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If you look really hard -- past the half-naked bodies of Bobby and Lindsay frolicking in Helen Gamble's apartment, and then on past the dead bodies thrown into car trunks -- this week's episode of The Practice presents a serious inquiry into the nature of the attorney-client relationship.

Strictly speaking, when a client hires an attorney to represent him in court, that client is the principal while the attorney is merely the client's agent. Of course, in reality, the client rarely exercises any type of control over his attorney or his case. Clients, and especially criminal defendants, are not deemed fit to plead their own causes. They are not as well-educated or as articulate as their lawyers. They do not understand the legal or evidentiary doctrines upon which their defense will be based. So clients surrender complete control of their defense to their attorney.

Through the first half of this week's episode, Jimmy wrestles with an ethical dilemma arising from a client's insistence that he control his own case. The client -- who was convicted of murder last week -- tells Jimmy his teenage son was the one who actually committed the crime. However, he also demands of Jimmy that this information remain confidential, protected by the attorney-client privilege (as well as the heretofore unknown "friend privilege"). He unequivocally instructs Jimmy not to confront the son or to otherwise use this knowledge.

Not surprisingly, this is a problem for Jimmy, who simply cannot get past the fact that his client has been wrongly convicted. He convinces himself the client does not know what is in his own best interest. Disobeying the client's express instruction, Jimmy blabs to his partners, to a Superior Court Judge, and to the client's son. The son then commits suicide, without first admitting guilt. This will not make it easier for Jimmy's client to be freed from jail any time soon.

In this instance there was no need for the attorney to violate the attorney-client privilege and no reason to disclose to anyone what he had been told by his client. Moreover, it is unlikely he would have done so had this not been a television show.

The attorney-client privilege is zealously protected by attorneys and the courts. For instance, the current president of the Massachusetts Bar Association is a member of the law firm that once represented Lizzie Borden. A few years back, he found documents pertaining to the case, privileged documents, among the firm's records. He refused to make them public despite the fact that the case is over one hundred years old and everyone connected to it is dead, buried, and most likely decomposed.

The real ethical issue for Jimmy is not limited to the attorney-client privilege however. It rests on the fact that a client specifically instructed him not to take a certain action and in violation of these instructions he acted against the client's wishes. All this because, as is too often the case, the attorney thought he knew better than the client.

The issue of who controls a client's defense is also a crucial element in Bobby (Blue Eyes) Donnell's representation of a bank president who murdered his nagging wife. After strangling her, the client dumps her body in the trunk of his car. On his way to the mall, where he plans to leave the corpse, he runs a red light for which he is stopped by a police officer. The officer notices that he looks suspicious and pops the trunk open. Surprise! The bank president blurts out a confession.

Case closed? Of course not.

As Donnell and the court recognize, the search of the trunk was illegal since the mere fact that the guy ran a red light and didn't have his registration did not constitute reasonable grounds to conduct a search. The exclusionary rule, stemming from the 1921 case of Gouled v. United States, prohibits the government from using as evidence anything found in the trunk, including a dead body. The confession is thrown out as well. The government can prosecute this case only if it comes up with new evidence. As the judge notes, this ruling allows the bank president to get away with murder, literally. Donnell may not be glad of this fact, by the way, but he understands this is his job within the system: policing the police.

Having placed his defense entirely in the control of Donnell, the bank president appears to be as surprised as anyone that the law would allow such a result. This turns out to be a ruse. Because the bank president is having an affair with a police officer, and as coincidence would have it, she is the same police officer who stopped him and conducted the illegal search of his trunk, setting him up to get away with murder. The bank president is not a naive murderer at all. Knowing the search and subsequent confession would have to be thrown out, he has worked the system perfectly, and pulled a fast one on Donnell.

After the bank president is freed, Donnell feels compelled to look in on him because he doesn't think the bank president has gotten over his wife's death. Huh? In any event, Donnell sees the bank president leave his home and arrive at the police officer/girlfriend's apartment. Donnell understands the implications. He calls Lindsay and leaves a message on her machine describing what he has seen. Of course, Helen Gamble listens to the message and immediately has the bank president and the police officer arrested for conspiracy to commit murder. We learn at the end of the show that of course Donnell anticipated this precise result.

While many will believe Donnell did the right thing, I find myself questioning his moral compass. On the one hand, he has no perceived moral objection to freeing a confessed murderer where the police officer happens to impermissibly search the murderer's car. On the other hand, on discovering he was duped, he can rationalize acting unethically (leaving a message he knows Gamble will hear) to send the murderer to jail.

Apparently, it's one thing to commit murder. It's quite another to fool Donnell.

In addition, where, you might ask, is the new evidence justifying the new arrest and, presumably, conviction? It is the tape of Donnell's telephone call. Yet this is evidence of nothing other than Donnell seeing the bank president together with the police officer. The proper way to use this is not as new evidence of a murder it clearly is not but to show that the police officer was not acting as an agent of the state when she purported to find the dead wife's body in the trunk. If she was not acting as an agent of the state, there was no illegal search and the body and the confession are admissible.

Finally, the issue of client control crops up in Helen Gamble's preparation of the testimony of the venal police officer who "found" the wife's body in the bank president's car trunk. Unlike the story lines involving Jimmy and Donnell, this situation is faced by lawyers regularly. In preparing the police officer to testify at the probable cause hearing, Gamble make various "suggestions" to her so as to make the search appear legal. The officer adopts the factual scenario described by Gamble despite the fact that it is not true.

The scene reminded me of a moment in the classic courtroom drama, Anatomy of a Murder , in which Jimmy Stewart plays a southern lawyer who defends a man accused of murdering his wife's rapist. Before the accused murderer can explain what happened, Stewart interrupts him to give him a point-by-point recitation on the law of murder. Stewart suggests his only possible defense is to claim temporary insanity and then provides him a legal road map. Not surprisingly, the accused then describes his mental state in such a way as to fit neatly within this defense.

This is not witness preparation. It is witness coaching. It is a violation of ABA Model Rule 3.4(b) stating a lawyer shall not "falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law." I am sure some lawyers, like Gamble and Jimmy Stewart's character, practice it openly. But, lawyers also coach their witnesses unintentionally whenever they seek to educate them as to the legal grounds of a claim or defense. The clients, upon learning what sort of evidence will assist them in their case, often tailor their testimony appropriately. Unfortunately, it is virtually impossible to detect this type of ethical violation and courts rarely punish it.

More nits.

First, the scene in which Jimmy and his client are arguing on opposite sides of a glass partition at the jail was terrifically dramatic. However, in Massachusetts attorneys are permitted contact visits with their clients and they would thus not be separated by a glass partition.

Second, the Suffolk Court Courthouse, which appears as a backdrop throughout the show, is no longer used for trials. As of this summer, all Superior Court sessions have been moved a few blocks away to the old federal courthouse while the Suffolk County Courthouse is being renovated.

Third, while I understand the plots often require ex parte communications between judges and attorneys, in my experience it is the exception rather than the rule. Nevertheless, such chats seem to be common practice on The Practice.

Oh and finally: what's with the grape jelly?

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