Ethics and Better Call Saul

Last year I wrote an article lauding the first season of AMC’s series “Better Call Saul,” a spinoff ‘dramedy’ series tracking the origin of “Breaking Bad’s” unscrupulous, but compassionate, drug lawyer Saul Goodman. The series begins in the early 2000’s, when Saul Goodman was then Jimmy McGill, a former grifter who attempts to carve out a law-abiding life as an attorney in Albuquerque, New Mexico.

One of Jimmy’s primary motivations to leave his life of petty crime and succeed as a lawyer is his relationship with his brother Chuck McGill, a pillar of the local legal community and founding partner of a prestigious firm. Jimmy’s struggle for legitimacy is ultimately Sisyphean: the more he tries to impress his older brother, the more his baser, corruptible nature surfaces. Jimmy’s attempted transformation is further thwarted by Chuck’s general skepticism of Jimmy’s merits as a lawyer and of his ability to truly change. Chuck’s treatment of Jimmy is not always fair, tinged with elitism and big brother competitiveness, providing viewers with sympathy for Jimmy’s character and invoking the adage that people will act the way they are expected to act.

Saul Goodman’s character in “Breaking Bad” is essentially a five-season treatise of what not to do as a lawyer. Don’t be the legal arm for a multinational methamphetamine cartel. Breaking Bad ethics exam over.

Yet “Better Call Saul” is a more nuanced examination of the do’s-and-don’ts of the practice of law, with Jimmy constantly toeing the line of ethical behavior. Here are a couple examples of Jimmy’s more egregious conduct in Season 2, viewed through the lens of the Rules of Professional Conduct.

Disclaimer: the actions occur nearly 14 years ago in New Mexico, but current California Rules are applied.

Scenario 1:

Jimmy fortuitously uncovers a massive scam of elderly residents by an assisted living community called Sandpiper Crossing. As a result of originating this potentially lucrative class action, Jimmy is hired by a ‘silk-stocking’ law firm in Santa Fe. The primary obstacle in the case is to sign up the hundreds of affected clients, with the direct mail solicitations not gaining any traction, possibly due to Sandpiper stealing its residents’ mail.

In the episode “Amarillo,” Jimmy waits outside a bus full of Sandpiper residents heading out for lunch. Jimmy boards the bus, bribes the driver, and addresses his captive audience. He analogizes the scam to being overcharged for biscuits, and likens himself to a benevolent nephew who can right the wrong. Within weeks, Jimmy garners 200 signed retainers, while the firm’s direct mailers only reap a single signature.

The Ethics:

Rule 1-400 prohibits in-person solicitations of prospective clients unless the lawyer has a family or prior professional relationship with the client. Here, Jimmy clearly breaches the Rule by making in-person contact with potential clients with whom he is not related and has no prior relationship.

The Rule further proscribes false or deceptive solicitations, and prohibits communications that are intrusive, coercive, or vexatious. Jimmy’s conduct may also violate this Rule since he doesn’t explain the subject of the litigation accurately, and boarding a bus to sign up elderly residents who just want to eat lunch would likely be deemed intrusive, coercive, or vexatious.

Scenario 2:

Jimmy is entangled with a white-collar businessman who moonlights by selling pharmaceutical drugs to a cartel. The police stumble upon a hidden compartment in the man’s house that they suspect was used to stash contraband.

In the episode “Cobbler,” Jimmy convinces police that the compartment was used to hide bizarre fetish videos depicting his client sitting on pies and crying. Jimmy advances the cover-up by creating such a pie-sitting video with his client. The police buy the explanation, likely because it is simply too embarrassing to be fiction.

The Ethics:

Jimmy is actually not in violation of any Rules by not revealing his client’s true criminal activities. Rule 3-100 only allows a lawyer to breach his client’s confidentiality when the illegal activity would likely result in death or substantial bodily injury, which is not implicated here. Disclosure in such dire situations is also not mandatory: refusal to breach confidentiality is not, in itself, a violation.

However, Jimmy is likely in violation of the duty of candor under California Business and Professions Code Section 6106, which prohibits the commission of any act involving moral turpitude, dishonesty or corruption. He also may be criminally liable for his conduct in concealing his client’s criminal activities through fraud and deception.

Conclusion:

Much like Walter White in “Breaking Bad,” Jimmy is a complicated man who does bad things, often with good intentions. While Jimmy begins as an earnest lawyer trying to make it on the ‘straight and narrow,’ Season 2 clearly portends Jimmy’s increasing tendency toward corruption. Lawyers and law students: enjoy, but do not imitate!