In the eighth episode of season two of Breaking Bad, “Better Call Saul,” our… heroes?… learn that one of their own has been busted. It’s time to hire a lawyer. Said lawyer turns out to be Saul “Goodman” McGill. Apparently he does better business when clients think he’s Jewish. This episode is a real workout for legal ethics, so let’s get into it.
When Badger gets arrested, Goodman’s advertising budget pays off because Badger uses his phone call to retain Goodman. Goodman shows up and demands about $4,600 in payment, presumably to be supplied by Badger’s family. Well Badger’s family isn’t involved in this at all, so Walter and Jesse are the ones paying the freight. Which leads to a little conflict, as the DEA wants to flip Badger to get to “Heisenberg,” i.e. Walter. Walter and Jesse first offer Goodman $10,000 to throw the case. Goodman turns them down—though it seems it was more because they didn’t offer enough rather than because he wasn’t willing to do it—and they wind up threatening to kill Goodman if he doesn’t go through with it. This gets more complicated in a minute, but we’ll start there.
Lawyers don’t generally work for free, but one of the more interesting features of that is what happens when the client isn’t actually the one paying those fees. This happens in insurance cases all the time because when your insurance company hires a lawyer to defend you, they pay the bills, but you, not the insurance company, are the client. But the insurance company does have an interest in the case—they’re going to pay the settlement, after all—so a lawyer can find themselves in a tricky situation if they aren’t careful.
This also happens in criminal law contexts when mom or dad pays the lawyer to keep little Johnny out of jail. Johnny is the client, not his parents, and Johnny, not his parents, is the one who ultimately has to make decisions about his case. There are also confidentiality issues, but we’ll get to that in a second. Something similar happened in The Lincoln Lawyer, though we didn’t talk about it then, in that Haller refuses to accept a check from his client’s mother. He wants to be very clear, right from the start, that it is his client, not his client’s mother, who controls the case, and he doesn’t want to have to deal with divided loyalties.
All of that being said, comment 13 to ABA Model Rule 1.7 specifically mentions this kind of arrangement:
 A lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer’s duty of loyalty or independent judgment to the client. See Rule 1.8(f). If acceptance of the payment from any other source presents a significant risk that the lawyer’s representation of the client will be materially limited by the lawyer’s own interest in accommodating the person paying the lawyer’s fee or by the lawyer’s responsibilities to a payer who is also a co-client, then the lawyer must comply with the requirements of paragraph (b) before accepting the representation, including determining whether the conflict is consentable and, if so, that the client has adequate information about the material risks of the representation.
So if this were just an insurance situation, we probably wouldn’t have much of an issue, as the insurance company isn’t usually going to do anything against the interests of its customers, given that the insurance company is going to wind up paying the loss most of the time. But in this case? Walter and Jesse’s interests are entirely adverse to Badger’s. Goodman probably doesn’t care that much—he basically offers to help Walt launder money towards the end of the episode—but he does seem to recognize that there’s an ethical problem and actually manages to come up with a pretty decent (if still not necessarily ethical) solution: he makes them all his clients.
II. The Attorney/Client Relationship
Walter and Jesse take Goodman out to the desert and threaten to kill him if he doesn’t prevent Badger from talking. Goodman winds up paraphrasing George Clooney’s character in Michael Clayton: “I’m not the guy you kill. I’m the guy you pay.” It’s slightly different in that Clooney was asking for a bribe and Goodman was asking to be hired, but the outcome is the same: Walter and Jesse are likely to be much better off with Goodman on their side than with him dead. And Goodman knows that if he can get them to retain him as their attorney, attorney/client privilege will protect (some of) their communications. So, in an effort to get that started, he tells them both to put a dollar in his pocket. So money has changed hands. Is this really necessary?
Probably not. One of the reasons lawyers care so much about getting paid, frequently up front, is that the attorney/client privilege can actually attach even in the absence of payment. We’re not just talking about deadbeat clients either: ABA Model Rule 1.9 extends much of the benefits of confidentiality to prospective clients just as much as current or former clients. This makes a certain amount of sense because clients need to reveal confidential information to attorneys before they decide to hire them, in part because the attorney doesn’t actually know he’s going to be able to take the case unless certain information is revealed. It could very well be that there’s a conflict of interest that neither party is aware of. If, for example, a civil defense attorney has a prospective client that says he caused a car accident, then the attorney isn’t going to be able to take the case if he’s already representing another defendant in the same case, but he wouldn’t know that the two parties are adverse to each other until the prospective client revealed some confidential information.
But in a practical sense, “making it official” was probably the smart thing to do, as it emphasized the reality of the relationship to two guys with guns who didn’t look like they were all that willing to be reasonable.
There’s a bunch more going on here, and we’ll return to this episode later. Stay tuned!