Iconic or Scandalous: Olivia Pope and Annalise Keating – Black Women Lawyers on Prime Time TV

Welcome to the second decade of the twenty-first century, there are now two black women lawyers on Thursday prime time television thanks to screen writer, director and producer Shonda Rhimes. Rhimes, an increasingly powerful player in the broadcast world, first garnered widespread acclaim in 2005 as the creator and executive director of the long-running medical drama Grey’s Anatomy and its spin-off, Private Practice (2007-2013). In 2010 she entered the legal terrain with Scandal, about a high-powered Washington, D.C. political fixer who is having an affair with the married President of the United States. The fixer, Olivia Pope, is a well-educated and well-connected lawyer who runs a crisis management firm, Pope and Associates. Scandal started its fourth season on Thursday.

By the way, Olivia Pope, played by Kerry Washington, and Shonda Rhimes, the producer, are black women. So unsurprisingly a flurry of anticipatory articles and posts appeared when ABC announced Rhimes’ latest production, How to Get Away with Murder, which also aired Thursday immediately after Scandal. Annalise Keating (played by Viola Davis) is a tenured black woman law professor who also runs her own law firm. (Isn’t this a no, no under the ABA rules?) But anticipation quickly turned into controversy when New York Times television critic, Alessandra Stanley, started her article about the new show with: “When Shonda Rhimes writes her autobiography, it should be called ‘How to Get Away With Being an Angry Black Woman.’” Oops, so perhaps we have not progressed that far in race relations after all.

Stanley’s column set-off a firestorm on the internet. One of the most interesting critiques of Stanley’s troubling discussion of Rhimes and black women actors was posted by Margaret Lyons on Vulture.com.  Even Rhimes sent a few tweets.  The result was an apology from the Times’ Public Editor  and the obligatory “non-apology” from Stanley.

This much discussed controversy, however, is not the subject of my post. I am more concerned about the content of Scandal and How to Get Away with Murder than with how the executive producer and female actors are described by critics. As I celebrate the emergence of Kerry Washington and Viola Davis, as lawyers in starring roles on prime time television, I worry, not about whether these shows are breaking old well-worn stereotypes about black women as angry and sexually permissive, but rather whether my students will see these fictional women lawyers as legal icons to be emulated.

In Scandal the employees of Pope and Associates dress in suits and have clients. They do things that law firms do, investigate crime scenes and bail their clients out of jail or provide them with legal advice after they commit crimes. But Pope and Associates also do what professional fixers do, manage crises. What troubles me is how they do it.

The standard definition of a “fixer” is “a person who intervenes to enable someone to circumvent the law or obtain a political favor [or]…. who adjusts matters or disputes by negotiation.” As one television reviewer wrote: “Instead of uncovering the truth, [fixers] bury it…. [they] ignore justice and morality to protect image and reputation.”  Under Pope’s implicit direction her associates have tampered with crime scenes, hacked into CIA computer systems, and bribed to save the reputations of their clients.

Concern about drawing a distinction between practicing lawyers and licensed lawyer who work as fixers may explain a conversation in the very first episode of season one between Pope and Quinn Perkins, a newly hired associate. Perkins gushes to Pope: “I so admire your work in the White House. It’s an honor to work for your law firm.” Pope replies: “We’re not a law firm. We’re lawyers but this is NOT a law firm.” Her associates chime in: “Law firms are for pansies.” (Steve) “Manage crises, save reputations.” (Abby) Pope concludes: “We solve problems” to which Quinn replies: “It’s still an honor.” Perhaps the consultants for the show wanted to make clear to viewers that while the some of the main characters in Scandal are licensed lawyers, they do not actively practice law in the traditional sense.

Scandal provides an excellent (albeit, dramatic) reflection of how the roles of lawyers in the United States are changing. Fewer licensed lawyers are working in courtrooms or law firms and more are re-marketing themselves. Although quasi-lawyers have always existed, more licensed lawyers are becoming quasi-lawyers. This category includes lawyers engaged in online legal services, fixer roles, or private business employment. UNC law professor Dana Remus in a recent Duke Law Journal article writes about how “social dynamics . . . are fundamentally altering contemporary lawyers’ work by broadening and blurring the boundary between law and business. … [One result is confusion about] what constitutes legal practice, what roles lawyers play, and what professional obligations attach [She warns that this development] creates opportunities for abuse by individual lawyers and for ethical arbitrage by sophisticated corporate clients.”  The classroom lesson here is that merely characterizing Pope as a crisis manager does not excuse her from the ethical responsibilities of a licensed lawyer.

Although Olivia Pope characterizes herself as a crisis manager or fixer and not a lawyer, as a licensed lawyer she still may be held to the same standards as practicing attorneys in law firms. The American Bar Association’s Model Rules of Professional Conduct refer to “lawyers who are not active in the practice of law [and] to practicing lawyers . . . acting in a nonprofessional capacity.”  [See Rule 8.4. Preamble: A Lawyer’s Responsibilities, MRPC Preamble.]

In jurisdictions with similar definitions licensed lawyer-fixers may find themselves sanctioned or suspended by bar associations, or even have their license revoked for their fixer activities. The problem, however, is that licensed lawyer-fixers are operating somewhat in the dark, the lines are unclear. The storylines on Scandal illustrate this problem. Olivia Pope and her associates are zealous advocates for their clients and sometimes their advocacy includes ignoring laws and obstructing justice for the sake of a client’s reputation.

But am I simply being an egg-head academic, divorced from reality, who is making a mountain out of a mole hill? Arguably some licensed lawyers have always operated to a limited degree as “fixers.” Perhaps the big screen’s depiction of a lawyer-fixer Michael Clayton in the film of the same name is a more realistic example. Unlike Pope who seems obvious to ethical concerns, Clayton is struggling, like most lawyers, with how to avoid crossing ethical borders. Clayton, however, is employed as a lawyer by a big law firm whereas Pope operates a consulting firm. Further, Clayton struggles to retain his morality whereas Pope is self-righteously amoral, like her CIA father and terrorist mother. (I think Shondra Rhimes’ Scandal storylines have jumped the shark.)

But if you think Scandal is a dark fantastical drama, then you will find How to Get Away with Murder even darker and more fantastical. Annalise Keating is both a law professor at a fictional top tier school and a practicing lawyer – she and her associates work out of her large old home. She does not pretend to care about doing justice. She simply wants to win, even at the expense of allowing her clients to get away with murder. She is another amoral lawyer.

Keating, her race notwithstanding, is someone we have seen before. She is an amalgam of fictional media lawyers. She has the cold façade of Patty Hewes, Glenn Close’s character in Damages. Her messy personal life reminds me of The Good Wife; and Keating’s use of students to further her legal practice reminds me of Professor Callahan (Victor Gable) in Legally Blonde. Students’ nickname for Keating is “the shooter” perhaps because her personality seems like a cross between Professor Kingsfield (Paper Chase) and his more modern female counterpart, Professor Stromwell in Legally Blonde. But then again Keating differs slightly from these earlier models. Unlike Olivia Pope who favors elegant clothing, Annalise Keating seems to have a penchant for tight leather often coming across (outside the courtroom) looking like a dominatrix.

Only one episode of How to Get Away with Murder has aired so far, but if it is an indication of what is to come, I am troubled. Last Thursday we saw first year law students breaking all kinds of laws (and missing other classes) to curry favor with their criminal law professor – Keating. The prize is a statute of Lady Justice and a summer internship with Keating and Associates, doing “good” rather than working at a boring Big Law firm. The episode ends with Keating, through hook and crook – legal and illegal, including calling her adulterous boyfriend to reluctantly testify against his police colleagues, getting her guilty client off. One of her admiring students, a woman, says: “I want to be like her.” I wanted to run into my classroom the next day and scream – NO you don’t!

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4 Responses

  1. Howard Wasserman says:

    My fear is that in a year or two we are going to be inundated with students who are pissed off that they are spending their criminal law class learning how to do things like read a statute and understand mens rea rather breaking into buildings to discover exonerating evidence.

  2. Cheryl Wade says:

    My only quibble is with your description of private business lawyers as quasi-lawyers. Lawyers who advise private businesses are quintessential lawyers in the sense that they use statutes and common law to help their clients do a deal in a way that will avoid litigation.

    Other than that, I am with you all the way about the impact these series will have on impressionable young law students.

  3. Muriel Morisey says:

    I teach Professional Responsibility and cringe at the idea my students won’t realize how many ethical and procedural outrages we saw in the first episode of How to Get Away With Murder. I may take time in my next class to caution students about the show. A related concern: there are two other new shows, “Bad Judge” and “Benched” that appear from their trailers to center on demeaning portrayals of women in the legal profession.

  4. Peter Gerdes says:

    I think you have an overly sophisticated view of the general public’s moral sentiments regarding lawyers.

    In particular, a depiction of lawyers discharging their actual ethical obligations as lawyers for the defense, e.g., aggressively representing their client’s interests regardless of their personal opinion about guilt or evidence. To the public at large there is really no moral difference between the behavior of the political fixers in a show like this and the ethical obligation of a good lawyer to do their best to get even obviously conclusive evidence of guilt (say in a murder) excluded from trial should the rules of exclusion and admissibility allow them to do so.

    This isn’t surprising, I mean it’s kinda a converse of the inability of most beginning philosophy students to recognize the fact that in almost all normal situations doing intuitively ‘wrong’ things like cutting up one patient to save five with donation organs will in fact not increase utility. While people are fairly good at following the rules that are socially ingrained in them they find it difficult to abstractly assess the indirect impact of following the rule. Just as they cannot recognize that in almost every case the small additional fear of doctors/organ donation on a great many people would (even with a small chance of discovery) outweigh the good that is done so too are they unable to recognize that “cheating” by letting clients that are truly guilty slip through the cracks when you could have won an acquittal by excluding evidence or the like imposes greater harms in terms of the effect on prosecutorial and police behavior than the benefits it provides.

    It’s not that lawyer’s are so much better at evaluating such consequences, rather, from the inside they personally realize their motivations are not evil or bad and like all people they start to see the values consecrated by their fellows as desirable in and of themselves (no one likes internal moral tension).