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Wednesday, May 10, 2017

Comments on the attorney disciplinary hearing on Better Call Saul

Better Call Saul moved to Jimmy's bar disciplinary proceeding this week. Spoilers and discussion after the jump.

It played as a standard courtroom drama (which I generally do not like)--lots of testimony and argument masquerading as questions from the attorney, lots of long speeches and monologues by witnesses discussing irrelevant and inadmissible stuff, an unsworn potential witness in the gallery offering "testimony." In the end, Jimmy induced Chuck into showing that his allergy to electricity is psychosomatic (in part by planting a cell-phone batter in his suit jacket, courtesy of light-fingered Huell, who becomes Saul Goodman's fixer) and that Chuck's efforts against Jimmy are part of a lifetime of fraternal resentment and a desire to end Jimmy's legal career. The episode ended with Chuck sitting on the witness stand, having come undone; we must wait until next week to see what happens to either Jimmy or Chuck at the hands of the Bar.

The charges read at the beginning of the hearing were (they got the Code provisions right): 1) § 16-102(D): Engaging in conduct the lawyer knows to be criminal (breaking into the house); 2) § 16-804(b): Committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer (assaulting another lawyer, Chuck, in his home); 3) § 16-304(a): Unlawfully altering, destroying, or concealing a document or other material having potential evidentiary value (the tape recording as evidence in an ongoing legal case).

So several questions and comments.

First, two of the provisions do not seem to apply to this situation. Section 16-304 is titled "Fairness to Opposing Party and Counsel" and sits within a series of provisions under the heading "Advocate." The whole portion of the code speaks to attorneys' obligations and prohibitions when acting as lawyers in any judicial or quasi-judicial proceeding before a tribunal. Section 16-304 is about an attorney's discovery, pre-trial, and trial obligations to the other side in a proceeding; sub-section (a) prohibits an attorney from destroying, altering, or obstructing the opposing party's access to evidence--implicitly, evidenceis in the lawyer's (or her client's) control and that the other side may want or need in the course of formal proceedings.  Jimmy and Chuck were not opposing counsel in any ongoing proceeding before a tribunal and Jimmy did not destroy evidence in his control to keep Chuck, as opposing counsel, from having access to it. And that language does not seem to contemplate one lawyer breaking into another's house to destroy evidence the other side has in its control, especially outside formal adversary and representative contexts.

Similarly, § 16-102 is about the  the attorney-client relationship and the scope of representation, prohibiting criminal conduct within that relationship (as well as counseling or assisting a client in criminal conduct). Again, not this--whatever criminal conduct Jimmy engaged in had nothing to do with his representation of anyone.

That leaves § 16-804, which defines prohibited misconduct in a section on maintaining the integrity of the profession. This is what should be in play here--regulations that govern someone not when acting as a lawyer or in his representative relationship, but as a person with a law degree whose extra-curricular activities reflect badly on the profession.  And this section is broad enough to capture Jimmy's three criminal acts--breaking and entering, assault, and destruction of property. It is only for dramatic purposes (more below) that the show had to go beyond this provision. (Not so different than in Season One, when a legal-research request included pulling every case on every provisions of RICO).

Second, I do not understand why the tape was admissible and played during the hearing. Jimmy was not charged with tampering with the bank documents, which is what he confessed to on the tape. And the whole premise of Chuck's elaborate plan to get Jimmy to break into the house and destroy the tape, rather than using the tape as evidence of misconduct in altering the documents, was that the tape was not admissible.

So why did the tape come in? The theory, it appears, was that it was necessary for the Bar to prove that the tape was evidence of misconduct to prove that Jimmy destroyed or intended to destroy something with potential evidentiary value. If the tape did not contain a confession of wrongdoing, it did not have potential evidentiary value, thus destroying it would not violate § 16-302(a). And that explains why Kim made what amounted to a 403 objection, arguing that the tape's probative value was substantially outweighed by the danger of unfair prejudice--the tape's relevance to show that the thing destroyed had evidentiary value is outweighed by the risk that the committee would use it to conclude that Jimmy committed the uncharged, but arguably more serious, act of altering legal documents.

But (putting aside whether § 16-302(a) reaches this sort of destruction of someone else's evidence outside of relations with opposing counsel) if the tape is not admissible in any proceeding, is it still "potential evidence" that can be destroyed? Can something be "potential" evidence if it is obviously not admissible in any formal proceeding? Is it enough that the respondent "reasonably believes" what he destroyed was potential evidence and that this is why he destroyed it? Does it matter that there is no ongoing proceeding in which the tape could have been submitted (even if it would have been admissible when that proceeding began)?

Third, Chuck's mental state should not matter. It does not change that Jimmy did everything the Bar accused him of doing--he did break into the house, he did destroy personal property (potential evidentiary value or otherwise), and he did assault Chuck. I am not sure why Chuck's mental illness, Chuck's resentment of Jimmy, or the overall state of their relationship matters. If those are Bar-punishable offenses (whether by disbarment or some lesser sanction), they remain so.

The theory must be something like this: If Chuck is mentally ill and/or convinced of Jimmy's wrongdoing, Jimmy was (out of love) telling his ill brother what he wanted to hear in a moment of crisis, rather than confessing to actual misconduct. Chuck was so distraught in his delusion that Jimmy altered the documents that Jimmy admitted doing so only to help Chuck feel better. And if not a confession to actual misconduct but a white lie to ease his brother's troubled mind, the tape is not evidence. But, again, why does it matter that Chuck is mentally ill?  Jimmy could make the "telling him what he wanted to hear" argument even if Chuck was healthy but having a crisis of confidence in his legal abilities or even if his physical condition were real--Jimmy might falsely confess to ease his brother's discomfort, regardless of the cause of that discomfort.

This point seems a victim of plot. To create a narrative of the brothers working elaborate cons on one another, the legal theory in the story also had to be convoluted.

Fourth, Jimmy should still be in trouble. He did break-and-enter and he did commit assault and those do reflect adversely on his fitness. And that does not change because Chuck is mentally ill or vengeful. Both actions could warrant bar discipline, although perhaps not disbarment. Of course, I am not convinced that destroying potential evidence (even if it is admissible) would warrant disbarment, the ultimate sanction that seems reserved for the most extreme and repeated conduct.

Posted by Howard Wasserman on May 10, 2017 at 09:31 AM in Culture, Howard Wasserman, Television | Permalink

Comments

"bar discipline, although perhaps not disbarment"

He mentioned that he expected some sort of discipline. He accepted that. It was disbarment that he really worried about.

"Chuck's mental state should not matter."

Why? If Jimmy only broke in etc. for a personal reason, not actually planning to destroy evidence, that wouldn't "matter" for purposes of at least the level of sanctions?

Posted by: Joe | May 10, 2017 10:56:46 AM

But it would not make a difference whether Chuck's condition is physical rather than mental. And it certainly would not matter if Chuck has a vendetta or not.

Posted by: Howard Wasserman | May 10, 2017 11:44:17 AM

It's possible that Chuck would have some physical condition that Jimmy would use to at least mitigate his actions. But, a mental condition could be relevant if Chuck's judgment is involved. Chuck himself believed he was a key witness. If his judgment could not be trusted, it would be relevant.

A vendetta could taint Chuck's judgment as well. His final rant suggests someone who might lie (he already said he feigned being worse to trick Jimmy) etc. because he believes his brother needs to be disbarred, let justice be done may heaven fall (or corners cut).

Posted by: Joe | May 10, 2017 12:10:30 PM

"Jimmy could make the "telling him what he wanted to hear" argument even if Chuck was healthy but having a crisis of confidence in his legal abilities or even if his physical condition were real--Jimmy might falsely confess to ease his brother's discomfort, regardless of the cause of that discomfort."

The mental illness angle comes in because of the specific kind of breakdown Chuck was pretending to have. Chuck had gone full space blanket. Had Jimmy believed that the condition was actually physical, then confessing that he changed the documents would do nothing to alleviate his brother's suffering. But, if the condition is psychological/psychosomatic, then Jimmy would have reason to believe that the confession would restore Chuck's confidence in himself and cause the symptoms to recede.

Jimmy could make the telling him what he wanted to hear argument if Chuck was simply having a crisis of confidence in his legal abilities, but that would be a counterfactual. Chuck is in reality pretending to have a much more serious crisis. So yes, Jimmy could have taken a different approach but for the fact the Chuck chose the setting on which they'd be fighting it out, and that was electromagnetism sensitivity.

Posted by: Derek Tokaz | May 10, 2017 12:26:11 PM

Just out of curiosity. Could planting the battery on Chuck be considered breaking the law? Even if not necessarily breaking the law, doesn't this seem like a dumb move?

Posted by: Dave | May 11, 2017 12:26:48 AM

Dave,

The first year students who just learned the definition of battery say yes, planting the battery is an offensive or harmful touching.

Posted by: Derek Tokaz | May 11, 2017 6:21:27 AM

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