would've been a doozy. Any lawyer worth her salt would've been trying to throw Dean to the wolves to better Sam's case and vice versa. Dean is not Sam and Sam is not Dean and no one lawyer could best represent their individual interests at the same time.
Of course, being accurate on that account would have complicated something that wasn't at the heart of the plot, so I understand the shorthand, but I still needed to point it out.
But the big legal problem with the episode comes at the end. You know when Sam said that Daniels would have to tell Henricksen about the information she gathered for them? Yeah, not so much. See, Sam, this is the big difference between being pre-law and actually going to law school. Actually, now that I replay the scene in my head, it's kind of funny how Dean was in the right on this issue. Heh.
Confidentiality can be divided into two categories, the ethical duty and evidentiary privilege. What we commonly hear referred to as the attorney-client privilege arises under the rule of evidence that says that an attorney cannot be forced to testify about communications between attorney and client. This extends to anything that arises out of those communications.
The ethical duty is broader and applies to more than just the court room setting. It says that an attorney can't divulge confidential information about a client to anyone at any time. Included in confidential information would, of course, be any communications between attorney and client. There are two exceptions to this duty: If the attorney knows that the client is going to physically injure or kill someone the attorney may warn the victim or if the attorney knows that the client is going to injure someone's property interests and the client used the attorney's services to enact this injury then the attorney may warn the victim. Note the use of the word, 'may,' it's not a requirement that the attorney warn the victim, but rather she is permitted to do so. Also, the second exemption about property interests is generally understood to refer to fraud or theft. Though, I guess if Daniels had called to warn the cemetary owner that some guys were coming to dig up a corpse that might be permissible.
Either way, Daniels didn't have a duty to inform anyone about whatever supposition she formed about the Winchesters' intent, nor did she have a duty to disclose the subject matter of her inquiry to any legal authority. Actually, her communication to Henricksen is considered to be a voluntary disclosure and that's expressly prohibited. And then she decided to lie about it! I think it's great that she believed the Winchesters or wanted to get back at Henricksen for his little crack about the grown-ups having work to do or whatever, but she could've accomplished both by just keeping her mouth shut and doing her duty.
So Daniels did not have to tell Henricksen anything and she certainly didn't have to lie about it. Moral of this story is not to take legal advice from a television show. Actually, the real moral of this story is that I can be a really annoying person to watch tv with because I will undoubtedly start ranting about things like this and everyone else in the room will yell at me to shut up.
Now I kind of want to write a scene where Dean finds out that Sam was totally wrong about Daniels' duty to disclose and he gives Sam grief about it. Mostly because it's fun to imagine the looks on their faces, Dean being all, 'ha HA look at me I really am smart,' and Sam being all, 'facepalm, now he'll never shut up about this ever.' I may be easily amused.
So, yeap, this is what I think about during lecture. It's amazing the lengths I'll go to keep from clawing my eyes out. =D
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no subject
Date: 2008-04-10 04:04 am (UTC)Hee! I copied this out to quote before I even got to the part where you were all "BTW, Sam, this is the difference between being a law student and a pre-law student," and when I got to that part, I YELPED with joy for your brain.
See? As long as you let me use the Pause button, I love watching TV with you for exactly this reason.
And, uh... Yeah. I want Dean vs. the Newpsies, and I want Dean driving Sam to *facepalm*dom with this exact discussion. That'd be awesome.
My class is so annoying that I can't even daydream about Winchesters in it. At least in Cataloging, I could tune out the lecture and write. :-|
no subject
Date: 2008-04-10 04:26 am (UTC)You won't believe it, but I got a little tear-y when I read that. OMG, why is grad school so sucky? I think your class must qualify as torture under the Geneva Conventions.
Dean vs. the Newpsies ... he'd be all gross and stuffing his face with canapes and they'd pretend they were disgusted but they'd really be checking him out. And then some cougar would follow him into the men's room and proposition him and it would be awkward, especially when some other guy walks in in the middle of it. And then Sam makes fun of him and keeps on asking Dean if he wants to go find his new girfriend.
Or something. Obviously I must think about this in some detail.
I'm beginning to think that if Sam&Dean ever met me they'd be all o_0 because I'm bossy, and short. =D
no subject
Date: 2008-04-15 04:12 pm (UTC)(Hi, I used to be chaos_pockets, did the rename token thing, and I am trying to periodically check the LJs of people who've friended me, even if I can't friend them in return.)
no subject
Date: 2008-04-16 12:09 am (UTC)And you certainly go out of your way. There are times when I hardly even check my f-list, let alone random people I hardly know. That's really nice.