Pushing the Ethical Boundaries of Lawyer Advertising
Image Credit: AMC
There is an interesting subplot woven throughout this series, that being the challenge that a lawyer has of finding clients. You may recall that, early in the series, Jimmy was a public defender. For those of you that may not fully appreciate what a public defender does, they represent those criminal defendants who don’t have the means to retain their own private counsel. It’s a common place where new lawyers start out; not just for the money, but for the experience of getting into court and trying cases. But how does a young lawyer expand his practice?
Before 1977, lawyers were forbidden from advertising by bar association rules. It took two young Arizona lawyers, Bates and O’Stein, to change that. At the time, Arizona Bar Association rules forbade advertising. Bates and O’Stein ran an ad, promoting their low rates. After losing at the Arizona Supreme Court, Bates and O’Stein took their case all the way to the US Supreme Court, which not only found that advertising fulfilled a critical role in informing the public about the availability of legal services, but also found that the rules against advertising violated the lawyer’s First-Amendment rights to free speech.
However, this did not open up the floodgates. Advertising by lawyers is still strictly regulated by court rules, specifically, the Rules of Professional Conduct (“RPC’s”). These rules vary from state to state. In Washington State, RPC (Rules of Professional Conduct) 7.3 prohibits direct contact with a prospective client unless the contact meets one of the following criteria:
(a) A lawyer shall not, directly or through a third person, by in-person, live telephone, or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:
(1) is a lawyer or an LLLT;
(2) has a family, close personal, or prior professional relationship with the lawyer; or
(3) has consented to the contact by requesting a referral from a not-for-profit lawyer referral service.
In other words, a lawyer simply can’t cold-call a prospect. If you are interested in seeing the Rules of Professional Conduct for New Mexico, the situs of Better Call Saul, they can be found here: New Mexico Rules of Professional Conduct.
With this information as a background, Episode 3 opens with Jimmy bribing a bus driver to allow him on an excursion bus to speak with a little old lady. As we later learn, this woman actually returned a mailing that was sent out to residents of Sandpiper Crossings. (Mailers are a permissible means of advertising, provided they don’t contain a material misrepresentation.) Of course, Jimmy carefully chose the timing and place of this meeting to ensure that other Sandpiper residents were within earshot. (A violation of the rules regarding confidentiality, but I digress.) Understandably curious, others inquired about what was going on and, after some carefully choreographed coercion, Jimmy signed up a number of them.
In the board room at HHG, Jimmy’s brother, Charles, was dubious about Jimmy’s success in signing up clients. Charles is a lawyer’s lawyer. He recognizes the challenge that Jimmy faces, and knowing Jimmy’s history, Charles correctly concluded that Jimmy is using unethical means to get people to sign up for representation.
Desperate to expand the number of clients, Jimmy prepared a commercial, hoping to target a specific audience, e.g. the Sandpiper residents. Unfortunately, he specifically mentioned the name “Sandpiper Crossings” in the commercial. I predict that this is going to get him in a ton of trouble. If not in violation of an ethical rule, the context and content of the commercial clearly calls Sandpiper Crossings’ billing practices into question. I predict a lawsuit for defamation against Davis and Main, with dire consequences for Jimmy.
Episode 3 ends with Jimmy on the phone with Clifford Main, one of the partners at Davis & Main, who was livid that Jimmy would run a commercial without first clearing it with the partners. We all knew that Jimmy was going to have a downfall; I just didn’t expect it to be so soon. Is he taking Kim down with him? Has Jimmy crashed on the rocks?