I loved Michael Clayton. Great performances by Clooney, Pollack and Swinton. As a lawyer who served a few years in a big obnoxious firm like Clayton's, I found the milieu very convincing. But I've been puzzled by one question since I saw it two weeks ago. I can't justify billing a client or paying for Lexis for this, so I'm opening this up to our expert legal analysts.
SECOND SPOILER ALERT WARNING
The key to the movie is a report confirming that the defendant's product was indeed harmful. If disclosed, the report would have been the "smoking gun" that led to billions in liability against the plaintiff. The report was signed by certain higher-ups in the company, as well as its general counsel (at the time the Ken Howard character).
The report was never disclosed to the plaintiffs, but renegade defendant's litigator (Tom Wilkinson's character) has gone nuts and is about to give it to them. He's whacked before he can, and the plaintiffs settle for about $500-600 million. But then Clayton tricks the new General Counsel (Swinton) into admitting the scheme. She and Ken Howard will do serious time.
But it is not clear whether Clayton's firm will get into any trouble. (I was left with the impression that they would not.)
However, as soon as the lawyers knew about the document, they had a duty to disclose it to the plaintiff, unless it was privileged.
Hence, the following questions
- Was the document privileged because it was signed by the general counsel?
- If it was privileged, would disclosure be compelled by any exception (e.g., fraud) to the privilege?
- If it was not privileged, why weren't Sydney Pollack et al. also on their way to jail (or at least disbarment) at the end of the film, because they procured a settlement through fraudulent non-disclosure of a (very) material document.