Suits: How can Simon Lowe, with Daniel Hardman, sue Harvey Specter in connection with the doctrine of unclean hands?

Question

In the last 2 episodes of Suits Season 8, Simon Lowe sues, via his attorney Daniel Hardman, Harvey Specter for breaking privilege.

What happened was the lawyers Harvey Specter and Alex Williams who both work at the law firm Zane-Specter-Litt-Wheelers-Williams both represented clients, Simon Lowe and Thomas Kessler, respectively, on opposing sides of the same case.

• This of course is a conflict of interest, and so Lowe and Kessler signed conflict of interest waivers.

• The case is that Lowe wanted to make a deal with Kessler, to either buy something from Kessler or sell something to Kessler, I kinda forgot, but I don't think this was a settlement negotation. Kessler and Lowe engage in a verbal contract (and physical if you include a handshake), in the presence of their attorneys Harvey and Alex (and I think the managing partner, Louis Litt, was present as well, I forgot).

• Later, Lowe reveals Harvey that Lowe intended or had intended to use Kessler as a stalking horse (I forgot if Lowe was planning to betray Kessler from the beginning or just decided to betray later on) and thus break the verbal contract.

• Finally, Harvey breaks privilege and then Lowe fires and sues Harvey via Hardman. The manner in which Harvey breaks privilege is as follows:

• • Harvey told Donna Paulson, their chief operating officer who then told Lowe (Donna and Lowe have been romantically involved for a few episodes now). The reason I recall Harvey did so was because Donna is very good at reading people, especially those she already knows and knew something was up when she and Harvey spoke after Harvey, Alex, Lowe and Kessler had met and made a verbal agreement (but also after Lowe had revealed Lowe's intentions to Harvey).

• • This next part is another spoiler for the audience but pretty obvious to the lawyers here:

• • One could argue that technically it was Donna and not Harvey who broke privilege. This legal argument is a spoiler because this was a potential legal strategy pointed out (but not suggested to be used) by someone else.

• • Of course another could argue that Harvey should not have told Donna because privilege didn't extend to her. Yet still another could argue that the conflict of interest waivers might have or should have protected Harvey or Donna. And so on.

Finally, my question:

Lowe's hands seem very unclean to me, in the sense of unclean hands or clean hands or dirty hands. So either

1. Case 1: I'm misinterpreting unclean hands. How am I misinterpreting?

2. Case 2: I'm interpreting unclean hands correctly but have missed or misinterpreted something in the show. What is it? (Asked on movies stackexchange just in case.)

3. Case 3: I'm interpreting unclean hands correctly and have not missed or misinterpreted anything in the show. How does Simon Lowe overcome unclean hands to sue Harvey? ("Bad writing" or "unrealistic scenario" or "mistake" is an acceptable response.)

4. Case 4: There is another case. What is the other case?

Answer 1

The ‘clean hands’ doctrine only applies to equitable remedies, not remedies at law.

Breaking confidence is, in this case, breach of an implied term of a contract. It is also a tort and this might be argued as well. Both of these are legal, not equitable, remedies. When you bring an action at law rather than at equity your hands can be as filthy as you like. If you broke a contract or committed your own tort that may give the defendant a counter-claim but it doesn’t eliminate your claim.

Answer 2

Unclean hands is an affirmative defense to someone seeking a remedy from a court. It generally isn't an offensive claim or counterclaim.

In some jurisdictions, the distinction between law and equity that used to exist in England and some other common law legal systems is retained to allow it only a defense to claims in equity, as DaleM describes, other jurisdictions where law and equity have been merged no longer limit this defense to claims historically allowed in equity and also allow it as a defense to claims that historically arose in law. See, e.g., Vessels v. Hickerson, 327 P.3d 277 (Colo. 2012) (holding that equitable defenses can be asserted against claims arising at law in Colorado).

The offensive claim asserted from this conduct is also often brought as a cause of action for breach of fiduciary duty. Sometimes, claims of breach of fiduciary duty are considered to arise in equity, and not law, facilitating the availability of an unclean hands defense even in jurisdictions that limit the defense only to claims historically arising in equity.