Fordham Law | CLE BRIDGE THE GAP Satisfy a full year of CLE credits in one weekend CLE Materials New York Track, Day 1: afternoon May 14–15, 2016 Fordham Law School Skadden Conference Center Costantino Room (Second Floor) 150 W 62nd Street New York, NY 10023 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 4: Ethics CLE: NY Ethics (1.5); NJ Ethics (1.5) Session 5: Advocating Solutions and Client-Centered Counseling: A Practical Approach CLE: NY Skills (1.5); NJ General (1.5) Session 6: Building Trust, Collecting Facts, and Getting Hired by the Client CLE: NY Skills (1.5); NJ General (1.5) Speaker Biographies 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 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.