Better Call Saul's “Chicanery”

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Better Call Saul’s “Chicanery” – An Analysis in Light of the Law Society of Newfoundland and Labrador’s Code of Professional Conduct Introduction

Chicanery, as defined by the Oxford English Dictionary, is “the use of complicated plans and clever talk in order to trick people.” It is also the title of the fifth episode of the third season of the American network AMC’s Better Call Saul, a prequel to the network’s hugely popular

Breaking Bad, which follows criminal lawyer Jimmy McGill in the years leading up to the events of Breaking Bad as he slowly loses the bearings on his moral compass and is transformed into

“criminal” lawyer Saul Goodman.

For context, the series opens with Jimmy McGill struggling to find his way as a sole practitioner. Jimmy was once a conman but after being saved from a jail stint by his morally upstanding older brother, Chuck, Jimmy vowed to change his ways. Chuck was a successful lawyer, and a founding partner of the prestigious Albuquerque law firm Hamlin, Hamlin, McGill.

At the beginning of the series, Chuck is suffering from an “allergy” to electricity, that he refuses to admit is psychosomatic in origin, and is living as a recluse. Jimmy originally took a job as a mailroom worker at his brother’s firm and attended law school online through the University of

American Samoa. Upon applying for a job at his brother’s firm and being rejected, Jimmy decided to go his own way.

Over the course of the series Jimmy realized that many of his misfortunes had been manufactured by Chuck, who was always jealous of Jimmy. Following this revelation, an associate at Chuck’s firm, Kim, chose to quit and work with Jimmy. As revenge, and to encourage a high- profile client to hire Kim, Jimmy secretly edited a document belonging to Chuck to contain an incorrect address, costing the client time and money, and damaging Chuck’s flawless reputation.

As this occurred, Chuck was slowly overcoming his allergy. Chuck eventually caught wind of this scheme and coerced Jimmy to confess, under the belief that Chuck had suffered a major relapse.

Chuck taped this confession, and let Jimmy learn of the tape. Enraged by his brother’s betrayal,

Jimmy broke into Chuck’s home and destroyed the tape. Chuck anticipated this and ensured that there were multiple witnesses present.

The episode in question sees Jimmy facing off with Chuck, in a disciplinary hearing to determine if Jimmy can continue to practice as a lawyer following Jimmy’s break-in and the destruction of the tape. Chuck believes that Jimmy is unfit to practice law due to his dubious past and believes that no matter how much his brother seeks to change, he will never be able to carry the ethical burden that comes with being a legal professional. Jimmy, meanwhile, believes that his brother is mentally ill and carrying out a vendetta against him, and that the tape was the ultimate betrayal and pushed him past his breaking point in a one-off incident.

This essay will seek to examine Jimmy’s misconduct, as presented in his disciplinary hearing, and determine what elements of the allegations against him would be grounds for discipline pursuant to the Law Society of Newfoundland and Labrador’s Code of Professional

Conduct (the “Code”). It will also examine whether Chuck would face any potential discipline for his own conduct.

The Allegations and their Ramifications

Robert Alley, the lawyer representing the New Mexico State Bar, in his opening remarks, set out the allegations against Jimmy as follows: “unlawfully altering, destroying or concealing material having potential evidentiary value. Mr. McGill broke into his brother’s house and destroyed an audio cassette which contained a recording of a conversation between himself and

his brother, Charles McGill.” Mr. Alley, at the behest of Chuck, was seeking that Jimmy be

disbarred for these infractions.

Jimmy’s counsel, his friend Kim, sought to counter these allegations by recolouring the

incident in question as a dispute between two brothers that had been falsely inflated by Chuck.

Jimmy’s entire defence hinged upon demonstrating Chuck to be jealous and vengeful and aimed

to paint his break-in as an act of passion following his attempts to placate Chuck, whom he attempted to show as struggling with a psychological condition (a psychosomatic “allergy” to

electricity which Chuck insisted was physical, and not psychological, in origin). Kim’s opening

defence of Jimmy reads as follows:

We don't dispute James broke into his brother's house, an act he regrets deeply, but

there is another side to this story. One not about calculation and ill intent, but about

two brothers whose relationship, after years of strain, finally broke. We believe

when you have the complete picture, you’ll understand James McGill is an asset to

our legal community, and he should remain a full member of it in good standing.

In their arguments Kim and Jimmy sought to use the context of the brotherly dispute, and

Chuck’s hate for his brother, to persuade the disciplinary panel to impose a lesser sanction, if any,

on Jimmy. The hearing came to a head after a display of clever tactics from Jimmy during his

cross-examination of Chuck which caused an outburst from the older McGill, who decried his

brother’s “chicanery” and demonstrated his jealousy and contempt for Jimmy. This swayed the

panel in Jimmy’s favour, and rather than being disbarred Jimmy is merely suspended from practice

for one year.

In Newfoundland, it is dubious that this line of argument would shield Jimmy from

reprimand. When one looks at this through the lens of the Code it is clear that the charge against

Jimmy contains a question of his integrity. Section 2.1-1 of the Code states that “a lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.” While it is clear that invading a home to destroy evidence is hardly an honourable endeavour, it is the commentary of this section that is truly damning to Jimmy’s effort to deflect this charge by characterizing the matter as a brotherly spat.

Commentary 2.1-1[1] states that “integrity is the fundamental quality of any person who seeks to practise as a member of the legal profession.” 2.1-1[2] states that “public confidence in the administration of justice and in the legal profession may be eroded by a lawyer’s irresponsible conduct. Accordingly, a lawyer’s conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety.” Finally, 2.1-1[3] states “dishonourable or questionable conduct on the part of a lawyer in either private life or professional practice will reflect adversely upon the integrity of the profession and the administration of justice. Whether within or outside the professional sphere, if the conduct is such that knowledge of it would be likely to impair a client’s trust in the lawyer, the

Society may be justified in taking disciplinary action.”

When one examines these commentaries, it is abundantly clear that characterizing Jimmy’s actions as part of a family feud would do little good in fending off the charges brought against him. Regardless of whether Jimmy was acting in a private or professional capacity, and even if his actions were to only be categorized as questionable, they would certainly reflect adversely upon the profession, and the Law Society would doubtlessly be justified in taking disciplinary action.

Even 2.1-1[4], which states that “Generally, however, the Society will not be concerned with the

purely private or extra-professional activities of a lawyer that do not bring into question the

lawyer’s professional integrity,” would not be enough to save Jimmy, as the destruction of the

evidence contained on the tape pushes this out of being a purely private activity, and a strong

argument can be made that destruction of evidence is not an extra-professional activity for an

individual whose professional obligation is to uphold the principles of justice.

It is also worth noting that Chuck would have a defence within the Code to Jimmy’s attempt

to characterize the allegations as a fraternal disagreement. Section 7.1-3(e) states that “unless to

do so would be unlawful or would involve a breach of solicitor-client privilege, a lawyer must

report to the Society conduct that raises a substantial question as to another lawyer’s honesty,

trustworthiness, or competency as a lawyer.” Chuck, as a lawyer, would have a duty to report

Jimmy’s actions to the Law Society, regardless of his personal feelings toward his brother.

The Fallout for Chuck McGill

Chuck’s actions would potentially be grounds for discipline. Jimmy’s attempts to paint

Chuck as unwell, particularly trying to show that his vendetta against Jimmy bordered on paranoid

delusion, have some footing in section 7.1-3(d), which states that a lawyer must report to the

Society “the mental instability of a lawyer of such a nature that the lawyer’s clients are likely to

be materially prejudiced.” At the centre of the McGill brothers’ feud was whether Chuck had made

a mistake in drafting a client document. This could paint Chuck’s potential instability as prejudicial to his clients, and thus would be grounds for discipline.

The larger problem facing Chuck is the fact that he secretly recorded Jimmy’s confession.

Section 7.2-3 states that “a lawyer must not use any device to record a conversation between the

lawyer and a client or another lawyer, even if lawful, without first informing the other person of

the intention to do so.” This rule, however, is slightly unclear. It is not immediately apparent if this

rule is intended to cover all communication between lawyers, or if this simply extends to

professional communications. Based on the fact that 7.2-1 and 7.2-2 both refer to duties in the course of practice, and 7.2-3 refers to client communications, it is likely that Chuck could make the argument that 7.2-3 would not apply in this scenario, as he did not record Jimmy during the course of his practice.

Conclusion

In the world of Better Call Saul Jimmy was able to goad Chuck to go on a tirade against

him during the course of the disciplinary hearing, demonstrating that Chuck held a longstanding

grudge against him and that his actions were fuelled more by his personal feelings about his brother

than a desire to protect the legal profession. As a result Jimmy was merely suspended from practice

for a year, rather than disbarred.

In Newfoundland, Jimmy would have certainly faced a disciplinary hearing for his actions

based upon the integrity provisions of the Code, particularly section 2.1-1 and its commentaries.

While in “Chicanery” Jimmy was able to lessen the impact of the allegations against him by

showing proof of his brother’s vendetta against him, this would likely not save him in

Newfoundland. Per section 7.1-3(e), Chuck would have a duty to report Jimmy’s misconduct to

the Law Society, and as such the claims of a vendetta would have less weight when confronted

with the fact that Chuck had an ethical duty to report Jimmy’s actions.

While Chuck’s actions may be grounds for discipline, it is unlikely that they would rise to

the level of Jimmy’s transgressions, and it is dubious if 7.2-3 would apply in this scenario. As

6 such, Jimmy would face a difficult task in explaining away his chicanery if he were a lawyer practicing in Newfoundland.

Ironically, it was Chuck’s vendetta that caused Jimmy, spurned by his brother’s betrayal, to abandon all semblance of ethical conduct, forego the McGill name, and embrace his alter-ego,

Saul Goodman. Ultimately, while fictional, the world of Better Call Saul demonstrates that a strong

Code of Professional Conduct can help prevent the rise of disreputable characters in the legal profession and prevent the kind of impropriety seen in “Chicanery.”