BETTER NOT CALL SAUL: PROFESSIONAL ETHICS LESSONS FROM "BREAKING BAD" AND ITS PREQUEL CLE Credit: 1.0 ethics Friday, June 23, 2017 9:00 a.m. - 10:00 a.m. East Ballroom C-D Owensboro Convention Center Owensboro, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenters ................................................................................................................. i Better Not Call Saul: Professional Ethics Lessons from Breaking Bad and Its Prequel .......................................................................................... 1 A Brief Discussion of Fair Use ............................................................................. 1 (Not) Furthering Clients' Criminal Enterprise ........................................................ 2 Overzealous Representation ............................................................................... 5 Attorney-Client Relationship .............................................................................. 18 Conflicts of Interest ............................................................................................ 19 A Selected Bibliography of "Academic" Analysis of Breaking Bad & Better Call Saul .................................................................................... 21 THE PRESENTERS Oran S. "Scotty" McFarlan III Kentucky Justice and Public Safety Cabinet 125 Holmes Street, 2nd Floor Frankfort, Kentucky 40601 (502) 564-8207 [email protected] ORAN S. "SCOTTY" MCFARLAN III is a staff attorney with the Kentucky Justice and Public Safety Cabinet in Frankfort and practices in the areas of civil litigation, administrative and employment law. Prior to joining the Kentucky Justice and Public Safety Cabinet, he was a member of Yunker & Park, PLC. Mr. McFarlan received his B.A. from the University of Kentucky and his J.D. from Wake Forest University School of Law. He is admitted to practice before the United States District Courts for the Eastern and Western Districts of Kentucky and the United States Court of Appeals for the Sixth Circuit. Mr. McFarlan is a member of the Fayette County and Kentucky Bar Associations. Alex L. Scutchfield Scutchfield Law, PLLC 501 Darby Creek Road, Suite 2 Lexington, Kentucky 40509-1605 (859) 309-9524 [email protected] ALEX L. SCUTCHFIELD is an attorney/member of Scutchfield Law, PLLC in Lexington and practices in the area of commercial litigation. Mr. Scutchfield received his B.A. from the University of California at Los Angeles and his J.D. from the University of Kentucky. He is a past president and former board member of the Fayette County Bar Association and a member of the Kentucky Bar Association. i Trevor W. Wells Miller & Wells, PLLC 300 East Main Street, Suite 360 Lexington, Kentucky 40507 (859) 281-0077 [email protected] TREVOR W. WELLS is a partner/member of Miller & Wells, PLLC in Lexington and practices in the areas of appellate and civil litigation. Mr. Wells received his B.A. from the University of Kentucky and his J.D. from the University of Kentucky College of Law. He is a member of the Kentucky and Indiana Bar Associations. ii BETTER NOT CALL SAUL: PROFESSIONAL ETHICS LESSONS FROM BREAKING BAD AND ITS PREQUEL Oran S. "Scotty" McFarlan III I. A BRIEF DISCUSSION OF FAIR USE A. What is Fair Use? From the U.S. Copyright Office website, (https://www.copyright.gov/fair- use/more-info.html): 1. One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law. 2. One of the more important limitations is the doctrine of "fair use," which is codified in section 107 of the copyright law. See 17 U.S.C. §107. 3. Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. 4. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair: a. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; b. The nature of the copyrighted work; c. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and d. The effect of the use upon the potential market for, or value of, the copyrighted work. 5. The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined and must be determined on a case-by-case basis. There is no specific number of words, lines, or notes that may safely be taken without permission and acknowledging the source of the copyrighted material does not substitute for obtaining permission. 1 6. Examples of activities that courts have regarded as fair use: Quotation of excerpts in a review, quotation of short passages in a scholarly work, use in a parody, summary of an article with brief quotations in a news report, and reproduction of a small part of a work by a student or teacher to illustrate a lesson. 7. WARNING: The safest course is to get permission from the copyright owner before using copyrighted material. B. Question: 1. If we want to show clips from Breaking Bad as part of today's CLE, is that allowable under the doctrine of fair use? 2. According to Sony Pictures Television, the answer is NO. a. Because there is a fee to attend the bar convention and this CLE is part of the bar convention, the unions and various guilds (e.g., directors, writers, actors, etc.) involved with the show would likely have a problem with it. b. When money changes hands for something like CLEs, the unions and guilds want a share of the proceeds because their work on the show "enhances the experience" for people paying to attend. C. The Bad News If you were hoping to come here today and get CLE credit for watching an hour of Breaking Bad or Better Call Saul, our apologies as we decided it's best not to show actual clips from the show. D. The Good News 1. We made our own clips. 2. The clips shown throughout today's CLE are intended for THE PURPOSES OF PARODY ONLY. Breaking Bad, Better Call Saul, and its characters are registered trademarks of High Bridge Entertainment, Gran Via Productions, and/or Sony Pictures Television. The production of the clips used in this CLE was not sponsored, endorsed by or affiliated with High Bridge Entertain- ment, Gran Via Productions, Sony Pictures Television, or any of its subsidiaries or affiliated companies and/or third party licensors. II. (NOT) FURTHERING CLIENTS' CRIMINAL ENTERPRISE A. Kentucky Rules of Professional Conduct 1. SCR 3.130(1.2): Scope of representation and allocation of authority between client and lawyer. 2 2. Subsection (d). "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law." 3. Supreme Court Commentary regarding subsection (d). Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent in and of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recom- mending the means by which a crime or fraud might be committed with impunity. When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary