Warning: Spoilers Ahead!
After six episodes, I’m already a big fan of Better Call Saul, the spin-off and prequel to Breaking Bad, which follows the trials and tribulations of Saul Goodman, an ethically challenged lawyer played by Bob Odenkirk. I was skeptical about whether Breaking Bad’s creators could pull off entire series devoted to Saul Goodman, and I appreciate some of the criticism I’ve read about slow pacing and lack of dramatic tension. But, I’m enjoying the series so far, especially Odenkirk’s performance, and am cautiously optimistic about the future (of the series that is; we know that Saul’s future is pretty bleak, unless you dream of managing a Cinnabon in Omaha).
I've noticed, however, that reviews and commentary about the show lack any informed discussion about the ethical implications of Saul’s conduct. While Saul has not yet reached the depths of moral bankruptcy he achieves in Breaking Bad, every episode of Better Call Saul exposes us to a host of ethical issues. Of course, what I'm referring to is "legal ethics," which is, in many respects, entirely distinct from "real world" ethics.
I’m a New York ethics lawyer, so I will base my discussion on the New York Rules of Professional Conduct. The New York Rules may differ significantly from the rules that governed New Mexico lawyers in 2003, when the events of Season 1 take place. But, let’s not waste time being persnickety about such things. Let’s get to the action.
The first two episodes of the series (entitled Uno and Mijo) are really one 2-hour long Series premiere, so I will treat them together. Familiarity with the plot is assumed, but you can read official recaps here and here (or use Google to find many unofficial recaps).
The Skateboard Scam:
Craig Kettleman is a defendant in a high profile criminal case, arising from his embezzlement of $1.6 million from the County treasury. Saul has an initial meeting with the Kettlemans and, although Craig seems happy to hire him, his wife Betsy is less enthusiastic. While driving away from this initial meeting, Saul places an order on his cell phone for a floral arrangement to be sent to the Kettlemans. Suddenly, Saul collides with a skateboarder who, along with his twin brother, tries to scam Saul into paying them $500 to avoid police intervention. Not one to miss an opportunity, Saul recruits the skateboarders to execute a scam against the Kettlemans. Saul's plan is to use the twins to stage an accident with Mrs. Kettleman’s station wagon, at which point Saul will fortuitously show up to intervene and save the day. Saul hopes that his heroics at the accident scene will make Mrs. Kettleman to reconsider her decision to reject Saul as an attorney.
At a minimum, Saul’s conduct violates Rule 8.4(c), which prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.” By the way, you can expect this rule to make repeated appearances in future posts. It is impossible to say whether Saul’s strategy would have succeeded (and/or led to further ethical violations), since the skateboarding twins mistakenly target a similar car belonging to an elderly lady, who turns out to be the grandmother of notorious gang member Tuco from Breaking Bad.
Pretending to be Special Agent Jeffrey Steele:
After tracking down the skateboarding twins to Tuco's house, Saul is bound, gagged and taken to the desert where Tuco threatens to kill him and the twins. When Tuco rejects Saul's truthful explanation of mistaken identify, Saul desperately tries to talk his way out of the perilous situation by pretending to be a federal agent investigating Tuco's drug ring.
Although technically a violation of Rule 8.4(c), I’m going to give Saul a pass on this lie. When you’re tied up in the desert staring down the barrel of a madman's gun, I think you’re allowed to say anything you think might save your life. But, it’s important to note that the rule itself makes no exception for understandable or excusable lies. Although most lawyers won’t find themselves pleading for their lives in the New Mexico desert, they might be tempted to engage in other types of deception. A classic example of this is the undercover investigation, which inherently involves either direct or indirect deceit, aimed at digging up incriminating information about an adversary. While some court decisions and ethics opinions have permitted attorney deception in certain types of undercover investigations, Rule 8.4(c) is written absolute terms and lawyers violate it at their peril.
Convincing Tuco to Break the Skateboarders’ Legs:
This actually isn’t as bad as it sounds. Tuco is about to kill the skateboarders in the desert, when Saul – using extraordinary powers of persuasion – convinces Tuco to break one leg of each skateboarder instead, arguing: “They can’t skate for six months, and they’re scared of you forever.” Saul appeals to Tuco's ego, likening him to a wise judge who metes out punishment that's proportionate to the crime. After Tuco breaks each of the skateboarder's legs, Saul rushes them to the ER and pays their medical bills. When one of the twins accuses him of being “the worst lawyer ever,” Saul counters: “I talked you down from a death sentence to six months’ probation. I’m the best lawyer ever.” I might have to reluctantly agree. So, Saul may get high marks on Rule 1.1 (providing competent representation to a client), but he may have violated other rules. For example, assuming the twins are his clients (which is an interesting question), their energetic protestations during Saul’s negotiation with Tuco suggest they are not on board with the agreement to break their legs. Rule 1.2(a) states that “a lawyer shall abide by a client’s decisions concerning the objectives of representation” and “shall abide by a client’s decision whether to settle a matter.” Building on the scene’s analogy to a plea negotiation in a criminal case, the rule further states that “the lawyer shall abide by a client’s decision, after consultation with the lawyer, as to a plea to be entered.” Although a broken leg is objectively better than death, it was still the skateboarders’ decision whether to accept the "plea."
Not Reporting Nacho’s Plan to Steal $1.6 Million From the Kettlemans:
Episode 2 ends with a surprise visit from Nacho (Tuco’s more reasonable associate in the desert). Nacho proposes to steal the $1.6 million that Mr. Kettleman embezzled and offers to pay Saul a “finder’s fee” if he helps. Saul declines, but assures Nacho that the conversation is confidential. This raises an interesting question. Does Saul have an obligation to report this anticipated crime; or, alternatively, does he have a duty to keep the information secret? Let’s assume that Nacho is a client (again, an interesting question). Under Rule 1.6, Saul has a duty not to reveal confidential information, except in certain circumstances. One of those exceptions is “to prevent the client from committing a crime.” But note that this is a “permissive” exception. It means that Saul may reveal the information, but is not obligated to do so. If Nacho is not a client, but is – arguably – a prospective client, Rule 1.18 provides that “a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation,” except in certain circumstances. Again, the rules permit, but do not require the lawyer to reveal information about a future crime learned from a prospective client. Of course, Nacho is probably not a prospective client either, since he does not approach Saul to discuss “the possibility of forming a client-lawyer relationship,” but to propose a criminal enterprise. The question then becomes, do lawyers have an independent legal duty to report information about a future crime, where the information is not learned in the course of representing a client (i.e. is not “confidential information” under Rule 1.6). The answer, to my knowledge, is no. I’m interested in hearing whether others believe there is such a duty.
That’s it for now. I will try to cover Episodes 3 through 6 in the next few weeks, until I have caught up with the series.