Better Call Saul”, by Nicole Hyland

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Session 4: Ethics CLE: NY Ethics (1.5); NJ Ethics (1.5)

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Session 4: Ethics CLE: NY Ethics (1.5); NJ Ethics (1.5) . “Don’t Try This at Home: The Questionable Ethics of Better Call Saul”, By Nicole Hyland . New York Rules of Professional Conduct Don’t Try This at Home: The Questionable Ethics of “Better Call Saul”

Presented by:

Nicole I. Hyland

May 14, 2016

1:30 PM-2:45 PM

New York CLE Credits in Ethics and Professionalism (1.5)

Content is appropriate for both newly admitted and experienced attorneys

INDEX

Page

1. "Don't“Don’t TryTry ThisThis atat Home:Home: TheThe EthicsEthics ofof Better Call Saul,"Saul,” by Nicole Hyland ...... 11

2. NewNew York York Rules Rules of of ProfessionalProfessional ConductConduct ...... 4343

i. Rule 2.1

ii. Rule 3.3

iii. Rule 4.1

iv. Rule 7.1

v. Rule 8.1

vi. Rule 8.4

3. SpeakerSpeaker BiographyBiography ...... 5656

AttachmentAttachment 11

PagePage 1 Don’t Try This at Home: The Ethics of Better Call Saul

Presented by Nicole Hyland, Frankfurt Kumit Kurnit Klein & Selz

PagePage 2 Episodes 1 and 2 (Uno and Mijo)

“The"The only wayway that entireentire car’scar's worthworth $500$500 isis ifif there’sthere's aa $300$300 hooker sitting sitting in in it!" it!” Warning: Spoiler Alert!

Better Call Saul is a spin-off and prequel to Breaking Bad, starring Bob Odenkirk as the ethically challenged lawyer,lawyer, JimmyJimmy McGillMcGill (who,(who, forfor reasons yetyet to be be revealed, revealed, transforms into Saul Goodman). I love the show so far,far, butbut mostmost reviewsreviews andand commentarycommentary lack any informed discussion about the ethical implications of Saul’sSaul's conduct. While Saul has not yet reached the depths of moral bankruptcy he achieves in Breaking Bad, every episode of Better Call Saul exposes us to a host of ethical issues. Of course, what I’mI'm referring to is "legal “legal ethics," ethics,” which is, in many respects, entirely distinct from "real “real world”world" ethics.

I'mI’m a a New New York York ethics ethics lawyer, lawyer, so I will will base base my my discussion discussion on the New York Rules of Professional Conduct.Conduct. TheThe NewNew YorkYork Rules may differ significantly fromfrom the rules that governed NewNew MexicoMexico lawyerslawyers inin 2002,2002, whenwhen thethe events of Season Season 1 take take place. place. Occasionally, if if II feelfeel likelike it, I may may throw throw in a a reference reference to the the New New Mexico Mexico Rules of Professional Conduct. But, let’slet's not waste time being persnickety about such things. Let’sLet's get to the action.

The first two episodes of the series (entitled Uno and Mijo) are really one 2-hour long Series premiere, so I will treat them together. Familiarity with the plot is assumed.

The Skateboard Scam: Craig Kettleman isis a defendant defendant in a a high high profile profile criminal criminal case, case, arising arising from from his his embezzlement of of $1.5 $1.5 million million from from the County treasury. Saul has has an an initial initial meeting with the Kettlemans and, although although Craig seems seems happy happy to to hire hire him, him, his his wife wife Betsy is less enthusiastic. While driving away from this initial meeting,meeting, SaulSaul placesplaces anan order on his cell phone for a floral arrangementarrangement to be sent to the Kettlemans. Suddenly, Suddenly, Saul Saul collides collides with

2 The Ethics of Better Call Saul

PagePage 3 a skateboarder who, who, along along with with his twin brother, tries toto scamscam SaulSaul into payingpaying themthem $500$500 to avoid avoid police police intervention. intervention. NotNot one to to miss miss an an opportunity, opportunity, Saul Saul recruits recruits the the skateboarders to execute a scam against the Kettlemans. Saul's Saul’s plan plan is to use the twins twins to stage stage an an accident accident with with Mrs. Mrs. Kettleman's Kettleman’s station station wagon, at which which point point Saul Saul will will fortuitously showshow upup toto interveneintervene andand savesave thethe day.day. Saul hopes that his heroics at the the accident scene will make Mrs. Kettleman Kettleman reconsider herher decision toto rejectreject SaulSaul as an attorney.

At a a minimum, minimum, Saul's Saul’s conduct conduct violates violates Rule Rule 8.4(c), 8.4(c), which which prohibits prohibits "conduct “conduct involving involving dishonesty, fraud, deceit or misrepresentation." misrepresentation.” ByBy thethe way,way, you can expect this rule to make repeated repeated appearances in future posts. It also also probably probably violates Rule 8.4(b) 8.4(b) (prohibiting “illegal "illegal conduct conduct that that adverselyadversely reflectsreflects onon the the lawyer's lawyer’s honesty, honesty, trustworthiness oror fitnessfitness asas aa lawyer”)lawyer") andand RuleRule 8.4(h), a a somewhat somewhat vague vague "catch-all" “catch-all” provision that prohibits “any"any otherother conductconduct thatthat adverselyadversely reflects on the lawyer’slawyer's fitness as a lawyer." lawyer.”

It is impossible toto saysay whetherwhether Saul’sSaul's strategy wouldwould havehave succeeded (and/or led led to to further ethical violations), since the skateboarding twins mistakenly target a similar car belonging to an elderly elderly lady, lady, who who turns turns out out to to be be the the grandmother grandmother of of notorious notorious gang member Tuco from Breaking Bad. Bad.

Pretending to be Special Agent Jeffrey Steele:

After tracking down the skateboarding twins toto Tuco’sTuco's house,house, SaulSaul is bound, gagged and taken to the the desert desert where where Tuco Tuco threatens threatens to to kill kill him and the the twins. twins. When Tuco Tuco rejects rejects Saul'sSaul’s truthful explanation of mistaken identity, SaulSaul desperately tries to talk his way out of the perilous situation byby pretendingpretending toto bebe a federal agent investigating Tuco's Tuco’s drug ring.

Although technically aa violationviolation ofof RuleRule 8.4(c),8.4(c), I'm I’m going to give Saul a pass on on this this lie.

The Ethics of Better Call Saul 3 PagePage 4 When you're you’re tied up in the the desert desert staring staring down the barrel of a madman's madman’s gun, I think think you'reyou’re allowed to say anything anything you think might save your life. But, it's it’s important to note that the rule rule itself itself makes makes no no exception exception for for understandable understandable or or excusable excusable lies. lies. Although Although most lawyers won’twon't find themselves pleadingpleading forfor theirtheir liveslives inin thethe New Mexico desert, desert, they might be tempted to engage in in other other types types of of deception. deception. A A classic classic example of of this this is the undercover investigation, investigation, which inherently involves either direct or indirect deceit, aimed at digging digging up up incriminating incriminating information aboutabout anan adversary. While some court court decisions andand ethics opinions havehave permitted attorney deception inin certain types of undercover investigations, RuleRule 8.4(c)8.4(c) is written absolute terms and lawyers violate it at their peril.

Convincing TucoTuco to BreakBreak the Skateboarders’Skateboarders' Legs:

This actually isn't isn’t as bad as it sounds. Tuco is about to kill thethe skateboardersskateboarders in the desert, when Saul — – usingusing extraordinaryextraordinary powerspowers of persuasion — – convincesconvinces TucoTuco toto breakbreak oneone leg of each skateboarder instead, arguing: arguing: "They “They can't can’t skate for six months, andand they’rethey're scared of you forever.”forever." SaulSaul appeals to Tuco’sTuco's ego, likening him to a wise judge who metes out punishment that’sthat's proportionate toto thethe crime.crime. AfterAfter TucoTuco breaksbreaks eacheach of the skateboarder’sskateboarder's legs, Saul rushes rushes them to the ER ER and and pays pays their their medical medical bills. bills. When one one of of the the twins twins accuses him of being "the “the worst lawyer ever,”ever," Saul counters: “I"I talked you down from a death sentence to six six months' months’ probation. probation. I’mI'm the best lawyer ever.”ever." II might might have to to reluctantly agree.agree. So,So, Saul may get get high high marks marks on on Rule Rule 1.1 1.1 (providing (providing competent competent representation toto aa client), but he may have violated violated other rules. For example, assuming assuming the twins twins are are his his clients clients (which (which is is an an interesting interesting question), question), their their energetic energetic protestations protestations during Saul’sSaul's negotiation withwith TucoTuco suggestsuggest theythey areare not on board with thethe agreement to break their legs. Rule 1.2(a) 1.2(a) states states that that "a “a lawyer lawyer shall shall abide abide by by a a client's client’s decisions decisions concerning the objectives of representation”representation" and “shall"shall abideabide by a client’sclient's decision whetherwhether to settle a matter." matter.” Building onon thethe scene’sscene's analogyanalogy to aa plea negotiation in a criminal case,case, the rule further further states that "the “the lawyer shall abide by by a a client's client’s decision, decision, after after consultation consultation with the lawyer, as to a plea to be entered." entered.” Although Although a broken leg is objectively better than death, it was still the skateboarders' skateboarders’ decision whether to accept the the "plea." “plea.”

Not Reporting Nacho’sNacho's Plan to Steal $1.5 Million Million From the Kettlemans:

Episode 2 ends with with a surprise surprise visit from NachoNacho (Tuco’s(Tuco's more reasonable associate in the desert). Nacho proposes to steal the $1.5 million million that Mr. Kettleman embezzled and offers to pay pay Saul Saul a a "finder's “finder’s fee" fee” if if he he helps. helps. Saul Saul declines, declines, but but assures assures Nacho Nacho that that the the conversation isis confidential.confidential. This This raisesraises anan interesting question.question. Does Does SaulSaul havehave an obligation toto reportreport thisthis anticipatedanticipated crime;crime; or,or, alternatively,alternatively, doesdoes hehe havehave a duty to keep the information secret?secret?

Let'sLet’s assume that Nacho is a client (again, an interesting question).question). UnderUnder RuleRule 1.6,1.6, Saul

4 The Ethics of Better Call Saul PagePage 5 has a duty duty not not to to reveal reveal confidential confidential information, information, except in certain circumstances. OneOne of those exceptions is "to “to preventprevent the client from committing aa crime.”crime." ButBut notenote that this is a "permissive"“permissive” exception.exception. ItIt meansmeans that Saul may reveal the the information, information, but is not obligated to do so. If If Nacho Nacho is is not not a a client, client, but but is is — – arguablyarguably –— a a prospective prospective client, client, Rule Rule 1.181.18 provides that "a “a lawyer who who has has had had discussions discussions with a prospective prospective client shallshall notnot useuse or reveal information learnedlearned in the consultation," consultation,” exceptexcept inin certain circumstances. Again,Again, the rules rules permit, but do not require the lawyer to reveal information about a future crime learned from a prospective client. Of course, Nacho is is probably probably not a prospective client either, since he does not approach approach Saul Saul to to discuss discuss "the “the possibility possibility of forming forming a client-lawyer client-lawyer relationship," relationship,” as the the rule rule states, states, but but to to propose propose a a criminal criminal enterprise. enterprise. The question question then becomes, do lawyers have an an independent independent legal legal duty duty to to report report information information aboutabout aa future crime, where the information is notnot learnedlearned in the course of representing a client (i.e. (i.e. is not "confidential “confidential information"information” underunder RuleRule 1.6).1.6). The answer, to to my my knowledge, is is no. I'm I’m interested interested in hearing whether others believe there is such a duty.

I should should note that, that, unlike unlike New New York, York, New New Mexico Mexico does does require require disclosure disclosure of of confidential confidential information “to"to preventprevent aa client committingcommitting aa criminalcriminal actact thatthat thethe lawyerlawyer believes is is likely likely to result in imminent imminent death death or or substantial substantial bodily bodily harm." harm.” Given Given Nacho's Nacho’s propensity propensity for for threatening removal of digits, SaulSaul might not bebe faulted for believing thethe Kettlemans were in danger danger of of substantial substantial bodily harm.harm. InIn fact, Saul's Saul’s actions actions in Episode Episode 3 3 suggest suggest that's that’s exactly what he thinks. thinks.

March 18, 2015

The Ethics of Better Call Saul 5

PagePage 6 Episode 3 (Nacho) "I'll“I’ll taketake anan edible arrangement as a sorry. Heavy on the Pineapple." Pineapple.” Warning: Spoiler Alert!

In my previous post, I discussed various ethical issues that arose in Episodes 1 and 2 of Better Call Saul. Saul. Now I turn to Episode 3. FamiliarityFamiliarity with the plot is assumedassumed..

Calling the KettlemansKettlemans toto WarnWarn ThemThem They Are in Danger:Danger.

In Episode 3, Saul Saul remains remains troubled troubled by by Nacho's Nacho’s threats threats to to steal the $1.5 $1.5 million, million, which which the Kettlemans allegedly embezzled from from the the county county treasury. treasury. Saul Saul initially initially calls calls Kim, Kim, hinting hinting that the Kettlemans might be in danger, but then backs down and claims to be drunk. After tossing andand turning onon hishis officeoffice sofa,sofa, SaulSaul drivesdrives toto aa payphonepayphone andand makesmakes anan anonymous call to the Kettlemans warning them of the danger. In my previous post, I discussed whetherwhether Saul was either either required or permitted to report Nacho’sNacho's plan. The answer turned, to some extent, on whether Nacho is a a client. client. If If not, not, there there is is no no ethical ethical prohibition prohibition against against Saul disclosing informationinformation learnedlearned fromfrom NachoNacho duringduring theirtheir meetingmeeting inin EpisodeEpisode 2.2. IfIf NachoNacho is a client, Saul owes him a a duty duty to to preserve preserve any any confidential confidential information. information. UnderUnder RuleRule 1.6, however, an attorney attorney is is permitted permitted to to disclose disclose confidential confidential information information either "to “to prevent reasonably certaincertain deathdeath or substantial substantial bodilybodily harm”harm" oror "to “to prevent the client client from from committing aa crime.”crime." InIn light ofof these exceptions, II would argue that Saul Saul is is ethically ethically permitted - but not required - to disclose the information underunder New York's York’s rules.

.,_

6 The Ethics of Better Call Saul

PagePage 7 At this this juncture, juncture, it is is worth worth noting noting the differences differences in New New Mexico's Mexico’s confidentiality confidentiality rule. While New Mexico Mexico permits permits disclosure disclosure of of confidential confidential information information to prevent financial or property-related harm, it mandates mandates disclosure disclosure "to “to prevent the client client from from committing committing a criminal act that the lawyer believes believes is is likely likely to to result result in in imminent imminent death death or or substantial substantial bodily harm.”harm." GivenGiven that Saul is losing sleepsleep over his fear for the Kettlemans’Kettlemans' safety, it's it’s fair to say that that he he genuinely genuinely believes believes they they are are in in danger danger of of substantial substantial bodily bodily harm or worse. Having said that, I take take issue issue with with the the manner manner of of Saul's Saul’s disclosure. disclosure. The rule rule requires that the the attorney attorney "reveal “reveal [confidential] [confidential] informationinformation toto thethe extent the lawyer lawyer reasonably believesbelieves necessary”necessary" to to preventprevent thethe harm.harm. In other other words, words, Saul Saul should should disclose as much as he reasonably believes is needed to to prevent prevent the the Kettlemans Kettlemans from from being harmed, but he he shouldn't shouldn’t go beyond beyond that. An An anonymous anonymous night-time call to the Kettlemans does not, in my view, meet the reasonableness standard of the rule. There are simply too many variables. What if the Kettlemans don't don’t act on the warning? What if Nacho intervenes before they can escape? escape? Assuming Assuming Saul was required required to breach breach confidentiality to protectprotect thethe Kettlemans, he did not go far enough enough with with his his disclosure.

Representing Nacho in Connection With the Kettlemans’Kettlemans' Disappearance:

Saul'sSaul’s decision to represent Nacho raises several ethical concerns. I recognize that all of these concerns concerns areare - essentially essentially - academic, academic, since since Saul Saul knows knows that that rejecting rejecting the the representation will resultresult inin substantialsubstantial bodilybodily harmharm oror deathdeath toto Saul. But let's let’s go go through through them anyway.

First, as discussed above,above, under New Mexico's Mexico’s rules, Saul had a duty duty to to disclose disclose the information hehe previouslypreviously receivedreceived fromfrom NachoNacho toto preventprevent harmharm toto thethe Kettlemans. Yet, he accepts Nacho's Nacho’s case case without without disclosing thatthat hehe has this duty -- or that hehe has already acted on it. Not Not only only that, that, but but when when Nacho Nacho accuses accuses Saul Saul of of double-crossing double-crossing him, Saul denies that he told anyone about Nacho’sNacho's scheme. Saul may may also also have have a a continuing continuing duty to disclose confidential informationinformation toto thethe extentextent reasonablyreasonably necessary to prevent future future harm to the Kettlemans. For example, what if Nacho tells Saul that the Kettlemans are being held at gunpoint gunpoint by one one of of Nacho's Nacho’s criminal criminal associates, associates, with orders to shoot if Nacho is not released by by morning? morning? Saul arguably arguably has has a a duty duty to to disclose disclose that that information information in order to prevent a future future crime that will resultresult inin bodilybodily harmharm oror death.death. Yet,Yet, Saul does not warn warn Nacho Nacho that that certain certain incriminating incriminating admissions admissions may not not be be confidential. confidential. Fortunately, thisthis isis aa moot question, sincesince itit turns out the Nacho did not not kidnap kidnap the Kettlemans.

Second, the Kettlemans are Saul's Saul’s "prospective “prospective clients”clients" underunder RuleRule 1.18,1.18, even though they did not ultimately hire him. This means that that Saul Saul cannot cannot "represent “represent a client client with with interests interests materially adverse to those of [the Kettlemans] in the same or a substantially related matter if [Saul][Saul] received information information from the [Kettlemans] that that could could be be significantly significantly harmful to [the Kettlemans] in the matter." matter.” So, let's let’s break this this down:

The Ethics of Better Call Saul 7 PagePage 8 • Are Nacho's Nacho’s interests are materially adverse to the Kettlemans? I would saysay yes.yes. He is suspected of kidnapping them,them, andand he was - - in in fact fact - - staking staking out out their their house to to rob them. • Did Saul learn learn information information from the Kettlemans Kettlemans that that could could be be significantly significantly harmful to them in the matter? Arguably yes. Although the Kettlemans denied stealing the $1.5 million, million, Saul strongly believes they have the money. If his belief is based on information gleanedgleaned during his communicationscommunications withwith thethe KettlemansKettlemans (i.e.(i.e. body language, evasiveness, evasiveness, shiftiness, shiftiness, other statements that imply guilt,guilt, etc.),etc.), hehe hashas a duty to keep that information confidential. (Let’s(Let's putput asideaside the fact that he has already violated this rule by disclosing the information toto NachoNacho - two wrongs don’tdon't make a right). right). • Can the the information information be significantly harmfulharmful toto thethe KettlemansKettlemans in thethe matter? Heck yeah! It not only provides Nacho with a defense to the kidnapping charge, but it points the finger atat thethe Kettlemans.Kettlemans. TheyThey kidnapped themselves because they had the money and were were in in fear fear for for their their lives. • Are the the two two matters matters are are substantially substantially related? InIn some some ways, ways, this this is is the the trickiest trickiest question. The Kettlemans Kettlemans consulted consulted with with Saul Saul in in connection connection with with their own criminal matter. Saul is is representing Nacho in in connection connection with his - entirely separate - criminal matter. Yet, the matters matters arise from the same essential essential fact: the Kettlemans’Kettlemans' alleged embezzlement of of the the $1.5 $1.5 million. million. Given Given that that the the jurisprudence jurisprudence on on what constitutes constitutes a "substantially“substantially related”related" mattermatter isis allall overover thethe place, it is hard to predict how a court or grievance committee would decide this issue. But, Saul's Saul’s safest option - ethically speaking - is to decline the representation ofof Nacho.Nacho. On the other hand, since refusing to helphelp NachoNacho is - physically speakingspeaking -- Saul’sSaul's most dangerous option, II can understand why he would would ignore ignore this this admittedly murky ethical question.

Disclosing Saul’sSaul's Concerns About Nacho to Kim:

After the Kettlemans disappear, Saul reveals to Kim that he called the Kettlemans to warn them. He says: says:

I was worried my guy VargaVarga [i.e. Nacho] was was going going after their moneymoney - and he was. He He was was gonna gonna rip rip them them off. off. I Ideduced deduced it it from from a a conversation conversation that we had. It It was was lawyer lawyer to to client, client, so so there there was was confidentiality confidentiality issues. But, I called the Kettlemans anonymously.

Whether Saul's Saul’s disclosure disclosure to to Kim Kim violates violates confidentiality confidentiality is an interesting interesting question. Although Saul describes describes his his initial initial discussion with Nacho as "lawyer “lawyer to to client," client,” in reality, it was probably not. As previously noted,noted, Nacho approached Saul to to enlist enlist his assistance in ripping offoff thethe Kettlemans,Kettlemans, notnot toto retainretain himhim asas aa lawyer.lawyer. Technically,Technically, SaulSaul and Nacho did

8 The Ethics of Better Call Saul PagePage 9 not form an attorney-client relationship until SaulSaul showed up in Nacho’sNacho's interrogation room at the police station.

Assuming the initial discussion withwith NachoNacho did occur in the attorney-client context, Saul’sSaul's disclosure to Kim would have to fall within one of the exceptions exceptions to to confidentiality. confidentiality. First, is disclosure necessarynecessary to prevent Nacho Nacho "from “from committing aa criminal act that [Saul] believes is is likely to result in imminent death or or substantial substantial bodily bodily harm?" harm?” I don't don’t think so. Saul is no longer concerned for thethe Kettlemans’Kettlemans' safety.safety. He believes that Nacho did not kidnap the Kettlemans and thinks they probably kidnapped themselves.themselves. Second, is disclosure necessary to prevent Nacho "from “from committing a criminal act that [Saul] believes is is likely to result in substantial injury to the financial interest or property of another"?another”? Probably not. At this point, it wouldwould bebe unwise for Nacho to pursue his plan to steal from the Kettlemans, since the police will be watching every move. In my view, neither of New Mexico's Mexico’s exceptions exceptions to to confidentiality confidentiality apply here.

The confidentiality confidentiality rules also permit disclosures that are "impliedly “impliedly authorized" authorized” by the client. One could could argue that Saul's Saul’s disclosure disclosure to Kim is intendedintended toto securesecure Nacho’sNacho's release (which Nacho clearly wants) and, thus, thus, is is impliedly authorized. This is a stretch. I doubt that when Nacho instructed SaulSaul to get him out out of of jail, jail, he he impliedly impliedly authorized authorized Saul to to disclose disclose his criminal scheme against the Kettlemans to their own attorney.

Kim'sKim’s Refusal to Share Saul's Saul’s Theory Theory About About the the Kettlemans Kettlemans with with the Authorities: Authorities: Saul urges urges Kim Kim to to convince convince the police police and FBI FBI to to stop stop looking looking for for kidnappers, kidnappers, and start tracking downdown thethe Kettlemans.Kettlemans. WhenWhen sheshe asks why the police or FBI would would believe believe her, her, Saul responds: “Hamlin!"Hamlin! They’llThey'll listenlisten toto him,him, rightright ...... You talk to Howard. You explain explain things toto him. He has has clout clout with with these these people." people.” Kim Kim replies: replies: "Hamlin “Hamlin will nevernever agree to to it. it. The Kettlemans Kettlemans are are our our clients. clients. This This would would incriminate them." them.” In exasperation, Saul retorts "You“You see! This is why people hate lawyers." lawyers.”

Is Kim's Kim’s decision decision not to inform thethe authorities ethicallyethically sound?sound? II believebelieve so.so. JustJust asas Saul owes a duty of confidentiality to Nacho,Nacho, Kim owes a duty of confidentiality to thethe Kettlemans.Kettlemans. But, you might argue, Kim did not learn this information fromfrom thethe Kettlemans;Kettlemans; she learned it from a third partyparty -- namelynamely Saul. Is Is it it still confidential?confidential? InIn New York, York, "confidential “confidential information" information” is broadly defined as "information “information gainedgained during or relatingrelating toto thethe representationrepresentation of a client, client, whatever its source, that is (a) protected protected by by the the attorney-client attorney-client privilege, (b)(b) likely to be embarrassing or detrimental to the client if disclosed, or © information information that the client has requested be kept kept confidential." confidential.” (emphasis(emphasis added).added). New Mexico's Mexico’s definition definition appearsappears to be even more more expansive, expansive, covering covering all all "information “information relating relating to to representation." representation.” Thus, Thus, confidential informationinformation isis notnot limitedlimited toto information learnedlearned fromfrom the client, but covers covers information learnedlearned from other sources.

In addition, since Kim believes Saul’sSaul's information, sheshe nownow knowsknows thethe Kettlemans areare not in danger. So, So, she she is is not not required required to to disclose disclose the the information information to prevent prevent them from from being being harmed or killed. Although SaulSaul arguesargues that he is in physical physical danger from Nacho if the Kettlemans are not found, I believe the causal link betweenbetween the Kettlemans’Kettlemans' disappearance and the danger Saul faces faces from from his his own own client client is too attenuated to create an exception exception to confidentiality for Kim.

Saul’sSaul's Investigation IntoInto thethe Kettlemans’Kettlemans' Disappearance:Disappearance:

I’veI've been been hard hard on on Saul, Saul, so so I Iwanted wanted to to highlight highlight a a few few bright bright spots spots in in what what is is otherwise otherwise a terrible, horrible, nono good,good, veryvery bad day. The Ethics of Better Call Saul 9 PagePage 10 Saul'sSaul’s investigative instincts are impressive. After an altercation in the courthouse parking lot with MikeMike (the parking lot attendant), the cops convince MikeMike to press charges against Saul in order order to to pressure pressure him to turn turn on Nacho. Nacho. When When Mike Mike unexpectedly unexpectedly reverses reverses his his decision to press charges, Saul chases him down to find out why. It turns outout thatthat MikeMike - a former cop -- overheardoverheard Saul’sSaul's theory thatthat thethe KettlemansKettlemans havehave kidnappedkidnapped themselves,themselves, and believes him. Mike then then offers offers an an important important insight: insight: criminals on the run often don't don’t run very far - many many of of them them stay stay close close to to home. That That revelation revelation prompts prompts Saul to return to the Kettlemans'Kettlemans’ house, where he he notices notices the the cartoon cartoon camping camping figures figures on their their station wagon. Following aa hunch, Saul sets out into into the wilderness wilderness behind the Kettlemans' Kettlemans’ house and (after what appears appears to to be be hours hours of of hiking) hiking) discovers discovers them them hiding hiding out in a tent singing camp songs with their children.

As in Episodes 1 and 2, 2, Saul Saul gets gets high high marks marks for for providing providing competent representation to his client (Rule 1.1). He He displays displays investigative investigative skills that many lawyers lack, and which are particularly important for solo/smallsolo/small firmfirm lawyerslawyers whowho cannotcannot necessarily afford the services of an outside outside investigator. Saul often falls short in his ethical duties, but he is passionate about his clients clients and and exhibits exhibits dogged dogged determination determination along with occasional occasional flashes of brilliance.

Next up, Episode Episode 4 (entitled (entitled Hero), where where I Iwill will discuss discuss retainer retainer fees vs. vs. bribes, bribes, lawyer lawyer advertising, and more deceit and dishonesty.

March 18, 2015

10 The Ethics of Better Call Saul PagePage 11 Episode 4 (Hero) "You're“You’re the kind of lawyer guilty guilty people hire." hire.” Warning: Spoiler Alert!

My previous posts discussed the ethical issues that arose in Episodes 1 through 3 of Better Call Saul. Now, I turn to Episode 4. Familiarity with the plot is assumed.

Did Saul Receive a Bribe or a Retainer? When we pick up the story story in in Episode Episode 4, 4, Saul Saul is is confronting confronting the the Kettlemans Kettlemans about going home and returning returning the money money Craig Craig stole stole from from the the county county treasury. treasury. After After articulating articulating several increasingly absurd rationalizations for keeping the money ("You (“You want to talk about legal? Slavery - that used to be legal. Human Slavery”),Slavery"), Betsy Kettleman finally just thrusts a stack of money in Saul’sSaul's face as a bribe. After demurring several times, Saul says “I"I can’tcan't take a bribe. . . . But, you know ... I can take a retainer." retainer.” That's That’s when Betsy Kettleman hits Saul with the zinger that leaves him visibly crushed: “You’re"You're the kind of lawyer guilty people hire."hire.”

Later, Saul is back in his sad little office at the nail salon - with a big stack of cash on his desk. In a display of rationalization that rivals Betsy Kettleman's, Kettleman’s, Saul tries to allocate the funds into legitimate bookkeeping categories: travel, meals, “miscellaneous"miscellaneous expenses,”expenses," etc. My favorite category is legal fees at the "elite “elite tier pricing" pricing” of $950 per hour (because there were, you know, "special “special circumstances”).circumstances"). We know that Saul gets paid $700 per case as a public defender, so $950 per hour is quite a jump. Even when Saul thinks he has snagged a rich rich client client in Episode Episode 5 (oops, (oops, spoiler!), he cites an hourly rate of $450. Saul's Saul’s billing billing practices are haphazard to say the least.

The Ethics of Better Call Saul 11 PagePage 12 There are are several several problems problems with with Saul's Saul’s handling handling of the Kettlemans' Kettlemans’ payment. First, First, if it is a bribe, he obviously can’tcan't take it. Rule 8.4(b) 8.4(b) prohibits prohibits an an attorney attorney from from engaging engaging in in "illegal “illegal conduct that adversely reflects on the lawyer's lawyer’s honesty, honesty, trustworthiness trustworthiness oror fitnessfitness asas a lawyer."lawyer.” Rule 8.4(d) 8.4(d) prohibits prohibits "conduct “conduct that that is is prejudicial prejudicial to to the the administration administration of of justice." justice.” Accepting the bribe would likely violate one or or both both of of those those provisions. provisions.

Second, if if it isn't isn’t a bribe, what is it?

The Kettlemans Kettlemans were pretty clear that they did not want to retain Saul as as their their lawyer. lawyer. Despite that, he treats the money money as as payment payment for for legal legal services. services. Given that an attorneyattorney- client relationship isis aa voluntaryvoluntary contractualcontractual arrangement,arrangement, the client must agreeagree to it - either implicitly oror explicitlyexplicitly -- oror itit doesn’tdoesn't exist.

Third, if the money is is payment payment for for legal legal services, services, it it clearly clearly violates violates Rule 1.5's 1.5’s prohibition prohibition against excessive, fraudulent or illegal feesfees and expenses. As noted above, the hourly rate of $950 is is not not supportable. supportable. An experienced partner partner in in a a large large cosmopolitan cosmopolitan law firm firm might command $950 per per hour, hour, but not a guy who works out of aa nail salon andand gets paidpaid $700$700 per case. case. Even Even more more problematic, problematic, the the expenses expenses are are just just made made up, up, which which constitutes constitutes fraudulent billing.billing. Furthermore,Furthermore, even even if if thesethese werewere reasonablereasonable feesfees andand expenses, an attorney is required to communicate to the client “the"the basisbasis oror raterate ofof thethe feefee andand expenses”expenses" being charged. In In New New York, York, this this must must be be done done "in “in writing," writing,” except in limited circumstances.

Fourth, attorneys may not accept fees fees from from the the fruits fruits of of illegal illegal activities. activities. Doing so so risks risks fee forfeiture forfeiture and and possibly possibly even even criminal criminal prosecution. prosecution. In In addition, addition, money money laundering laundering statutes requirerequire cashcash paymentspayments of of $10,000$10,000 oror more to be reported reported to the the federal federal government. AndAnd no, you can't can’t divide divide it it up up into into smaller smaller payments payments to to circumvent circumvent the reporting requirement.

Does Saul's Saul’s Publicity Publicity Stunt With the Billboard ViolateViolate LegalLegal Ethics Rules?Rules?

In a previous previous post, post, I I discussed discussed Rule Rule 8.4(c), 8.4(c), which which prohibits prohibits "conduct “conduct involving involving dishonesty, dishonesty, fraud, deceit or or misrepresentation." misrepresentation.” Faking a daring daring rescue rescue to to drum drum up up publicity publicity and clients probably violates thisthis rule.rule. ForFor good measure, a grievance grievance committee committee might might also throw in Rule 8.4(h), 8.4(h), which which prohibits prohibits "conduct “conduct thatthat adverselyadversely reflectsreflects onon thethe lawyer’slawyer's fitness asas a lawyer"lawyer” (whatever(whatever that means).means). 12 The Ethics of Better Call Saul The Ethics of Better Call Saul 13 PagePage 13 A particularly particularly creative grievance committee might alsoalso charge Saul with with violating violating Rule 7.1(c)(4), which which prohibits prohibits "depictions “depictions ofof fictionalized eventsevents oror scenes" scenes” in in attorney attorney advertisements. Whether this this charge charge would would stick stick depends on on whether Saul's Saul’s publicity publicity stunt qualifies as an "advertisement." “advertisement.” RuleRule 1.0(a)1.0(a) defines an Advertisement as: any public or private communication mademade by or on behalf of a lawyer or law firm about that lawyer or or law firm's firm’s services, the primary primary purpose purpose of of which is for thethe retentionretention ofof thethe lawyerlawyer or law firm.

Given that Saul's Saul’s main purpose in staging the fake rescue was to to drum drum up legal legal business, business, there is is a a fair fair argument argument that that the the stunt stunt qualifies qualifies as as "advertising." “advertising.” This This is is particularly particularly true in an age where many many brands brands are are turning turning to to "disruptive," “disruptive,” non-traditional advertisingadvertising campaignscampaigns to market their products.products. Therefore,Therefore, even a stodgy stodgy grievance committee could be convinced to take a a more more expansive expansive view view of of "advertising." “advertising.”

And as an advertising advertising campaign, the stunt seems to be working. Finally, Saul comes home to his answeringanswering machinemachine andand therethere are seven new messages from from prospective prospective clients. This will raise new ethical issues, which I will discuss nextnext timetime whenwhen II cover Episode 5 (Alpine Shepherd Boy).

March 18, 2015

PagePage 14 Episode 5 (Alpine (Alpine Shepherd Shepherd Boy) Boy) — – PartPart One

"Moxie“Moxie is in such short supply these days." days.” Warning: Spoiler Alert!

In my previous posts, I discussed ethical issues that arise in Episodes 1 through 4 of BetterBetter Call Saul. Given the wide range of the ethical issues in Episode 5, I havehave divideddivided mymy analysisanalysis into two parts. Part One covers Saul’sSaul's meetings with three prospective clients,clients, whowho contactcontact him after the billboard stunt in Episode 4 (Hero). Part Two covers Saul's Saul’s brief foray into elder law at the end of Episode 5. Familiarity with the plot of Episode 5 is assumed.

In Episode 5, we we follow follow Saul to to meetings meetings with with three prospective clients, who called him afterafter the billboard stuntstunt inin EpisodeEpisode 44 (Hero).(Hero). Here, we we learn learn the the first first rule rule of of legal legal marketing: marketing: a flashy publicity stuntstunt maymay notnot attractattract thethe clients you want, but it will attract the clients clients you deserve.

Saul'sSaul’s interactions with these prospective clients raise several interesting ethics issues. It is worth pointingpointing outout thatthat thesethese meetingsmeetings do not implicateimplicate rulesrules aboutabout solicitation. TheThe ethics rules are clear clear that that a a "solicitation" “solicitation” mustmust bebe initiatedinitiated byby thethe lawyer.lawyer. If thethe lawyer is responding to "a “a specific requestrequest of a prospective client,”client," itit isis notnot solicitationsolicitation under under Rule Rule 7.3(b).7.3(b). Here,Here, the clients clients reached reached out out to to Saul Saul first, first, so so none none of of his his conduct conduct constitutes constitutes solicitation. solicitation. Questions about solicitation andand advertising dodo comecome up later when Saul visits visits the nursing nursing home, which I will discuss in Part Two.

Ricky Sipes - Saul Saul Dodges Dodges a a Serious Serious Potential Potential Ethical Ethical Violation: Violation:

14 The Ethics of Better Call Saul PagePage 15 Saul'sSaul’s first meeting is with with Richard Richard ("Ricky") (“Ricky”) Sipes, an eccentric eccentric but but apparently apparently wealthy wealthy Tycoon, who occasionally occasionally channels Foghorn Leghorn Leghorn ("I (“I got got me me a a case case — – major major — – II say,say, a major case.”).case."). Ricky wants toto retain SaulSaul to help him secede from the United States and establish an independent state on his 1100 acre ranch. ranch. After After visibly blanching, SaulSaul gamely declares “Ricky..."Ricky... I’mI'm your man.man. Yeah, let's let’s do this. Let’sLet's show ‘em'em all. Yee-haw!”Yee-haw!"

After warning Ricky that seceding from from the the Union Union will will involve involve a a long, long, difficult, difficult, litigious, litigious, and - most importantly -- expensiveexpensive ordeal,ordeal, SaulSaul quotes anan hourly raterate ofof $450$450 (apparently, (apparently, this this case does not not warrant warrant Saul's Saul’s "elite “elite tier pricing" pricing” ofof $950$950 per hour). hour). Ricky Ricky waives waives off off this this suggestion, proposingproposing instead instead a a flatflat feefee ofof $1$1 million toto bebe paid “$500,000"$500,000 up front front and $500,000 when when we're we’re done." done.” You You can can practically practically hear Saul's Saul’s pulse pulse accelerating accelerating as he agrees. That is, is, until until Ricky Ricky tries tries to pay pay him him with with fake fake money money bearing bearing his his portrait portrait and and emblazoned with the words "Sovereign “Sovereign SandiaSandia Republic.”Republic." SaulSaul beatsbeats a hasty exit exit from from Ricky'sRicky’s ranch in his bi-colored SuzukiSuzuki Esteem. (I've (I’ve heard heard that that the the script script direction direction reads "Jimmy's“Jimmy’s EsteemEsteem takes a a left left turn.") turn.”)

Fortunately, Ricky’sRicky's creativecreative paymentpayment planplan savedsaved Saul from making making a serious serious ethical ethical mistake. Rule 1.16(a)(2) states: states:

A lawyer lawyer shall shall not not accept accept employment employment onon behalfbehalf ofof a person person if the the lawyer lawyer knows knows or reasonably shouldshould knowknow thatthat suchsuch personperson wishes wishes to to ...... presentpresent aa claimclaim oror defensedefense in a matter that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, modification, or reversal of existing law.

Citizens cannot "secede" “secede” from thethe Union.Union. The proper procedure for an individual toto separateseparate himself from the United States is to to renounce renounce his his citizenship. citizenship. As long as you you follow follow that procedure, voila! You’veYou've effectively seceded from the Union. But, sorry, you can’tcan't take your land with you. There There is is simply simply no no legal legal basis basis for for an an individual individual landowner landowner to to secede secede geographically fromfrom thethe UnitedUnited States,States, althoughalthough somesome havehave tried. The issue of whether whether states can secede from the Union has been a hot hot topic in recent years, but Supreme Court Justice Antonin Scalia has nixed that idea as as unconstitutional. unconstitutional.

Ricky'sRicky’s secession casecase falls squarely withinwithin thethe prohibitionsprohibitions of of Rule Rule 1.16(a)(2), 1.16(a)(2), so Saul cannot ethically acceptaccept thethe representation.representation. EvenEven if SaulSaul were to accept Ricky’sRicky's case, the ethics rules prohibit himhim fromfrom assertingasserting Ricky’s Ricky's claims claims in in a a courtcourt ofof law.law. RuleRule 3.1(a) states:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless unless there there is is a a basis basis in in law law and and fact fact for for doing doing so that is not frivolous.

Echoing Rule 1.16(a)(2), Rule Rule 3.1 3.1 defines defines a a"frivolous" “frivolous” claim claim as as one one that that is is "unwarranted “unwarranted under existing law, except ... if if it can be supported by good faith argument for an extension, 16 The Ethics of Better Call Saul The Ethics of Better Call Saul 15 PagePage 16 modification, or reversal of existing law.”law." Again,Again, seceding from the Union definitely qualifies as frivolous under this definition.

Frivolous claimsclaims areare not only barred by the ethics rules, they are sanctionable sanctionable under the court rules. ForFor example,example, Rule 11 of the Federal Rules of Civil Procedure authorizes federal courts to impose sanctions againstagainst attorneysattorneys whowho assertassert “claims,"claims, defenses,defenses, and other legal contentions"contentions” thatthat areare not “warranted"warranted byby existing lawlaw or by a a nonfrivolous nonfrivolous argument for extending, modifying, oror reversing existingexisting lawlaw oror for establishing newnew law.”law." Many states have analogues to Rule 11, such such as New New York's York’s Part Part 130-1, 130-1, which which imposes imposes sanctions sanctions for frivolous claimsclaims filed in state court.

Roland Jaycocks - Saul Dodges Another Another Serious Potential Ethical Violation:

Saul'sSaul’s second meeting is with Roland Jaycocks, a suburban father who has invented a potty-training devicedevice thatthat offers enthusiastic -- but creepily suggestive -- encouragement to the user. Examples include: include:

Fill me up, Chandler! Put it in me!

Give it to me, Chandler. I want it it all.

Gosh, you're you’re big! You're You’re so big!

In response response to Roland's Roland’s question aboutabout whetherwhether SaulSaul has patent law experience, experience, Saul Saul responds “I"I dodo soso manymany patent law cases, I should should probably just gogo aheadahead and specialize specialize already."already.” A few problems with this. To practice patent prosecution law,law, an attorney needs scientific or technical training (something I doubt Saul acquired acquired during during his his "slippin' “slippin’ Jimmy" Jimmy” days in Cicero, Illinois). Also, to be admitted to the patent patent bar, bar, the the applicant applicant must must show show "good“good moral character and reputation" reputation” -- possibly aa challenge for Saul.

Saul is clearly misrepresenting hishis patentpatent lawlaw experienceexperience (a violation ofof RuleRule 8.4(c),8.4(c), barring "dishonesty,“dishonesty, fraud,fraud, deceit or misrepresentation"). misrepresentation”). AcceptingAccepting Roland’sRoland's matter would also violate Rule 1.1(b), which which states states that that a "lawyer “lawyer shall not handle a legal matter that the lawyerlawyer knows or showed know that the lawyer lawyer is is not not competent competent to to handle." handle.” In addition, addition, Saul's Saul’s statement that he should should "specialize" “specialize” in patent law probably violates Rule

PagePage 17 7.4, which which prohibits prohibits a lawyer from stating that he "is “is a specialist or specializesspecializes in a particular field of law," law,” unless he is is formally formally "certified “certified as a specialist." specialist.”

Fortunately, SaulSaul is saved saved from from committing committing further ethics violations, becausebecause he gets gets chased off Roland's Roland’s property after pointing outout the suggestive naturenature ofof the toilet, and suggesting that "some “some of your your wealthier wealthier Pacific Pacific Rim Rim nations nations — – they'll they’ll love love this this — – thethe crazy bastards."bastards.”

Mrs. Strauss - Does Saul Have Any Any Estate Planning Experience? I am am somewhat somewhat skeptical skeptical that that Saul Saul is is competent competent to to provide provide estate planning planning advice. But, I will give him the benefit of the doubt, because I want to focus on what Saul does does right right in his meeting with Mrs. Strauss.

I give Saul high marks for thisthis meeting.meeting. WhenWhen the audience joins thethe scene,scene, Mrs. Strauss is sliding downdown her stair-chair carrying thethe Alpine ShepherdShepherd Boy figure, referenced in the episode'sepisode’s title. WeWe can imagine imagine there have already already been been several several of of these these painfully painfully slow slow forays to the second floor, asas Mrs.Mrs. Strauss gradually retrieves the precious Hummel figures that now clutter the coffee table. Throughout, Saul remains patient and respectful. respectful. What’sWhat's more, he listens listens carefully and takes detailed notes. At one point, point, when when Mrs. Mrs. Strauss Strauss mistakenly sayssays she wants to to leave leave the the "towheaded “towheaded twins" twins” to to Reverend Reverend Lawrence's Lawrence’s grandson, Saul gently gently corrects her:

Don'tDon’t you you mean mean Reverend Reverend Hanes? Hanes? Because Because Reverend Reverend Lawrence's Lawrence’s grandson is going to getget thethe lute-playinglute-playing angel.angel. 'Cause he was in in the choir.

After taking down all the details, Saul sheepishly brings upup thethe matter of his payment. He offers to draft thethe will forfor aa flatflat feefee ofof $140,$140, which she pays him in cash on the spot. Under Rule 1.5(a), a a fee fee of of $140 $140 is is more more than than reasonable reasonable for for a a will. will. Although Although in in a a previous previous post, I mentioned that New York York requires requires most most fee agreements agreements to to be be in in writing, writing, that that provision provision does not apply if “the"the feefee to be charged is expected to be less that $3000.”$3000." So, Saul's Saul’s failure failure to document the fee arrangement would would not be an ethics ethics violation in New York.

Having said that, I still recommendrecommend that lawyers get their feefee agreements in in writing, especially with a new client. Here, there there are are good good reasons reasons to to follow follow that advice. First, Mrs. Strauss is retaining Saul solely to draft a will, but notnot toto provideprovide anyany otherother estateestate planningplanning advice.advice. In my view, he would would be wise wise to to get get a a retainer retainer agreement agreement that that clearly clearly defines defines the scope of the representation, andand specifiesspecifies thatthat hehe is not advising Mrs.Mrs. Strauss on any any other other matters matters concerning her estate. By not limiting thethe scope of representation, you create a risk that the client will later claim that she believed you handling otherother aspectsaspects ofof herher estate and you missed some important issue. Second, Saul needs to take extra extra precautions precautions when dealing with elderly clients, whom courts and grievance

The Ethics of Better Call Saul 17 PagePage 18 committees view as particularly vulnerable. If there is a dispute later, Mrs. Strauss’sStrauss's age will be relevant relevant to to determining determining whether her belief belief about about the the scope scope of of representation representation was reasonable, and and whether whether Saul Saul should should have have taken taken additional additional steps steps to to protect protect her.

Saul’sSaul's Conversation With Kim:

Later that night at the nail salon, Saul regales Kim Kim with the bizarre details of his day, while ineptly applying blueblue nailnail polish toto herher toenails. At one point, point, Kim Kim struggles struggles to hold back laughter asas Saul Saul performs performs his his rendition rendition of Roland's Roland’s talking talking "sex “sex toilet." toilet.” TheThe scene is is charming andand Saul and Kim Kim have have great great chemistry. chemistry. But But is is it it ethical? ethical? Unfortunately, Unfortunately, the answer is no. Although Although Roland did not retain Saul, he is is a a prospective prospective client under Rule 1.18. That That means means Saul Saul "shall “shall not not use use or or reveal reveal information information learned learned in in the the consultation," consultation,” except as permitted under the rules.

As a a practical practical matter, this sort of thing happens all the time. Lawyers talk to each other other about their clients and cases. One One way way to to do do this this ethically ethically is is to to speak in in "hypothetical" “hypothetical” terms about the representation, without identifying thethe client. This is permitted, as long as "there “there is no reasonable likelihood likelihood that that the the listener listener will will be able to to ascertain ascertain the the identity identity of of the client." client.” In Saul's Saul’s case, case, however, however, this this option option is is not not available, available, because because he he signed signed a a nondisclosure nondisclosure agreement. Even Even if if he he were were to to conceal conceal Roland's Roland’s identity, identity, merely merely disclosing disclosing the nature of the invention probablyprobably violatesviolates thethe non-disclosurenon-disclosure agreement.agreement. But,But, givengiven thatthat SaulSaul didn’tdidn't eveneven glance at the agreement agreement before before signing signing it, he does not seem to to put put much much weight weight on his his contractual obligations.

After Saul tells Kim that he handled handled two wills and a trust trust that day, she she suggests suggests that he focus on elder law. Although hehe initially scoffsscoffs at at thisthis idea, idea, wewe seesee laterlater thatthat hehe takes her advice to heart. Saul's Saul’s brief detour into elder law raises a number number of issues about lawyer advertising and solicitation, whichwhich II will covercover inin PartPart Two of my Episode 5 discussion. discussion.

March 18, 2015

18 The Ethics of Better Call Saul PagePage 19 Episode 5 (Alpine ShepherdShepherd Boy) - Part TwoTwo "Watch“Watch Out!Out' That’sThat's MyMy Will144// Writing Hand.”Hand" Warning: Spoiler Alert!

In my previous posts, I discussed ethical issues that arose in Episodes 1 throughthrough 4 ofof BetterBetter Call Saul. There were so many ethical issues in Episode 5, I decided to split it into two parts. In Part Part One, One, I I covered covered Saul's Saul’s meetings meetings with with three three prospective prospective clients, who contacted him after his stunt in Episode 4 (Hero).

Now, I will discuss the ethics issues that arise when Saul takes a detour into "elder “elder law.”law." Familiarity with the plot of Episode 5 is assumed.

Saul’sSaul's Confrontation With Chuck Over Attorney Attorney Advertising: Advertising:

Saul'sSaul’s brother Chuck (played(played byby Michael McKean)McKean) is a former former attorney at a large large white- white- shoe law firm, firm, who has has developed developed a a debilitating, debilitating, psychosomatic psychosomatic sensitivity sensitivity to electricity. In Episode 5, Chuck Chuck lands lands in in the hospital hospital after an unfortunate run-in with aa police taser. Upon returning home, Chuck and and Saul Saul get get into into a a heated heated discussion discussion about about Saul's Saul’s billboard billboard publicity publicity stunt (the precipitating precipitating eventevent thatthat indirectly ledled toto the tasering tasering incident). Saul tries to minimize the stunt: stunt: "It “It was promotion. promotion. It was was advertising! advertising! That's That’s all!" all!” Chuck Chuck retorts: retorts: "which “which wasn'twasn’t even allowed allowed until until five Supreme Court Court justices justices went completely bonkers in Bates v. State Bar of Arizona." Arizona.”

r41011111.1 1: • - - -

What I love love about about this this scene scene is is how how it it captures captures the the unstated unstated motives motives that frequently

The Ethics of Better Call Saul 19 PagePage 20 animate conversations about lawyer advertising. Chuck represents represents the the traditional, traditional, big big firm view: Lawyer advertising is unseemly, unprofessional -- even unethical. Lawyers should be above such such things. things. Chuck Chuck derisively derisively references references Bates v. v. Arizona, Arizona, a landmark landmark First First Amendment decision, whichwhich held that bar bar regulators regulators could could not not prohibit prohibit lawyers lawyers from from advertising their services.services. Saul,Saul, on the other hand, represents the solo or small firm lawyer - the scrapper who actually benefits from the ability (however(however limited) to market his services to the public. public.

I was struck struck by how many television commentators uncritically acceptaccept thethe viewview ofof ChuckChuck as a "straight “straight shooter”shooter" -- the moral and ethical ethical counterpart counterpart to Saul. What What those those reviewers reviewers overlook is that Chuck's Chuck’s convictions about ethics and professionalism are grounded in his privileged position asas anan eliteelite attorney.attorney. HeHe doesn’tdoesn't knowknow howhow itit feelsfeels toto bebe Saul,Saul, the guy at the bottom of thethe rung,rung, scramblingscrambling toto makemake endsends meet.meet. What makes makes it it all all the the more more insulting insulting is that that Saul Saul is is trying trying to to support support Chuck Chuck financially, financially, while while still still maintaining thethe fantasy that Chuck is self-sufficient and on the road to recovery.

Is it UnethicalUnethical ForFor SaulSaul to Copy Matlock?

At Kim's Kim’s suggestion, suggestion, Saul decides to focus on the the practice practice of of "elder “elder law." law.” As As Wikipedia Wikipedia explains: “Elder"Elder lawlaw isis aa legal term coined toto covercover anan area of legal practice that places an emphasis on those issues that affect the growing growing aging population." population.” TheThe practice of elder law may may include include estate estate planning, planning, disability disability and long-term long-term care care issues, issues, guardianship guardianship and other commitment issues, elder abuse, and and discrimination. discrimination.

As part of Saul's Saul’s preparations preparations for entering the field, he watches episodes of Matlock and takes notes notes on on the the character's character’s wardrobe. wardrobe. Echoing Echoing his his impersonation impersonation of Howard Hamlin in Episode 4, Saul Saul undergoes undergoes a a second second transformation, transformation, emerging emerging as a a folksy folksy small-town small-town lawyer clad clad in in a a light-colored light-colored linen linen suit. suit.

I don't don’t have have a a problem problem with with Saul Saul using using Matlock Matlock for for professional professional inspiration. inspiration. HeHe is not not deceiving anyone into believing he is Matlock, or even that he possesses Matlock's Matlock’s integrity or competence. competence. If tweaking one’sone's persona to appeal to a a group group of of potential potential clients clients is unethical, we could all find ourselves in frontfront ofof aa grievancegrievance committee.committee. InIn the law, as in any profession, we all put on a mask and a costume when we go go to to work. Saul is is just a bit more strategic about it than some people.

20 The Ethics of Better Call Saul PagePage 21 Does Saul's Saul’s Visit Visit to to the the Nursing Nursing Home Home Violate Violate Solicitation Solicitation or or Advertising Advertising Rules? Saul'sSaul’s interaction withwith the nursing home residents is underscored byby the "Harry “Harry Lime Lime Theme"Theme” from the film The Third Third Man. The The music music lends lends a a jaunty, jaunty, yet yet strangely strangely ominous, ominous, atmosphere to the scene.

As an aside, aside, I Iwondered wondered about about the the significance significance of using thethe Harry Lime Theme in Better Call Saul. Anyone Anyone who who watched watched Breaking Breaking Bad Bad knows knows that that Vince Vince Gilligan Gilligan does does practically practically nothing byby accident.accident. SeveralSeveral reviewers have commented that the music attempts to draw a parallel between Harry Lime - the consummate con-artist -- andand SaulSaul Goodman. That may be so, but but another another possibility possibility occurred toto me.me. After the resounding success of the film, an enterprising BritishBritish radioradio producer,producer, Harry Harry Alan Alan Towers,Towers, learnedlearned thatthat GrahamGraham GreeneGreene (the creator of The Third Man) had had not not sold sold the the rights rights to Harry Harry Lime's Lime’s character character to Alexander Korda (the film's film’s producer). Towers quickly purchased thethe rights andand launched a radio radio series -- a prequel voiced by Orson Welles, who played played Harry Harry in in the the film. film. According According to Wikipedia:

Episodes would begin with “The"The ThirdThird ManMan Theme" Theme” being played, abruptly cut off by an echoing gunshot. ThenThen Welles would speak: “That"That was the shot that killed HarryHarry Lime.Lime. He died in a sewer beneath Vienna, as as those those of you know who saw the movie The Third Man. Yes, that that was the the end end of of Harry Harry Lime Lime ...... but but it it was was not not the beginning. beginning. Harry Lime had many lives ...... and I can can recount recount all of them. How do I know? know? Very simple. simple. Because my name is is Harry Lime." Lime.”

Sound slightly familiar?familiar? True,True, SaulSaul doesn’tdoesn't diedie atat thethe endend ofof BreakingBreaking Bad.Bad. Instead,Instead, he ends up managing a Cinnabon Cinnabon in in Omaha. Omaha. But, But, otherwise, otherwise, the the introduction introduction could have been written about Better Call Saul.

Getting back to the nursing home, Saul wanders wanders about about the the room, room, gladhanding gladhanding and and flirting flirting with the residents as they gobble gobble down down cups cups of of jello jello distributed distributed by the staff. At the bottom bottom of the jello cup is a sketch of Saul's Saul’s face accompanied by the slogan: “Need"Need a Will? Call McGill!”McGill!"

Is there an ethical ethical violation violation here?

The Ethics of Better Call Saul 21 PagePage 22 In New York, York, lawyer lawyer advertising advertising and solicitation solicitation areare governedgoverned byby ArticleArticle 77 ofof thethe NewNew York Rules of of Professional Professional Conduct. Conduct. Advertising Advertising rules vary vary significantly significantly by jurisdiction, soso New Mexico’sMexico's rules may be quite quite different, different, but I will will stick to New York's York’s rules for now.

In my my view, view, the the jello jello cups cups constitute constitute attorney attorney advertising. advertising. RuleRule 1.0(a) defines defines an an "advertisement"“advertisement” as:

any public or private communication mademade byby oror onon behalfbehalf of a lawyer or law firm about that lawyerlawyer or law firm’sfirm's services,services, the primary purpose which is for thethe retention of the lawyer or law firm. firm.

"Need“Need a Will? Will? Call Call McGill!" McGill!” fits fits squarely squarely within within this definition of an "advertisement." “advertisement.” ItIt is a communication andand its primaryprimary purposepurpose isis toto convinceconvince thethe readerreader toto hirehire SaulSaul to prepare a will. Since the jello cupscups areare “advertisements,”"advertisements," theythey mustmust complycomply withwith RuleRule 7.1.7.1. ForFor example,example, they must must contain contain the the words words "Attorney “Attorney Advertising" Advertising” andand include the "name, “name, principal principal law office address and telephone number of the lawyer." lawyer.” Interestingly, ifif SaulSaul had asked the nursing homehome toto distribute jellojello cupscups withwith justjust hishis namename andand logo, they would not be considered “advertisements”"advertisements" inin NewNew York.York. A New York York ethics ethics opinion opinion permits law firms to distribute brandedbranded merchandisemerchandise toto hospitalhospital patients,patients, asas longlong asas the items do not not contain contain slogans or other language that offers legal services.

The New New York York opinion opinion also also makes makes clear clear that that branded branded merchandise merchandise must not be be accompanied by an an "oral “oral communication communication about the firm," firm,” or or it it could could constitute constitute improper improper solicitation. RuleRule 7.3 prohibits prohibits lawyers lawyers from from soliciting soliciting clients clients "in-person," “in-person,” by "telephone “telephone contact, or by by real-time real-time or or interactive interactive computer-accessed computer-accessed communication communication unless the recipient is a close close friend, friend, relative, relative, former former client client or or existing existing client." client.” Violating Violating the the solicitation solicitation rules can be extremely extremely serious, serious, particularly particularly where the "the “the age or or the the physical, physical, emotional emotional or mental state of the recipient recipient makes it it unlikely that the recipient will bebe able to exercise reasonable judgment judgment in retaining a lawyer." lawyer.”

In my my view, view, Saul's Saul’s interactions interactions at at the the nursing nursing home, home, in in conjunction conjunction with with the the distribution distribution of the jello jello cups, cups, cross cross the the line line into into in-person in-person solicitation. solicitation. AlthoughAlthough SaulSaul isis careful never to expressly offer his legal services, the jello cups do the speaking for him.

22 The Ethics of Better Call Saul Page 23 Saul’sSaul's Communication With Mike:

After the nursing nursing home, Saul returns returns to the courthouse courthouse where Mike is manning manning the parking lot booth. AfterAfter chattingchatting forfor aa fewfew minutes,minutes, SaulSaul hands Mike his business card, saying:

You can have this this as well. well. I'm I’m doing doing elder law now. "Need “Need a will. will. Call McGill."McGill.” SoSo give me a call if you ...... uh ... if ... you happen to know any elders.

Saul is clearly about to offer Mike his his will-drafting services,services, whenwhen he suddenly veers off course. Not wishing to imply that MikeMike is anan “elder,”"elder," SaulSaul suggestssuggests insteadinstead that MikeMike might know some elders who need need representation. representation. Does Does Saul's Saul’s quick quick thinking thinking save him him from from violating the solicitation rules?rules? ArguablyArguably itit does.does. ByBy suggestingsuggesting thatthat MikeMike should call Saul if hehe knows anyone who who needs needs a a will, will, Saul Saul is is not not directly soliciting workwork fromfrom Mike.Mike. Rather,Rather, he is asking for a referral. This is permissible, asas longlong asas SaulSaul doesn’tdoesn't compensatecompensate Mike for recommending his legal services to others.

As it turns out, Mike ends up using Saul’sSaul's business card in a way that puts him in yet another ethical quandary. I I will will discuss that issue in my next post whenwhen I cover Episode 6 (Five-O).(Five-0).

March 18, 2015

The Ethics of Better Call Saul 23 PagePage 24 Episode 66 (Five-O)(Five-0) “Lawyer."Lawyer. Lawyer. Lawyer.”Lawyer."

Warning: Spoiler Alert!

In my previous posts, I discussed the ethical issues in Episodes 1 through 5 of Better Call Saul. For this discussion, familiarity with the plot of Episode 6 is assumed.

This was a Saul-lite Saul-lite episode, episode, with with most of the focus aimed at revealing Mike's Mike’s back back story. story. Nevertheless, Saul plays a pivotal pivotal role in the narrative. When the the Philadelphia Philadelphia detectives detectives take Mike to to the the police police station, station, he refuses to answer questions, questions, merely repeating the word "lawyer"“lawyer” likelike aa brokenbroken record.record. WhenWhen askedasked whichwhich lawyerlawyer hehe wants,wants, MikeMike slides Saul’sSaul's “Need"Need a Will? Call McGill!" McGill!” business card across the table.

When Saul shows shows up, Mike explains explains that he’she's there for one purpose: atat the end of the interview, Saul is to spill hishis coffeecoffee onon thethe youngeryounger detective,detective, nearnear hishis coatcoat pocketpocket wherewhere hehe keeps his notebook. Mike intends intends to lift the notebook so he can can find find out out what what information information the detectives have. Saul Saul adamantly adamantly refuses, refuses, insisting insisting he he is is going going to to play play this this interview interview by the book. And And that that is is certainly certainly how how things things start out.

What Saul Does Does Right Right in in the Interview: I give give Saul Saul high high marks marks for for his his representation representation of of Mike Mike in in this this interview. interview. Although Although the the detectives immediately launch into their questions forfor Mike,Mike, Saul takes control control right away. He stops the questioning and asks the detectives detectives to to fill fill him in on what’swhat's going on. By doing this, Saul essentially admits hehe has no clue what the interview interview is about or why he is there. I love this for severalseveral reasons.

24 The Ethics of Better Call Saul PagePage 25 First, many attorneys dodo notnot wantwant toto admit theythey havehave no idea what is going going on. This is particularly truetrue ofof youngeryounger attorneysattorneys whowho feelfeel they need to overcompensate for their lack of experience and knowledge. They want to impress people and appear smart, and they think it makesmakes them look weak or or incompetent to admit they don't don’t know something. What’sWhat's great about Saul is is that that he he is is willing willing to to look look clueless clueless when when it's it’s in in his his client's client’s best interest. interest. Saul knows that - to represent Mike effectively effectively - he needs needs information. information. Since Mike won't won’t fill fill him in, he asks asks the the detectives detectives to do do so. so. Acting Acting as if if you you know know something something you don’tdon't is a rookie mistake, like laughing laughing at an an incomprehensible incomprehensible "joke" “joke” in elementary school school to fit fit in. You usually usually end up up looking looking more foolish. foolish.

Second, by forcing forcing the detectives to talk first, Saul shifts the power dynamic. Now, the detectives are answering the questions, instead of asking them. This gives Saul time to sit back and take take stock stock of of the the situation, situation, before his his client client has to to start talking.

Third, Saul gives the detectives a reason to underestimate underestimate him.him. IfIf they think hehe is so ineffectual hishis clientclient won’twon't eveneven talktalk toto him,him, they might lowerlower theirtheir guardguard andand reveal more information thanthan theythey originallyoriginally intended.intended. ThisThis isis aa strategystrategy thatthat youngeryounger lawyerslawyers (and(and - to be frank - women) can use to to gain an advantage advantage over over their their adversaries. Some older male lawyers can be be extremely extremely condescending condescending to younger lawyers, especially young women.women. If you find yourself in that position, don’tdon't bebe offended; be disarming.

Fourth, Saul's Saul’s strategy allows him to figure out the detectives’detectives' motivation, beforebefore Mike says a word. word. As As the the interview interview progresses, progresses, Saul realizes that the the detectives detectives suspect Mike of murdering HoffmanHoffman andand Fenske,Fenske, the two Philly cops who were with Mike’sMike's son when he was killed in an ambush. I'm I’m not a criminal defense lawyer, but but I imagine that that knowing your client is a murder suspect will impactimpact howhow youyou representrepresent him.him. OnceOnce Saul knows the game, he doesn't doesn’t let the detectives get get very very far far in in their their questioning, before he brings the interview to a close.

What Saul Does Wrong:

You don't don’t need a a legal legal ethics ethics lawyer lawyer like like me me to to tell tell you you that that spilling spilling coffee on the detective so Mike can steal steal his his notebook notebook is is an ethics ethics violation. violation.

But I will anyway.

Assisting MikeMike in stealing the detective's detective’s notebook notebook violates numerous ethical rules. For example, Rule 3.4(a)(6) 3.4(a)(6) states states that that "A “A lawyer lawyer shall shall not not ...... engage engage in in illegal illegal conduct," conduct,” which presumably would include aiding his clientclient inin stealingstealing anotheranother person’sperson's property.property. RuleRule 8.4(b)8.4(b) states that "A “A lawyer or law firm shall not ...... engage in in illegal conduct that

The Ethics of Better Call Saul 25 PagePage 26 adversely reflects on the lawyer's lawyer’s honesty, honesty, trustworthiness oror fitnessfitness asas a lawyer." lawyer.” Rule 8.4(c) prohibits prohibits a lawyer lawyer from from engaging engaging "in “in conduct conduct involving involving dishonesty, fraud, deceit or misrepresentation."misrepresentation.” Rule Rule 8.4(d) 8.4(d) prohibitsprohibits aa lawyer from engaging "in “in conduct that is prejudicial toto thethe administration ofof justice.“justice." A A commentcomment toto thisthis RuleRule explains thatthat it is "generally“generally invokedinvoked toto punish conduct,conduct, whetherwhether oror not it violates another ethics rule, that results in substantialsubstantial harmharm to thethe justice systemsystem comparablecomparable to those caused by by obstruction obstruction of justice." justice.” II would hazard a guess guess that that stealing stealing a police police officer's officer’s notes about a murder murder investigation falls into thatthat category.category.

Why Does He Do It?

One of of the the mysteries mysteries of of this this episode is is why Saul goes goes through through with with the coffee-spilling coffee-spilling plan, even after telling Mike he won't won’t do it. Even Saul is perplexed, asking Mike afterwards: "How “How did you know I'd I’d do do it?" it?”

Mike scoffs at this question, but I too too find find it befuddling. Obviously, Saul sympathizes with Mike’sMike's loss, which he learns learns about about during during the course course of of the the interview. interview. He He undoubtedly undoubtedly suspects thatthat HoffmanHoffman andand FenskeFenske were bad cops who murdered Mike’sMike's son. And he probably suspects thatthat MikeMike was involved inin theirtheir deaths.deaths. HeHe also recognizes that Mike is worried about what information thethe detectivesdetectives havehave against him. But helping MikeMike steal the detective'sdetective’s notebook seemsseems extreme, even in light of these concerns. Saul has given Mike more than competent competent representation. It It appearsappears thatthat thethe detectives areare on a a fishing fishing expedition and probably havehave no concrete evidence against Mike (although Saul can't can’t know for sure). As an experienced experienced criminal criminal lawyer, lawyer, Saul Saul knows knows how how the the system system works, works, including including that the government government hashas the burden burden to prove prove beyond beyond a a reasonable reasonable doubt doubt that that Mike Mike murdered the cops. Putting aside the ethics ethics violations violations discussed above,above, Saul is arguably putting hishis clientclient atat greater risk by helping him steal the notebook. Later, it it will be obvious obvious to the detectives who stole thethe notebook,notebook, andand thatthat factfact couldcould bebe usedused asas evidenceevidence of Mike’sMike's guilt.

The best theory I have is is that Saul just just can't can’t help himself. Part of him is - and will always be - Slippin' Slippin’ Jimmy. Every time Saul Saul tries tries to to go go straight, straight, he he gets gets derailed derailed by by some some irresistible irresistible temptation, whether it's it’s Betsy Kettleman's Kettleman’s bribe bribe or or simply simply the thrill thrill of pulling oneone overover onon a smug police detective. LarcenyLarceny isis inin Saul’sSaul's nature, and that's that’s exactly what Mike (the experienced cop) can see.

March 20, 2015

26 The Ethics of Better Call Saul PagePage 27 Episode 7 (Bingo) "Please“Please don't don’t say Hamlin, Hamlin and McGill." McGill.” Warning: Spoiler Alert!

In my previous posts, I discussed the ethical issues in Episodes 1 through 6 of Better Call Saul. For this discussion, familiarity with the plot of Episode 7 is assumed.

Saul’sSaul's Explanation to the Philly Detectives:

It’sIt's late at at night night and and Saul Saul and and Mike Mike are are back back at at the the police police station, station, returning returning Detective Detective Abassi'sAbassi’s notebook. As they wait for the detectives, Saul tells tells Mike to to "let “let me do do the talking." talking.” When confronted confronted by the furious Abassi, Saul explains that he was on his way to the police station to clear up this little misunderstanding aboutabout thethe notebook, when - coincidentally coincidentally - he looked down and saw the notebook notebook on the ground where Abassi must have dropped dropped it. To his credit, Mike keeps his mouth shut as Saul weaves this this tale that not even a doting doting mother would believe.believe. GivenGiven that Mike’sMike's fingerprints mustmust bebe allall overover thethe pages of the notebook, I can't can’t imagine how Saul thinks he can get away with with this this lie.

120130013012 EI0EILI1U13 ED1191000

If you’veyou've been following following this blog, you can probably recite the rule rule violation violation without my help. Rule 8.4(c) prohibits prohibits a a lawyer lawyer from from engaging engaging in in "conduct “conduct involving dishonesty, fraud, deceit or misrepresentation." misrepresentation.” So, So, nono ...... as an officer of the court, Saul is not supposed to lie to police officers -- or anyone else for that matter.

Knowing that Mike is a murder suspect, Saul is reluctant toto leaveleave him alone with Sanders - the older police detective - but Mike insists. insists. Again, Saul is is trying to bebe a diligent lawyer, but in Mike’sMike's view, Saul has served served his his purpose andand can leave. Sanders Sanders hints hints to Mike

The Ethics of Better Call Saul 27 PagePage 28 that the Philly Philly police will drop thethe investigation ifif Mike’sMike's daughter-in-law backs up up his his story. story. The conversation conversation suggests that the corrupt corrupt old guard still still holds enough power in Philly to bury the investigation, even with young Turks like Abassi being brought in toto clean up the department.

When Saul Saul intercepts intercepts Mike in in the the parking parking lot, lot, Mike Mike tells tells him him "it's “it’s in someone else's else’s hands now"now” (presumably meaningmeaning his daughter-in-law). Saul’sSaul's response is, for me, the funniest funniest line in thethe episode:episode: “Please"Please don’tdon't saysay Hamlin,Hamlin, Hamlin and McGill." McGill.” The idea of of losing anotheranother client to HH&M (even a a terrible terrible client like Mike) is more that Saul can bear, and Odenkirk Odenkirk delivers the line with perfection.

Leaving the Client Files With Chuck:

A few days later, later, Saul Saul arrives arrives at at Chuck's Chuck’s house house with with a a stack stack of of boxes boxes containing containing client client files, pleading a lack of storage space. Chuck is not happy with the arrangement, but as soon as Saul leaves, he he can't can’t resist resist the the temptation temptation to to dig through the files. Maybe both of the McGill brothers have a little little bit of larceny in them.

Although therethere hashas been some some debate debate among among commentators commentators asas to whether whether Saul Saul purposefully leftleft thethe files withwith Chuck,Chuck, hoping he would start working on them, I don't don’t think there'sthere’s much ambiguity. I’veI've said before that I think SaulSaul is a pretty competent lawyer.lawyer. Yet, he conspicuously misstates the form number for for the "personal “personal property" property” schedules as "413" “413″ instead of "513," “513,″ promptingprompting ChuckChuck toto correctcorrect him.him. ThisThis leavesleaves Chuck in doubt asas to whether Saul is properly handlinghandling thethe estateestate matters.matters. Then,Then, asas SaulSaul leaves the house, he peeks in the window to confirm thatthat ChuckChuck is, in fact,fact, lookinglooking throughthrough thethe boxes.boxes. ItIt seemsseems pretty clearclear to me that that this was part of Saul’sSaul's plan.

Of course, course, both Saul and and Chuck Chuck are are violating violating Rule 1.6, 1.6, which which requires requires an attorney attorney to preserve his clients' clients’ confidential information.information. Chuck Chuck may may be be aa greatgreat lawyerlawyer -- and Saul's Saul’s brother -- but they are not not law law partners. partners. As I I noted noted in in my my discussion discussion of Kim and Saul's Saul’s conversation in Episode 5, you can't can’t just share client information withwith anotheranother lawyerlawyer (even(even one you trust implicitly), unless an exception to the confidentiality rule applies.

28 The Ethics of Better Call Saul PagePage 29 Saul Calls Bingo:

Saul is back at the nursing nursing home calling out Bingo for thethe elderly residents.residents. InIn an over-the- shoulder shot,shot, wewe see that one of of the the residents residents is is filing filing out a bingo bingo card card which which seems remarkably familiar.

Wait, let's let’s take a a closer closer look: look:

Like the jello cup from Episode 5, the the bingo bingo cards cards qualify qualify as "advertisements" “advertisements” under rule 1.0(a), because because they they are are a a "communication" “communication” about about the the lawyer's lawyer’s services, services, "the “the primary purpose of which is for the retention of the lawyer.”lawyer." As I mentioned when discussing the jellojello cups, Saul is is permitted permitted to to have the the nursing nursing home home staff staff distribute distribute branded bingo

The Ethics of Better Call Saul 29 PagePage 30 cards. What transforms transforms these bingo bingo cards cards into into "advertisements" “advertisements” is thethe slogan: “Need"Need a will? Call McGill!

As advertisements, the bingo bingo cards must comply with Rule 7.1, which which among other other things, things, requires them to to include include the the words words "Attorney “Attorney Advertising" Advertising” andand the law firm's firm’s principal law office.

I should also note that there are strict strict laws regulating bingo games in in most states, including including New Mexico. Mexico. Whether Whether Saul's Saul’s bingo bingo game game complies complies with with these these regulations regulations is beyond the scope of this blog. Given the heavy state regulation of bingo gamesgames and other games of chance, however, a grievance grievance committee might looklook askanceaskance atat a lawyer lawyer using using a bingo bingo game as as an an advertising advertising tool.

Kim'sKim’s Advice to thethe KettlemansKettlemans toto AcceptAccept thethe PleaPlea Deal:

Kim meets with the Kettlemans to present them with thethe plea deal she has negotiated negotiated with the D.A. Return Return the money money and Craig Craig will will get a a sentence sentence of of 16 16 months. months. Betsy Betsy Kettleman is not having it. In her world, world, there there is is no no money. money. And, And, furthermore, furthermore, they're they’re not giving the money back, because they they didn't didn’t do anything wrong. Kim urges Craig to accept the deal, deal, because because the the alternative alternative is is being being convicted convicted and and facing facing a a maximum maximum sentence of 30 years. years. Despite Despite the the Kettlemans' Kettlemans’ denials and threats to fire HH&M, Kim Kim doesn'tdoesn’t back down and the Kettlemans fire her.

As I've I’ve said said before, before, I'm I’m not not a a criminal criminal lawyer lawyer so so I Idon't don’t know know if if Kim's Kim’s assessment assessment of the Kettlemans'Kettlemans’ casecase isis correct. II am troubled troubled that she seems to think think there are only only two two alternatives: taketake the plea deal or go to trial and lose. A lot can happen in the course of a criminal trial, so I’mI'm not sure it’sit's inevitable that Craig will go to prison forfor 3030 years. Kim puts a lot lot of pressure on the Kettlemans Kettlemans to take the the plea, plea, but but ultimately ultimately it is their choice. Rule 1.2(a) states: states:

In a criminal criminal matter, a a lawyer lawyer shall shall abide abide by by the the client's client’s decision, decision, after after consultation consultation with the lawyer, as to to a a plea plea to to be be entered, entered, whether whether to to waive waive jury jury trial trial and and whether whether the the client client will will testify.

Just because Kim believes Craig is guilty doesdoes not mean she has to to throw throw in the towel. towel. From an ethical ethical perspective, perspective, KimKim stillstill hashas a lot lot of of options options for for defending defending Craig. The government hashas the burden to prove every element of the crime, and a criminal criminal defense lawyer is is ethically ethically entitled to put the government to to its its proof, even if if she thinks thinks her client client is guilty. LawyersLawyers representrepresent guiltyguilty defendantsdefendants all all the the time,time, soso I’mI'm notnot suresure why Kim is so daunted by the prospect of defending Craig at trial. Yes, they they might might lose. But that's that’s the risk you take when you you roll roll the dice and go go to to trial.

I generally generally like like Kim, Kim, but but I I didn't didn’t care care for for this this side of of her her character. character. Instead Instead of of sucking sucking it up and accepting her clients' clients’ decision, sheshe whines aboutabout howhow hardhard she worked to get the plea deal and trashes trashes the the Kettlemans Kettlemans to to Saul. Saul. I Istarted started to to think think that that Kim Kim is is right - she should switch to elder law, since I don't don’t think sheshe hashas the stomach toto bebe aa criminal lawyer.lawyer. YouYou can’tcan't bebe a criminal lawyerlawyer ifif you’reyou're afraid ofof losing atat trial and having your client gogo to jail. As Saul remarked in in Episode Episode 1, 1, when when a a courthouse courthouse employee employee pointed pointed out out that that all all three three of of his his clients clients were convicted: “Since"Since when does that make a difference?" difference?”

30 The Ethics of Better Call Saul PagePage 31 Are the Kettlemans Better Off With Saul?

Ironically, fromfrom anan ethicsethics perspective,perspective, thethe KettlemansKettlemans areare much worseworse off havinghaving SaulSaul as their lawyer, because because Saul Saul actually actually knows they have the the money, money, whereas whereas Kim Kim only only suspects it. This meansmeans Saul's Saul’s options options for defendingdefending thethe KettlemansKettlemans are much more limited. For example, if if Craig decides decides (unwisely) (unwisely) to testify in his own defense and lies under oath about having the money, Saul would would have have an an ethical ethical obligation obligation to to correct correct Craig's Craig’s false false statement. Rule 3.3(a) prohibits prohibits a a lawyer lawyer from from offering offering or using using "evidence “evidence that the lawyer knows to be false." false.” Furthermore, the lawyer must "take “take reasonable remedial measures" measures” to correct fraudulent testimony afterafter it happens, "including, “including, ifif necessary, disclosure to the tribunal."tribunal.”

By contrast, a lawyer lawyer who who only only "reasonably “reasonably believes" believes” that her criminal defense client is planning planning to testify falsely (but does not not know know for for sure) sure) must must still still honor honor her her client's client’s decision toto testify. Furthermore, thatthat lawyer is not required required to correct correct her her client's client’s testimony unless she knows it is false.

Saul’sSaul's Scheme to to Return Return the the Kettlemans Kettlemans to to Kim:

When the Kettlemans Kettlemans come crawling back to Saul, he no no longer longer wants them. But when he tries tries to convince themthem toto go back to Kim and take the plea plea deal, deal, they they threaten threaten to expose his acceptance ofof thethe $30,000 bribe bribe ... er er ...... "retainer." “retainer.” Once Once again, again, Saul Saul finds finds himself inin a trap of his own making. Having taken the money, now he's he’s forced to take these clients, clients, even though though he knows knows it it will upset Kim. The alternative alternative is is to to go go down down with with the Kettlemans.

After reviewing the file, Saul evidently reaches the same conclusion asas Kim: thethe case is a loser. Again, so what? Saul has lost lost cases before. It seems to to me me the the prudent prudent course course is is to do his best at trial trial and and wait wait for for the the apparently apparently inevitable inevitable conviction. WhyWhy does Saul feel compelled to go through thisthis elaborateelaborate schemescheme toto getget thethe Kettlemans backback toto HH&M?HH&M? It isn'tisn’t because he's he’s worried worried they they will will disclose disclose the bribe, bribe, since since doing doing so so will will implicate implicate them. Plus, it means having to return what’swhat's leftleft ofof thethe $30,000,$30,000, which means Saul's Saul’s dreams of leasing the fancy office suitesuite andand luringluring KimKim toto bebe hishis partnerpartner areare dead.dead. The only reason I can think of is becausebecause he wants to help Kim, who has now been relegated relegated to to the the "cornfield" “cornfield” at HH&M and and whose whose two-year two-year partnership partnership plan has now become a ten-year plan.

Whatever his motives, Saul hatches an elaborate scheme to force the Kettlemans Kettlemans into a position where they have no choice but to accept the plea deal. deal. Although Although the the plan plan is is brilliant, brilliant, it is completelycompletely unethical.unethical. InIn soso manymany ways.

The Ethics of Better Call Saul 31

Page 32 First, he recruits Mike to steal the the $1.5 $1.5 million million from from the the Kettlemans. Kettlemans. The The plan plan involves involves planting a stack of money sprayed with luminol outside the Kettlemans’Kettlemans' house, waiting for them to find the money and hide hide it it with their own stash, breaking into thethe house when the Kettlemans are asleep, and and following following the trail of luminol luminol to the hiding hiding place. Inducing a third party to commit commit a felony felony violates violates several several ethics ethics rules, rules, including including RuleRule 3.3(a)(6) ("knowingly(”knowingly engag[ing]engag[ing] inin ...... illegalillegal conduct”),conduct"), RuleRule 8.4(b)8.4(b) (engaging (engaging in in "illegal “illegal conduct that adversely reflects on the lawyer's lawyer’s honesty, honesty, trustworthiness trustworthiness oror fitnessfitness asas a lawyer"), lawyer”), Rule 8.4(d) (engaging (engaging in in "conduct “conduct that that is is prejudicial prejudicial to to the the administration administration of of justice"), justice”), and possibly RuleRule 4.4 (using (using "methods “methods of obtaining evidence that violate the legal legal rights rights of" of” third parties).parties). Nor is it aa defense that Mike - - not not Saul Saul - - is is the the one one committing committing the illegal act, since Rule 8.4(a) prohibits prohibits a a lawyer lawyer from from violating violating any any of of the the ethics ethics rules rules "through “through the acts of another." another.”

Second, without without consulting withwith hishis clients,clients, SaulSaul sendssends thethe $1.5$1.5 million toto thethe D.A.D.A. in order to force themthem toto acceptaccept thethe pleaplea deal.deal. ThisThis likelylikely violatesviolates RuleRule 1.2(a),1.2(a), which -- asas noted aboveabove - gives the client full discretiondiscretion overover whetherwhether toto acceptaccept aa pleaplea deal. It also likely violatesviolates RuleRule 1.6, which which requires the the attorney attorney to to preserve preserve confidential confidential information. information.

Whatever Saul's Saul’s motive motive in in executing executing this plan, it isn't isn’t to advance the best best interests interests of his clients. Therefore, he is clearly laboring under a conflict ofof interest.interest. RuleRule 1.7(a)(2)1.7(a)(2) prohibits prohibits a lawyer from from representing a a client client if if "there “there is a significant risk thatthat thethe lawyer’slawyer's professional judgmentjudgment on behalf of a client client will be adversely affected by the lawyer's lawyer’s own ... personal personal interests."interests.”

After dispensing with the Kettlemans, Saul is left to confront hishis ownown fate.fate. He returns to the empty office suite that he showed off to Kim earlier in the episode, shuts the door to the corner office, and has a major meltdown. In the end, however, however, his his cellphone cellphone rings and

32 The Ethics of Better Call Saul

PagePage 33 he answers it it with his goofy, fake receptionist voicevoice -- a sure sign that, whatever obstacles Saul faces, he he remains remains open open for for business.

March 20, 2015

The Ethics of Better Call Saul 33 PagePage 34 Comments From a Michigan Ethics Lawyer “I"I do enjoy the show and try to watchwatch - unlessunless therethere isis sportssports on,on, ofof course.”course."

As I continue my work analyzing Episodes 8 (RICO) and 9 (PIMENTO), I want to share an email I received from a legal ethics lawyer in Michigan, Don Campbell, who takes issue with two of my conclusions about Saul’sSaul's conduct in Episode 7 (Bingo). First, he disagrees that Saul breached confidentiality when he shared his elderly clients’clients' files with Chuck. Second, he disagrees that Saul’sSaul's involvement in breaking into the Kettlemans’Kettlemans' house was an ethical violation. Here are his remarks (edited for space), with my responses in bold. Although in my previous posts, I have used the name "Saul," “Saul,” I use the name name "Jimmy" “Jimmy” below to be consistent with Don’sDon's comments.

Don: I have have found found myself myself thinking thinking about about Jimmy's Jimmy’s conduct. I think think his conduct was not inconsistent withwith thethe rules.

First, the easier one is Jimmy bringing thethe files toto hishis brother.brother. InIn bothboth NYNY and Michigan, a lawyer who is notnot competentcompetent to handlehandle aa matter is permittedpermitted toto associateassociate withwith anotheranother lawyerlawyer who is competent. I see Jimmy Jimmy doing doing just that.

34 The Ethics of Better Call Saul PagePage 35 Nicole: Correct - Rule 1.1(b) says says that that a a lawyer lawyer should should associate with a competent lawyer if he is not qualified to dodo thethe workwork himself.himself. ButBut II believebelieve this mustmust bebe disclosed.disclosed. DonDon disagrees:

Don: The question question becomes can can Jimmy Jimmy bring bring in in his his brother brother without without the knowledge knowledge and permission of of hishis clients?clients? I I saysay yes...yes... . You You raise raise the the issue issue of of improper improper sharing sharing of confidences, but I don’tdon't think thatthat isis violatedviolated whenwhen aa lawyer is complying withwith RuleRule 1.1(b).1.1(b). So long as the the other other lawyer lawyer is is covered covered by by the the duty duty of of confidentiality. confidentiality. I think 1.6(c) allows allows this. To me me this this is is like like outsourcing outsourcing aa project to a contract contract lawyer. You don't don’t need need client client permission toto dodo staffing.staffing. II thinkthink staffingstaffing isis aa decisiondecision leftleft toto thethe lawyerlawyer underunder 1.2(a),1.2(a), even outside counsel.

Nicole: One reason reason I I take take issue issue with with this this is is because because I Ithink think it's it’s misleading. misleading. A A client client should know whom she is hiring. If she hires Jimmy because she mistakenly mistakenly thinks thinks he is qualified to do the work, work, but but in reality someone else is is doing doing the work, she should should know that. This is more than just just a "staffing “staffing issue”issue" -- therethere thethe supervising lawyer is qualified to do the work, but uses associates or contract lawyerslawyers toto assistassist withwith thethe work.work. WhenWhen aa lawyer needs to associate with a more experienced lawyer lawyer outside outside his his firm, that is a very different different issue.

Prof. Roy Simon - a leading leading NY commentator commentator - agrees agrees with with me. In In his his seminal seminal treatise on NY ethics, ethics, he writes: writes:

Rule 1.1(b) itself itself does does not not expressly expressly require require a lawyer lawyer to to obtain obtain client client consent to associate with a more more experienced experienced lawyer... lawyer... . . [However,] [However,] client client consent consent is is required required before before the the inexperienced lawyer can give give the the experienced experienced lawyer lawyer any any meaningful meaningful information information about the matter, matter, because because Rule Rule 1.6(a) 1.6(a) generally generally prohibits prohibits a lawyer lawyer from from revealing revealing a a client's client’s confidential information to another lawyer without the client's client’s informed consent.

Don: A harder issue issue is is Jimmy's Jimmy’s aiding (if not masterminding) the money being taken from his clients’clients' house by Mike. I think think Jimmy's Jimmy’s conduct was not inconsistent with thethe rules. You suppose the taking of thethe money was a crime. It likely was. But, a lawyer is only answerableanswerable to those those crimes crimes that that adversely adversely reflect reflect on her her honesty, honesty, trustworthiness trustworthiness andand fitnessfitness asas a lawyer. Certainly Jimmy is responsible forfor Mike’sMike's conductconduct underunder 8.4(a).8.4(a). But whatwhat was that conduct? ItIt was breaking and entering but not for a a felonious felonious or or larcenous larcenous purpose. purpose. I assume the money could not be stolen from the clients because they were never in in lawful possession. So it would likely onlyonly bebe aa misdemeanor in many jurisdictions. InIn anyany event a crime that does not involve moral turpitude. I do not think Jimmy violatedviolated 8.4.8.4.

The Ethics of Better Call Saul 35 PagePage 36 Nicole: I understand Don’sDon's view, but I still still feel that that breaking breaking into a client's client’s home does reflect on a lawyer's lawyer’s honesty, honesty, trustworthiness and and fitness fitness as as a a lawyerlawyer -- eveneven if it's it’s to to confiscate stolen money. I think most clients would feelfeel that a lawyer who breaks into their home was was not not "fit" “fit” to be their lawyer.

Don: What about about a a possible possible conflict conflict of interest you ask? Jimmy's Jimmy’s loyalty to Kim apparently exceeded his his loyalty to his clients. However,However, There is simply no conflict underunder 1.7.1.7. None. In Nix v Whiteside, Whiteside, 475 US US 157 157 (1986), (1986), the the Supreme Supreme Court Court said said that that a a lawyer's lawyer’s refusal refusal to call a client to testify falselyfalsely is notnot aa conflict,conflict, becausebecause there is is no no right right to commit perjury. I would analogize Jimmy's Jimmy’s situation situation to the lawyer in NixNix.. Where the clients are upset that they wanted to to continue continue a crime, crime, that that can't can’t be be the the proper proper basis basis of of a a claim claim of of conflict conflict in my opinion.

Nicole: The difference in Nix is that the lawyer lawyer followed followed the proper proper procedures procedures for dealing with client perjury. HeHe warned the client that he had a a duty duty to to disclose disclose any false testimony, testimony, which persuaded the client client to to testify testify truthfully. truthfully. After being convicted, however, the client complained thatthat hehe was denied a fair fair trial because he wasn't wasn’t able able to to testify testify falsely. The Court ruled that an attorney attorney is is not not obligated obligated to assist assist a client client in in committing committing perjury. Unlike Jimmy, the attorney in Nix didn't didn’t use his his knowledge knowledge of of the the client's client’s guilt guilt to to trick trick him him into into accepting a plea deal. The The message message of of Nix Nix is is that that there there are are legitimate legitimate options options for lawyers who are faced faced with with client client perjury and misconduct. I doubt that a court would bless Jimmy's Jimmy’s dishonest and manipulative way of of handling handling of the situation. situation.

Don: Hope you you found found my my "dissent" "dissent” interesting, if not compelling.compelling. I do enjoy the show and try to watch - unless unless there there is is sports sports on, of of course. course. Looking Looking forward forward to your next blog.

Nicole: Here it it is Don! Hope you you enjoy enjoy it!

April 07, 2015

36 The Ethics of Better Call Saul

Page 37 Episode 88 (RICO)(RICO) "You“You say potato. I say say spoliation" spoliation”

Warning: Spoiler Alert!

I .1

In my previous posts, I discussed the ethical issues in Episodes 1 through 7 of Better Call Saul. For this discussion, familiarity with the plot of Episode 8 is assumed.

Digging Through the Dumpster:

When I was was interviewed interviewed for Slate TV club, club, the the first first question they asked me was whether it was ethically "kosher" “kosher” forfor anan attorneyattorney toto dig through aa dumpster for evidence. This was before I saw Episode 8, since since Slate reviewers reviewers get a sneak sneak peak peak and and record record their their podcast podcast before the show airs. My answer was that, based on on my my understanding of the law, once you throw something out it isis nono longerlonger youryour property.property. InIn mymy view,view, an attorney who digs digs through a dumpster for evidence is probably in the clear - ethically ethically speaking. Saul puts it in more colorful terms:

You can’tcan't say it’sit's private if a hobo can use it as a wigwamwigwam!!

Spoliation:

When Saul Saul returns returns to Sandpiper Sandpiper to dig dig up up some some more more dirt dirt on on their their fraudulent fraudulent billing billing practices, thethe receptionist barsbars himhim from entering under the pretext pretext of of curbing curbing legal legal solicitation. InIn aa poorly concealed glassglass officeoffice nearnear the reception area, Saul Saul observes observes employees shredding reams of paper (pro tip: don’tdon't shredshred youryour evidenceevidence inin anan areaarea where the lawyer you're you’re worried about is almostalmost certaincertain toto showshow upup andand seesee you). Saul pretends pretends to need the the toilet toilet and, once once locked locked inside, inside, composes aa demand letter on the back of of his his legal pad and (because (because he he runs runs out out of of space) space) some some toilet toilet paper. paper. He He thrusts thrusts the the letter letter in the receptionist'sreceptionist’s face face andand yellsyells atat the the employees employees to to stop stop shredding, shredding, accusing accusing them of "spoliation."“spoliation.”

The Ethics of Better Call Saul 37 PagePage 338 8 Although one legal commentator has remarked that a a "demand" “demand” letter is is probably probably not required for RICO claims, claims, I Itook took the the "demand" “demand” letter letter simply simply to to be be a a "litigation “litigation hold" hold” letter. In other words, it puts the other side on notice of a potential potential claim and instructs instructs them to cease any any destruction destruction of evidence. If a a party party then then destroys destroys evidence evidence after after receiving receiving notice of a claim, claim, it it can can be be sanctioned sanctioned for for "spoliation" “spoliation” ofof evidence.evidence. AsAs anan aside, I appreciate that Saul Saul pronounced pronounced "SPO-liation" “SPO-liation” correctly,correctly, since since I’veI've heard even even experienced lawyers mispronounce mispronounce it as "SPOIL-iation." “SPOIL-iation.”

Saul refers to to "spoliation" “spoliation” asas a felony - and this this is true in certain jurisdictions. But the more likely result of spoliation isis thatthat thethe court willwill givegive anan adverse inference inference instruction; instruction; that is, the jury may infer infer from the intentional intentional destruction ofof thethe evidenceevidence that it was damaging to the offending party.

Saul gets high marks from meme onon competencecompetence here (Rule 1.1). He He acts acts quickly quickly and forcefully to give Sandpiper Sandpiper written written notice of its its obligation obligation toto preserve evidence. A A more more traditional traditional lawyer - someone like like Chuck Chuck for for example - - would would have have wasted wasted precious precious time time going going back to his office and drafting a lowly associate to prepare a litigation litigation hold letter, which would have been reviewed and revised revised multiple times before it got out thethe door. ByBy then,then, the damage would have been done.

Using Chuck’sChuck's Code to Print CasesCases from Westlaw:

Several reviewers reviewers have have commented commented on on the the use use of of Chuck's Chuck’s code code to to "print" “print” documents, but what Saul asks Kim Kim to to do do is is much much more more substantive substantive than just using the printer. He is essentially asking her to do on-line legal research AND to to print all the results. This is real legal work, not justjust anan administrativeadministrative task.task. BackBack inin 2002,2002, thatthat amountamount ofof WestlawWestlaw researchresearch would have cost quite a chunk of change. When I first first saw this this scene, I I assumed assumed that that it would give HH&M the the leverage leverage to to argue argue that that they they owned owned the the Sandpiper Sandpiper case case outright, outright,

38 The Ethics of Better Call Saul PagePage 39 leaving Saul in thethe cold.cold. BasedBased onon thethe eventsevents ofof EpisodeEpisode 9,9, however,however, itit appearsappears thethe WestlawWestlaw code may have been a red red herring. herring.

Did Kim Violate Conflict of InterestInterest Rules?Rules? One ethical ethical nitpick nitpick I have is is that that Kim Kim agrees agrees to to do do the the research research without without running running a conflict conflict check. HH&M is is a a big big firm firm and could could have a relationship relationship with Sandpiper. Many companies hire multiple law firms to handle different legal issues, so that fact that that Sandpiper Sandpiper is is represented byby Schweikart doesdoes notnot meanmean it isn't isn’t also represented byby HH&M in in other other matters. In a firm firm that large, not every client is known to every lawyer. That is why law firms are required required to to have have institutionalized institutionalized procedures for screening new clients clients and and identifying identifying conflicts. Kim’sKim's failurefailure toto follow thatthat procedureprocedure putput herher firm at risk of an ethical ethical violation violation if Sandpiper turned out to be a client. Worse, Saul would be tainted by HH&M's HH&M’s conflict conflict and could be disqualified from representing thethe clients. InIn that case, he he would would probably probably forfeit forfeit any right to a legal fee and all his work would be wasted.

April 07, 2015

The Ethics of Better Call Saul 39 PagePage 40 Page 41 e

NotforResale Page 42 New YorkYork Rules ofof Professional Conduct

PagePage 43 RULE 2.1.2.1.

Advisor

In representing a a client, client, a a lawyer lawyer shall shall exercise exercise independent independent professional professional judgment andand render candid candid advice. advice. In rendering advice, aa lawyer maymay referrefer not only to law law but but to to other other considerations considerations such such as as moral, moral, economic, economic, social, social, psychological, andand politicalpolitical factors factors thatthat maymay bebe relevantrelevant toto thethe client’sclient's situation.situation.

RULE 2.2.2.2.

[Reserved]

RULE 2.3.2.3.

Evaluation for Use by Third Persons

(a) A lawyerlawyer maymay provideprovide an evaluation of a matter affectingaffecting a client for the use of someone other than the clientclient if the lawyer reasonably believes that making the evaluation is compatible withwith otherother aspects of thethe lawyer’slawyer's relationshiprelationship with the client.

(b) When the lawyer knows oror reasonably should know thatthat the evaluation is likely toto affectaffect the the client’sclient's interestsinterests materiallymaterially andand adversely,adversely, thethe lawyer shall notnot provide the evaluation unless the client gives informedinformed consent.consent

(c) Unless disclosuredisclosure is is authorizedauthorized inin connectionconnection with with aa reportreport of an an evaluation, information relating to the evaluationevaluation isis protected by by RuleRule 1.6.

RULE 2.4.2.4.

Lawyer Serving as Third-PartyThird-Party NeutralNeutral

(a) A lawyerlawyer servesserves asas aa “third-party"third-party neutral”neutral" when the lawyer assists two or more persons who are notnot clientsclients ofof the lawyerlawyer to reach a resolution of a dispute or other matter thatthat hashas arisenarisen betweenbetween them.them. ServiceService as a third-party neutral may include serviceservice asas anan arbitrator,arbitrator, aa mediatormediator oror inin suchsuch otherother capacitycapacity asas willwill enable the lawyer to assistassist thethe partiesparties to resolve thethe matter.matter.

(b) A lawyer servingserving asas aa third-party neutral shall shall inform unrepresented parties that the the lawyer lawyer is is not not representing representing them. them. When When the the lawyer lawyer knows knows or

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Page 44 RULE 3.1.3.1.

Non-Meritorious Claims andand ContentionsContentions

(a) A lawyerlawyer shallshall notnot bringbring oror defenddefend aa proceeding,proceeding, or or assert assert oror controvertcontrovert an issue issue therein, therein, unless therethere is a basis basis in law law and fact fact for doing soso that is not frivolous. AA lawyer lawyer for for the the defendant defendant in in a a criminal criminal proceeding proceeding or or for for the the respondentrespondent in a proceeding proceeding that could could result inin incarceration incarceration may may nevertheless so defend the proceeding as to require that everyevery element of the case be established.

(b) A lawyer’slawyer's conduct is "frivolous"“frivolous” for purposes ofof this RuleRule if:

(1) the lawyer lawyer knowingly knowingly advances aa claim or defense defense that is is unwarranted unwarranted under under existing existing law, law, except except that the lawyer maymay advance suchsuch claimclaim or defense ifif it can be supported byby good faith argument for an extension, modification, or reversal ofof existing law;

(2) the conductconduct has no reasonable purposepurpose otherother than to delay or prolong prolong the the resolution resolution of of litigation, litigation, in in violation ofof RuleRule 3.2,3.2, oror servesserves merelymerely toto harass or maliciously injureinjure another;another; or

(3) the lawyer lawyer knowingly knowingly asserts asserts material material factual factual statements thatthat areare false.false.

RULE 3.2.3.2.

Delay ofof LitigationLitigation

In representing representing aa client, aa lawyer shallshall notnot use means means that have have no no substantial purposepurpose otherother than to delay delay or or prolong prolong the the proceeding proceeding or to to cause cause needless expense.

RULE 3.3.3.3.

Conduct Before aa TribunalTribunal

(a) A lawyerlawyer shallshall not knowingly:

(1) make a false statementstatement of fact oror law toto a tribunal or fail toto correctcorrect a false statementstatement of material fact or law previously made to the tribunal by the lawyer;

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Page 45 (2) fail to to disclose disclose to to the the tribunal tribunal controlling controlling legal legal authority known to the lawyer to bebe directlydirectly adverse to the the position position of of the the client client and and not not disclosed disclosed by by opposing counsel; or

(3) offer oror use evidence evidence thatthat the lawyer lawyer knows to be false. IfIf aa lawyer, lawyer, the lawyer's lawyer’s client, oror a witness witness called byby thethe lawyerlawyer hashas offered materialmaterial evidence and the lawyer lawyer comes comes to know know of of its its falsity, falsity, the the lawyer lawyer shall take reasonable remedialremedial measures,measures, including,including, if necessary, disclosuredisclosure toto the tribunal. tribunal. A A lawyer lawyer may refuse to offer evidence,evidence, otherother than the testimony ofof a defendant inin a criminal criminal matter, that the the lawyer lawyer reasonably believes is false.

(b) A lawyerlawyer whowho representsrepresents a client before a tribunal and who knows thatthat a person person intends intends to to engage, engage, is is engaging engaging or has has engaged engaged in criminal criminal or fraudulent fraudulent conduct relatedrelated to the the proceeding proceeding shall shall take take reasonable reasonable remedial remedial measures, measures, including, ifif necessary,necessary, disclosuredisclosure toto thethe tribunal.tribunal.

(c) The duties stated in in paragraphs paragraphs (a) (a) and and (b) (b) apply apply even even if if compliance compliance requires disclosuredisclosure ofof information otherwise protectedprotected by by RuleRule 1.6.

(d) In an ex ex parte parte proceeding, proceeding, a lawyer lawyer shall shall inform inform the tribunal tribunal of of all all material factsfacts knownknown toto thethe lawyer thatthat will enable thethe tribunal to make make an an informed decision, whetherwhether or not the facts areare adverse.

(e) In presenting a matter matter to to a a tribunal, tribunal, a a lawyer lawyer shall shall disclose, disclose, unless unless privileged oror irrelevant,irrelevant, thethe identities of thethe clientsclients thethe lawyerlawyer representsrepresents and of the persons who employed the lawyer.

(f) In appearing as a lawyer before a tribunal, a lawyer shall not:

(1) fail to comply with known local customs of courtesy or practice of thethe bar or a particular tribunal without giving toto opposingopposing counselcounsel timelytimely noticenotice ofof thethe intentintent not to comply;

(2) engage in undignifiedundignified oror discourteousdiscourteous conduct;

(3) intentionally or habitually violate anyany establishedestablished rule of procedureprocedure or ofof evidence; or

(4) engage inin conductconduct intendedintended toto disruptdisrupt the tribunal.

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Page 46 RULE 4.1.4.1.

Truthfulness In Statements ToTo Others

In the course ofof representing aa client,client, aa lawyerlawyer shallshall notnot knowinglyknowingly make a false statementstatement ofof fact oror lawlaw toto aa thirdthird person.person.

RULE 4.2.4.2.

Communication With PersonPerson Represented ByBy CounselCounsel

(a) In representing representing a client, client, a a lawyer lawyer shall shall not not communicate communicate or cause cause another to communicate communicate aboutabout thethe subject ofof thethe representationrepresentation with a party the lawyer knowsknows toto bebe representedrepresented byby another lawyerlawyer in the matter, unless the lawyerlawyer has the prior consentconsent ofof the other lawyerlawyer oror isis authorizedauthorized toto dodo soso byby law.

(b) Notwithstanding the the prohibitionsprohibitions of of paragraphparagraph (a),(a), and unless unless otherwise prohibited by law, a lawyer may cause a client client to to communicate communicate with a represented person person unless unless the the represented represented person person is is not not legally legally competent, competent, and may counsel thethe client withwith respect to thosethose communications,communications, provided the lawyer gives reasonable advanceadvance noticenotice toto thethe represented person's person’s counsel counsel that such such communications will be taking place.

(c) A lawyerlawyer whowho is acting pro se or is represented byby counsel in a matter is subject to paragraph (a), but maymay communicate withwith aa represented person, unless otherwise prohibitedprohibited byby lawlaw andand unless the represented represented person person is is not not legally legally competent, provided the lawyer or thethe lawyer'slawyer’s counselcounsel givesgives reasonable advanceadvance notice to the represented person'sperson’s counselcounsel thatthat suchsuch communicationscommunications willwill be taking place.

RULE 4.3.4.3.

Communicating With Unrepresented Persons

In communicating onon behalfbehalf ofof a a client client with with a a person person whowho isis notnot representedrepresented by counsel, aa lawyerlawyer shallshall notnot statestate oror imply thatthat the lawyer is disinterested. WhenWhen the lawyer lawyer knows knows or reasonably reasonably should know that the the unrepresented unrepresented person person misunderstands the lawyer'slawyer’s role in the matter,matter, thethe lawyerlawyer shallshall makemake reasonablereasonable efforts to correct the misunderstanding.misunderstanding. The The lawyer lawyer shall shall not not give give legallegal advice to an unrepresented personperson otherother thanthan thethe advice advice toto securesecure counselcounsel ifif the lawyerlawyer knowsknows or reasonably reasonably shouldshould knowknow that that thethe interestsinterests ofof suchsuch personperson areare or have have a reasonable possibilitypossibility of being in conflict withwith thethe interestsinterests of the client.

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Page 47 RULE 7.1.7.1.

Advertising

(a) A lawyerlawyer oror lawlaw firmfirm shallshall notnot useuse oror disseminatedisseminate oror participate in the use or dissemination of anyany advertisementadvertisement that:

(1) contains statements oror claimsclaims that areare false,false, deceptive or misleading; or

(2) violates a Rule.

(b) Subject toto the provisions provisions of paragraph paragraph (a), (a), an an advertisement advertisement may may include information as to:

(1) legal and nonlegal nonlegal education, education, degreesdegrees and other other scholastic distinctions, datesdates of admission toto any bar; areas of the law law in in which which the the lawyer lawyer or or law law firm firm practices, as authorized byby thesethese Rules;Rules; publicpublic officesoffices and teaching teaching positions positions held; held; publications publications of law law related matters authoredauthored byby the lawyer;lawyer; memberships in bar associations associations or other other professional professional societies societies or organizations, includingincluding offices and and committee committee assignments therein; foreign foreign language language fluency; fluency; and bona fide professionalprofessional ratings;

(2) names of clients regularly represented,represented, provided that the client has given priorprior writtenwritten consent;

(3) bank references; references; credit credit arrangements arrangements accepted; accepted; prepaid oror groupgroup legallegal services programs in which the lawyer or law law firm firm participates; participates; nonlegal nonlegal services services provided byby thethe lawyer oror law firm oror by an entity owned and controlled by the lawyer or lawlaw firm; the existence of contractual relationships between the lawyer or law law firm firm and and a a nonlegal nonlegal professional professional or nonlegal professionalprofessional service service firm, firm, toto the extent extent permitted by Rule 5.8,5.8, andand thethe nature and extent extent of of services available available through through those those contractual contractual relationships; and

(4) legal feesfees forfor initialinitial consultation;consultation; contingentcontingent feefee ratesrates in civil civil matters when when accompanied accompanied byby a statement statement disclosing thethe informationinformation requiredrequired by paragraphparagraph (p);

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Page 48 range of fees for legal andand nonlegal services, providedprovided that there there be be available available to to the the public public free free of of charge charge a written statementstatement clearly clearly describingdescribing thethe scopescope ofof each advertised service; hourly rates;rates; and fixed fixed fees for for specified legal and nonlegal services.

(1) include aa paidpaid endorsementendorsement of,of, or testimonial about, a lawyer or law firm withoutwithout disclosing thatthat thethe person is beingbeing compensatedcompensated therefor;therefor;

(2) include the portrayal ofof aa fictitiousfictitious lawlaw firm, thethe use of a fictitious fictitious name to refer refer to to lawyers lawyers not not associated associated together inin a a law law firm, firm, or or otherwise otherwise imply imply that that lawyers areare associated in a law firm ifif thatthat isis not the case;

(3) use actors toto portrayportray aa judge,judge, thethe lawyer,lawyer, members of the law law firm, firm, or or clients, clients, or or utilize utilize depictions depictions of of fictionalized eventsevents oror scenes, without disclosure disclosure of same; or

(4) be made to resemble legal documents.

(d) An advertisementadvertisement that compliescomplies with subdivision (e) of this section may contain the following:following:

(1) statements that are reasonably reasonably likely toto create an an expectation about results thethe lawyerlawyer cancan achieve;

(2) statements that compare compare the the lawyer's lawyer’s services services with with the services of otherother lawyers;

(3) testimonials or endorsementsendorsements of of clients,clients, and of former clients; or

(4) statements describingdescribing or characterizingcharacterizing the quality of the lawyer'slawyer’s oror lawlaw firm'sfirm’s services.

(e) ItIt is permissible to provide the informationinformation set forthforth inin subdivision(d)subdivision(d) of thisthis sectionsection provided:

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Page 49 (1) its dissemination dissemination does does not not violate violate subdivision(a)of subdivision(a)of this section;

(2) it can be factually supportedsupported by the lawyer or lawlaw firm as of thethe date on which thethe advertisementadvertisement is published or disseminated;

(3) it is is accompanied accompanied by by the the following following disclaimer: disclaimer: "Prior “Prior results do not guarantee aa similarsimilar outcome";outcome”; and

(4) in the case case of of a a testimonial testimonial or or endorsement endorsement from from a client with respect to a matter stillstill pending,pending, the client gives informed consent confirmed in writing.

(f) Every advertisementadvertisement otherother than those appearing appearing inin a a radio, radio, televisiontelevision or billboard advertisement, in a directory, newspaper, magazine or other periodical (and any web sites related thereto), or made inin personperson pursuantpursuant toto RuleRule 7.3(a)(1),7.3(a)(1), shall be labeled "Attorney“Attorney Advertising”Advertising" onon thethe firstfirst page,page, oror onon thethe home page in the case of a web site. If thethe communication is in the form of a self-mailing brochurebrochure or postcard, the words "Attorney“Attorney Advertising"Advertising” shallshall appearappear therein. In the case of electronic mail, the the subject subject line line shall shall contain contain the the notation notation "ATTORNEY “ATTORNEY ADVERTISING."ADVERTISING.”

(g) A lawyer oror law firm shall not utilize utilize meta tags or or other other hidden hidden computer codescodes that,that, ifif displayed, would violate these Rules.

(h) All advertisementsadvertisements shall include the name, principal lawlaw office addressaddress and telephone numbernumber of of thethe lawyerlawyer oror lawlaw firmfirm whose services are being offered.

(i) Any wordswords oror statements requiredrequired byby thisthis RuleRule toto appear in an an advertisement must be clearly clearly legible andand capable of being readread by the average average person, if written, andand intelligibleintelligible if if spoken spoken aloud. aloud. In the case case of a web site, the required words or statements shallshall appear onon thethe homehome page.

(j) A lawyer or law law firm firm advertising advertising any any fixed fixed fee fee for for specified specified legal legal services shall, atat the time of fee publication, have available toto thethe public aa written statement clearlyclearly describing the scopescope of each advertised service, which statementstatement shall be available to the client at the timetime ofof retainer forfor anyany suchsuch service.service. SuchSuch legal services shall include allall thosethose services thatthat are recognized recognized as reasonable reasonable and and necessary under locallocal custom in the area ofof practice in the communitycommunity where the services are performed.

(k) All advertisementsadvertisements shall bebe pre-approved by the lawyerlawyer oror lawlaw firm, and a copy shall bebe retainedretained for a period of notnot less than three yearsyears followingfollowing its initial

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Page 50 dissemination. AnyAny advertisement contained in in a acomputer-accessed computer-accessed communication shall be retained forfor aa periodperiod of of notnot lessless thanthan one one year. year. A A copy of the contents of any web site covered by this Rule shallshall bebe preservedpreserved upon the initial initial publication ofof thethe web site, any major major web web site site redesign, redesign, or or a a meaningful meaningful and and extensive content change, but in no event less frequently than once every 90 days.

(l)(1) If aa lawyer oror law firmfirm advertisesadvertises aa rangerange ofof feesfees oror anan hourlyhourly raterate for services, thethe lawyer oror law firm shallshall notnot charge moremore than the feefee advertised for such services. IfIf aa lawyer or law law firm firm advertises advertises a a fixed fixed fee fee for for specified specified legal legal services, oror performs services described in a fee fee schedule, schedule, the lawyer or lawlaw firmfirm shall not charge more than the fixedfixed fee for such stated legal service as set forth in the advertisement advertisement oror fee schedule, unlessunless thethe clientclient agreesagrees inin writing thatthat the services performedperformed oror toto be performed performed werewere not legal legal services referred toto or implied inin thethe advertisementadvertisement or in the feefee schedule and, further, that aa differentdifferent fee arrangement shallshall apply to the transaction.

(m) Unless otherwiseotherwise specified inin thethe advertisement, if a lawyer publishes any fee information authorized underunder this Rule Rule in a publication publication that is is published published more frequently thanthan onceonce perper month, thethe lawyer shall be bound bound by any any representation mademade thereintherein forfor aa period of not less than 30 30 days days after after such such publication. If aa lawyerlawyer publishespublishes anyany feefee informationinformation authorizedauthorized under this RuleRule in a publication that is published once per month or less frequently, the lawyer shall be bound by any representation mademade thereintherein untiluntil thethe publicationpublication ofof thethe succeedingsucceeding issue. If a lawyer publishes any fee information authorizedauthorized underunder this Rule in a publication that has nono fixedfixed date forfor publicationpublication of a succeedingsucceeding issue, the lawyer shall be bound by any representation made therein forfor a reasonable period ofof time after publication, but in no event less than 90 days.

(n) Unless otherwiseotherwise specified, ifif aa lawyerlawyer broadcasts any fee information authorized under thisthis Rule,Rule, the lawyer shall bebe bound by anyany representationrepresentation made therein forfor a period ofof not less than 30 days after such broadcast.broadcast.

(o) A lawyer lawyer shall not compensate compensate oror give any thing of value value to to representatives of the press, press, radio, radio, television television or or other other communication communication medium medium in anticipation ofof or in return forfor professionalprofessional publicitypublicity in a news item.

(p) All advertisementsadvertisements thatthat contain information about the fees charged by the lawyerlawyer or lawlaw firm,firm, including thosethose indicatingindicating thatthat inin thethe absence of a recovery no fee will bebe charged,charged, shallshall complycomply withwith thethe provisions ofof Judiciary Law §488(3).§488(3).

(q) A lawyer may accept employment thatthat results from from participation participation in activities designed toto educate the public public to to recognize recognize legal legal problems, problems, to make make intelligent selection ofof counsel or to utilize available legal services.

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Page 51 (r) Without affecting thethe right to accept employment, a lawyer may speak publicly oror writewrite for publication onon legallegal topicstopics soso longlong asas the lawyer does not undertake toto givegive individual advice.

RULE 7.2.7.2.

Payment for Referrals

(a) A lawyerlawyer shallshall notnot compensatecompensate or give anything of valuevalue toto aa personperson or organization toto recommend oror obtain employment byby aa client, oror asas a reward for having made a recommendationrecommendation resulting in employment by a client, exceptexcept that:that:

(1) a lawyer lawyer or law law firm firm may may refer refer clients clients to to a a nonlegal nonlegal professional oror nonlegal nonlegal professional professional service service firm firm pursuant to a a contractual contractual relationship relationship with with such such nonlegal professional or nonlegal professional service firm to provide provide legal legal and other other professional professional services services on a systematic and continuing basisbasis asas permittedpermitted by Rule 5.8,5.8, providedprovided howeverhowever thatthat such referral shall shall not otherwise include any monetary or other tangible consideration oror rewardreward for such, oror the sharing sharing of of legal fees; andand

(2) a lawyer lawyer may pay the usual usual and reasonable reasonable fees or dues charged charged by by a a qualified qualified legal legal assistance assistance organization oror referralreferral feesfees toto another lawyer lawyer as permitted byby RuleRule 1.5(g).

(b) A lawyer oror the lawyer's lawyer’s partner or or associate associate or or any any other other affiliated affiliated lawyer may be recommended, employed oror paidpaid by, oror maymay cooperatecooperate with one of the followingfollowing officesoffices or or organizationsorganizations thatthat promotepromote the use of the lawyer'slawyer’s services or those of a partner oror associateassociate oror anyany otherother affiliatedaffiliated lawyer, or request one ofof the following following officesoffices or or organizationsorganizations to to recommendrecommend or or promotepromote thethe useuse of the lawyer'slawyer’s services or those of thethe lawyer’slawyer's partner oror associate,associate, oror anyany other affiliatedaffiliated lawyer asas a private private practitioner, practitioner, if there is is no no interference interference with with the the exercise exercise of of independent professionalprofessional judgmentjudgment onon behalfbehalf ofof the client:

(1) a legal aid office oror publicpublic defenderdefender office:office:

(i) operated or sponsoredsponsored byby aa dulyduly accredited law school;

(ii) operated oror sponsoredsponsored byby aa bonabona fide,fide, non- profit community organization;

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Page 52 RULE 8.1.8.1.

Candor in thethe Bar Admission Process

(a) A lawyerlawyer shallshall bebe subjectsubject toto disciplinediscipline if,if, inin connection connection withwith thethe lawyer’slawyer's own application for admission to the bar previously filed inin thisthis statestate or in any otherother jurisdiction, oror inin connection withwith thethe application ofof anotheranother person forfor admissionadmission to the bar, the lawyerlawyer knowingly:knowingly:

(1) has made or failed failed to correct correct a a false false statement statement of of material fact; or

(2) has failed failed to disclose disclose a material material fact fact requested requested in in connection withwith a lawful lawful demand demand for for information information from an admissionsadmissions authority.authority.

RULE 8.2.8.2.

Judicial Officers andand CandidatesCandidates

(a) A lawyerlawyer shallshall notnot knowingly makemake aa falsefalse statementstatement of fact concerning the qualifications, conduct or integrity ofof a judge or other adjudicatoryadjudicatory officerofficer or ofof a candidate for election or appointment to to judicial judicial office.office.

(b) A lawyer who is a candidate candidate for for judicial judicial office office shall comply with the applicable provisionsprovisions ofof Part 100 of of the the Rules Rules of of the the Chief Chief Administrator Administrator of the Courts.

RULE 8.3.8.3.

Reporting Professional Misconduct

(a) A lawyerlawyer whowho knowsknows thatthat another lawyerlawyer has committedcommitted aa violationviolation of the Rules Rules of Professional Professional ConductConduct that that raisesraises aa substantialsubstantial questionquestion asas toto that lawyer’slawyer's honesty,honesty, trustworthinesstrustworthiness or or fitnessfitness as as aa lawyer lawyer shall shall report report such such knowledge toto aa tribunaltribunal oror other authority empowered to investigate oror act upon such violation.

(b) A lawyer who possesses knowledge knowledge or evidence evidence concerning concerning another lawyer or a judge shall notnot fail toto respondrespond to a lawful demanddemand for information from a tribunal or other authorityauthority empoweredempowered toto investigateinvestigate oror actact uponupon suchsuch conduct.

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Page 53 (1) information otherwise protectedprotected by by RuleRule 1.6;1.6; or

(2) information gained gained by by aa lawyer lawyer or or judge judge while while participating in in a bona bona fide fide lawyer lawyer assistance assistance program.

RULE 8.4.8.4.

Misconduct

A lawyerlawyer oror law firm shallshall not:not:

(a) violate or attempt to to violate violate the the Rules Rules of of ProfessionalProfessional Conduct,Conduct, knowingly assistassist or induce anotheranother to do so, or do soso throughthrough the acts of another;another;

(b) engage in illegal conductconduct thatthat adversely reflects on the lawyer'slawyer’s honesty, trustworthiness oror fitnessfitness as a lawyer;

(d) engage inin conduct that is is prejudicial prejudicial to the the administration administration of of justice;

(e) state oror implyimply an ability:

(1) to influence influence improperly oror upon irrelevant irrelevant grounds grounds any tribunal, legislativelegislative bodybody oror publicpublic official;official; or

(2) to achieve results using means that violateviolate these RulesRules or other law;

(f) knowingly assistassist aa judge or judicial officerofficer inin conductconduct thatthat is a violation of applicableapplicable rules of judicialjudicial conductconduct oror otherother law;

(g) unlawfully discriminatediscriminate in in thethe practice of law, law, including including in hiring, promoting or otherwise otherwise determining determining conditions conditions of of employment onon the basis basis of of age, age, race, race, creed, creed, color, color, national national origin, sex, disability, maritalmarital statusstatus or or sexual sexual orientation. orientation. Where there is a tribunal with jurisdiction toto hearhear aa complaint,complaint, if timely brought, brought, other other than than a aDepartmental Departmental Disciplinary Disciplinary Committee, aa complaint based on unlawfulunlawful discrimination shall be brought before such tribunal in the first instance. AA certifiedcertified

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Page 54 copy of aa determination by such a tribunal, tribunal, which has become become final and enforceable andand asas to which the right right to to judicial judicial or appellate review has been exhausted, finding thatthat the lawyer has engaged in an unlawful unlawful discriminatory practice shall constitute prima facie evidence of professionalprofessional misconduct in a disciplinary proceeding; or

(h) engage inin any other other conduct conduct that that adversely adversely reflects on the the lawyer'slawyer’s fitness as a lawyer.

RULE 8.5.8.5.

Disciplinary AuthorityAuthority and ChoiceChoice of Law

(a) A lawyerlawyer admittedadmitted toto practicepractice inin thisthis statestate is subject to the disciplinary authority of this state, regardless of where the lawyer'slawyer’s conduct occurs. AA lawyerlawyer may be subject subject to the the disciplinary disciplinary authority ofof bothboth this state state and and another another jurisdictionjurisdiction wherewhere the lawyer isis admittedadmitted forfor thethe samesame conduct.conduct

(b) In any exercise of thethe disciplinary authorityauthority ofof thisthis state,state, the rules of of professional conduct to be applied shallshall be as follows:

(1) For conduct in connection connection withwith a proceeding proceeding inin a court before which a lawyer has been admitted admitted to practice (either(either generally oror forfor purposes of that that proceeding), thethe rulesrules to be applied shall be the rules of the jurisdiction in which thethe court sits, unless the rules of thethe courtcourt provideprovide otherwise;otherwise; and

(2) For any otherother conduct:

(i) If thethe lawyer is licensed to practice onlyonly in this state, the rules rules to to be be applied applied shall shall be the rules of this state, and

(ii) If the lawyer is licensed to practice in this state and and another another jurisdiction, jurisdiction, the rules to be applied applied shallshall bebe the rules rules of of the the admitting jurisdiction in which the lawyer lawyer principally practices; provided, provided, however, however, that if if particular particular conduct conduct clearly clearly has its its predominant effect in another another jurisdiction jurisdiction in which the lawyerlawyer is licensedlicensed to practice,practice,

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Speaker BiographyBiography

PagePage 56 Nicole HylandHyland

Nicole Hyland is a partnerpartner in the Litigation Group and Professional Responsibility Group at Frankfurt Kurnit. Kurnit. Her Her practice practice focuses focuses primarilyprimarily on on legallegal ethics, professional responsibility, and legal malpractice.malpractice.

Ms. HylandHyland counselscounsels attorneysattorneys and law firms onon conflictsconflicts of of interest, interest, legal legal fee fee disputes, disputes, escrow escrow issues, disqualificationdisqualification motions,motions, multijurisdictionalmultijurisdictional lawlaw practice,practice, businessbusiness transactionstransactions withwith clients, lateral transitions, law law firmfirm formation formation and and break-ups, break-ups, advertising advertising and and social social media media use,use, and other professional responsibility issues. Ms. HylandHyland alsoalso represents represents defendantsdefendants and plaintiffs in legal malpracticemalpractice andand breachbreach of of fiduciaryfiduciary duty duty disputes. disputes. She She was was named named a Newa New York York areaarea "Super“Super Lawyer”Lawyer" in the field ofof ProfessionalProfessional LiabilityLiability byby Super Lawyers magazine, and was awardedawarded the 2015 GlobalGlobal AwardAward inin ProfessionalProfessional Negligence -– New New York,York, USA by by Corporate Corporate LiveWire.

In addition to her legal ethicsethics and professional responsibility practice,practice, Ms.Ms. Hyland has an T (212) 826 5552 active litigationlitigation practice,practice, focusingfocusing on on art, art, literature, literature, andand entertainment entertainment industry disputes. She F (212) 593 9175 handles copyright, trademark, right right of of publicity,publicity, and defamation claims, as well asas disputesdisputes [email protected] over financing,financing, production,production, distribution,distribution, andand talenttalent agreements.agreements. SheShe counselscounsels art,art, literature, and entertainment industry industry clients clients on on content content issues, issues, includingincluding copyright, trademark, right of Practice Areas publicity, television formatting rights, privacy, defamation, and fair use. Legal Ethics && Professional Responsibility Ms. HylandHyland is ChairChair of thethe Committee onon Professional Ethics Ethics of of the the New New York York City Bar Litigation Association (NYCBA). InIn thatthat role, sheshe overseesoversees thethe CityCity Bar’sBar's ethicsethics hotline,hotline, which provides Intellectual Property ethical guidanceguidance toto lawyerslawyers fromfrom allall overover New York State. State. SheShe alsoalso overseesoversees thethe draftingdrafting of Social Media informal andand formalformal ethicsethics opinionsopinions onon aa variety of topics,topics, including:including: non-refundable flatflat fee fee arrangements, the the use use of of ProfessionalProfessional Employer Employer OrganizationsOrganizations by by lawlaw firms, thethe ethicsethics of of usingusing a virtual law office, ethical ethical guidelines guidelines for for accepting accepting credit credit cards, cards, and and business business arrangements arrangements between law firms andand nonlegalnonlegal organizations.organizations.

Ms. HylandHyland servesserves as Co-ChairCo-Chair for the Ethics Committees of of the Women'sWomen’s Bar Association of the StateState of of NewNew York (WBASNY)(WBASNY) andand thethe New YorkYork Women’sWomen's BarBar AssociationAssociation (NYWBA)(NYWBA) –- WBASNY'sWBASNY’s New New York York City City chapter. chapter. For For the the past past twotwo yearsyears sheshe hashas hostedhosted the NYWBA annualannual meeting at Frankfurt Kurnit Kurnit followed followed by by an an Ethics Ethics CLE CLE programprogram for for NYWBA NYWBA membersmembers and attendees.

Ms. HylandHyland servesserves on thethe Board ofof thethe AssociationAssociation ofof Professional Professional ResponsibilityResponsibility Lawyers (APRL) andand isis aa membermember ofof the the NewNew York York State State Bar Bar Association Association Committee Committee forfor Standards Standards on Attorney ConductConduct (COSAC).(COSAC). She is alsoalso aa membermember ofof thethe AmericanAmerican BarBar Association’sAssociation's CenterCenter for Professional Responsibility.

Ms. HylandHyland writeswrites andand lectureslectures frequently on legal ethicsethics andand professionalprofessional responsibilityresponsibility issues. She recently joined Professor Roy SimonSimon as as a a co-author co-author on on his his seminal seminal treatise:treatise: Simon'sSimon’s New York Rules of Professional ConductConduct AnnotatedAnnotated (2015 ed.).ed.). SheShe isis on on the the editorialeditorial boardboard of thethe New York Legal Ethics Reporter and contributes to to thethe Legal Legal EthicsEthics ForumForum blog.blog. Ms. HylandHyland graduatedgraduated with honors from Fordham University University School School ofof Law in 2002 ((CumCum LaudeLaude,, Order of the Coif) where she was NotesNotes andand ArticlesArticles EditorEditor on thethe Fordham Law ReviewReview.. She earned her Bachelor'sBachelor’s Degree from Columbia University inin 1990.1990. Ms. HylandHyland isis admittedadmitted toto practicepractice in in New New York.York.

Follow NicoleNicole on on Twitter Twitter @NiHyland,@NiHyland, connectconnect withwith her on LinkedIn,Linkedln, "Like"“Like” her Facebook page, or view herher documentsdocuments on JD Supra. Frankfurt Kurnit Klein+ Selz

PagePage 57 Bridge the Gap

May 14, 2016 | 8:30 a.m. - 5:30 p.m. Fordham School of Law | Skadden Conference Center New York Track

TABLE OF CONTENTS:

Session 5: Advocating Solutions and Client-Centered Counseling: A Practical Approach CLE: NY Skills (1.5); NJ General (1.5) . Teaching a New Negotiation Skills Paradigm, By Andrea Kupfer Schneider, Marquette University Law School Studies Research Paper Series MARQUETTE UNIVERSITY LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES RESEARCH PAPER NO. 12-28

TEACHING A NEW NEGOTIATION SKILLS PARADIGM

Published at 39 WASHINGTON UNIVERSITY JOURNAL OF LAW & POLICY 13 (2012)

Andrea Kupfer Schneider

This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=2151440.

Andrea Kupfer Schneider Professor of Law Marquette University Law School Eckstein Hall P.O. Box 1881 Milwaukee, Wisconsin 53201-1881

Electronic copy available at: http://ssrn.com/abstract=2151440 Washington University Journal of Law & Policy

New Directions in Negotiation and ADR

Teaching a New Negotiation Skills Paradigm Andrea Kupfer Schneider

Teaching a New Negotiation Skills Paradigm

Electronic copy available at: http://ssrn.com/abstract=2151440 Teaching a New Negotiation Skills Paradigm

Andrea Kupfer Schneider

I. INTRODUCTION

Imagine the following description of a negotiator: In the most recent sales negotiation, this negotiator was open, friendly, warm, she schmoozed at the beginning of the negotiation, asserted her legal and policy arguments as to her position, asked questions for information about the situation, asked the other side about their interests, avoided answering a few challenging questions, conceded slowly, demonstrated respect for the other side and that she was listening to them, created options, found trade-offs that became part of the solution, grabbed a larger percentage of the pie that she created, held absolutely unmovable on the delivery date, added a promise of better quality follow-up in the future, and then, to get the deal done, split the difference at the end on the insurance cost. What negotiation style is this? Collaborative because she schmoozed and created options? Competitive because she was unmovable on the date and grabbed more of the pie? Compromising because she made trade-offs? And herein lays the problem with negotiation style labels: they hide the reality of what negotiators actually do, and need to do, in order to be effective. Effective negotiators need to choose skills that are appropriate given the context, client, and counterpart. The

Andrea Kupfer Schneider, Professor of Law and Director, Dispute Resolution Program, Marquette University Law School. My original working title for this Article was Labels Suck. Much appreciation goes to Nancy Welsh for the rich debate that was the genesis of this Article. Thanks to the Washington University Negotiation and Dispute Resolution Program, the Journal of Law & Policy, and all of the scholarship roundtable participants for their input and helpful comments. In particular my thanks goes to Jennifer Brown, Charles Craver, Mike Geigermann, Art Hinshaw, Russell Korobkin, John Lande, Bobbi McAdoo, and Nancy Welsh for their later comments on this draft. And to my research assistants, Katie Lonze, Ari Sliffman, and Andi Thompson, who have helped throughout the process, thank you as well. And finally, much appreciation to my assistant, Carrie Kratochvil, for all of her hard work on developing the lovely graphics contained within.

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selection of skills is what matters, not the label given to them. And while the use of labels might provide guidance for students through a framework at the outset, these same labels hamstring us later as we try to teach effective negotiating.1 I have come to this realization slowly, even reluctantly. In working with my co-authors on the first edition of our textbook, published in 2004,2 each author had to bring their assumptions about the use of approach, style, strategy, and skills to the surface—and, we were not all on the same page.3 Each of our varied assumptions about what would help convey information most clearly and effectively helped me think about the overall goals of teaching. Similarly, over the past decade of negotiation trainings for professionals, I have altered the focus of my training. Ten years ago, I would talk about my negotiation study on different negotiation styles,4 the actual styles and results of the study, skills that supported each of the styles, and then urge participants to build skills so that they could choose among styles as appropriate over the course of a negotiation. Each of these subjects would occupy about equal time. Now, my focus is almost completely on skills that support the styles rather than on debating effective styles. Through experience and reading more about adult learning, I realize that starting with theory (or even empirical studies that support theory) and then the practical is the wrong order. Adult professionals learn better by talking first about experiences and skills, and then focusing on framework or style selection.5 This realization also made me think about what we teach in law schools and whether the order or emphasis of what we teach law students should be any different.

1. For another recent view of struggling with different constructs for negotiation, see Peter T. Coleman et al., Getting to Basics, 28 NEGOTIATION J. 7 (2012). 2. CARRIE MENKEL-MEADOW, LELA PORTER LOVE, ANDREA KUPFER SCHNEIDER & JEAN STERNLIGHT, DISPUTE RESOLUTION: BEYOND THE ADVERSARIAL MODEL (2d ed. 2011). 3. I remain exceedingly grateful to Carrie Menkel-Meadow, Lela Love and Jean Sternlight for these interesting and eye-opening conversations. 4. Andrea K. Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style, 7 HARV. NEGOT. L. REV. 143 (2002). 5. Melissa Nelken, Bobbi McAdoo & Melissa Manwaring, Negotiation Learning Environments, in RETHINKING NEGOTIATION TEACHING: INNOVATIONS FOR CONTEXT AND CULTURE 199, 200 (Christopher Honeyman, James Coben, & Giuseppe De Palo eds., DRI Press 2009).

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Part II of this Essay explains why we have a variety of labels for negotiation approaches and styles, and gives a brief history of their creation. Part III focuses on the problems with labels: the plethora of different labels that mean the same thing; the fact that labels are both underbroad and overbroad; and that these labels do not actually describe the skills beneath, particularly how labels gloss over the impact of social skills and ethical behavior. The last section argues for a different way of teaching skills—recognizing that a framework is necessary for laying out general concepts, and that our real focus has to be on the skills that provide our students with the tools to engage most effectively across a variety of contexts.

II. WHY WE HAVE LABELS

There are at least three different explanations as to why we have labels. First, labels provide a way to organize our thoughts. Much like any other type of information, humans need to create categories in order to keep the information straight. Second, different labels come from different disciplines; psychology, law, business, and others have all created labels for the approaches and styles that are now used in the textbooks. Finally, as different academics and authors tackle the subject of negotiation strategies, we each create labels that we hope will be useful—and that will be used.

A. Labels Are Useful

As we teach negotiation to beginning students, the labels of different approaches to negotiation are helpful in trying to help students understand the general differences in how negotiators might think about, and therefore how negotiators might then act in, negotiations. To describe the different assumptions about the negotiation, authors refer to distributive or integrative negotiations. Distributive negotiation describes negotiations which are generally limited to one item; when more for you is less for me.6 Integrative

6. THOMAS C. SCHELLING, THE STRATEGY OF CONFLICT (1960); HOWARD RAIFFA, NEGOTIATION ANALYSIS: THE SCIENCE AND ART OF COLLABORATIVE DECISION MAKING 97– 98 (2002).

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negotiation generally refers to an opportunity to add different elements to the negotiation, and to find a way to have a more mutually beneficial outcome.7 At the outset of learning about negotiation this division is helpful to understand typical assumptions that we might have coming from a war or sports metaphor of negotiation where there is a winner and loser.8 Getting students to question that assumption requires that we present them with an alternative—the integrative approach—so that they can see that not all approaches encompass a winner and loser. Similarly, we use labels to describe styles or strategies in negotiation, again to simplify complex behavioral patterns, to demonstrate contrasts and show students that they have choices. So, competing is set against accommodating where competing is focused on serving one’s own interests while accommodating focuses on serving the counterpart’s interests.9 Avoiding versus collaborating also demonstrate these opposites—having no interest at all in either yourself or the other side versus having an interest in both parties’ needs.10 Labels are useful to generate these contrasts, to get students to identify certain patterns of their own behavior in addition to those of their counterparts,11 and to raise the possibility that other styles or strategies might be useful, or even more useful, than their default or comfort zone.

B. Labels Come From Different Disciplines

A quick review of almost any law textbook on dispute resolution will find numerous readings from other fields. Negotiation, we all

7. MENKEL-MEADOW ET AL., supra note 2, at 99–100. 8. See Jonathan R. Cohen, Adversaries? Partners? How About Counterparts? On Metaphors in the Practice and Teaching of Negotiation and Dispute Resolution, 20 CONFLICT RESOL. Q. 433, 438 (2003); Howard Gadlin, Andrea Kupfer Schneider & Christopher Honeyman, The Road to Hell is Paved with Metaphors, in THE NEGOTIATOR’S FIELDBOOK 29, 31–32 (Andrea Kupfer Schneider & Christopher Honeyman eds., 2006). 9. Kenneth Thomas, Conflict and Conflict Management, in HANDBOOK OF INDUSTRIAL AND ORGANIZATIONAL PSYCHOLOGY 900–02 (Marvin D. Dunnette ed., 1976). 10. Id. 11. Jennifer Brown, Empowering Students to Create and Claim Value through the Thomas-Kilmann Conflict Mode Instrument, 28 NEGOTIATION J. 79 (2012).

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argue, is best informed by a multitude of disciplinary perspectives. So, from early management theorist Mary Parker Follett, we have the choices of domination, compromise, and integration for our strategies.12 Business and public policy professors David Lax and James Sebenius, divided the world into value-claiming or value- creating styles in their book, The Manager as Negotiator, reprinted in numerous texts.13 From psychology, we have Kenneth Thomas’ five conflict-handling orientations—competitive, collaborative, avoidant, accommodative, and sharing.14 This framework is also used by current business school professors in outlining styles as demonstrated in textbooks authored by Richard Shell, Leigh Thompson, and Roy Lewicki.15 In a well-known analysis of the prisoner’s dilemma by political scientist Robert Axelrod, our style choices are given as cooperation or defection.16 This plethora of labels is not even in our own discipline! Law professors have their own series of labels. From books and articles all published in the early 1980s, we began with three choices for categorizing negotiation strategies. Roger Fisher categorized our choices as hard bargaining, soft bargaining, and principled bargaining.17 Carrie Menkel-Meadow wrote about adversarial versus problem-solving styles.18 And Gerry Williams divided his negotiators into cooperative versus competitive negotiators.19 Simplifying our choices into two or three styles (versus the five styles outlined by Thomas) might have been more straightforward. It was also likely based on the fact that lawyers, at least, do not have the option to truly

12. Mary Parker Follett, Constructive Conflict, in PROPHET OF MANAGEMENT: A CELEBRATION OF WRITINGS FROM THE 1920S 67, 68 (Pauline Graham ed., Beard Books 2003). 13. DAVID LAX & JAMES SEBENIUS, THE MANAGER AS NEGOTIATOR: BARGAINING FOR COOPERATION AND COMPETITIVE GAIN 29–45 (1986). 14. Thomas, supra note 9. 15. See, e.g., G. RICHARD SHELL, BARGAINING FOR ADVANTAGE: NEGOTIATING STRATEGIES FOR REASONABLE PEOPLE (2d ed. 2006); LEIGH THOMPSON, THE MIND AND HEART OF THE NEGOTIATOR (3d ed. 2005); ROY J. LEWICKI ET AL., ESSENTIALS OF NEGOTIATION (5th ed. 2011). 16. ROBERT AXELROD, THE EVOLUTION OF COOPERATION (1984). 17. ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN 8–15 (3d ed. 2011). 18. See Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984). 19. GERALD R. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT 18–42 (1983).

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avoid the conflict that they have been hired to resolve (therefore eliminating avoiding as a style choice). Another popular division of negotiation styles included the purpose of the negotiations-dispute settlement or deal-making.20 In the past decade, we have only added to the number of labels. Adding to Gerry Williams’ study, I divided negotiators into true problem-solving, cautious problem-solving, ethical adversarial, and unethical adversarial.21 Charles Craver writes about competitive problem-solving as the most successful approach22 and in his criticism of the problem-solving style, Robert Condlin refers to “communitarian bargaining.”23 Most of us, when teaching, will end up focusing on one of these frameworks while exposing our students to many of the different labels, at least in order to increase their familiarity with the literature.

C. My Label Best Explains the Choices

Perhaps one of the reasons that we keep coming up with new labels for both negotiation approaches and styles is the dissatisfaction with previous labels. I know for me, I thought that “cooperative” just sounded too nice, so even in the adaptation of Williams’ study, I shifted that to “problem-solving.”24 But my guess is that problem- solving by itself suffered from a similar “niceness” problem, so Charles Craver added “competitive” to be clear that a certain amount of assertiveness is also necessary.25 Russell Korobkin’s division of tasks into zone definition versus surplus allocation likely stemmed from the desire to be clear on what task the negotiator is trying to accomplish as well as a dissatisfaction with the competitive/

20. See Frank E. A. Sander & Jeffrey Rubin, The Janus Quality of Negotiation: Dealmaking and Dispute Settlement, 4 NEGOTIATION J. 109 (1988). 21. Schneider, supra note 4, at 143, 171, 179–81. 22. Charles Craver, What Makes a Great Legal Negotiator?, 56 LOY. L. REV. 337, 346– 47 (2010); Gary Goodpaster, A Primer on Competitive Bargaining, 1996 J. DISP. RESOL. 325 (arguing that competitive bargaining is effective in certain scenarios). 23. Robert J. Condlin, Bargaining with a Hugger: The Weaknesses and Limitations of a Communitarian Conception of Legal Dispute Bargaining, or Why We Can’t All Just Get Along, 9 CARDOZO J. CONFLICT RESOL. 1, 8–16 (2007). 24. See Schneider, supra note 4, at 152. 25. See Craver, supra note 22, at 346–50.

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cooperative dichotomy.26 And perhaps we come up with new labels in order to finally be the one to clarify and categorize a messy collection of behaviors and strategies.

III. BUT . . . LABELS LIMIT OUR THINKING

A. The Labeling of Negotiation Approaches Mixes Assumptions and Tasks

Often, the first use of negotiation labels occurs in the use of labels for negotiation approaches. For example, most textbooks discuss negotiation as a choice between the distributive and integrative approaches.27 But when we use these words, we are describing both the view of negotiation (zero-sum or mutual gain) as well as the task (claiming and creating). As we teach, it becomes clear that we want our students to have the latter view—that negotiation can have mutual gains. This, after all, is the real revolution behind the bestseller Getting to Yes28 and its progeny.29 At the same time, we know that the tasks—both claiming and creating—occur in virtually every negotiation.30 This becomes confusing for our students—mixing up the view of negotiation in which negotiators likely have one or the other perspective with the tasks of negotiation in which negotiators likely can engage in both.31 In addition, the decision on approach—whether the view of negotiation or the task at hand—does not necessarily determine the

26. See Russell Korobkin, A Positive Theory of Legal Negotiation, 88 GEO. L.J. 1789 (2000). 27. See, e.g., JAY FOLBERG ET AL., RESOLVING DISPUTES: THEORY, PRACTICE, AND LAW 73 (2d ed. 2010) (discussing the tension between creating value and claiming value); STEPHEN GOLDBERG ET AL., DISPUTE RESOLUTION: NEGOTIATION, MEDIATION, AND OTHER PROCESSES 17–43 (1992) (introducing readings that outline the distributive and then the problem-solving or principled approach to negotiation); LEONARD L. RISKIN ET AL., DISPUTE RESOLUTION AND LAWYERS 178 (4th ed. 2009) (discussing the differences between adversarial versus a problem- solving approach). 28. FISHER & URY, supra note 17. 29. See ROGER FISHER & SCOTT BROWN, GETTING TOGETHER: BUILDING RELATIONSHIPS AS WE NEGOTIATE (1988); ROGER FISHER & DANNY ERTEL, GETTING READY TO NEGOTIATE: THE GETTING TO YES WORKBOOK (1995); ROGER FISHER, ELIZABETH KOPELMAN & ANDREA KUPFER SCHNEIDER, BEYOND MACHIAVELLI: TOOLS FOR COPING WITH CONFLICT (1996). 30. LAX & SEBENIUS, supra note 13. 31. Korobkin, supra note 26.

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skills needed to execute the negotiation. For example, if you are engaged in a distributive negotiation, you are trying to claim more of the pie. You will talk and justify your case, you might ask questions to assess your opponents’ weaknesses or to explore their priorities, etc. Perhaps you will be such an egotistical, irritating negotiator that divining your true motives will be easy.32 On the other hand, you might be friendly and nice.33 In other words, using the labels for the approach to negotiation does not completely describe what is going on at the table and can hide important nuances from our students.

B. The Approach-Style Distinction Is Confusing

Our next step after introducing the approaches is to spend time outlining various styles that negotiators may have. The first problem with this is that we use approach and style to mean two different things when common English usage does not distinguish between them. Webster’s Dictionary describes approach as “a particular manner of taking steps toward a particular purpose” while style is defined as “a distinctive manner or custom of behaving or conducting oneself.”34 These words are virtually the same thing—a manner of behaving—and yet in negotiation we use approach to mean the assumptions and tasks of negotiation and use style to mean a particular set of behaviors used during the negotiation. Second, even the descriptions that we use for approach and style overlap. We use “integrative” in both. And synonyms abound— claiming value as an approach does not seem that different from competing as a style. The approach of creating value appears quite similar to a collaborating or problem-solving style. The nuances between all of these distinctions are often lost on students.

32. I found in about 20–30 percent of the attorneys I surveyed that the top adjectives were those like irritating, hostile, egotistical, angry, etc. See Schneider, supra note 4, at 176–79; see also WILLIAMS, supra note 19. 33. This is a primary point in Robert Condlin’s article, Bargaining Without Law, that competitive behavior can be combined with a completely pleasant personality. Robert Condlin, Bargaining Without Law, 56 N.Y.L. SCH. L. REV. 281 (2012); see also Craver, supra note 22. 34. Style Definition, MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/ style (last visited Mar. 25, 2012).

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C. The Labels for Negotiation Style Are Repetitive

A third problem with existing labels, particularly in style, is the sheer number of labels that appear to say the same thing.35 For problem-solving, we have integrative, principled, or interest-based. Competitive is also hard bargaining, adversarial, or distributive. Accommodating is also sharing, soft bargaining, or cooperative.36 Only avoiding and compromising seem to escape the overlap.37

D. Negotiation Style Labels Are Both Overbroad and Underbroad38

Another problem with negotiation style labels is that they cover both less and more particular behaviors than we might assume looking at the name. For example, the importance of researching and relying on criteria in order to assure fairness in the outcome and to assert one’s own interests was put into popular literature in Getting to Yes.39 So, one might assume that “using criteria” would fall under a principled or problem-solving approach. Yet it is clear that this skill would also make one a more effective competitive negotiator. Business school professor Leigh Thompson categorizes this skill under distributive bargaining in her well-regarded textbook40 as does Russell Korobkin in his article, Against Integrative Bargaining.41 And the concepts of tone, social skills, trust, and ethics do not automatically fail under any single style label. Assuming that we could even get clarity and consensus on assertive skills or empathy skills, or agree that creativity falls under a collaborative style, the

35. And again, I’ll be the first one to throw myself under the bus for adding to this list! 36. Although not necessarily, as Gerry Williams’ original description of cooperative negotiation included many behaviors we would also include under problem-solving. WILLIAMS, supra note 19, at 53. 37. The reason that I think we escape overlapping labels here is that these two labels describe more specific behaviors rather than categorizing a whole host of different elements. 38. See also Paul Kirgis, Hard Bargaining in the Classroom: Realistic Simulated Negotiations and Student Values, 28 NEGOTIATION J. 93, 96–97 (2012) (also lamenting the shortcomings of the current negotiation dichotomies). 39. FISHER & URY, supra note 17. At least popularized—no doubt other negotiation writers had also included the importance of knowing your case and researching comparables. 40. See THOMPSON, supra note 15, at 40–68. 41. Russell Korobkin, Against Integrative Bargaining, 58 CASE W. RES. L. REV. 1323 (2008).

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current style framework does not take into account one’s general sociability in the negotiation as well as one’s level of ethical behavior. Neither of those are limited to one approach and yet many assume that being adversarial automatically includes being unpleasant and unethical.42 In fact, it may well be that the most effective negotiators are those who are friendly, ethical, and very firm.43

E. The Labels Do Not Explain the Skills

For the final frustration with the use of labels, let’s return to our purposes. Assuming that we use labels to help students both understand the process of negotiation and to become more effective themselves, the style labels really only serve the first goal. When trying to teach skills, we need to unpack the labels into the behaviors that they actually describe. Part of the teaching problem might stem from early reliance on the Prisoner’s Dilemma as a model of negotiation.44 The beauty of the Prisoner’s Dilemma is the clarity of choice it provides to the negotiator and, therefore, its easy use as an exercise to teach the importance of reputation, long-term relationship versus short-term gain, and clear communication. The problem is that most negotiations are not either/or choices to cooperate or defect. Once we move past the Prisoner’s Dilemma—and we generally do in reality—our choices are far more nuanced. The shift from the Prisoner’s Dilemma into the Negotiator’s Dilemma (the choice to create value or to claim value),45

42. Again, let me confess my sins first—it is easier to conflate them all under adversarial and, at least for some segment of the bar, it is also true. (See my study on the approximately 20 percent of lawyers who fall into the unethical adversarial category). Yet we know that is a subset of adversarial, not the complete number of negotiators who might categorize themselves that way. See Schneider, supra note 4. 43. See generally Craver, supra note 22, at 340, 350, 354, 355, 358; Condlin, supra note 23, at 8. 44. Many negotiation classes will run some version of the Prisoner’s Dilemma exercise early in the semester. See, e.g., Marquette Pizza Exercise (on file with author); Russell Korobkin, Construction Ventures, in NEGOTIATION THEORY AND STRATEGY: TEACHER’S MANUAL AND SIMULATION MATERIALS 287–92 (2d 2009); Roger Fisher, Oil Pricing Exercise, in CLEARINGHOUSE TEACHING MATERIALS AND PUBLICATIONS (Program on Negotiation at Harvard Law School). 45. LAX & SEBENIUS, supra note 13, at 29–45.

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which is generally used in most law textbooks, still does not add sufficient nuance in the choices that negotiators face. Where we seem to have the most problems with our labels is with the competitive and problem-solving labels. A competitive negotiator could be unpleasant or friendly, could be bluffing or could be starting with a very high, justifiable offer, could be sneaky or straightforward, could share no information or could share the information most favoring her client, could ask questions to denigrate your case, or could ask questions to verify her research.46 This would result in very different negotiations depending on the choices made by the negotiator. Similarly, our problem-solver, facing the tension of empathy and assertiveness as described by Mnookin, Peppet & Tulumello,47 could also engage in a range of behaviors that could vary greatly. How much do you assert your case? Are you persuading them to “create value” on the strength of your option creation or the strength and longevity of your relationship or your ability to sell them on “their” terms?48 Can a problem-solving style include someone who is not all that warm? When using a style label, we are not describing the actual behaviors or tactics. Finally, focusing on a given negotiation style as the key choice assumes that the style does not change over the course of the negotiation. We know that most effective negotiators will moderate their behavior as needed (respond in kind or respond to change the situation, ask questions to get information or ask questions to build rapport, etc.) throughout the course of the negotiation much like we know that effective mediators will change throughout the course of a given mediation.49 By focusing on styles rather than skills, we convey the message that style determines the responses and the behaviors. Instead, the most effective behaviors should be packaged in the most

46. See Craver, supra note 22, at 345–50. 47. ROBERT H. MNOOKIN, SCOTT R. PEPPET & ANDREW S. TULUMELLO, BEYOND WINNING: NEGOTIATING TO CREATE VALUE IN DEALS AND DISPUTES 55 (2000). 48. ROBERT B. CIALDINI, INFLUENCE: THE PSYCHOLOGY OF PERSUASION (rev. ed. 1993); Donna Shestowsky, Psychology and Persuasion, in THE NEGOTIATOR’S FIELDBOOK, supra note 8, at 361. 49. Leonard L. Riskin, Decision-Making in Mediation: The New Old Grid and the New New Grid System, 79 NOTRE DAME L. REV. 1, 51–53 (2003).

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effective way, which might all be consistent with one style or might reflect the use of different styles throughout.

IV. THE GOAL IS EFFECTIVE NEGOTIATORS

To be able to teach students how to be more effective negotiators, we need to teach them what to do, not by generalizable labels, styles, or approaches, but by the more specific descriptions of what to do in advance of and during the negotiation.50 What skills should they have? And how should they choose among their skills in any given situation? Digging beneath the framework that the styles provide us, we can start to outline the necessary skills.51 When training both lawyers and non-lawyers, I have generally used the styles framework provided by Thomas that is used in business school texts as well as law texts.52 Because it includes several more choices than problem-solving versus adversarial, I have found that the Thomas framework is more realistic for the variety of negotiations in which people engage. Furthermore, by including avoiding and compromising, the Thomas framework also permits a more nuanced discussion of how negotiation behavior can vary over the course of a single negotiation.53 For example, you might collaborate to come up with a new element of the deal and then compromise to split the difference on the salary increase at the end. Or you might avoid discussing a particularly incendiary part of the negotiation until other easier elements have been discussed. The Thomas outline is below and I have mapped the specific skills onto the chart to show students which skills are necessary to provide students with style choices (with empathy substituting for cooperativeness).

50. For a difference on labels at the top of the ladder versus the data at the bottom, see Rick Ross, Ladder of Inference, in THE FIFTH DISCIPLINE FIELDBOOK 242–46 (Peter M. Senge et al. eds., 1994). 51. Jennifer Brown’s excellent discussion of how to use the Thomas-Kilman Instrument is an example of this (and how I do it myself). See Brown, supra note 11. 52. Thomas, supra note 9. For example, Thomas’ article is excerpted in MENKEL- MEADOW ET AL. supra note 2; RUSSELL KOROBKIN, NEGOTIATION THEORY AND STRATEGY (2d ed. 2009); THOMPSON, supra note 15. 53. Id.

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54 In other words, if a negotiator has the ability to be assertive, empathetic, and creative, then he or she will be able to move among the styles outlined and will be able to choose wisely at any given time.55 This concept builds on Robert Mnookin’s original assertiveness versus empathy tension by adding flexibility.56 The assertiveness versus empathy tension does a wonderful job of explaining to students how they would need to balance their natural urges and skills in order to be able to move around the negotiator’s dilemma— to both claim and create value well.57 However, adding a separate skill of flexibility is the difference between basic compromise and a more interesting and nuanced collaborative outcome. Flexibility and

54. CONFLICT WORKSHOP FACILITATOR’S GUIDE FOR THE THOMAS-KILMANN CONFLICT MODE INSTRUMENT 21 (CPP, 1996). 55. Brown, supra note 11, at 81–82. 56. Robert H. Mnookin, Scott R. Peppet & Andrew S. Tulumello, The Tension Between Empathy and Assertiveness, 12 NEGOTIATION J. 217 (1996). 57. Id. at 221–22.

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creative thinking are different than either assertiveness or empathy. The result is what I have called a triangle of effectiveness:

This triangle of skills is also based on what I originally found in my 1999 study.58 As I wrote then, the most interesting difference for me was not between the adversarial and problem-solving rates of effectiveness, but rather the difference in effectiveness ratings between the two clusters, labeled “cautious problem-solving” and “true problem-solving.” The effectiveness rating difference was striking—60 percent of cautious problem-solvers were perceived as average versus 75 percent of the problem-solvers who were perceived as effective.59 What the “true” problem-solvers had was more noticeable ability—in other words, they were perceived as higher on the adjective scale—in the three significant areas of assertiveness, empathy, and flexibility. And, as I outline further below, they also had a strong sense of ethical behavior as well as a friendly, warm personality.

58. See Schneider, supra note 4. 59. See id. at 175.

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A. Effective Skills Permit Stylistic Choices

The key in teaching skills to students is the recognition that with more skills in their toolbox, students will best be able to prepare, start, respond, and conclude negotiations in a more thoughtful manner.60 By teaching styles to students as the key choice, professors convey the message that the student must choose the style in advance of the negotiation. In actuality, the better message would be to teach students how to be more effective at each skill.61 In thinking about what makes any given skill more effective, one way of organizing that skill might be from the cognitive to emotionally intelligent.62 Another way might be to look at minimal effort versus a more thoughtful application. As a start for further discussion, I’ve organized our skill expectations along a spectrum of minimal to average skill level to best practices.

Minimum Average Best

60. See, e.g., MICHAEL WATKINS & SUSAN ROSEGRANT, BREAKTHROUGH INTERNATIONAL NEGOTIATION (2001), on how the most effective negotiators can recognize patterns, adjust their behaviors and reflect while in action to accomplish their goals. ROY J. LEWICKI & ALEXANDER HIAM, MASTERING BUSINESS NEGOTIATION: A WORKING GUIDE TO MAKING DEALS AND RESOLVING CONFLICT (2006) (in which they review each stylistic approach counseling the reader that a master negotiator is sufficiently flexible to execute a variety of styles and sufficiently skillful that he or she has the skills to do so). 61. I am grateful to many who pointed me toward the system set up by Christopher Honeyman years ago to evaluate mediators in response to similar concerns of mixing styles with skills. Over twenty years ago, Honeyman started a similar project regarding mediators to assess a certain skill set rather than measuring settlement rates or describing styles. He first described five skills of mediation as investigation, empathy, investigation, persuasion and distraction. Christopher Honeyman, Five Elements of Mediation, 4 NEGOTIATION J. 149 (1988). He next established evaluation scales for these skills and two more—managing the interaction and substantive knowledge. Christopher Honeyman, On Evaluating Mediators, 6 NEGOTIATION J. 23 (1990). Finally, the Test Design Project, supported by the National Institute of Dispute Resolution (NIDR) built on this structure to build an entire methodology for evaluating mediators using these skills. CHRISTOPHER HONEYMAN ET AL., THE TEST DESIGN PROJECT (1995). 62. DANIEL GOLEMAN, EMOTIONAL INTELLIGENCE ix–xviii (1995).

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As additional information, the appendix to this Essay has the list of adjectives from my 1999 study according to effectiveness ratings.63

1. Assertiveness64

The ability to assert yourself in a negotiation can depend on your alternatives, your goals, your research or knowledge in the area, and your ability to speak persuasively.65 In order to assert onself, a minimal skill might be some level of competence and knowledge. An average skill would be to have fully researched the situation and be well-prepared. Best practices would include confidence based on competence and knowledge.66 In measuring your skills using the concept of BATNA, a minimal level of skill would be to know your BATNA in advance of a negotiation.67 The average skill level would be to then set your reservation price for the negotiation based on that BATNA.68 And best practices would be to work on improving your BATNA before and during the negotiation. You could also work to worsen their BATNA. A minimal skill would be to set a realistic, specific goal.69 Average skill would perhaps be to set this goal optimistically high with sufficient research into criteria to back this up.70 And best practices would include having mapped out framing arguments or other persuasive tools that would help sell your goals.71 For example,

63. See the study for details on cluster analysis and the entire list of adjectives from which this was taken. Schneider, supra note 4, at 177. 64. In describing specific behaviors under each heading, I realize this is only a first take. I expect that there are—and look forward to hearing—what else could and should be included under each. 65. There are no doubt other skills that one might put in this list. 66. Note that effective negotiators in my study were perceived to be confident and experienced, regardless of what style they chose. Schneider, supra note 4, at xx; see also app. A. 67. See FISHER, supra note 17, at 99, 101–03 (explaining BATNA). 68. See Korobkin, supra note 26. 69. SHELL, supra note 15, at 31–32. 70. Id. at 34; see also Korobkin, supra note 26, at 1794–98. 71. Laura Little, Characterization and Legal Discourse, 46 J. LEGAL EDUCATION 372 (1996) (noting that the most persuasive arguments think carefully about the audience); see DOUGLAS STONE, BRUCE PATTON & SHELIA HEEN, DIFFICULT CONVERSATIONS (1999).

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in The Elements of Persuasion, the authors argue that the key to success is a good story.72 And, as they define it, “A story is a fact, wrapped in an emotion that compels us to take action that transforms our world.”73 Minimal skill in speaking would be the ability to explain your client’s position. Average skill would include speaking clearly about why this position is worthwhile. Best practices would include researching in advance what types of arguments,74 criteria (legal precedent, industry practice, etc.), and salesmanship techniques75 work best with your particular counterpart. There are, no doubt, other skills as part of assertiveness that could be similarly mapped.

2. Empathy

Empathy is linked to success in a variety of careers. The skill of “empathic accuracy,” according to William Ickes, is what creates “the most tactful advisors, the most diplomatic officials, [and] the most effective negotiators.”76 Even lawyers and economists now recognize that separating decision-making from emotions is detrimental.77 Being empathetic in a negotiation requires a complex mix of skills—a willingness to hear the other side, open-mindedness or curiosity, good questioning and excellent listening, among others.78 First, one needs the belief and understanding that your counterpart might have something to contribute. And so a minimal skill would be to distinguish between the rare win-lose negotiations and those that might have room for joint gain. An average skill would be the ability

72. RICHARD MAXWELL & ROBERT DICKMAN, THE ELEMENTS OF PERSUASION 4 (2007). 73. Id. at 5. 74. Shestowsky, supra note 48. 75. ROBERT B. CIALDINI, INFLUENCE: THE PSYCHOLOGY OF PERSUASION (rev. ed. 1993). 76. WILLIAM ICKES, EMPATHIC ACCURACY 2 (1997), cited in DANIEL GOLEMAN, SOCIAL INTELLIGENCE: THE NEW SCIENCE OF RELATIONSHIPS 88–89 (2006). 77. Kathryn Abrams & Hila Keren, Who’s Afraid of Law and the Emotions?, 94 MINN. L. REV. 1997, 2000–2005 (2010). 78. DANIEL GOLEMAN, EMOTIONAL INTELLIGENCE 96+ (Chapter 7: the Roots of Empathy) (10th anniversary ed., 2006); MNOOKIN, PEPPET & TULUMELLO, supra note 56.

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to find integrative potential.79 Best practices would be to translate the parties’ interests into realistic integrative proposals.80 Second, one needs the skills to gather information about one’s counterpart to build the relationship in order to work together substantively. A minimal skill might be to ask questions of the other side in order to get information about them to help move the process along. An average skill would perhaps be to ask questions to uncover the counterpart’s interests and needs.81 Best practices would include having a learning conversation in order to better understand the counterpart’s client and that client’s situation in order to propose solutions that respond to those needs.82 Similarly, a minimal skill in listening would be to let the other side explain their case without interrupting. An average skill would be to ask questions when they are done to both clarify and demonstrate one’s listening. Best practices would include looping83 or active listening to confirm that you accurately understand their perspective and that, even if you don’t agree with their position, you respect their position.84

3. Flexibility

Talented negotiators work to find a variety of ways to get the job done both in their strategic choices as well as more flexible outcomes. Being flexible in negotiation allows a stylistic move from simple compromising to more sophisticated integrative solutions. It also helps to prevent stalemate. And so a minimal skill on flexible

79. See Rubin & Sander, supra note 20, at 109–12. 80. See Menkel-Meadow, supra note 18; LEWICKI & HIAM, supra note 61, at 23–24; see also SHELL, supra note 15, at 235. 81. See Peter Reilly, Was Machiavelli Right? Lying in Negotiation and the Art of Defensive Self-Help, 24 OHIO ST. J. ON DISP. RESOL. 481, 496–504 (2009). 82. See Chris Guthrie, I’m Curious: Can We Teach Curiosity?, in RETHINKING NEGOTIATION TEACHING: INNOVATIONS FOR CONTEXT AND CULTURE, 63, 63–64 (Christopher Honeyman, James Coben & Giuseppe De Palo eds., DRI Press 2009). Also note that negotiators with low compassion for the other side do not do better at claiming value. Keith G. Allred et al., The Influence of Anger and Compassion on Negotiation Performance, 70 ORG. BEHAVIOR HUMAN DECISION PROCESSES 175, 178 (1997). 83. GARY FRIEDMAN & JACK HIMMELSTEIN, CHALLENGING CONFLICT: MEDIATION THROUGH UNDERSTANDING 68+ (2008). 84. STONE ET AL., supra note 71, at 40.

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strategic choices might be choosing a style based on a particular context or counterpart. An average skill would be shifting your strategy or tactics in the course of the negotiation to respond to your counterpart.85 Best practices would include careful thinking about the reputation of your counterpart, selecting skills on that basis as well as your own skill set and your client’s situation, and then adapting your skills as needed based on your counterpart and newly acquired information in the course of the negotiation. In terms of finding creative outcomes, Leigh Thompson writes about three types of creativity: fluency (the ability to create many solutions); flexibility (the ability to generate different solutions); and originality (the ability to come up with a unique solution).86 A negotiator will want to work on all three of types in order to be most effective and to think about the processes (for example, brainstorming) that might assist in creating different solutions.87 A minimal skill would be simply knowing your priorities so that you could do trade-offs at the table. An average skill could be preparing one or two different tradeoffs that might work (cash payment in exchange for earlier settlement, length of contract in exchange for lower salary, etc.)88 Best practices would be to examine a variety of creative processes both before and during a negotiation—non- specific compensation, contingent agreements, adding issues, etc.— that could provide additional solutions.89

4. Social Intuition

We know that having a pleasant and welcoming personality helps effectivness in life. The work of Daniel Goleman on emotional and social intelligence has made it clear that successful people manage

85. See SHELL, supra note 15, at 24. 86. THOMPSON, supra note 15, at 177. 87. Id. For more on unique solutions, see MICHAEL J. GELB, HOW TO THINK LIKE LEONARDO DA VINCI, 79+ (1998). 88. Dean Pruitt, Achieving Integrative Agreements, in NEGOTIATION IN ORGANIZATIONS, 36–41 (Max Bazerman & Roy Lewicki eds., 1983). 89. Jennifer Gerarda Brown, Creativity and Problem-Solving, 87 MARQ. L. REV. 697 (2004); Carrie Menkel-Meadow, Aha? Is Creativity Possible in Legal Problems Solving and Teachable in Legal Education?, 6 HARV. NEGOT. L. REV. 97 (2001); THOMPSON, supra note 15, at 73 (discussing post-settlement settlements).

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their emotions and social skills in order to get along with others. As Goleman notes from studies of primates, outgoing monkeys have lower levels of stress hormones, stronger immune function, and are best able to integrate into new social groups. In short, “[t]hese more sociable young monkeys are the ones most likely to survive.”90 While we are unlikely to deny another negotiator life-sustaining food because they are not outgoing, Goleman outlines the significant business and life advantages to being more socially intelligent. And recent articles have focused on the importance of teaching these skills to lawyers.91 Social intelligence itself is defined as both social awareness (much of this falls under empathy discussed above) and social facility, which includes interacting and presenting ourselves to others.92 Others have also written about the importance of being nice93 and of the “No-Asshole” rule94 in business as being exceedingly successful. In a more specific negotiation context, we have seen this from several angles. The research on tone in negotiation shows that positive moods can make people more creative and more likely to use integrative strategies.95 The converse is also true—negotiators in bad moods are more likely to be competitive.96 Similarly, in rating negotiators as effective, the appendix shows how many adjectives covering social skills fit into effectiveness: personable, rational, perceptive, self-controlled, sociable, helpful,

90. GOLEMAN, supra note 78, at 56. 91. Joshua D. Rosenberg, Interpersonal Dynamics: Helping Lawyers Learn the Skills, and the Importance, of Human Relationships in the Practice of Law, 58 U. MIAMI L. REV. 1225 (2004); Peter Reilly, Teaching Law Students How to Feel: Using Negotiations Training to Increase Emotional Intelligence, 21 NEGOTIATION J. 301 (2005). 92. GOLEMAN, supra note 78, at 56. 93. See LINDA KAPLAN THALER & ROBIN KOVAL, THE POWER OF NICE 1–5 (2006). 94. See ROBERT I. SUTTON, THE NO ASSHOLE RULE (2010). 95. Alice M. Isen et al., Positive Affect Facilitates Creative Problem Solving, 52 J. PERSONALITY & SOC. PSYCHOL. 1122 (1987); Clark Freshman, Adele Hayes & Greg Feldman, The Lawyer-Negotiator as Mood Scientist: What We Know and Don't Know About How Mood Relates to Successful Negotiation, 2002 J. DISP. RESOL. 1, 19 (2002). 96. Joseph P. Forgas, On Feeling Good and Getting Your Way: Mood Effects on Negotiator Cognition and Bargaining Strategies, 74 J. PERSONALITY & SOC. PSYCHOL. 565 (1998).

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smooth, etc.97 Unsurprisingly, these adjectives could be mapped onto a measure of social intelligence. Some students might argue that a more effective personality cannot be taught—we are or are not, by the time we are adults, outgoing and sociable. Yet a closer reading of the skills should overcome that hesitancy. This is not an issue of personality but rather of working on social skills that can be taught and improved.98 For example, in relation to setting the tone of the negotiation, a minimal skill might be to have a basic greeting. An average skill could be to think about how to set a better tone by having food, or ambiance. Best practices could include a conscious attempt to enter the negotiation in your own good mood and actively work to ensure that the other side is similarly situated. In terms of setting rapport, for example, Leigh Thompson suggests that a “[s]avvy negotiator[] increase[s her] effectiveness by making themselves familiar to the other party.”99 A minimal skill would be to have a level of cordiality. An average skill level would be to schmooze with the other side,100 asking questions about them, and breaking the ice. Best practices would include advance research to find areas of commonality101 and to be genuinely friendly & curious.102

5. Ethicality

Perceptions of a negotiator’s ethicality—his trustworthiness and willingness to follow the ethical rules—has a direct impact on reputation. And reputation—the perception of ethicality—is directly linked to effectiveness in negotiation.103 A minimal level of skill would be to follow the professional rules of responsibility and not

97. See app. A. 98. Rosenberg, supra note 91; Reilly, supra note 91. 99. THOMPSON, supra note 15, at 132. 100. See Michael Morris, Janice Nadler, Terri Kurtzberg & Leigh Thompson, Schmooze or Lose: Social Friction and Lubrication in E-Mail Negotiations, 6 GROUP DYNAMICS: THEORY, RES., & PRAC. 89, 96–97 (2002); THOMPSON, supra note 15, at 135. 101. CIALDINI, supra note 48, at 150–52 (pointing to studies that show people are more influenced by people similar to them). 102. Chris Guthrie, Be Curious, NEGOTIATION J. (2010); GELB, supra note 87, at 55. 103. See SHELL, supra note 15, at 22–23.

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actively deceive the other side.104 An average level of skill would be to also view possible deceptive behavior through the lens of likely ramifications including your reputation.105 Best practices would include being actually trustworthy and treating the other side fairly.106 The levels of trust, outlined by Roy Lewicki, could also be used to measure skills as we want to be trustful as well as trustworthy.107 A minimal level of skill would be to create calculus-based trust between oneself and one’s counterpart. An average level would work on knowledge-based trust, where repeated interactions create more predictable responses. Finally, best practices might be striving for identification-based trust where the parties create a mutual understanding of each other’s needs and can act on their behalf. This latter level of trust might not be realistic in between opposite sides of the negotiation but understanding the incentives that create this level of trust can be very helpful, particularly in repeated interactions. Being both trustworthy and trustful includes defending yourself against the unethical. A minimal level of skill would be to assume that others might lie to you and contemplate what you can do about that.108 An average level of skill would include asking defensive questions to double check their assertions and writing compliance

104. SHELL, supra note 15, at 201. 105. Catherine H. Tinsley, Kathleen M. O’Connor & Brandon A. Sullivan, Tough Guys Finish Last: The Perils of a Distributive Reputation, 88 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 621, 622–24 (2002) (discussing how outcomes are worse for those with a distributive reputation). See SHELL, supra note 15, at 213–14 (on the more pragmatic approach to ethics); see also SISSELA BOK, LYING: MORAL CHOICE IN PUBLIC AND PRIVATE LIFE (1999); Catherine H. Tinsley, Jack J. Cambria & Andrea Kupfer Schneider, Reputation in Negotiation, in THE NEGOTIATOR’S FIELDBOOK, supra note 8, at 204–05. 106. Nancy A. Welsh, The Reputational Advantages of Demonstrating Trustworthiness: Using the Reputation Index with Law Students, 28 NEGOTIATION J. 117 (2012); see Avner Ben- Ner & Louis Putterman, Trust, Communication and Contracts: An Experiment (2006), available at http://www.brown.edu/Departments/Economics/experiment/Trust,%20Communication ,%20Contracts.pdf (last visited Apr. 25, 2012) (discussing studies on how perceptions of trustworthiness lead to better agreements); see also THOMPSON, supra note 15; Rebecca Hollander-Blumoff, Just Negotiation, 88 WASH. U. L. REV. 381 (2010); Jonathan Cohen, When People Are the Means: Negotiating with Respect, 14 GEORGETOWN J. OF LEGAL ETHICS 730 (2001). 107. Roy Lewicki & Barbara Benedict Bunker, Trust in Relationships: A Model of Development and Decline, in CONFLICT COOPERATION AND JUSTICE 133 (1995). 108. Note that this assumption may have the problem of justifying your own deceptive practices. See Gifford, supra note 22, at 48–52, for reasons behind engaging in competitive behavior.

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measures into the contract.109 Best practices could include building a sufficiently strong relationship so that it is more difficult for others to lie to you.110

6. Putting the Skills Together

Ideally, we could create a three dimensional figure that demonstrates how all these skills relate to one another. A five-sided pyramid in which each skill could be measured would have been lovely. If one imagines, however, that the pyramid has been unfolded, it might look something like this:

NEGOTIATION ORIGAMI

Each person could measure themselves on each skill independently while working to broaden their skill arsenal. Each skill might not be utilized in each negotiation but the skill-set itself would always be

109. Peter Reilly, Was Machiavelli Right? Lying in Negotiation and the Art of Defensive Self-Help, 24 OHIO ST. J. ON DISP. RESOL. 481, 532–34 (2009). 110. Id. at 531–32.

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available. The last section of the Essay discusses how we could make that choice.

B. Choose Skills Based on Your Client, Your Counterpart, and the Context

Negotiation books generally provide students with a framework for how to decide which style to engage. Similarly, the use of a framework for organizing our skill choices remains important. As the negotiator is the constant, at whatever level of skills the negotiator is going into the negotiation, the choice of which skills to use should be determined by examining three key “C” variables: the Client, the Counterpart, and the Context of the particular negotiation.111 In the legal context, the interests of our clients should have an impact on our behavioral choices. How important are the relationships among the parties? What are their past interactions? What are the client’s interests in communication, reputation, and future dealings? We also need to be aware of how certain skills interact with the other side and the stylistic and skill choices that our counterparts make in the course of the negotiation.112 Different skills respond better or mesh more effectively depending on the situation. Much has been written, for example, of the concern that problem-solving behavior will be taken advantage of by a more competitive approach. The addendum to the second edition of Getting to Yes primarily answered questions about how to deal with someone who is not problem-solving.113 When teaching students, it is extremely helpful to review how different styles might interact and, therefore, what skills should be utilized to increase effectiveness in any given interaction.114 Finally, the context should have an impact on the skills chosen. What type of case is this?115 We would imagine that family, personal injury, neighborhood dispute, business deals, or government

111. When you are negotiating on your own behalf, you are, in effect, the client and the same questions should be addressed. 112. See SHELL, supra note 15. 113. FISHER, supra note 17, at 151. 114. See LEWICKI & HIAM, supra note 61. 115. See generally Rubin & Sander, supra note 20, at 109–10.

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regulation cases would all have different expectations and different skills might be highlighted in each case. Under what substantive shadow of the law does this negotiation occur?116 How strong are the facts or law or finances on each side? And, what process is likely to occur if these negotiations do not bear fruit?117 All of these key questions influence the choice of skills and styles chosen in the course of the negotiation.

VII. CONCLUSION

So perhaps labels aren’t so terrible after all. More, it is that labels can hide or overshadow the real focus of negotiation skills training. We know that we need to categorize in order to convey a significant amount of complex information. We also know that style labels are pithy and easy to understand. At the same time, we need to teach the weaknesses of labels and be sure that our students are not over reliant on the simplification that labels provide. Students need to struggle with the nuances of skills—the fact that skills can seem contradictory or counterintuitive leads us to want to oversimplify (e.g. all competitive negotiators are jerks, all accommodators are nice) rather than more effectively parsing each skill to stand on its own. This is particularly important in the areas of social intuition and ethicality which have, up to this point, been subsumed in discussions of style without holding their own style “label.” When we focus on skills, we can provide students clear goals for improving in all areas while making them more aware of their particular strengths and weaknesses. Further, we can highlight the choices that they must make along the course of negotiation in terms of using each skill rather than sending them off with guidance only at the style level. Finally, we can give students a different construct on how to choose among the skills based on client, counterpart, and context that will give them a more sophisticated understanding of the evolving and nuanced process of negotiation.

116. See generally Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950 (1979). 117. I would argue that whether you are facing the failure of a deal, court-ordered mediation, trial the next day or arbitration, might also affect what type of negotiation skills you use.

Wash U Law Repository

38 Journal of Law & Policy [Vol. 39:13

APPENDIX A TOP ADJECTIVE BY EFFECTIVENESS

INEFFECTIVE AVERAGE EFFECTIVE Stubborn 3.80 Ethical 3.65 Ethical 4.32 Headstrong 3.68 Experienced 3.52 Experienced 4.24 Irritating 3.67 Confident 3.51 Personable 3.97 Assertive 3.57 Self-Controlled 3.23 Rational 3.96 Confident 3.53 Personable 3.18 Confident 3.93 Argumentative 3.51 Rational 3.09 Realistic 3.84 Arrogant 3.49 Assertive 3.04 Perceptive 3.82 Demanding 3.43 Realistic 3.03 Self-Controlled 3.79 Egotistical 3.38 Trustworthy 3.79 Quarrelsome 3.34 Communicative 3.77 Experienced 3.29 Astute about the law 3.73 Ambitious 3.27 Dignified 3.73 Firm 3.26 Fair 3.66 Forceful 3.08 Sociable 3.65 Suspicious 3.04 Accommodating 3.64 Tough 3.03 Poised 3.64 Evasive 3.00 Agreeable 3.62 Manipulative 3.00 Adaptable 3.57 Wise 3.49 Analytical 3.47 Careful 3.47 Helpful 3.38 Firm 3.35 Loyal 3.35 Deliberate 3.32 Masculine 3.32 Listener 3.30 Smooth 3.30 Objective 3.29 Flexible 3.28 Clarifies 3.26 Discreet 3.26 Patient 3.25 Convincing 3.22 Creative 3.21 Organizing 3.18 Ambitious 3.16 Trusting 3.16 Assertive 3.13 Moderate 3.07 Caring 3.05 Obliging 3.03 Tough 3.01

http://digitalcommons.law.wustl.edu/wujlp/vol39/iss1/3 Bridge the Gap

May 14, 2016 | 8:30 a.m. - 5:30 p.m. Fordham School of Law | Skadden Conference Center New York Track

TABLE OF CONTENTS:

Session 6: Building Trust, Collecting Facts, and Getting Hired by the Client CLE: NY Skills (1.5); NJ General (1.5) . Part 1200 Rules of Professional Conduct, New York State Unified Court State NEW YORK STATE UNIFIED COURT SYSTEM

PART L?OO

RULES OF PROFESSIONAL CONDUCT

Dated: May L,2073

These Rules of Professional Conduct were promulgated as foint Rules of the Appellate Divisions of the supreme court, effective April 1, 2009. They supersede the former part 1200 (Disciplinary Rules of the Code of Professional Responsibility).

The New York State Bar Association has issued a Preamble, Scope and Comments to accompany these Rules. They are not enacted with this Par! and where a conflict exists between a Rule and the Preamble, Scope or a Commen! the Rule controls.

This unofficial compilation of the Rules provided for informational purposes only. The official version of Part L200 is published by the New York State Department of State. An unofficial on-line version is available at www.dos.nv.sov/info/nycrr.html (Title 22 [fudiciary]; Subtitle B Courts; Chapter IV Supreme Court; Subchapter E All Departments; Part 1200 Rules of Professional conduct; S 1200.0 Rules of Professional Conduct). RUIE 1.1.

Competence

(a) A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

(b) A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it.

(1) fail to seek the objectives of the client through reasonably available means permitted by law and these Rules; or

(2) prejudice or damage the client during the course of the representation except as permitted or required by these Rules.

RUIE 1.2.

Scope of.Representation and Allocation of Authoritv Between Client and Lawyer

(a) Subject to the provisions herein, a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1,.4, shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances, the client gives informed consent and where necessary notice is provided to the tribunal andf or opposing counsel.

-4- (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, except that the lawyer may discuss the legal consequences of any proposed course of conduct with a client.

(e) A lawyer may exercise professional judgment to waive or fail to assert a right or position of the client, or accede to reasonable requests of opposing counsel, when doing so does not prejudice the rights of the client.

(0 A lawyer may refuse to aid or participate in conduct that the lawyer believes to be unlawful, even though there is some support for an argument that the conduct is legal.

(S) A lawyer does not violate these Rules by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, and by treating with courtesy and consideration all persons involved in the legal process.

RULE 1.3.

Diliqence

(a) A lawyer shall act with reasonable diligence and promptness in representing a client.

(b) A lawyer shall not neglect a legal matter entrusted to the lawyer.

(c) A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but the lawyer may withdraw as permitted under these Rules.

RUIE 1.4.

Communication

(a) A lawyer shall

(1) promptly inform the client of:

(i) any decision or circumstance with respect to which the client's informed consent, as defined in Rule L.0(j), is required by these Rules;

-5- (ii) any information required by court rule or other law to be communicated to a client; and

(iii) material developments in the matter including settlement or plea offers.

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with a client's reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by these Rules or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

RULE 1.5

Fees and Division of Fees

(a) A lawyer shall not make an agreement for, charge, or colrect an excessive or illegal fee or expense. A fee is excessive when, after a review of the facts, a reasonable lawyer would be left with a definite and firm conviction that the fee is excessive. The factors to be considered in determining whether a fee is excessive may include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent or made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

-6- (4) the amount involved and the results obtained;

(s) the time limitations imposed by the client or by circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation and ability of the lawyer or lawyers performing the services; and

(B) whether the fee is fixed or contingent.

(b) A lawyer shall communicate to a client the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible. This information shall be communicated to the client before or within a reasonable time after commencement of the representation and shall be in writing where required by statute or court rule. This provision shall not apply when the lawyer will charge a regularly represented client on the same basis or rate and perform services that are of the same general kind as previously rendered to and paid for by the client. Any changes in the scope of the representation or the basis or rate of the fee or expenses shall also be communicated to the client.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. Promptly after a lawyer has been employed in a contingent fee matter, the lawyer shall provide the client with a writing stating the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or, if not prohibited by statute or court rule, after the contingent fee is calculated. The writing must clearly notify the client of any expenses for which the client will be liable regardless of whether the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a writing stating the outcome of the matter and, if there is a recover¡ showing the remittance to the client and the method of its determination.

(d) A lawyer shall not enter into an arrangement for, charge or collect

(1) a contingent fee for representing a defendant in a criminal matter;

(2) a fee prohibited by law or rule of court;

-7- (3) fee based on fraudulent billing;

(4) a nonrefundable retainer fee; provided that a lawyer may enter into a retainer agreement with a client containing a reasonable minimum fee clause if it defines in plain language and sets forth the circumstances under which such fee may be incurred and how it will be calculated; or

(5) any fee in a domestic relations matter if:

(i) the payment or amount of the fee is contingent upon the securing of a divorce or of obtaining child custody or visitation o4 is in any way determined by reference to the amount of maintenance, support, equitable distribution, or property settlement;

[ii) a written retainer agreement has not been signed by the lawyer and client setting forth in plain language the nature of the relationship and the details of the fee arrangement; or

(iii) the written retainer agreement includes a security interest, confession of judgment or other lien without prior notice being provided to the client in a signed retainer agreement and approval from a tribunal after notice to the adversary, A lawyer shall not foreclose on a mortgage placed on the marital residence while the spouse who consents to the mortgage remains the titleholder and the residence remains the spouse's primary residence,

(e) In domestic relations matters, a lawyer shall provide a prospective client with a statement of client's rights and responsibilities at the initial conference and prior to the signing of a written retainer agreement.

(0 Where applicable, a lawyer shall resolve fee disputes by arbitration at the election of the client pursuant to a fee arbitration program established by the Chief Administrator of the Courts and approved by the Administrative Board of the Courts,

-8- (g) A lawyer shall not divide a fee for legal services with another lawyer who is not associated in the same law firm unless:

(1) the division is in proportion to the services performed by each lawyer or, by a writing given to the client, each lawyer assumes joint responsibility for the representation;

(2) the client agrees to employment of the other lawyer after a full disclosure that a division of fees will be made, including the share each lawyer will receive, and the client's agreement is confirmed in writing; and (3) the total fee is not excessive.

(h) Rule 1,5(g) does not prohibit payment to a lawyer formerly associated in a law firm pursuant to a separation or retirement agreement.

RULE 1.6

C o nfr d enti alitv o f I nfo rm ati on

(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:

(1) the client gives infbrmed consent, as defined in Rule 1.0(i);

(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or

(3) the disclosure is permitted by paragraph (b).

"Confidential information" consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, [bJ likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential, "confidential information" does not ordinarily include ti) a lawyer's legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.

-9- (b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime;

(s) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;

(4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer's firm or the law firm;

(5) [i) to defend the lawyer or the lawyer's employees and associates against an accusation of wrongful conduct; or

[ii) to establish or collect a fee; or

(6) when permitted or required under these Rules or to comply with other law or court order.

(c) A lawyer shall exercise reasonable care to prevent the la'urryer's employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidential information of a client, except that a lawyer may reveal the information permitted to be disclosed by paragraph [b) through an employee.

RUIE 1.7.

Conflict of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if a reasonable lawyer would conclude that either:

(1) the representation will involve the lawyer in representing differing interests; or

-10- o

ROBERSTON & RIVERA, P.C, Coønselors at I_^øa 120 \tr/. 58tlt Stuet, 5tlt Floor New'York,NY 10019 (2r 2) 809-8e00

INTER. O FFI CE MEM O RAND UM

To: Associates From: Paftrret Re: Initial Meeting with Potential Client -Jotdan Simmons

Jordan Simmons will be coming in today to consult with you. Simmons was injured in a brawl that erupted in a downtown restaurant a few months ago and suffered some injudes ¡' Simmons preferred to not speak about the mattet on the telephone. Brian Fitzpatrick Brian Fitzpatrick is an associates at Allen Overy. His practice on complex commercial disputes and securities litigation, as well as regulatory investigations. He has experience representing clients in Securities and Exchange Commission enforcement actions and Department of Justice investigations as well as securities fraud litigation, shareholder derivative actions, and private equity litigation, among others. His pro bono experience includes lead representation of a criminal defendant seeking federal post-conviction relief before the United States Court of Appeals for the Seventh Circuit as well as representation of immigrants’ rights advocates in a petition for rulemaking regarding U.S. asylum regulations. He previously served as a law clerk to the Hon. K. Michael Moore of the United States District Court for the Southern District of Florida from 2009 to 2010. He graduated magna cum laude from FLS in 2009.

Lindsay W. Bowen, Jr. Lindsay W. Bowen, Jr. is an associate in the Content, Media, and Entertainment practice at Jenner & Block LLP, where he represents content owners and creators from Screen Gems to Jay Z. Prior to joining Jenner, he was a litigation associate at Cravath, Swaine & Moore LLP. He graduated magna cum laude from FLS in 2009, where he was an Associate Editor of the Law Review, elected to the Order of the Coif, and awarded the Fordham Law School Prize. In 2015, he was a panelist at the Fordham Media & Entertainment Law Society Symposium, taught a CLE on statutory damages, was quoted in an article by Vice regarding trademark law and streaming media, and was recognized as a “Rising Star” by SuperLawyers. Prior to attending law school, he co-founded The 24 Hour Company, which produces “The 24 Hour Plays.”

Molly Gallivan Molly Gallivan is a Senior Trial Attorney and Attorney Team Leader with Brooklyn Defender Services. She has practiced criminal defense in New York City since 2001, first with the Legal Aid Society Criminal Division and then in private practice. During her time in private practice, she was also a member of the Assigned Counsel Plan. She joined Brooklyn Defender Services in 2011. Currently, she is a Visiting Clinical Associate Professor of Law at Fordham University School of Law, where she is teaching the Criminal Defense Clinic for the spring semester of 2016. She has also taught Fundamental Lawyering Skills and coached Trial Advocacy Competition teams as an Adjunct Professor at Fordham. She is a cum laude graduate of the University of Notre Dame, where she received a B.A. in English and Sociology in 1997. She received her J.D. from Fordham University School of Law in 2001.

Nicole Hyland Nicole Hyland is a Partner at Frankfurt Kurnit Kurnit Klein & Selz. She counsels lawyers on ethics issues, such as advertising and social media use, conflicts of interest, legal fee disputes, escrow issues, multijurisdictional law practice, and more. She also represents lawyers in disciplinary proceedings, disqualification motions and malpractice cases. She is Chair of the Committee on Professional Ethics of the New York City Bar Association. She also co-chairs the ethics committees of the New York Women’s Bar Association, the Women’s Bar Association of the State of New York and serves on the New York State Bar Association’s Committee on Standards for Attorney Conduct (COSAC). She frequently writes and lectures on legal ethics and professional responsibility issues.

Patrick Marano Patrick Marano is a Legal & Compliance Manager at Centerbridge partners, focusing on regulatory and transactional issues across the private fund space. Prior to Centerbridge, he worked in various legal and compliance roles at Barclays Capital and Citigroup. He was a 2009 graduate of Fordham University and a 2001 graduate of Fairfield University. Patricia Miller Patricia Miller is the Chief of the Special Federal Litigation Division of the New York City Law Department. Prior to her appointment as Chief, she served as the Deputy Chief of Trials for the Special Fed Division. She was also a trial supervisor and senior trial attorney for the Labor and Employment Division of the Law Department.

Before joining the Law Department, she clerked for William M. Acker, former U.S. District Judge for Northern District of Alabama, and was an associate at Cahill Gordon & Reindel. She is also an adjunct professor at Fordham Law School and has served on the faculty of Cardozo Law School’s Intensive Trial Advocacy Program and the Law Department’s NITA program.

She completed her undergraduate work at Fordham University and obtained her law degree from William and Mary in Virginia. She has served as chair of the Law Department's Committee on Diversity Recruitment and Retention and is the 2013 recipient of the Jane M. Bolin Diversity in Leadership Award. She is also a member of the Federal Bar Council, Second Circuit Committee.

Brian C. Power Brian C. Power graduated from Fordham in 2007 and focuses his practice on tax controversies and litigation. After clerking at the U.S. Tax Court, he joined Mayer Brown's tax controversy practice, where he represented taxpayers in disputes before the Internal Revenue Service. Last year he left Mayer Brown and joined IBM's tax department, where he serves as tax counsel in the tax controversy group.

Brian is co-chair of the Fordham Law Alumni Association Recent Graduates Committee and serves as head of the FLAA tax affinity group.

Katherine Rocco Katherine A. Rocco is a litigation associate at Cravath, Swaine & Moore LLP. She graduated magna cum laude from Fordham Law School in 2009, where she was an editor of the Law Review, a Wilkinson Scholar and elected to the Order of the Coif. She received her B.A. degree magna cum laude from George Washington University in 2005, where she majored in Economics and International Affairs. At George Washington, she was a Presidential Scholar and a member of the Honors Program. Between law school and college, she taught high school in Malaysia while on a Fulbright Scholarship. Today, she serves on the Civil Rights Committee of the New York City Bar Association and on the board of the Legal Aid Society's New Leadership Program.

Michael C. Zogby Michael C. Zogby is a partner in Drinker Biddle’s Products Liability and Mass Tort Practice Group. He has an extensive trial and litigation practice encompassing products liability, medical device, class action, commercial, intellectual property, mass tort, and multidistrict proceedings. He joined the firm after serving as law clerk to the now retired Hon. James D. Clyne, Presiding Judge, Superior Court of New Jersey, Chancery Division, General Equity Part, in Ocean County.

He is a member of the New Jersey Supreme Court's District V Ethics Committee for Essex County. He is also past vice chair of the Equity Jurisprudence Committee of the New Jersey State Bar Association and was appointed to the Bar Association’s Special Committee on Class Actions. He is a member of the Association of the Federal Bar of New Jersey, the Third Circuit Bar Association and the Defense Research Institute.

During law school, Mike was editor-in-chief of the William and Mary Environmental Law and Policy Review, and he received the Rachel Carson Graduation Award for Excellence in Environmental Law, Dean's Award for Commendable Service to the Law School, and Legal Skills Scholar Graduation Award.