FYI.

This story is over 5 years old.

Stuff

We Asked an Ethics Lawyer About Defense Attorneys Who Break the Rules

We talked to New York ethics attorney Nicole Hyland about why she started a blog dissecting the conduct of everyone's favorite fictional defense lawyer.
January 28, 2016, 4:00pm

NYC Ethics Lawyer Nicole Hyland

To watch Ice-T conduct a rape investigation is to know that most TV crime procedurals aren't overly concerned with realism. But for someone whose sole real-world experience with the criminal justice system has consisted of hanging out in the waiting room for jury duty, it can be hard to know for sure what shows like Law & Order or Better Call Saul get right and wrong.

New York-based ethics attorney Nicole Hyland wants to change that. As a fan of Breaking Bad, she was an early and eager viewer of Better Call Saul, the spin-off origin story for New Mexico's most ethically-challenged fictional defense lawyer. But when the first recaps and reviews came out, she found critics struggling with the basics of Saul Goodman's conduct.

Advertisement

"They would say things like, 'Can a lawyer do that?' Or, 'Shouldn't a lawyer do this?'" she says. "They had an understandably uninformed [sense] of whether what he did was OK or not in a particular situation."

As a corrective, she launched The Ethics of Better Call Saul, offering her own extremely-informed opinion of the lead character's behavior. The blog took off, attracting attention from Slate and the Wall Street Journal. And for good reason: The recaps are delightfully nit-picky, even obsessive in their attention to detail. We interviewed her for our latest episode of our show The Real, and we had such a great time discussing the finer points of Saul's moral failings that we decided to call her up again.

As Hyland gears up for the start of season two, we talked about public defenders, attorney-client privilege, and how 20-plus years of Law & Order reruns have skewed Americans' opinions of the justice system.

VICE: What does your work as an ethics lawyer entail?
Nicole Hyland: Essentially, I represent lawyers and law firms and counsel them on various ethics issues that may come up in their professional lives. So, for example, if a lawyer has a situation where they have a new prospective client and they have a question as to whether they can take on that representation—or if it creates a conflict of interest for them because of some other current or former client relationship they have—they might come to an ethics lawyer.

Advertisement

They may have a situation that comes up where they found out that in a litigation they're handling a client or a witness who has presented false evidence or testimony and they need to know what their obligations are with respect to that false evidence. So we counsel them in the first instance and we try to help them work through what to do. And then if a lawyer or a law firm that we represent is charged with a disciplinary violation or is sued for malpractice, we would then come in and assist them.

So when you're applying this knowledge to Better Call Saul, do you ultimately think he's a good attorney? Or do you just delight in all of his failings?
It's a little of both. I sort of cringe-watch the stuff he does, but it's great fodder to talk about legal ethics because he does make so many missteps. So I enjoy that part of it.

But I also love that he can talk his way out of pretty much any situation. And that's one of the things that, for an attorney, is a great skill—to have that gift of gab and be able to extemporaneously make arguments and persuade people. I admire that, I'm a little jealous of his skill at that. And I think in many ways he's actually quite a good attorney. When he gets out of his way and he stops trying to scheme, he really has a good instinct. He's a good investigator. When he sees something or hears something that doesn't sound right to him, he doesn't ignore it. He goes after it and digs into it and figures it out.

Advertisement

Some of the violations you point out in your recaps were surprising to me as a layperson, like his repeated violation of the advertising rules. Is there a big difference between ethics for the general population and legal ethics?
Ethics is not really the right word to use, because ethics does imply something that's more like morality and "doing the right thing," whereas many of the principles and guidelines that we follow as lawyers don't have all that much to do with morality. They are about a decision we've made as a profession and as a society to enhance or value certain types of conduct or certain types of relationships.

So what would be a concrete instance of that distinction?
An example that I come back to is the duty of confidentiality. People would disagree with me I'm sure, but I don't think there's an inherent moral right about the duty of confidentiality. People speak about it as if there is. But if you were walking down the street and someone ran up to you and said, "I just killed a man. He's lying in the alley over there," you wouldn't feel any obligation not to disclose that to a passing police officer. You would do something and you would feel a moral obligation to make sure that person didn't get away with that crime.

But for a criminal defense lawyer, when someone comes to you who has committed a crime, even a horrible crime, you have a duty of confidentiality and that duty trumps any moral misgivings you may have about disclosing any information you learn. There are some exceptions to that, but for the most part that is your obligation. So I don't see it as a moral imperative to maintain that duty of confidentiality. I see it as a professional responsibility. It's a decision we've made as a profession and as part of our judicial system that we would rather encourage clients to be forthright with their lawyers and talk to them in order to achieve the best outcome in our justice system as an aggregate.

Advertisement

What do you think people misunderstand from media representations of defense attorneys?
I'm a huge fan of Law & Order, but I think it somewhat did a disservice to criminal defense lawyers because they were almost always portrayed quite negatively, as sort of the opponent to the hero who was the DA. So all of the shenanigans that the DAs would engage in to get around having the protection of a criminal defense lawyer was presented as a positive thing. You know: We're going to question these defendants and we're going to manipulate them into not wanting to have their lawyers present." That was presented as justice and truth prevailing in most instances.

Again, big Law & Order fan, but I do think that's a misconception that has created an idea in the public mind that criminal lawyers stand in the way of justice. The fact is that the justice system is so heavily weighted in favor of the prosecution and the government, and public defenders are so under-funded and so overstretched with volumes and volumes of cases, the reality is the opposite. I would like to see the public give more appreciation for what criminal defense attorneys do and the resources they have and the pressures that they have to face in trying to do what they do.

It can be hard for people to remember that when they see a lawyer defending a person who's already been tried in the court of public opinion or who seems obviously guilty. Why is it important that those people also have zealous defenders too?
This is a country that is founded on having a justice system where, in the context of the proceeding, you are presumed innocent until proven guilty. And the prosecutor, the government, has that burden of proof. A defense counsel doesn't have to do anything, doesn't have to present any evidence. All they are required to do is put the prosecutor to their proof on every element. And so that's important as a broader structural liberty-based concept for our country to have those protections and to ensure that we keep the government to that proof every time. Because, yes, in individual cases there are going to be individual guilty people and some of those people will get off because the government didn't meet its burden or because they had really good criminal defense lawyer. But the idea is to maintain the integrity of the system as a whole, so that innocent people do not end up unfairly penalized.

Now it's not a fully functioning system, as we all know. I mean, for anyone who's listened to the Serial podcast or to another one I'd recommend called Breakdown, you really see a lot of the things that we've been talking about and how the system is stacked up against people, especially people who are poor. I'm not as worried about the Martin Shkrelis of the world as I am about people who really don't have the resources to defend themselves or to hire good lawyers.

Meg Charlton is an associate producer at VICE. Follow her on Twitter.