Warning: Spoiler Alert!
In my previous posts, I discussed ethical issues that arise in Episodes 1 through 4 of Better Call Saul, the spin-off and prequel to Breaking Bad, starring Bob Odenkirk as Saul Goodman. Familiarity with the plot of Episode 5 is assumed, but here is the official recap just in case.
Given the wide range of the ethical issues in Episode 5, I have divided my analysis into two parts. Part One covers Saul's meetings with three prospective clients, who contact him after the billboard stunt in Episode 4 (Hero). Part Two covers Saul's brief foray into elder law at the end of Episode 5.
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).
In Episode 5, we follow Saul to meetings with three prospective clients, who called him after the billboard stunt in Episode 4 (Hero). Here, we learn the first rule of legal marketing: a flashy publicity stunt may not attract the clients you want, but it will attract the clients you deserve.
Saul's interactions with these prospective clients raise several interesting ethics issues. It is worth pointing out that these meetings do not implicate rules about solicitation. The ethics rules are clear that a "solicitation" must be initiated by the lawyer. If the lawyer is responding to "a specific request of a prospective client," it is not solicitation under Rule 7.3(b). Here, the clients reached out to Saul first, so none of his conduct constitutes solicitation. Questions about solicitation and advertising do come up later when Saul visits the nursing home, which I will discuss in Part Two.
Ricky Sipes: Saul Dodges a Serious Potential Ethical Violation
Saul's first meeting is with Richard ("Ricky") Sipes, an eccentric but apparently wealthy Tycoon, who occasionally channels Foghorn Leghorn ("I got me a case – major – I say, a major case."). Ricky wants to retain Saul to help him secede from the United States and establish an independent state on his 1100 acre ranch. After visibly blanching, Saul gamely declares "Ricky... I'm your man. Yeah, let's do this. Let's show 'em all. Yee-haw!"
After warning Ricky that seceding from the Union will involve a long, difficult, litigious, and - most importantly - expensive ordeal, Saul quotes an hourly rate of $450 (apparently, this case does not warrant Saul's "elite tier pricing" of $950 per hour). Ricky waives off this suggestion, proposing instead a flat fee of $1 million to be paid "$500,000 up front and $500,000 when we're done." You can practically hear Saul's pulse accelerating as he agrees. That is, until Ricky tries to pay him with fake money bearing his portrait and emblazoned with the words "Sovereign Sandia Republic." Saul beats a hasty exit from Ricky's ranch in his bi-colored Suzuki Esteem. (I've heard that the script direction reads "Jimmy's Esteem takes a left turn.")
Fortunately, Ricky's creative payment plan saved Saul from making a serious ethical mistake. Rule 1.16(a)(2) states:
A lawyer shall not accept employment on behalf of a person if the lawyer knows or reasonably should know that such person wishes to . . . present a claim or defense in a matter that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of existing law.
Citizens cannot "secede" from the Union. The proper procedure for an individual to separate himself from the United States is to renounce his citizenship. As long as you follow that procedure, voila! You've effectively seceded from the Union. But, sorry, you can't take your land with you. There is simply no legal basis for an individual landowner to secede geographically from the United States, although some have tried. The issue of whether states can secede from the Union has been a hot topic in recent years, but Supreme Court Justice Antonin Scalia has nixed that idea as unconstitutional.
Ricky's secession case falls squarely within the prohibitions of Rule 1.16(a)(2), so Saul cannot ethically accept the representation. Even if Saul were to accept Ricky's case, the ethics rules prohibit him from asserting Ricky's claims in a court of law. Rule 3.1(a) which states:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.
Echoing Rule 1.16(a)(2), Rule 3.1 defines a "frivolous" claim as one that is "unwarranted under existing law, except . . . if it can be supported by good faith argument for an extension, modification, or reversal of existing law." Again, seceding from the Union definitely qualifies as frivolous under this definition.
Frivolous claims are not only barred by the ethics rules, they are sanctionable under the court rules. For example, Rule 11 of the Federal Rules of Civil Procedure authorizes federal courts to impose sanctions against attorneys who assert "claims, defenses, and other legal contentions" that are not "warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law." Many states have analogues to Rule 11, such as New York's Part 130-1, which imposes sanctions for frivolous claims filed in state court.
Roland Jaycocks: Saul Dodges Another Serious Potential Ethical Violation
Saul's second meeting is with Roland Jaycocks, a suburban father who has invented a potty-training device that offers enthusiastic - but creepily suggestive - encouragement to the user. Examples include:
Fill me up, Chandler! Put it in me!
Give it to me, Chandler. I want it all.
Gosh, you're big! You're so big!
In response to Roland's question about whether Saul has patent law experience, Saul responds "I do so many patent law cases, I should probably just go ahead and specialize already." A few problems with this. To practice patent prosecution law, an attorney needs scientific or technical training (something I doubt Saul acquired during his "slippin' Jimmy" days in Cicero, Illinois). Also, to be admitted to the patent bar, the applicant must show "good moral character and reputation" - possibly a challenge for Saul.
Saul is clearly misrepresenting his patent law experience (a violation of Rule 8.4(c), barring "dishonesty, fraud, deceit or misrepresentation"). Accepting Roland's matter would also violate Rule 1.1(b), which states that a "lawyer shall not handle a legal matter that the lawyer knows or showed know that the lawyer is not competent to handle." In addition, Saul's statement that he should "specialize" in patent law probably violates Rule 7.4, which prohibits a lawyer from stating that he "is a specialist or specializes in a particular field of law," unless he is formally "certified as a specialist."
Fortunately, Saul is saved from committing further ethics violations, because he gets chased off Roland's property after pointing out the suggestive nature of the toilet, and suggesting that "some of your wealthier Pacific Rim nations – they'll love this – the crazy bastards."
Mrs. Strauss: Does Saul Have Any Estate Planning Experience?
I am somewhat skeptical that Saul is competent to provide estate planning advice. But, I will give him the benefit of the doubt, because I want to focus on what Saul does right in his meeting with Mrs. Strauss.
I give Saul high marks for this meeting. When the audience joins the scene, Mrs. Strauss is sliding down her stair-chair carrying the Alpine Shepherd Boy figure, referenced in the episode's title. We can imagine there have already been several of these painfully slow forays to the second floor, as Mrs. Strauss gradually retrieves the precious Hummel figures that now clutter the coffee table. Throughout, Saul remains patient and respectful. What's more, he listens carefully and takes detailed notes. At one point, when Mrs. Strauss mistakenly says she wants to leave the "towheaded twins" to Reverend Lawrence's grandson, Saul gently corrects her:
Don't you mean Reverend Hanes? Because Reverend Lawrence's grandson is going to get the lute-playing angel. 'Cause he was in the choir.
After taking down all the details, Saul sheepishly brings up the matter of his payment. He offers to draft the will for a flat fee of $140, which she pays him in cash on the spot. Under Rule 1.5(a), a fee of $140 is more than reasonable for a will. Although in a previous post, I mentioned that New York requires most fee agreements to be in writing, that provision does not apply if "the fee to be charged is expected to be less that $3000." So, Saul's failure to document the fee arrangement would not be an ethics violation in New York.
Having said that, I still recommend that lawyers get their fee agreements in writing, especially with a new client. Here, there are good reasons to follow that advice. First, Mrs. Strauss is retaining Saul solely to draft a will, but not to provide any other estate planning advice. In my view, he would be wise to get a retainer agreement that clearly defines the scope of the representation, and specifies that he is not advising Mrs. Strauss on any other matters concerning her estate. By not limiting the scope of representation, you create a risk that the client will later claim that she believed you handling other aspects of her estate and you missed some important issue. Second, Saul needs to take extra precautions when dealing with elderly clients, whom courts and grievance committees view as particularly vulnerable. If there is a dispute later, Mrs. Strauss's age will be relevant to determining whether her belief about the scope of representation was reasonable, and whether Saul should have taken additional steps to protect her.
Saul's Conversation With Kim:
Later that night at the nail salon, Saul regales Kim with the bizarre details of his day, while ineptly applying blue nail polish to her toenails. At one point, Kim struggles to hold back laughter as Saul performs his rendition of Roland's talking "sex toilet." The scene is charming and Saul and Kim have great chemistry. But is it ethical? Unfortunately, the answer is no. Although Roland did not retain Saul, he is a prospective client under Rule 1.18. That means Saul "shall not use or reveal information learned in the consultation," except as permitted under the rules.
As a practical matter, this sort of thing happens all the time. Lawyers talk to each other about their clients and cases. One way to do this ethically is to speak in "hypothetical" terms about the representation, without identifying the client. This is permitted, as long as "there is no reasonable likelihood that the listener will be able to ascertain the identity of the client." In Saul's case, however, this option is not available, because he signed a non-disclosure agreement. Even if he were to conceal Roland's identity, merely disclosing the nature of the invention probably violates the non-disclosure agreement. But, given that Saul didn't even glance at the agreement before signing it, he does not seem to put much weight on his contractual obligations.
After Saul tells Kim that he handled two wills and a trust that day, she suggests that he focus on elder law. Although he initially scoffs at this idea, we see later that he takes her advice to heart. Saul's brief detour into elder law raises a number of issues about lawyer advertising and solicitation, which I will cover in Part Two of my Episode 5 discussion.