The billboard ad of North Carolina lawyer Larry Archie has drawn a lot of attention in the state and on legal ethics forums.
Some observations:
1. I was a little late seeing “Breaking Bad” ( I tend to avoid show with drug dealers as heroes) so I didn’t see the obvious connection between the popular AMC show’s cynical, unethical and effective slime-ball lawyer Saul Goodman, played by Bob Odenkirk, and last year’s jaw-dropping—but funny!—video ad for the services of Pittsburgh criminal lawyer Daniel Muessig.
2. This is why we ignore popular culture at our peril….and I think the legal profession needs to stop laughing and start worrying. People really do think Saul who is a criminal lawyer, is typical, and bar associations are doing very little to dissuade them. This is irresponsible, dangerous, and stupid. The profession has a duty to educate the public about how lawyers are supposed to act and why, and if it whiffs on that obligation (as it has for about the last hundred years) public respect for the justice system will continue to drop.
3. Like many of my generation, I aspired to be a lawyer after being inspired by heroic TV attorneys like Perry Mason and the father and son Prestons on Reginald Rose’s “The Defenders.” What kind of people are going to want to be lawyers in the wake of Saul Goodman, who is now the star of his own “sleazy lawyers are hilarious” AMC show, “Better Call Saul”?
4. Is Archie’s billboard unethical? The applicable rule on lawyer advertizing, North Carolina Rule 7.1, says:
Rule 7.1 Communications Concerning a Lawyer’s Services
(a) 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:
(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(2) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or
(3) compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.
5. The consensus seems to be that a bar prosecution based on 7.1 would fail. The argument for sanctions would be that the slogan encourages dishonesty, but the statement is literally true, and even educational.
6. Others argue, on the basis of candor and the virtues of telling those who need a criminal lawyer what they need to know, that this is an admirable and ethical ad, not to mention an effective one.
My view? It’s ethical. It’s effective advertising.
And it looks terrible.
Ethics Alarms 
As a lawyer myself, one word: yuk!
Yeah.
Verrrry interesting…
For what it’s worth, the current Better Call Saul series seems to retrace the pattern of Walter White in Breaking Bad. The first two episodes show a rising lawyer, trying to get ahead while (largely) doing the right thing, and how he gets ensnared. Exactly what happened with Walter White, good high school chemistry professor.
As such, they’re both tragi-comedies in the vein of The Sopranos.
But to your point, there’s no question that they all romanticize the evil, villainous parts of the characters, by making them human and fallible.
So I guess the question is, how much truth can we handle?
I’m with you; ethical, very effective, and on some level a damn shame.
You brighten my day by invoking Artie Johnson, Charles. Makes me smile every time, and always will.
Arte Johnson. What a great White House Press Secretary he would have made!
*trying to be spoiler free, but spoiler warning*
I liked Breaking Bad…. Over the course of the whole show it demonstrated, often violently, that crime doesn’t pay. There was no romanticism in it. Walt went from fire to fire, constantly in mortal peril, and even when he had literal barrels full of cash, the highest level of legal esteem he got was as the owner of a car wash. And at the end of it all: Everyone got what was coming to them.
My problem with the ad is that it is illiterate. According to the online Merriam-Webster Dictionary, the word guilty means “responsible for committing a crime or doing something bad or wrong.” I presume that our billboard lawyer is invoking a more legalistic definition, as in “proclaimed guilty by a judge or jury.” M-W goes on to provide a “full” definition: “justly chargeable with or responsible for a usually grave breach of conduct or a crime.” Chargeable, not convicted. Guilt is guilt, regardless of the legal outcome. If you did it, you are still humanly and existentially guilty, even if the legal system failed.
I was going to dance around with this response – but I think I’ll take it head-on now.
I’m in my home, and intruder comes in with visible intent to do harm to me and my family. I pull my gun and I kill him. Just because I did it, doesn’t mean I’m guilty. Even using your strict dictionary terminology, I can’t be charged in the intruder’s death even though “I did it”; due to laws protecting me like “stand your ground”.
No, no, no. It is illiterate not to understand that “guilty” is a very technical term in the legal context. Factual guilt, and existential guilt is irrelevant. There is a presumption of innocence up to and until, there is a plea of guilty or a finding of guilt by a judge or jury.
And, I have to disagree that the acquittal of a guilty person is a failure of the legal system. The legal system is as much about process as it is about outcome. It does not matter if my client had possession of meth; the cop had no right to stop him and search him. Factually guilty? Sure. Legally guilty? No. The failure of the legal system occurs when the innocent are convicted.
And, for what it’s worth,Black’s Law Dictionary, Ninth Edition, has two definitions of “guilty.” One, the adjectival form, is basically along the lines of Merriam Webster, responsible for a crime. The noun form of guilty involves a pl,ea of guilty or a determination of guilt by a judge or jury.
-Jut
All true and accurate.
Corollary: You may be Guilty even if you didn’t do it.
http://en.wikipedia.org/wiki/Herrera_v._Collins
Justice Scallia, (In re Davis, 08-1443)
Life imitating Saul? If the shoe fits…
No, I get the legal principle involved…The trial settles the issue—due process—and no judge HAS to intervene. Still, the judge shouldn’t be have to be forced to, and that’s also what the safety valve of pardons are for.
Wow
“…we ignore popular culture at our peril….and I think the legal profession needs to stop laughing and start worrying.”
You’ve run through Perry Mason with a sharp sword before, so I know you grew out of any hero-worship on that score, and condemn the popular public image the character left of a defense attorney winning every case (except one, I think) by taking limitless unethical liberties. Saul is never going to reach that level of popularity because there isn’t anything worth emulating. Yes, the show is a bomb now, a real text ‘n twitter version of the old office water-cooler, because it’s pushing the envelope. But it’s the same old envelope, bursting at the seams with language and themes designed for one purpose only: to challenge the censors (the authorities), whoever they may be, thereby gaining popularity by default. It’s being touted as the new “Frazier” in a time when there is just too much competition for attention in the entertainment world, both on and off TV. In fact, altogether too much “popular culture” for any 50 people to encompass if they each went off in a different direction.
One critic (Entertainment Weekly) spoke of it, seriously — your theater-self may get goose-bumps at this — “As a character study of a postmodern Willy Loman, as a satire about self-creation, as a subversive poke at those who find wish fulfillment in antihero fantasy …”. And the Common Sense Media child-watchers were exceptionally mild about it, with a description that: “centers on a small-time lawyer with larger ambitions — and murky morality. The main character wades into the illegal drug trade and mixes with armed criminals, so you’ll see some bloody acts and other forms of violence, along with drug use and social drinking. You’ll also hear words like “douchebag,” “damn,” “bitch,” and “ass” and see some branding from Cinnabon.”
Given this kind of reaction, plus the tacit acceptance of the real-life Saul-ish examples you give above, any formal response from bar associations could be seen as, well, defensive. That’s my take on it … from one who has opted out of current “popular culture” in favor of entertainment culled from not-so-popular sources, Ethics Alarms being one. Or maybe I just lack your energy. Too much Cinnabon, probably.
It is interesting to watch the old lawyer series where trial lawyers were bulwarks of integrity; Raymond Burr, E.G. Marshall, Carl Betz… Andy Griffith! Who’d believe these characters today in the Saul Era? I never really believed it back then, as a kid. Besides, Perry Mason tended to creep me out! I rather preferred Warren William’s Mason from the 1930’s films: A drunk, a gourmet and mildly (but happily!) corrupt.
Raymond was intimidating and sinister looking–he was supposed to play the DA, Ham Burger, but Gardner wanted him as Perry. But I think he creeps you out because you have good GAYDAR and he was gay,essentially married to his partner. Hollywood and journalists strongly suspected, but kept his secret. Why? Because everyone loved the guy, apparently…a good, generous, kind pro, through and through. From Wiki:
You know, reviewing that, I should make him an Ethics Hero Emeritus.
Thanks for filling in Burr’s bio, Jack. (How in the world could I have never figured out what Hamilton Burger’s nickname would come to??)
Burr could be creepy indeed when the role called for it, though. Pre-Perry, he had a long career as a menacing villain – he could play scary without moving a muscle or saying a word. In fact, he was so type-cast from playing “noir” style bad-guys all through the 40s up to the tv show that made him a household word as a quintissential good-guy from 1957 on, that it was first thought to be a huge joke to put him in the Mason role at all. It was the author himself who believed he would fit the bill.
But I enjoy the Warren William versions too – and they were closer to the REALLY unethical (and often illegal) stunts Perry and his associates pulled in the original Erle Stanley Gardner novels. All six of the 30s versions are finally out on a DVD, I hear: the four Williams’ are pre-code (that’s why he got away with so much), plus one with Ricardo Cortez (another debonair fellow, still seen often in his one lasting role as Sam Spade in The Maltese Falcon, but mostly as a Latin gigolo) and the last with Donald Woods (a relatively unknown name throughout his six-decade career with 140 roles (half in movies, half in popular tv series well into the 80s).
I wonder how many people will be interested in calling Saul 70 or 80 years from now….
That’s key: legal ethics weren’t mandatory before the Sixties. Yes, Perry was pretty sneaky in the books.
Burr was also a radio star. What a voice he had. He was also fat pre- and post- the original series, which is why he was a hero on radio and a heavy (pun intended) on screen. He had to lose about 60 pounds as a condition to play the good guy.
Most famous non-Mason roles would be the killer in “Rear Window,” and the American in the first Godzilla.
Burr was also the “heavy” in some B-film about the Arabian Nights or some such. I can’t even remember the title. He looked pretty dumb as an Arab!
Darn…Now you’ve gone and spoiled a Hitchcock surprise! Speaking of whom: the perfect example of being given the King’s Pass.
Yup.
I was aware of much of that, Jack. I was also (although belatedly) aware of his “condition”. All I said was that, as a child watching Perry Mason, I found him rather creepy. I wasn’t attempting to make an issue of his regrettable affliction.