Standard Of Review: The Legal Ethics (Or Lack Thereof) Of Better Call Saul

Have you ever wondered about the the legal ethics and attorney misconduct depicted on Better Call Saul? This lawyer writes an entire blog dedicated to Saul Goodman's misdeeds.

This week, I am giving readers a respite from my own opinions about Better Call Saul. Instead, I interviewed Nicole Hyland, who has been writing a blog entitled “The Legal Ethics of Better Call Saul.” Hyland is a partner at Frankfurt Kurnit Klein + Selz, PC, and is the Chair of the Committee on Professional Ethics of the New York City Bar Association. I interviewed her before this Monday’s episode “RICO” had aired, which is why we discuss the fact that there are three episodes left in the season. This transcript contains spoilers up through the March 16, 2015, episode “Bingo.”

(This interview has been condensed for space and clarity.)

Harry Graff: Let’s talk a little bit about Better Call Saul, but first I would just ask you to just give a little bit about your background. Obviously from your bio you have a lot of ethics and professional responsibility experience. Can you just explain a little bit about your background in that area?

Nicole Hyland: I am a litigator in the first instance. I started out as a litigator. When I moved to my current firm Frankfurt Kurnit, I continued to do litigation, but one of the partners at the firm, Ron Minkoff, is very involved in the professional responsibility area. He started having me work on his matters and his cases, and so just gradually over time I got really involved in ethics and professional responsibility and I really became very interested in it and got a lot of satisfaction out of working with lawyers, trying to help them kind of sort through the rules and their own conduct. I decided to make it my focus.

HG: What made you decide to start writing this blog? Were you a Breaking Bad fan? Were you watching Better Call Saul from the beginning? What gave you this idea?

NH: I was definitely a Breaking Bad fan, and when they introduced Saul Goodman, I just — I loved that character. I do a lot of CLE programs on ethics, and I write a lot on ethics, so I’ve always wanted to do something with that character. It would be great to do a whole CLE program with clips and his interactions on the show, but I kind of had that thought for a long time and I never got around to it. Then, when they decided to do Better Call Saul, I was really happy about that, because, as I said, I really loved the character and I started watching the show.

Then I listened to, I think, almost every podcast about the show that is out there and people would talk about different aspects of the show, but every time they would sort of try to talk about the ethics, and they would frequently get it wrong. They are not lawyers, let alone ethics lawyers, so the people who are commenting on that part of his actions would understandably not know what they were talking about.

Sponsored

After watching three or four episodes and listening to these podcasts, I really feel like there is this area of commentary that is missing on his antics. I started writing up my own analysis of what he is doing and it kind of went from there.

HG: I noticed while reading the blog that obviously you are a New York attorney and you usually cite to the New York state ethics rules, but also you occasionally cite to the ethics rules from New Mexico. What makes you decide in any instance to look at both rules? I couldn’t necessarily discern a pattern about when you cited to New Mexico. Are you looking at the New Mexico rules as well for every issue?

NH: You’ve shown a great deal of insight in noticing that there’s absolutely no pattern. What happened was, when I first started doing my write-up of Better Call Saul, I had been publishing my posts on a blog called The Legal Ethics Forum. That is probably the leading blog about legal ethics, so anyone who is interested in legal ethics reads this blog. I have been writing for this blog for years. I am a contributor, among many other people, and so my original policy was rather than try to figure out whether his conduct complied with the rules in New Mexico in 2002 when he was practicing, I am a New York ethics lawyer, so I am just going to analyze this under New York rules.

That is what I know, so I did that in the first two episodes that I wrote up. Someone on the blog who I know, who is a friend of mine, noticed that one of the issues, which was confidentiality, would have probably been decided differently under New Mexico’s rules, so I looked up that rule and I agreed with him that, in fact, the analysis was different. So for that particular issue, the confidentiality issue, I thought it was worth pointing out that the analysis was different under New York vs. New Mexico.

I thought that lent a really interesting kind of perspective to that discussion. In most instances, I am just looking at New York’s rules. If someone points out to me that there is a difference in New Mexico or if I happen to run across some difference that I notice, I am very happy to dig into that, but I am not going out there looking for distinctions between New York and New Mexico.

Sponsored

HG: Another thing I noticed was that New York Rule 8.4 seems to come up a lot. Sometimes a lot of the ethical issues seem straightforward, especially if he is committing crimes or helping people commit crimes. Have there been any ethical issues that have come up so far that you either had trouble finding an answer to or maybe you were surprised at the answer?

NH: That’s a good question. Your Rule 8.4 point is funny because I think in my first post I said that you can expect to see this one come up a lot, and we did. One of the things that came up that I was glad I had an opportunity to talk about is Rule 1.18, which is the prospective client rule. Because for New York it is a relatively new rule. I was glad to have the opportunity to talk about it, because a lot of the time people don’t always realize they have duties to prospective clients. For example, the conversation between Saul and Kim when he is painting her toenails at the salon and he is making fun of… I think it’s Tony the toilet friend or whatever.

HG: Yeah, the toilet guy.

NH: The “sex toilet.” He is doing his impersonation and it is very funny and it is a cute scene, and I don’t think anyone watching that scene would think he is doing anything wrong. But in fact, under Rule 1.18, he is violating his duty to the prospective client. Even though the client did not hire him, he still qualifies under the rule as a prospective client who never became an actual client, and you have a duty of confidentiality to your prospective clients. Not only that, but in this case, he signed a NDA, a non-disclosure agreement.

He did not look at it before he signed it, but he signed it. These are two layers of confidentiality that you have to this guy, and you are talking to your friend about this invention. Now of course, it is probably a “no harm, no foul” situation. Kim is not going to do anything with that information, but technically it is a rule violation.

HG: Actually, while reading your blog, I had not thought about that at all when I was watching that scene. I imagine that kind of thing happens a lot in real life, where two lawyers are sitting around talking about their clients, or prospective clients, making fun of them. When you are evaluating a scene such as that, is that something you think about? How to square the letter of the ethics rules with what is probably a common practice of people, just talking about things, whereas, as you say, there may be no “harm, no foul,” but technically they are violating an ethics rule?

NH: The thing that I always try to remind people of is that legal ethics only rarely intersect with real life ethics, so a lot of what Saul does and what people like and admire about him may even be sort of moral in the real-world sense, but it could be technically a violation of legal ethics. Those things do not always mesh with each other. Again, as you said, it is so common for lawyers to talk about their clients or their prospective clients with other lawyers in particular.

I think I even mentioned this in the blog post where I said that there is a way to do that ethically, which is to talk in hypotheticals. The rules, or the comments to the rules, even accept that as a method of doing that — I am not going to say who it is and I am not going to give you enough details so you could figure out who it is, but here is what happened. That is how you are supposed to talk about it if you are going to talk about it. In Jimmy’s case or in Saul’s case, that does not work for that particular example because he signed the NDA, but for the most part, he would be fine with talking about some of these issues with Kim, as long as he did not include enough identifying information for her to figure out who he was talking about.

HG: Another one of the issues that I thought was particularly interesting in your first few posts was who is Jimmy’s client? Is it Nacho? Is it the Kettlemans? Could you talk a little more about that determination? How do we decide, given these crazy circumstances, how Jimmy determines which one of these people, if any, is his client?

NH: To some extent, I really glossed over that. I sort of said that it is an interesting question, and then I did not answer it because it is a tricky question. Nacho is definitely his client at the point where Jimmy shows up in the police station and starts talking to him. Definitely at that point, they have an attorney-client relationship. The question is did they have one before that? When Nacho turns up in Jimmy’s office to suggest this scheme against the Kettlemans, I do not think that technically he is a client, because he is not seeking out Jimmy’s help as a lawyer; he is seeking out Jimmy’s help to concoct this scheme.

However, then Jimmy does go on to say: look, everything you tell me is confidential, I am not going to say anything. So maybe at that point, when Jimmy responds and sort of blesses the relationship with confidentiality, one could argue that is the point where it did become an attorney-client relationship. It’s a unique situation that Jimmy finds himself in. I don’t know. I don’t have an answer really to whether the attorney-client relationship formed as early as that initial communication in the office, but certainly by the time he shows up at the precinct, there is an attorney client relationship at that point.

(Flip the page to continue reading Harry Graff’s interview with Nicole Hyland.)