The Ethics of Saul Goodman: Episode 4 (Hero)

Warning: Spoiler Alert!

In previous posts, I discussed ethical issues that arise in Episodes 1 and 2 and Episode 3 of Better Call Saul, the spin-off and prequel to Breaking Bad, starring Bob Odenkirk as Saul Goodman. Familiarity with the plot of Episode 4 is assumed, but here is the official recap just in case. As usual, I base my discussion primarily on the New York Rules of Professional Conduct, but reserve the right to randomly throw in references to New Mexico's Rules (which would govern Saul's conduct). Let's get to it.

Bribe or Legal Fee?

When we pick up the story in Episode 4, Saul is confronting the Kettlemans about going home and returning the money Craig stole from the county treasury. After articulating several increasingly absurd rationalizations for keeping the money (""You want to talk about legal? Slavery - that used to be legal. Human Slavery"), Betsy Kettleman finally just thrusts a stack of money in Saul's face as a bribe. After demurring several times, Saul says "I can't take a bribe. . . . But, you know . . . I can take a retainer." That's when Betsy Kettleman hits Saul with a harsh zinger that leaves him visibly crushed: "You're the kind of lawyer guilty people hire."

Later, Saul is back in his sad little office at the nail salon - with a big stack of cash on his desk. In a display of rationalization that rivals Betsy Kettleman's, Saul tries to allocate the funds into legitimate bookkeeping categories: travel, meals, "miscellaneous expenses," etc. My favorite category is legal fees at the "elite tier pricing" of $950 per hour (because there were, you know, "special circumstances"). We know that Saul gets paid $700 per case as a public defender, so $950 per hour is quite a jump. Even when Saul thinks he has snagged a rich client in Episode 5, he cites an hourly rate of $450. Saul's billing practices are haphazard to say the least.

There are several problems with Saul's handling of the Kettlemans' payment. First, if it is a bribe, he obviously can't take it. Rule 8.4(b) prohibits an attorney from engaging in "illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness or fitness as a lawyer." Rule 8.4(d) prohibits "conduct that is prejudicial to the administration of justice." Accepting the bribe would likely violate one or both of those provisions.

Second, if it isn't a bribe, what is it? The Kettlemans were pretty clear that they did not want to retain Saul as their lawyer. Despite that, he treats the money as payment for legal services. Given that an attorney-client relationship is a voluntary contractual arrangement, the client must agree to it - either implicitly or explicitly - or it doesn't exist.

Third, if the money is payment for legal services, it clearly violates Rule 1.5's prohibition against excessive, fraudulent or illegal fees and expenses. As noted above, the hourly rate of $950 is not supportable. An experienced partner in a large cosmopolitan law firm might command $950 per hour, but not a guy who works out of a nail salon and gets paid $700 per case. Even more problematic, the expenses are just made up, which constitutes fraudulent billing. Furthermore, even if these were reasonable fees and expenses, an attorney is required to communicate to the client "the basis or rate of the fee and expenses" being charged. In New York, this must be done "in writing," except in limited circumstances.

Fourth, attorneys may not accept fees from the fruits of illegal activities. Doing so risks fee forfeiture and possibly even criminal prosecution. In addition, money laundering statutes require cash payments of $10,000 or more to be reported to the federal government. And no, you can't divide it up into smaller payments to circumvent the reporting requirement.

Does Saul's Publicity Stunt With the Billboard Violate Legal Ethics Rules?

As you may recall, in a previous post, I discussed Rule 8.4(c), which prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.” Faking a daring rescue to drum up publicity and clients probably violates this rule. For good measure, a grievance committee might also throw in Rule 8.4(h), which prohibits "conduct that adversely reflects on the lawyer's fitness as a lawyer" (whatever that means).

A particularly creative grievance committee might also charge Saul with violating Rule 7.1(c)(4), which prohibits "depictions of fictionalized events or scenes" in attorney advertisements. Whether this charge would stick depends on whether Saul's publicity stunt qualifies as an "advertisement." Rule 1.0(a) defines an Advertisement as:

any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm's services, the primary purpose of which is for the retention of the lawyer or law firm.

Given that Saul's main purpose in staging the fake rescue was to drum up legal business, there is a fair argument that the stunt qualifies as "advertising." This is particularly true in an age where many brands are turning to "disruptive," non-traditional advertising campaigns to market their products. Therefore, even a stodgy grievance committee could be convinced to take a more expansive view of "advertising."

And as an advertising campaign, the stunt seems to be working. Finally, Saul comes home to his answering machine and there are seven new messages from prospective clients. This will raise new ethical issues, which I will discuss next time when I cover Episode 5 (Alpine Shepherd Boy).