Warning: Spoiler Alert!
In my previous posts, I discussed the ethical issues in Episodes 1 through 6 of Better Call Saul. For this discussion, familiarity with the plot of Episode 7 is assumed, but here is the official recap just in case. You can read all my posts about the ethics of Saul Goodman here.
Saul’s Explanation to the Philly Detectives:
It’s late at night and Saul and Mike are back at the police station, returning Detective Abassi’s notebook. As they wait for the detectives, Saul tells Mike to “let me do the talking.” When confronted by the furious Abassi, Saul explains that he was on his way to the police station to clear up this little misunderstanding about the notebook, when - coincidentally - he looked down and saw the notebook on the ground where Abassi must have dropped it. To his credit, Mike keeps his mouth shut as Saul weaves this tale that not even a doting mother would believe. Given that Mike’s fingerprints must be all over the pages of the notebook, I can’t imagine how Saul thinks he can get away with this lie.
If you’ve been following this blog, you can probably recite the rule violation without my help. Rule 8.4(c) prohibits a lawyer from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.” So, no … as an officer of the court, Saul is not supposed to lie to police officers - or anyone else for that matter.
Knowing that Mike is a murder suspect, Saul is reluctant to leave him alone with Sanders - the older police detective - but Mike insists. Again, Saul is trying to be a diligent lawyer, but in Mike’s view, Saul has served his purpose and can leave. Sanders hints to Mike that the Philly police will drop the investigation if Mike’s daughter-in-law backs up his story. The conversation suggests that the corrupt old guard still holds enough power in Philly to bury the investigation, even with young Turks like Abassi being brought in to clean up the department.
When Saul intercepts Mike in the parking lot, Mike tells him “it’s in someone else’s hands now” (presumably meaning his daughter-in-law). Saul’s response is, for me, the funniest line in the episode: “Please don’t say Hamlin, Hamlin and McGill.” The idea of losing another client to HH&M (even a terrible client like Mike) is more that Saul can bear, and Odenkirk delivers the line with perfection.
Leaving the Client Files With Chuck:
A few days later, Saul arrives at Chuck’s house with a stack of boxes containing client files, pleading a lack of storage space. Chuck is not happy with the arrangement, but as soon as Saul leaves, he can’t resist the temptation to dig through the files. Maybe both of the McGill brothers have a little bit of larceny in them.
Although there has been some debate among commentators as to whether Saul purposefully left the files with Chuck, hoping he would start working on them, I don’t think there’s much ambiguity. I’ve said before that I think Saul is a pretty competent lawyer. Yet, he conspicuously misstates the form number for the “personal property” schedules as “413″ instead of “513,″ prompting Chuck to correct him. This leaves Chuck in doubt as to whether Saul is properly handling the estate matters. Then, as Saul leaves the house, he peeks in the window to confirm that Chuck is, in fact, looking through the boxes. It seems pretty clear to me that this was part of Saul’s plan.
Of course, both Saul and Chuck are violating Rule 1.6, which requires an attorney to preserve his clients’ confidential information. Chuck may be a great lawyer - and Saul’s brother - but they are not law partners. As I noted in my discussion of Kim and Saul’s conversation in Episode 5, you can’t just share client information with another lawyer (even one you trust implicitly), unless an exception to the confidentiality rule applies.
Saul Calls Bingo:
Saul is back at the nursing home calling out Bingo for the elderly residents. In an over-the-shoulder shot, we see that one of the residents is filing out a bingo card which seems remarkably familiar.
Wait, let’s take a closer look:
Like the jello cup from Episode 5, the bingo cards qualify as “advertisements” under rule 1.0(a), because they are a “communication” about the lawyer’s services, “the primary purpose of which is for the retention of the lawyer.” As I mentioned when discussing the jello cups, Saul is permitted to have the nursing home staff distribute branded bingo cards. What transforms these bingo cards into “advertisements” is the slogan: “Need a will? Call McGill!”
As advertisements, the bingo cards must comply with Rule 7.1, which among other things, requires them to include the words “Attorney Advertising” and the law firm’s principal law office.
I should also note that there are strict laws regulating bingo games in most states, including New Mexico. Whether Saul’s bingo game complies with these regulations is beyond the scope of this blog. Given the heavy state regulation of bingo games and other games of chance, however, a grievance committee might look askance at a lawyer using a bingo game as an advertising tool.
Kim’s Advice to the Kettlemans to Accept the Plea Deal:
Kim meets with the Kettlemans to present them with the plea deal she has negotiated with the D.A. Return the money and Craig will get a sentence of 16 months. Betsy Kettleman is not having it. In her world, there is no money. And, furthermore, they’re not giving the money back, because they didn’t do anything wrong. Kim urges Craig to accept the deal, because the alternative is being convicted and facing a maximum sentence of 30 years. Despite the Kettlemans’ denials and threats to fire HH&M, Kim doesn’t back down and the Kettlemans fire her.
As I’ve said before, I’m not a criminal lawyer so I don’t know if Kim’s assessment of the Kettlemans’ case is correct. I am troubled that she seems to think there are only two alternatives: take the plea deal or go to trial and lose. A lot can happen in the course of a criminal trial, so I’m not sure it’s inevitable that Craig will go to prison for 30 years. Kim puts a lot of pressure on the Kettlemans to take the plea, but ultimately it is their choice. Rule 1.2(a) states:
In a criminal matter, a lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
Just because Kim believes Craig is guilty does not mean she has to throw in the towel. From an ethical perspective, Kim still has a lot of options for defending Craig. The government has the burden to prove every element of the crime, and a criminal defense lawyer is ethically entitled to put the government to its proof, even if she thinks her client is guilty. Lawyers represent guilty defendants all the time, so I’m not sure why Kim is so daunted by the prospect of defending Craig at trial. Yes, they might lose. But that’s the risk you take when you roll the dice and go to trial.
I generally like Kim, but I didn’t care for this side of her character. Instead of sucking it up and accepting her clients’ decision, she whines about how hard she worked to get the plea deal and trashes the Kettlemans to Saul. I started to think that Kim is right - she should switch to elder law, since I don’t think she has the stomach to be a criminal lawyer. You can’t be a criminal lawyer if you’re afraid of losing at trial and having your client go to jail. As Saul remarked in Episode 1, when a courthouse employee pointed out that all three of his clients were convicted: “Since when does that make a difference?”
Are the Kettlemans Better Off With Saul?
Ironically, from an ethics perspective, the Kettlemans are much worse off having Saul as their lawyer, because Saul actually knows they have the money, whereas Kim only suspects it. This means Saul’s options for defending the Kettlemans are much more limited. For example, if Craig decides (unwisely) to testify in his own defense and lies under oath about having the money, Saul would have an ethical obligation to correct Craig’s false statement. Rule 3.3(a) prohibits a lawyer from offering or using “evidence that the lawyer knows to be false.” Furthermore, the lawyer must “take reasonable remedial measures” to correct fraudulent testimony after it happens, “including, if necessary, disclosure to the tribunal.”
By contrast, a lawyer who only “reasonably believes” that her criminal defense client is planning to testify falsely (but does not know for sure) must still honor her client’s decision to testify. Furthermore, that lawyer is not required to correct her client’s testimony unless she knows it is false.
Saul’s Scheme to Return the Kettlemans to Kim:
When the Kettlemans come crawling back to Saul, he no longer wants them.But when he tries to convince them to go back to Kim and take the plea deal, they threaten to expose his acceptance of the $30,000 bribe … er … “retainer.” Once again, Saul finds himself in a trap of his own making. Having taken the money, now he’s forced to take these clients, even though he knows it will upset Kim. The alternative is to go down with the Kettlemans.
After reviewing the file, Saul evidently reaches the same conclusion as Kim: the case is a loser. Again, so what? Saul has lost cases before. It seems to me the prudent course is to do his best at trial and wait for the apparently inevitable conviction. Why does Saul feel compelled to go through this elaborate scheme to get the Kettlemans back to HH&M? It isn’t because he’s worried they will disclose the bribe, since doing so will implicate them. Plus, it means having to return what’s left of the $30,000, which means Saul’s dreams of leasing the fancy office suite and luring Kim to be his partner are dead. The only reason I can think of is because he wants to help Kim, who has now been relegated to the “cornfield” at HH&M and whose two-year partnership plan has now become a ten-year plan.
Whatever his motives, Saul hatches an elaborate scheme to force the Kettlemans into a position where they have no choice but to accept the plea deal. Although the plan is brilliant, it is completely unethical. In so many ways.
First, he recruits Mike to steal the $1.5 million from the Kettlemans. The plan involves planting a stack of money sprayed with luminol outside the Kettlemans’ house, waiting for them to find the money and hide it with their own stash, breaking into the house when the Kettlemans are asleep, and following the trail of luminol to the hiding place. Inducing a third party to commit a felony violates several ethics rules, including Rule 3.3(a)(6) (”knowingly engag[ing] in … illegal conduct”), Rule 8.4(b) (engaging in “illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer”), Rule 8.4(d) (engaging in “conduct that is prejudicial to the administration of justice”), and possibly Rule 4.4 (using “methods of obtaining evidence that violate the legal rights of” third parties). Nor is it a defense that Mike - not Saul - is the one committing the illegal act, since Rule 8.4(a) prohibits a lawyer from violating any of the ethics rules “through the acts of another.”
Second, without consulting with his clients, Saul sends the $1.5 million to the D.A. in order to force them to accept the plea deal. This likely violates Rule 1.2(a), which - as noted above - gives the client full discretion over whether to accept a plea deal. It also likely violates Rule 1.6, which requires the attorney to preserve confidential information.
Whatever Saul’s motive in executing this plan, it isn’t to advance the best interests of his clients. Therefore, he is clearly laboring under a conflict of interest. Rule 1.7(a)(2) prohibits a lawyer from representing a client if “there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own … personal interests.”
After dispensing with the Kettlemans, Saul is left to confront his own fate. He returns to the empty office suite that he showed off to Kim earlier in the episode, shuts the door to the corner office, and has a major meltdown. In the end, however, his cellphone rings and he answers it with his goofy, fake receptionist voice - a sure sign that, whatever obstacles Saul faces, he remains open for business.