Better Call Saul... Episode 3... A Lawyer's Perspective... Lawyer and Investigator

SAUL GOODMAN: LAWYER & INVESTIGATOR

Jimmy McGill (Saul Goodman) isn't just a lawyer, he is also an investigator.  In the third episode of Better Call Saul, we see Jimmy venture out into the wilderness, on a hunch nonetheless, to try to exonerate his his wrongly accused client.  

Lawyers have a duty to not be ineffective.  One way lawyers are sometimes ineffective is that they fail to conduct an investigation.  The Supreme Court has long held that in order to be effective in a criminal case, a lawyer must conduct an investigation.

So, what does it mean to investigate?  A lawyer must make an effort to acquire tips, leads, information that either support his client's theory of innocence, or might help lower his client's sentence.  This means that a lawyer ought to ask his client some tough questions in the tough cases, such as whether his client was a victim of physical or sexual abuse as a child.  More generally, though, the lawyer has a duty to track down alibi witnesses, character witnesses, event witnesses, cops, take scene photos, acquire the offense reports, lab analysis, and conduct interviews.  Some lawyers have in house-investigators, and the price of representation includes the price of the investigator.  Other lawyers (most) may need their client to hire an investigator.  Personally, I enjoy tracking down leads, going to the scene, and interviewing witnesses, but that doesn't mean I can always be the one to do the job.

Jimmy McGill did an amazing job in episode 3:

First, Saul got himself into a really shitty situation. You see, when  a potential new client, or client speaks with a lawyer in private, the general rule is that whatever is said in that office is confidential... no one will ever know what was said.  A confidence is a confidence for life.  There are certain limited situations where a confidence may be broken.  I would also like to note that just because you speak to a lawyer in private does not mean there is a lawyer-client privilege, and this is a topic for another day. Here, Saul learned confidential information from his savior from episode 2, Nacho, and then broke his confidence by making an anonymous phone call to warn the Kettlemans that something was going to happen to them.

Second, Jimmy did something amazing!  Jimmy was voluntold to represent Nacho when Nacho showed up unannounced at his office (these things happen).  Jimmy, thinking his life was in danger (these thoughts also happen) is chased down by two guys who end up being cops.  Jimmy is then brought to lawyer visitation room and speaks to his client.  Of course, Nacho thinks Jimmy ratted on him.  Saul learns that his client claims he didn't make the Kettleman's disappear.  Jimmy messes up here.  He wanted his client to plead to 18 years.  He accepted the police' version of the story as true...that's what we call a plea mill lawyer.  Jimmy finally comes around to at least genuinely listening to his client's story and then pursues it.

So what does Jimmy do? He does what a good lawyer should do.  Jimmy goes to the scene of the 'crime,' like a lawyer should do in most cases.  He gets into the house and takes a tour, keeping a keen eye out for evidence or clues that will support his client's claim.  Jimmy walks into one of the child's rooms and sees the golden ticket: the little girl's doll is gone.  This is where Jimmy creates his theory of the case.  Jimmy thinks, if this girl was kidnapped, she would not have so carefully taken this doll. The doll would be there, or at the very least, the stand would be on the ground.  This "kidnapping" was staged so that the Kettleman's can escape with their stolen money!  THAT is Jimmy's theory of the case.  Next step, prove it....(even though a defendant doesn't have the burden of proof in a criminal case.

By the way, Jimmy did some good stuff to buy his client's confidence, namely, yelling at the DA and police as he is right next to the visitation room.  Clients want to believe their lawyer is fighting for them.

Of course, the police and the DA don't buy this story, because you know, a criminal is their best friend if it suits their needs.  Jimmy, however, goes back to the house and hikes miles through the desert and woods based on a few little clues.  Who does he find?  The Kettlemans!  What are they doing?  Singing Kumbayah! Why are the singing?  Because they think they got away! What do they have?  A bag full of money.

Case Closed.  Case Dismissed. Jimmy now has a client for life.

ETHICAL DILEMMAS

1. When can a lawyer break his confidence?

Rule 1.05 of the Texas Rules of Professional Responsibility governs confidentiality. 

(c) A lawyer may reveal confidential information: (1) When the lawyer has been expressly authorized to do so in order to carry out the representation. (2) When the client consents after consultation. (3) To the client, the client’s representatives, or the members, associates, and employees of the lawyers firm, except when otherwise instructed by the client. (4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law. (5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client. 23 (6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer’s associates based upon conduct involving the client or the representation of the client. (7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act. (8) To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.

(d) A lawyer also may reveal unprivileged client information. (e) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act. (f) A lawyer shall reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b). 

SO WHAT THIS MEANS is that Jimmy SHALL (lawyer speak for must) do reveal something confidential.  This means he probably ought to call the police and say something is going to happen that will likely result in harm to the Kettleman clan.  He should not however, disclose the name of who did it, and good for him that he didn't.   

2. When can a lawyer withdraw from representation? 

In this case, Jimmy had a duty to withdraw from representing Nacho because his services were being used to materially further the fraud on the Kettleman clan.

Withdrawal 21. If the lawyer’s services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule l.l5(a)(l). After withdrawal, a lawyer’s conduct continues to be governed by Rule 1.05. However, the lawyer’s duties of disclosure under paragraph (e) of the Rule, insofar as such duties are mandatory, do not survive the end of the relationship even though disclosure remains permissible under paragraphs (6), (7), and (8) if the further requirements of such paragraph are met. Neither this Rule nor Rule 1.15 prevents the lawyer from giving notice of the fact of withdrawal, and no rule forbids the lawyer to withdraw or disaffirm any opinion, document, affirmation, or the like.