Villain or Victim?

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Book/film List / Repairing the System / Repairing The Systen

Movies can not only provide great entertainment, but also raise issues well worth our consideration. Spotlight is a good example. It tells how a team of investigative reporters broke the story of widespread child abuse by Catholic priests in Boston that the church hierarchy was covering up.

So it’s primarily a press story; but lawyers also play an important role from start to finish One is a solo practitioner, Mitchell Garabedian (Stanley Tucci) who has dedicated his life to helping the victims of sexual abuse find legal relief for their injuries. But heroes like Garabedian are not like most of us. We might learn more from the stories of less altruistic lawyers like Eric Macleish (Billy Crudup).

Macleish represented the family of an abused child who settled out of court with the archdiocese after accepting a small cash payment and signing a non-disclosure agreement. The movie suggests that Macleish helped the archdiocese keep the scandal private.

Macleish disputes this portrayal of his role. But I wish to suggest that even if the movie portrayal of Macleish is accurate, he is more victim than villain. Just as we are about to place him in the villain category, Macleish mounts a powerful defense of his conduct. He was a lawyer with clients he wanted to help. That, after all, was his duty and his livelihood. But, as the case developed, he became aware of its weaknesses. The applicable law was stacked in favor of the church, and so was the judiciary.

Macleish decided that the case was unwinnable without favorable press coverage. So he sent a summary of the facts of the case to the very editor who later led the investigatory team that broke the abuse story. But, unfortunately, “outing” the Church was not yet in vogue in Boston. So instead of the sensational story of church malfeasance he was counting on, the paper buried a neutral story in the back pages.

At this point Macleish knew he had an unwinnable case. So he decided the best thing to do was get the family a little cash, a bounty the archdiocese would only bestow if the plaintiff agreed to sign a non-disclosure agreement What would you have had him do?

We tend to think there must always have been something more that the lawyer could have done, but perhaps that type thinking is just a reflection of our strong individualist bias in thinking about ethical questions. Maybe the system is the real villain. The problem here was not caused by Macleish but by a legal system that did not provide him a good option. Instead, it enabled the defendants to buy the plaintiff’s silence about the commission of a crime.

What we need is structural ethical reform that ensures that the laws and rules point individual lawyers in the right direction. The rules that confronted Eric Macleish made a settlement with a non-disclosure agreement the natural resolution of the case. If non-disclosure agreements had been illegal in this context, there would have been a different resolution. And, just as non-disclosure agreements cannot be used to prevent a whistle-blower from disclosing illegal conduct, they are also inappropriate here where they conceal a defendant’s illegal actions.

At least that’s how I see it. What do you think?

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3 Comments

  1. Dave Rorick says

    Good point on the institutional restriction of the individual’s options for responding to the moral dilemma.

    I liked the way the movie unfolded bit by bit the moral complexities in the Macleish-Robertson decisions made over the years of the abuse story.

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  2. Non-disclosure agreements – what is not supposed to be disclosed, the settlement or the amount?  “If its something illegal” it’s “inappropriate.”  But that’s not always clear, is it.  There may be a factual dispute, or the stature may have run (on the illegality).  Obviously, if the lawyer violates the non-disclosure agreement, then he/she runs the risk that no future agreements will be made.  Does that raise risks for other clients whose cases should be similarly settled?  

    As usual – more questions.

    Howard J. De Nike

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    • All good questions, but ones that should be able to be handled by skillful drafting. The key idea is that legal disputes concern more people than the named parties. There is a public interest that must be taken account of. There may be situations where privacy concerns should prevail, but this was not one of them.

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