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Top 5 Legal Lies From 'HTGAWM' S1 E11 ('Best Christmas Ever')

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By Mark Wilson, Esq. on February 06, 2015 11:06 AM

What happened this week on "How To Get Away With Murder"? For starters, Annalise's sister-in-law comes to town and starts asking some difficult questions about Sam -- like where he is and why Annalise isn't out looking for him.

That's bad enough, but this week's client results in the biggest lawyer ethical mistake the show has made so far. That's right: Prosecutors hiding the ball and Annalise being an accessory after the fact to Sam's murder are nothing compared to this.

Before we get to the legal lies in this episode, here's your #HTGAWM Recap in 140 Characters: Sam's sister is snooping around. Just lie to her a lot. Christmas break was awful. Then we broke the ethics rules, but no one seems to care.

1. 'There's No Guarantee the Prosecutor Will Keep Their [sic] End of the Bargain'

The case this week deals with a wife who's complicit in her husband kidnapping teenage girls and keeping them locked in the basement. The wife wants a plea agreement.

Annalise is wrong to think the prosecution can unilaterally change their mind once the agreement is made. A plea agreement is essentially a contract, and both parties have to do what they said they would. The prosecution might quibble about the extent to which the wife has fulfilled her end of the bargain, but the prosecution can't escape its duties completely.

2. The Judge Can't Accept a Plea Until She's Heard From the Victims.

There's no reason for this. At. All. Victims aren't part of the criminal justice system, except when they testify and when it comes to restitution. The crime is really against the state. So there's no requirement for victims to testify before a judge can accept a plea. Their testimony shouldn't be necessary for sentencing either, as the prosecution and defense have already negotiated a sentence. The judge can opine about the fairness of the sentence, but that doesn't require the victims' testimony.

3. Annalise Can Divulge the Address of the Client's Supposed Child.

Attorney-client confidentiality is one of the highest duties of a lawyer. If the state allows it, a lawyer can break that confidentiality only to alert authorities about an imminent threat of death or serious bodily harm. The fact that the child the wife squirreled away was essentially kidnapped and held somewhere doesn't allow for breaking confidentiality unless the child is in danger of serious bodily harm or death (which doesn't seem to be the case). The client may have waived privilege and allowed the disclosure in this case, though.

4. Annalise Can Lie to Her Client About a Plea Agreement and Get Away With It.

This is the biggest ethical mistake Annalise has made so far -- yes, really! Above all, lawyers owe a duty of loyalty to their clients, meaning they have to act in the best interest of the client and no one else. Annalise basically lied to her client about the existence of a plea agreement in order to get what she wanted: the address of the kidnapped baby. Not only could Annalise be reprimanded by the state bar, but her client (the wife) could get her sentence overturned on appeal, arguing ineffective assistance of counsel, and would likely win. (She can also withdraw her guilty plea based on Annalise's lie.)

5. Annalise Can Withdraw From Representation and Walk Out the Door.

Lawyers can withdraw from representation, but with caveats. In such a late stage of a criminal trial -- especially one where it turns out, whoops, there's no plea agreement -- there would have to be a hearing before Annalise could withdraw. A judge might not permit it if withdrawal would harm the client's case. In any event, Annalise can't just say, "See ya!" and walk out the door.

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