糖衣陷阱1993

MR 1.2 Scope of Representation
Under the Model Rule (“MR”) 1.2(a) a lawyer is required to abide by his client’s decisions regarding objectives and a lawyer may take action as to the means by which they are to be pursued. This allows the client to set the outcome goals and for the lawyer to come up with the legal strategy and course of action to take to achieve those goals and objectives. Mitch McDeere (Tom Cruise,”Mitch”) represented the Morolto family and group of businesses. Mitch was required by law to do every lawful thing in the best interest of his clients and refuse to “go undercover” and disclose to the FBI. The client’s objectives were to minimize US tax liabilities by investing money offshore in the Cayman Islands and other low or zero tax jurisdictions. The FBI wanted to get their hands on confidential information including the corporate formation documents and bank account information which were protected by attorney-client privilege. Here. Mitch furthered the client’s objectives by not disclosing confidential information to the FBI, but by asking the client to voluntarily release their bills.

MR 1.16 Declining Or Terminating Representation
Under MR 1.16(2), a lawyer shall withdraw from the representation of a client if the lawyer’s mental condition materially impairs the lawyer’s ability to represent the client. Here, during Mitch’s representation of Mr. Morolto, Mitch experienced the following incidents: (1) his wife discovered he had an affair; (2) he jumped out of the window of his law firm; (3) he was under pressure from the FBI to cooperate; and (4) two “mob” members were chasing him and attempted to murder him. Mitch’s mental condition was “materially” compromised because he indicated he was paranoid of his safety, and his physical appearance indicated his ability to represent his client was impaired. However, notwithstanding his condition, Mitch continued to consult Mr. Morolto on his best course of action to address the overbilling issue. Mitch should have withdrew his representation. Therefore, Mitch violated MR 1.16(2) because he failed to withdraw representation of Mr. Morolto even though his mental condition was materially impaired.

MR 1.3 Diligence
Under MR 1.3, a lawyer shall act with reasonable diligence and promptness in representing a client. Comment [1] states a lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. Here, when Sonny Capps (“Sonny”) wanted to devise a plan to reduce taxes on his accounts at Cayman islands with an outside attorney, Avery Tolar (Gene Hackman, “Avery”) tried to stop him by using a veiled threat. He mentions the fact that the “Friends in Chicago” (Mafia) would dislike their business relationships being exposed to attorney’s other than the firm. There was no termination in the attorney client relationship between Avery and Sonny, and Avery has represented him for a substantial amount of time, so he is still Sonny’s attorney. Therefore, Avery has the duty to advise his client with reasonable diligence, and advocate upon the Sonny’s behalf. His implied threats are clearly not an act within the interests of his client.

MR 1.5 Fees
Under MR 1.5(a), a lawyer shall not make an agreement for, charge, or collect an unreasonable fee. Here, the Firm issued overbilling in order to support tax issue of Morocco Holding, and even Mitch recognized its issue by discussing with secretary. In determining the reasonableness, under MR 1.5(a)(1), the required time and labor along with novelty and difficulty of the questions would be considered for the requisite skill of legal service. In this film, the firm charged overbilling without proper guidance and detailed time slips. In addition, Mitch used invoices without authorization. In Comment [5] of MR 1.5, an agreement may not be made whose terms might induce the lawyer improperly to curtail service for the client in a way contrary to the client’s interest. Thus, the Firm and Mitch should write their time slips shortly after doing the work as well as detailed time slips for reasonable fee. In addition, the firm and Mitch need to customize charge to avoid charge or collect an unreasonable fee or expenses.

MR 1.6 Confidentiality of Information
According to the MR 1.6, a lawyer shall not reveal information relating to the representation of client unless the client gives informed consent. Even though it is the FBI agent that asked Mitch to disclose the file, it does not satisfy MR 1.6(b), which provides some exceptions that a lawyer may reveal the information if he believes it necessary.
Here, the agent required Mitch to provide the file to prove that the Firm assisted the Mafia to launder the money. However, MR 1.6(b) only entitles a lawyer to disclose information, which could prevent crime, substantial injury and mitigate loss. Someone may argue that the court and the government entity could order a lawyer to disclose the information. Nevertheless, under the Comment [15] of 1.6, without the informed consent of the client, the information sought is protected against disclosure by the attorney-client privilege or other applicable law. Thus, Mitch has to inform the Mafia (“client”) and obtain their consent, even though he exposed the overbilling or the money laundering.

MR 1.8 Conflict of Interest: Current Clients: Specific Rules
MR 1.8(b) states that a lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules. That said, the rule prohibits disadvantageous use of client information unless the client gives informed consent. The firm has acted as the sole legal representative of the Mafia family. Mitch requested that the clients reveal the client-firm relationship so that he could disclose his firm’s overbilling issue. If Mitch used the information relating to the representation to the disadvantage of the client without informed consent, it would violate the lawyer's duty of loyalty.

MR 1.18 Duties to Prospective Client
The relationship of prospective client is formed by discussing possibility and a lawyer shall not use or reveal information learned in the consultation regardless of conviction of client relationship. MR 1.18(a),(b). Here, threatening the client by using the confidential information is likely considered as violation of the rule. Mitch would counter-argue that he was not admitted to practice law in TN when the event happened; however, the aforementioned duties as to the confidential information have been required when prospective client consulted and was in good faith. Furthermore, in MR 1.18(d), if a lawyer is disqualified from representation, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation. In addition, a lawyer shall not represent a client with interests adverse to a prospective client which are substantially related as stipulated in MR 1.18(c). Here, according to the facts, if Mitch was disqualified from representation, the Firm shall not represent the client. The exception of MR 1.18(d) would not be applicable in this case. Thus, Mitch and the Firm have duties to prospective clients, not to use or reveal information, or represent if interests are materially adverse.

MR 5.3 Associating with Non-Lawyers
Under MR 5.3(a), a partner, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer. Also under 5.3 (c)(2) a partner lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct. Although Mitch is allowed to work on projects under the supervision of Avery according to MR 5.3(a), he gave the client, Sonny, legal advice during the meeting at Cayman Islands. This is an unauthorized practice of law set out in MR 5.5, because Mitch is not a lawyer. Therefore, under MR 5.3, Avery who is a partner at the firm, should take responsibility for the actions of Mitch, which is a violation of the Rules of Professional Conduct.

MR 5.5 Unauthorized Practice of Law
A law school graduate who has not passed the bar or who has not been admitted to practice in any jurisdiction may be guilty of the unauthorized practice of law if he/she gives legal advice. Mitch’s advise to Sonny at Cayman Islands seems to be an unauthorized practice of law because Mitch has not taken the bar exam yet. Before flying to Cayman Islands, Avery ordered Mitch to redraft the repatriation of offshore funds, the revised tax plan for the client. Unlike the meeting with Sonny, Mitch’s support for Avery will not be considered unauthorized practice of law.
Avery’s legal service in Cayman Islands may fall under unauthorized practice of law. A lawyer who is not admitted to practice in other jurisdiction-here, Cayman Islands (British Overseas territory), shall not establish an office or other systematic and continuous presence in that jurisdiction for the practice of law (MR 5.5(b)(1)). We may assume that Avery has established systematic and continuous presence in Cayman Islands. He has advised Sonny for a long time regarding tax evasion and often travelled to the Island to meet. He also kept the boxes of secret files of the Chicago client in his resort room, which shows the firm has long been involved in the transaction in Cayman Islands.

MR 5.6 Restriction on the Right to Practice
MR 5.6 prohibits a lawyer from entering into any agreement of a partnership, share, operation, or employment which would restrict the right of a lawyer from practicing law after termination or a settlement. Here, Mitch did not enter into any written agreement that would restrict or prohibit him from the practice of law but he would have been disbarred for breaking attorney-client privilege by leaking confidential documents to the FBI. Alternatively, if Mitch tried to leave the firm then the firm would take non-legal action and kill him. So it is not an agreement to restrict Mitch practice but the result would have been the same if Mitch were to leave the firm.

MR 5.7 Legal Service
MR 5.7(a) states “A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided: (1) by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients.” Comment [9] of MR 5.7 further notes that examples of law-related services are financial planning and tax preparation among a wide range of economic and other interests of clients. Therefore, the Firm’s lawyers are subject to the Rules of Professional Conduct when providing law-related services like tax planning and other financial services. Avery violated MR 5.7 when he threatened Sonny that the Firm’s other “clients” would be displeased if Sonny fired the Firm.

MR 7.1 Communications concerning a Lawyer’s Service
        MR 7.1 states that “[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” Comment [3] further notes that “an advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters.” Avery stated to Sonny, that the future value of his tax dollars would be less than half of their present value after the “Election” misleading the client to believe that Avery knows who will win the Presidential Election and how tax policy will change. Also, Mitch reiterates to Sonny that he should defer his taxes according to the schedule that Avery constructed, Sonny promptly responds by asking “Defer until when?”, Mitch responded by stating “Why do you care?”. Provided that this advice is true, Comment [2] of MR 7.1 states Truthful statements that are misleading are also prohibited... [a] truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. Mitch’s “Why do you care” statement omits the necessary fact of how many years the client’s taxes will be deferred and could mislead Sonny to conclude that other clients do not worry about this strategy and to solely trust his legal representation.

MR 8.1 Bar Admission and Disciplinary Matters
Under Rule 8.1, an applicant for admission to the bar, or a lawyer… in connection with a disciplinary matter, shall not fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter. The applicant for admission to the bar is Mitch, and Avery, Mitch’s supervisory partner, is a lawyer in connection with a disciplinary matter. If Mitch and Avery did not disclose the violation of Rule 5.5 as discussed before, they both knowingly made an omission in connection with a disciplinary matter of Mitch.

MR 8.3 Reporting Professional Misconduct
Under the Rule 8.3 (a), a lawyer should report another lawyer’s violation of the Rules of Professional Conduct, if that violation raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer. The Firm had been overbilling their client for years, and they also have engaged in money laundering and tax fraud. The overbilling is a violation of the Rule 1.5 as discussed above. The money laundering and tax fraud constitute misconduct because they are criminal conduct and would raise a substantial question to the lawyer’s honesty, trustworthiness or fitness as a lawyer. Therefore, under the Rule 8.3 (a), when Mitch knew the fact that the Firm was engaging multiple misconduct, he should report to the appropriate professional authority. However, under the Rule 8.3 (c), the Rule does not require disclosure of information protected by Rule 1.6. As discussed above, all the information about overbilling, money laundering and tax fraud are protected by Rule 1.6 which is the reason Mitch had to have the client’s consent to disclose the information.

MR 8.4 What Constitutes Misconduct
Under MR 8.4, “[i]t is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;”. Comment [2] further states that many kinds of illegal conduct reflect adversely on fitness to practice law, such as offense involving fraud”. Here, the Firm has overbilled client for many years. By mailing these misrepresentative bill to clients, they committed mail fraud and violated MR 8.4(c). Partners as well as most of the associates in the firm are complicit in tax fraud and money laundering, which are criminal acts reflecting adversely on the lawyer’s honesty. In addition, the firm throws money and provides a rather generous offer to Mitch, in order to make him get used to good life and induce Mitch to engage in tax fraud and money laundering. All other lawyers in the firm also know the scheme and assist to do so. Senior partners and associates disobey MR 8.4(a), violating the Rules of Professional Conduct, knowingly assisting and inducing Mitch to violate the Rules of Professional Conduct.

MR 8.5 Where the Lawyer Can Be Disciplined
MR 8.5(a) states that “A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.” The film implied that the lawyers in the Firm conducted criminal behaviors related with Mafia in Chicago. Even if those conducts occurred elsewhere, in TN, which is likely the jurisdiction for most of lawyers at the firm, the lawyers are subject to the disciplinary authority. Also, according to the last comment in MR 8.5, their criminal acts in Chicago, would be subject to the disciplinary authority of the Illinois court, even though they were not admitted in Illinois.

7分。天才青年律师游走在洗黑钱的无良律师社和罔顾线人安全的FBI两大势力之间。最终在几乎绝望的境地里绝处逢生，漂亮地走起了钢丝。前半段的故事有些太拖，还好后半段节奏足够紧凑，可惜结局的设计上有太多的巧合，比较让人失望。音乐算是本片里一个非常大的亮点，钢琴曲也能带出这么强烈的紧张感，真是让我大开听界啊～～年轻的Tom Cruise的确很适合扮演意气风发的男主角。

情节挺丰富的，让我挺有共鸣。特别在片子开头的时候那律师说："关键是billing，一定要每分钟你想着客户的时候都要算他们钱，不管当时你是在刮胡子还是堵车"，当时就拍案叫绝——确实啊~我想起以前某律师说的，当你在接电话之前，你就要开始算客户的钱——因为当你拨号的时候，你心里面就是在想着他们了。

但是我也看的很生气，因为这里面的律师居然是税法律师，也就是我的本职同行。他们说的一连串东西我都实在忍受不住的心里面一万个反驳批评。首先，做个律师做成这么大阵仗，居然只是搞税法的？你好歹还是做个criminal law什么的嘛，搞税法，四大强多了！比如说，汤姆跑去cayman island跟人家谈的生意，这种事情有什么好谈的？我们天天都在做这些proposal，客户只需要一个memo一个presentation而已。再说，谈论tax planning proposal的一般都是客户的金融财务方面的主管。在他们Cayman的那场会议，这个客户居然不明白tax deferral，居然不明白present value，这就像一个数学老师不明白1+1=2一样，是完全不可能的事情。

好些人觉得这个片子最后的结局没有火爆场面而倍感失望。对于这样的观众我觉得很失望。当然，这个片子又不像注重法律又不像注重犯罪悬疑，会让人比较误解（论比较好的法律片我推荐Matt Damon的《The Rainmaker》，除却里面老套的感情戏），但是最后他根据mail fraud来解决人家是一件非常现实的事情啊。不是风风火火的大事才精彩，对于法律来讲，用一些小漏洞来达到大目标才是法律最有趣的地方。想当年，美国的黑帮因为犯罪法的statute of limitation一直没有办法得到制裁，最后却是美国税务局因为“有意偷税漏税”（因为黑帮收入不可能报税嘛）的无statute of limitation法规而帮助FBI把黑帮抓起来的。这部片子里面的mail fraud，与这个史实就有那么一点志同道合的意思。

不过，我还是觉得这个编剧对于法律了解很皮毛而已，他说来说去无非就是attorney/client priviledge，这比《The Rainmaker》差远了。