Better Call Saul? Not so Fast, According to Ethical Rules

I’ve never been a huge fan of legal shows, but I am an unabashed fanboy of AMC Network’s “Better Call Saul” (just as I was of its parent series, “Breaking Bad”). For those of you who’ve been living under a rock the past decade, BCS is the critically-acclaimed prequel to ‘Bad, and follows the rise (or descent, depending on how you want to look at it) of its titular character from struggling semi-legit lawyer James McGill and his transformation into ethically challenged (though highly effective) lawyer “Saul Goodman”.

[SPOILER ALERT] Seeing as how last night’s Season Three episode (“Off-Brand”) first introduces us to the use of the alias “Saul Goodman” (albeit not in the context of a practicing attorney), I thought it might be fun to see if James McGill could actually practice law in New Mexico under a completely fictional name.

Before I try and answer that question, let me be clear that I am not licensed to practice law in New Mexico and that this article should not be considered legal or ethical advice and especially not a solicitation for legal services in the Land of Enchantment.   With that out of the way, I have read the NM Rules of Professional Conduct, which pretty closely mirror our own State Bar rules here in Arizona.  Specifically, Rule 16-701 (the counterpart to Arizona’s Rule 7.1) states:

Rule 16-701 Communications Concerning a Lawyer’s Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if: it contains a material misrepresentation of fact or law; omits a fact necessary to make the statement considered as a whole not materially misleading; or contains a testimonial about, or endorsement of, the lawyer that is misleading.

What the Rule tells us is that, in New Mexico, a lawyer is prohibited from making a false or misleading communication about himself.  If the communication (a) contains a material misrepresentation of fact, or (b) omits a fact necessary to make the statement as a whole not materially misleading, then it will be deemed false or misleading.

So, could Jimmy McGill turn around and practice law as “Saul Goodman”?   First, let me say that one of the things that makes BCS (and especially BB) so great is its technical advisors.  Even with the legal stuff (which is much more prevalent in BCS), the attention to legal detail and procedure in the plot and dialogue is pretty darn good.  In addition, we’re only halfway through Season 3 and so it is entirely possible that the brilliant writers of the show will figure out some way to close this circle.  However, in my opinion, I would have to say the answer is a pretty firm “No”.

If your legal name is actually James McGill and yet you are holding yourself out to clients, the court, the public, etc. as “Saul Goodman”, then I think that would be a problem, since it is an obviously untrue or, at a minimum highly misleading, statement.  If there is any room for daylight in the matter, I would say it turns on that magical word that all lawyers come to love and/or hate: “material”.  Is such an untruthful representation material?  I would think the NM State Bar would consider a member using a false name from that printed on his/her bar card to be a “material” misrepresentation of fact.  However, would someone seeking representation from Saul Goodman really care that his real name is also James McGill (assuming, of course, they had this knowledge), so long as they understood that the person before them was the same person, just using a different name?  Would they find this misrepresentation to be “material”?  Maybe they would, maybe they wouldn’t.  I don’t know the answer to that question.  My take is that such a question would never get that far.  The NM Bar, as with the bar associations in every jurisdiction, are tasked with protection of the public and the integrity of the profession.  For these reasons, if this was the real world, I think they would likely drop the hammer on Jimmy McGill/Saul Goodman pretty hard.  For purposes of the show, I’d bet that the BCS writers will figure out some way to square this.  If I had to guess, I’d say the writers put in something like a legal name change by Jimmy to his alter ego Saul.  This would enable Jimmy to revise his Bar records to reflect his new name as Saul and therefore no longer have to worry about the pesky constraints of 16-701 since representing himself as Saul Goodman would no longer then be either false or misleading.

Ben Bhandhusavee is the Managing Attorney for BhandLaw, a Phoenix tech law firm that works with start-up companies, intellectual property matters, and business and technology transactions.  Ben can be reached at (602) 678-2970 or by e-mail at bbhand@bhandlaw.com