BETTER CALL SAUL EPISODE 1 & 2 Legal Analysis: Is Saul Ethical? Is Saul a Good Lawyer?

BETTER CALL SAUL EPISODE 1 & 2

Welcome, if you are not yet up to speed, read my first blog post in this series of articles analyzing Saul Goodman's legal acumen ethical and lawyering decisions.  

The premier season of Better Call Saul started out with a double header, and it did not disappoint.  In the first episode, the appropriately named 'Uno,' we are are 'introduced' to Jimmy McGill.  Jimmy is the poorly dressed, balding, overworked-underpaid, ridiculous court appointed lawyer that we have all come to love and expect to see on screen.    Just to clarify the mispersection that Saul/Jimmy is a public defender, he is not.  He IS supposed to be the stereotypical bottom of the barrel public defender.  In reality, he is a private lawyer taking court appointments.  The difference between a Public Defender and a court appointed lawyer can be huge.   Many public defender offices throughout the country, in particular those supported by Gideon's Promise and Jonathan Rapping, are working hard to eradicate the stereotypes.  For example, in Harris County, the Harris County Public Defender Office is the largest, and arguably best criminal defense law firm in town. Harris  County, however, also relies on the court appointment system that Saul Goodman/Jimmy McGill gets his checks from.  While there are great lawyers accepting court appointments, many are just plea mill lawyers looking to make as much money for as little work as possible.  You will not be treated that way by a Harris County Public Defender.

LET'S START WITH SOME ETHICS...

Not only is Jimmy/Saul a bottom of the barrel court appointed lawyer, but he is also a scheming sleazy personal injury lawyer. This brings us to Ethical Dilemma #1: Saul is zooming his rickety old yellow clunker down a neighborhood street when all of a sudden a young man smashes into his windshield, rolls on the ground, and feigns injury while his accomplice videotapes the scam.   Their stunt is kind of like this staged accident scheme going on in Houston.  When Saul realized he is getting played, he tries to do the right thing, before inevitably doing the wrong thing, simply because he is Saul Goodman. Saul conspires with these kids to stage an accident involving a potential client, who allegedly stole over $1,000,000 from public coffers, in order to solicit their business. 

There are so many unethical and illegal things going on here.  Let's talk about potential criminal charges Saul and the gang could be facing if he were in Texas: fraud, criminal mischief, conspiracy, barratry, and criminal solicitation for Saul.  Over in the civil courthouse, Saul and the gang could be liable for quite a bit of damages for anything from negligence, to intentional torts, such as assault.

The Texas Disciplinary Rules of Professional Conduct governs creates the ethical standards for lawyers and their employees.  Rule 8.04 Misconduct, says what a lawyer shall not do, and a lawyer shall not engage in conduct that constitutes barratry.  A lawyer commits barratry if, with the intent to obtain economic benefit, 

(a)(1) knowingly institutes a suit or claim that the person has not been authorized to pursue;                                                                                                                               (2) solicits employment, either in person or by telephone, for himself or for another;     (3) pays, gives, or advances or offers to pay, give, or advance to a prospective client money or anything of value to obtain employment as a professional from the prospective client;                                                                                                                                 (4) pays or gives or offers to pay or give a person money or anything of value to solicit employment;                                                                                                                         (5) pays or gives or offers to pay or give a family member of a prospective client money or anything of value to solicit employment; or                                                                     (6) accepts or agrees to accept money or anything of value to solicit employment.         (b) A person commits an offense if the person: (1) knowingly finances the commission of an offense under Subsection (a); (2) invests funds the person knows or believes are intended to further the commission of an offense under Subsection (a); or (3) is a professional who knowingly accepts employment within the scope of the person's license, registration, or certification that results from the solicitation of employment in violation of Subsection (a). 

So, Saul messed up BIG TIME.  He committed barratry.  He violated Rule 8.04.  Let's see what other rules Saul might have violated:

1. Rule 3.01 Meritorious Claims and Contentions: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous.
2. Rule 3.03 Candor Towards the Tribunal: (a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (5) offer or use evidence that the lawyer knows to be false.
3. Rule 4.01 Truthfulness in Statements to Others: In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client.
4. Rule 4.03 Dealing With Unrepresented Person: In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
1. (by telling Tuco Salamanca the BS story he told)
5. Rule 4.04 Respect for Rights of Third Persons: (b) A lawyer shall not present, participate in presenting, or threaten to present: (1) criminal or disciplinary charges solely to gain an advantage in a civil matter; 

STORYTELLING WITH SAUL

For all that Saul is lacking in common sense and good decision making skills, Saul is ONE HELL OF A STORYTELLER.  Storytelling is the most effective method of communication, we remember stories.  We remember emotions, sensations, vivid colors and the such.  On excellent story teller associated with Gideon's Promise is a guy by the name of Brett Willis.  He teaches a course on the 4 Essential Elements of a Great Story: Sex, Love, Food, and Violence (I think).  

SCENE:  Saul and the numnuts are tied up, dragged to the desert, and face certain death.  Saul manages to talk his way out of harm, yet, in a moment that humanized him for the viewers, Saul's turns around, stares down the lunatic Tuca Salamanca, and tries to save the lives of his co-conspirators.  How does Saul do it?  He doesn't overtly plead for mercy.  He doesn't cry.  He doesn't become violent.  HE TELLS A STORY that goes something like this:

Think about their mother... sweet little lady, a widow that works hard... all day, every day just like her mother did before her, from dawn till dusk, scrubbing the floors of rich people. She needs a cane to walk, she has arthritis, and still, she works every day.  For herself?  No.  For them, these two nimwits, her boys, the apples of her eye. You say they don't deserve her, maybe so, but they are all she's got.  You turn them inside out, think what happens to her. ... The way I see it, you are tough but you are also fair, you are all about justice. ...Ten years from now they will remember.  Ok let's talk proportionality. You have to decide whats the right sentence.  (Every time Tuco has a crazy idea of mutilation, such as the Colombian neck tie, Saul brings him back to Earth).  Break their legs, one leg each.  They can't skateboard for six months, and they will be scared of you for life.  You can show everyone that you are fair and that you are just.

Saul's ability to tell as story, a story that didn't force the issue, but rather subtly conveyed the end goal, saved the lives of those nimwits.  Let's see what he did there:  First, he talks about their mother. Just about everyone has a mother, thus, just about anyone can connect to this story right off the bat. Next, Saul uses words that describe her and make her seem so real and fragile that you can see her. He doesn't just say she is old and can hardly walk, she needs a cane to walk.  If I saw Tuco's abuelita walking with a cane, so did Tuco, and that's the point!  Then, Saul uses the emotion of love, motherly love to tell a mini-story about a mother who worked so hard for peanuts her entire life just to care for her boys...they are all she's got.  All of a sudden, the fate of the two boys isn't about the boys, or even Tuco, it is about their mother...it is about Tuco's abuelita. Finally, Saul negotiates with great success by starting at the best possible outcome, and countering Tuco's offer with a more and more reasonable offer each time.  In a sick way, while Saul may not have won, Saul's story did.  And that, ladies and gentlemen, is what great lawyers do.  

* I would also like to point out two other great things Saul did, especially as an appointed lawyer: First, he went to visit his clients in jail, and introduced himself.  Based on my client centered studies, one of the most valuable thing a lawyer can do for a client is humanize them and listen to them, because it is probably the first time in their life a person in the system has.

About the Author:  Cory Roth is a young lawyer, and proud to represent citizens (and non-citizens) accused of crimes in Texas.  He has been fortunate to learn from some of the best early in his career.   His early successes include winning his first jury trial, a felony sex case, and his first bench trial, as well as his first motion to suppress.