How Lawyers Handle Conflicts of Interest
Image Credit: AMC
I do admire the writers of Better Call Saul for their generally accurate portrayal of legal proceedings. In Episode 6, there is an interesting courtroom scene where Kim Wexler is arguing against disclosure of her clients’ medical records. Recall that the Sandpiper Crossing lawsuit is in the discovery phase, and both sides are permitted to request documents from each other. The apparent procedural posture at issue in this instance is likely a motion by Schweikart and Cokely (“S&C”), the firm representing Sandpiper Crossing, to compel Hamlin, Hamlin & McGill (“HHG”) to turn over the medical records for all of their clients. All we see is the oral argument, which is just the tip of the iceberg in legal proceedings. As the judge mentions at the close of the hearing, he is going to review the briefs before ruling. In Washington, the person requesting relief is called the “moving party”, and the person resisting relief is the “non-moving” party. Generally, there is a motion, followed by a response, and then followed by a reply. The judge reviews the briefs and usually makes up his (or her) mind before the hearing. Indeed, courts have done away with oral argument in some cases.
Ultimately, I agree that the judge would probably rule to turn over the medical records. In discovery, the documents themselves don’t need to be relevant; they just need to be reasonably calculated to lead to relevant evidence. In this case, the clients’ “capacity” (the legal term for having most of your marbles), is relevant.
Impressed by Kim’s tenacity, Rich Schweikart offers her a job at S&C. Quite correctly, Kim raises an ethical issue regarding conflicts of interest. In Washington, conflicts of interest for former clients are governed by RPC (Rules of Professional Conduct) 1.8, which provides:
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
whose interests are materially adverse to that person; and
about whom that lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
reveal information relating to the representation except as these Rules would permit or require with respect to a client.
This rule applies to law firms as well as individual clients.
Mr. Schweikart responds to Kim’s ethical inquiry with the statement that she will not be working on Sandpiper Crossings, and would not be asked to disclose anything she knows about the case. In law firms, they refer to this shield as a “Chinese Wall”; a term that confuses me. My recollection from high school was that the Great Wall of China didn’t stop anyone. However, law firms are dead serious about avoiding even the appearance of conflicts of interest. You can take that to the bank.
Later, and feeling good about herself, Kim picks up a voice mail from Jimmy where he sings the song “Bali Ha’i” from the Rogers and Hammerstein musical, South Pacific (I despise the movie version of South Pacific for a lot of reasons, not the least of which is wretched color filters they used when filming many of the song sequences. Trivia: Did you know that South Pacific was filmed on Hanalei Bay on the Hawaiian island of Kauai? This is the same Hanalei of Puff the Magic Dragon fame!).
Bali Ha’i is an unreachable mythical paradise, and Kim is seduced by Jimmy’s overture and reaches out to him for another barroom scam. This time, the scam is directed towards an unsuspecting engineer who is deceived into investing in a non-existent corporation known as “Ice Station Zebra”.
At this point, I’m shouting at the television, imploring Kim to sever her ties to Jimmy. He’s a bad influence little girl, and you’ve got so much going for you.
The conflict between Hector Salamanca and Mike Ehrmantraut continues to escalate, and is my favorite aspect of this series. For those of you who were Breaking Bad fans, recall that Hector Salamanca appeared in that series as a drooling, wheelchair bound invalid, unable to speak, who communicated with the outside world through a bell (the kind your elementary school teacher had on her desk), fastened to his wheelchair. Able to move only the index finger on one hand (I’ve forgotten which), he tapped once for “yes”, and silence for “no”.
Hector had become aware that Walter White had killed Hector’s son, Tuco, and he longed for revenge. However, his desire for revenge was surpassed by his hatred for law enforcement. In one particularly memorable episode, the FBI was questioning Hector, who had the opportunity to provide them with incriminating information regarding Walter White and his meth-manufacturing operation. Because Hector was unable to speak, and could only move his index finger, the FBI agents used the painstaking method of constructing Hector’s testimony one letter at a time by moving their finger across a matrix containing letters of the alphabet. Hector would ring his bell when the agent’s finger crossed the next letter in the sentence. Rather than cooperate with the FBI, Hector wets himself (or was it the “other”?), sitting right in his wheelchair. That’s commitment.
Shortly thereafter, Hector meets his maker when he gets blown up by a wheelchair bomb rigged to detonate when he rings his bell.
Better Call Saul is turning into a Breaking Bad reboot, with many of the characters returning to reprise their roles, not unlike Star Wars, Episodes 1, 2, and 3. However, as George Lucas found out, it’s hard to go back in time and construct a compelling past for characters when you already know their future. In my mind, it generally detracts from the suspense. But, in Breaking Bad, we were not aware that Mike and Hector had a history, and this dimension is really well done. Like I said last week, how do Mike, Hector, and Tuco manage to co-exist?