It’s not all good, Saul Goodman

2016 05 27

Photo: AMC TV

 

By Stewart Osborne

Spoilers abound. You have been warned.

We first met James MacGill, better known as Saul Goodman, in Breaking Bad, and his origin story has been explored (as far as the foundations go, at least) in the first season of Better Call Saul. If the ‘flash forwards’ are anything to go by, “Slippin’ Jimmy” ends up in witness protection, no doubt due to his involvement with Walter White, among other parties.

Not since Lionel Hutz of The Simpsons has the archetype of a sleazy yet loveable, fast talking, proverbial (or in Hutz’ case, literal) ambulance-chasing flimflam man with questionable qualifications to practice law been pulled off so brilliantly, and full credit to Bob Odenkirk on his portrayal of the character. It’s hard not to like him. The bus stop ads, the shockingly direct green screen advertisements which put major names in Australian public liability practice to shame with their brazenness, are all directly lifted from the U.S. legal industry. That’s not to say aggressive advertising (quite typically accompanied by commensurate aggressive billing) doesn’t happen in Australia, but I’ve seen how U.S. attorneys not averse to debasing themselves just a little go about spruiking their services in horribly put together TV ads.

Saul is entertaining. And it’s just about there that anything good about him can be said.

Criminal lawyers, despite what Saul Goodman would have you believe, are not conduits for one criminal to engage with others, or matchmakers as far as existing criminal enterprises or startups go. Walter White’s capacity to ‘disappear’ is facilitated by professional criminal with whom Saul maintains at least some kind of a non-client relationship. Saul acts as a middleman between Walter White, as a clandestine illicit drug manufacturer, and Gus Fring, a man with an industrial plant specifically geared to the commercial production of methylamphetamine. During the scene in the hotel in which Walter buys himself a gun with an obliterated serial number in a dingy hotel room, we learn the gun dealer and Walter were introduced via ‘the lawyer’. The same goes for Mike Ehrmantraut; another referral from Saul to Walter. Quite the one stop shop for a budding criminal. Forget the moral reprehensibility. How about the illegality of conspiring to commit a plethora of serious criminal offences in which Saul effectively involves himself?

Then there’s the money laundering. The vast, vast quantities of money laundering. The utter saturation of Saul’s involvement in the schemes used to launder money on behalf of the Whites is breathtaking, from buying businesses to sending money to third parties through fictitious inheritances. The sheer scale and quantity might be enough to convince a naïve audience that this is actually part, to at least some miniscule degree, of a good criminal lawyer’s job. In reality, no, it isn’t, and being disbarred is going to be the least of your problems if this is something in which you contemplate engaging.

We see the evolution of Saul from attempting to make his way into corporate law, working (poorly) as a public defender before getting involved with gangsters after a failed attempt at staging a traffic accident for compensation, and presumably going on to become the Saul we know from Breaking Bad. The conspiracy to stage a traffic accident for compensation money with a couple of kids who end up wishing they hadn’t gone along for the ride is bad enough. Along the way, he later procures the burglary of a client’s home, because ultimately, this was, to his mind, in the client’s best interest (and fit the story arc nicely). Let’s be clear here, in case it was missed initially – he procured an aggravated burglary undertaken actively with Mike in order to steal a substantial sum of money, in order to apparently get his client the best possible outcome. The ends thus justifying the means, we can all sleep better at the end of the show.

Yeah, nah. That’s not how it goes. Real life’s not like that, and the way both shows go about normalizing a litany of offences which would be bad enough being committed by any member of the public, much less an officer of the court, is almost worrying. The ends will not justify the means, no matter how you try to package it; you will be held to a higher standard than that nebulous “’reasonable person’ if you find yourself in court on a conspiracy charge of some flavour or another, and who knows – if you seek to emulate Saul, you too may find yourself working in a shopping mall in another state using a fake name, probably after a stint in prison and penniless, if you’re lucky enough to escape the agitated clients with whom you’ve become too closely involved when (not if) it all goes wrong.

In Review: ‘To Kill a Mockingbird’

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By Georgia Briggs

To Kill a Mockingbird was one of the first books I ever really read. I had to analyse it for English class, and it has stuck with me ever since. Whether it influenced my choice to become a lawyer, I don’t know, but it certainly influenced how I choose to act as a person.

This novel, written by Harper Lee and published in 1960, follows the life of Jean Louise, better known as Scout, a 10-year-old girl living in Maycomb Country, in America’s South, in 1936. As we probably all know, but I’ll remind you anyway, this time in history sees a very distinct racial divide between white and black people. Blacks are segregated from whites at all costs, and work only as servants in the town.

Scout lives with her older brother, Jeremy (Jem), and her widowed father Atticus. They also have a maid, a black woman named Calpurnia, who is also a mother figure to Scout. The book is told through Scout’s eyes as she recounts her life in her small town.

What becomes the main focus of the book, amongst many other themes, is that Atticus Finch, as the town’s prominent lawyer, must defend a black man accused of raping a white woman. Atticus takes on the case knowing that the prevailing opinion at this time was that when a white person who accused a black person of a crime, the black person was guilty.  Therefore, though not specifically stated, the majority of the small county deemed a trial unnecessary. He was guilty, they all knew it.

Atticus believing that everyone deserves a fair trial, and every man deserves legal representation, did the right thing. He stood against the crowd, defending to the best of his ability, an essentially unwinnable case. Because it was the right thing to do.

This is always solidified in my mind through a chapter in the novel where Atticus leaves the children at home one night. Scout, curious as always and not one to follow the rules, walks into town in the dark to see where her father went. She finds Atticus perched on a chair, reading the paper, right in front of the jail entrance. He is waiting, in the dark, guarding his client, as he knows that men in the town will take it upon themselves to lynch (hang) the man accused if they get the opportunity. Atticus is the human barrier between one innocent man, with the wrong coloured skin, and a large mob of angry men, most of whom are Atticus’ friends, neighbours and peers. Atticus chooses to stand against his own people, puts his own life and reputation in the small town at risk, to defend someone, because it is the right thing to do.

Atticus Finch is the lawyer we all want to be. Even Wikipedia says Atticus is “the most enduring fictional image of racial heroism”. He is a hero, he is our humble, average, no cape needed, hero. And while our battles as lawyers may be different, whatever our fight is, we want it to be a strong and passionate one, one that leaves our soul and conscious sound.

Atticus embodies one of the most difficult issues for any person, perhaps more so for lawyers, where one must balance their own safety, morals and agenda against what is right and what is wrong. Not to get swept up in the controversy and follow what your peers say is the obvious choice, but to do what is the correct choice from your moral compass.

A line that I found interesting came from the movie The Judge. Robert Downey Jr, playing a suave defence attorney tells us “everyone wants Atticus Finch until you have a dead hooker in your hot tub”. What a person hiring a lawyer wants remains to be seen, but what a person who is a lawyer wants… They want to hold their head high and do what is right, feel they are fighting a good fight and go home at night knowing they tried their best, and they hopefully made a difference. Atticus is the embodiment of all of this.

Told through his daughter’s eyes, Atticus becomes a father figure to us all. As Scout learns lessons of life from her father, the reader learns them too. It is well written, amusing, but also deeply profound. Harper Lee is a fantastic author who shines a light on what it can mean to be a lawyer trying to do all that you can. That we are people who do our best to balance our beliefs, our job, our responsibilities, our family and our conscious to do what is right. Often this balance is tricky, but we do it as best we can, and Atticus Finch leads the way.

If you have yet to read To Kill a Mockingbird, as a lawyer, or as any person, I strongly urge you, if not demand, that you read this book. If you have already read it, read it again! You’ll turn back through the pages and feel the familiar warmth of the written words, the southern twang of the dialogue, and of course the wonderful characters.

The Lincoln Lawyer – Lots of style, plenty of jail time.

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Matthew McConaughey and Ryan Phillippe in Lions Gate Entertainment’s ‘The Lincoln Lawyer’ (Photo: Hollywood.com Staff/Syndicated by: Lions Gate Entertainment)

 

By Stewart Osborne

About 5 years back, a movie called The Lincoln Lawyer was released, based on one of a series of novels starring a then “still clawing his way back up” Matthew McConaughey. To give you a brief synopsis, it’s about a smooth-talking Californian criminal defence attorney who knows everyone, abuses every loophole, and ends up on the wrong end of a situation with a sneaky client who tries to corner him using professional privilege, and yet he miraculously slips the noose and wins the day in true Hollywood style.

Very stylish, very slick, and pretty vacuous (not filling in any Californian stereotypes there, are we?), in the first half hour, in no particular order, Haller’s being chauffeured around from court to court and arranging future ‘gifts’ to facilitate prisoner movements for corrections officers because his schedule’s so tight. He then uses creative methods for keeping clients remanded in custody and stalling hearings, pending receipt of cash stuffed envelopes from ‘motorcycle enthusiasts’, who he then admits he will creatively overcharge to justify his expenses… that’s just for starters. All of this sounds pretty legit as far as being a criminal lawyer goes, right?

Ha. NO!

Let’s talk about some seriously twisted and unrealistic expectations. Haller is not a cowboy, or a maverick. In the movie, he’s cool and slick. By real life standards, he’s actually an out an out criminal and a disgrace to the court of which he is an officer.

Let’s take a quick look at the sample of misconduct considered above.

Why’s Haller being chauffeured? Oh yes, his licence was suspended for his propensity towards drink driving. One would hope he’d informed the ethics committee about that.

Then it gets heavier and heavier… Stop and ask yourself, what’s the closest you’ve come in your life to ACTUALLLY bribing someone? Maybe overpaying a cover charge when a late night venue is full? Bribing a prison officer for any reason, such as to expedite movement of your client (regardless of the amount, a measly $100 in the movie) is a different thing entirely – that’s a fast track to needing a defence lawyer of your own.

Misleading the court, of which you are an officer and to whom you owe a duty first and foremost, as to the need to locate a material witness in order to get your client remanded, specifically to squeeze his motorcycle enthusiast mates for more money? Now you’re looking at contempt of court in addition to seeing your practicing certificate spontaneously combust.

When the aforesaid squeezed motorcycle enthusiasts effectively pull you over on the road, and you take an envelope loaded with cash after outright lying to them about your intentions as far as use of those funds go, without so much as an entry in the trust account books, or maybe even an AUSTRAC report about the suspiciously large amount of hard currency which your client’s associate, who is not gainfully employed, handed you, you’re no longer a criminal defence lawyer. You’re a criminal and a conman, and possibly looking at money laundering charges as well.

Later, in no particular order, we also see Haller buying illegal guns and brandishing them, convincing a client to act against his best interests to the extent that said client is imprisoned for life, using his bikie connections to assault and intimidate his now former client, and bribing officials using a third party (sensing a theme with the casual bribery in criminal law? NO! THERE ISN’T!) to get an early look at the discovery file. But in the end, justice prevails and all is right with the world.

All in a day’s work, right? NO! IT ISN’T!

If you found yourself nodding along with a ‘yes’, condoning pretty much any point in Haller’s day mentioned above, on the basis that ‘it’s only going to be a problem if I get caught’, it really is time to consider pursuing a new vocation, because you can expect to be making career killing oversteps, if not getting yourself struck off or even locked up, in pretty short order for pretty much any of the above. This movie is the first in a line of recent fictional portrayal of lawyers who are portrayed as pragmatic protagonist characters for whom the ends will ultimately justify the means. Take that attitude with you into practice, and you are doomed from the get go.

Stylish though it may be, and an extremely slick portrayal of a criminal defence attorney who just seems to know all the angles, this movie’s leading lawyer’s example isn’t just unrealistic, its utterly toxic.

The Critical Lawyer

by Phoebe Churches

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By this I don’t mean the senior partner you had during articles or clerkship or the Magistrate looking at you through semi-closed eyes during your very first appearance.*

I am talking about Critical Legal Theory in practice.

I came to the law after a lengthy stint in social work, working with some of the most vulnerable and disadvantaged in the community. Accordingly at law school – I was a bit of a fish out of water as a left, feminist, progressive type – and I really dreaded the impending requirement to complete core subjects such as Company Law.

When the first seminar of Company Law rolled around, I sat listlessly contemplating the weeks of boredom stretching out into eternity before me. The lecturer lost no time discussing the first piece of assessment. Ho hum. How would I wade through this miasma of…wait, what? A surprise. It was an essay, no, that’s not at all surprising – but the focus of the assignment was like a bolt literally out of LEFT field. The topic of that essay was: ‘It is often said the law is politics. This statement is applicable in corporate law as well. Explain and discuss this statement with particular reference to Australian case law and legislation’.

My paper read something along the lines of: it is an absolute legal fiction that the law is blind and it certainly does not operate in a social vacuum; on the contrary – the law works to preserve and entrench social and political inequality. So, one award winning Marxist analysis of the theory of the corporation and the doctrines of separate legal personality and limited liability later – my faith in the potential for the practice of law to be a tool for social change was restored. I was encouraged that I could perhaps become a happy lawyer, ducking the angst and depression so endemic in the field by making a meaningful contribution towards social justice.

So, how can working for social change make you happy? The practice of gratitude has been championed by the mindfulness movement for some time as a way to help bring happiness and balance into our lives. If you are looking for ways to keep perspective and feel gratitude, I recommend spending time with people who have had it much harder then you. Critical Legal Theory looks at strategies for getting the law to work towards social change and more socially just ends.

My journey was not a long one. I came from the community sector so I didn’t have a Road to Damascus moment. However my journey did go via the Critical Lawyers Handbook which must be a roundabout to Damascus St for many. In any event, regardless of what else I may do, I cannot foresee a time when my life will not be anchored by work in Community Legal Centres or not for profit services for the most vulnerable in our community such as the ASRC.

What will you do?

[*] The one who scratched red marks and annotations over every single word in your letter of advice or contract clause.

[†] I really did win the Company Law prize that year.

[‡] If you find this notion challenging or resonant and would like to explore further – here is a select reading list to get started: Hugh Collins, Marxism and Law (1984) and R.W. Connell, Ruling Class Ruling Culture – Studies of Conflict, Power and Hegemony in Australia Life (1977).

Both my parents were in prison while I was growing up.

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“Both my parents were in prison while I was growing up. I’ve been in prison for 90% of my life, mainly for drugs. When I got out in 2014, there was this old lawyer in the Bronx who took an interest in me. His name was Ramon Jimenez. He’s kind of like a community activist. I don’t know why he cared so much, but he sat down with me and tried to map out my life. When I tried to start selling drugs again, Ramon came out and stood on the corner with me for three days straight. Here’s this 72 year old dude, shadowing me wherever I go, screaming at anyone who tried to walk up to me: ‘I’m calling the cops!’ I was so mad. But after three days I gave it up.”

Courtesy of: Humans of New York

Henry Fielding

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By Maille Halloran

Eighteenth century author and playwright Henry Fielding is best known for his work The History of Tom Jones, a Foundling which helped to launch the framework of the modern novel. Unbeknownst to most, the novelist was also a pioneer in the field of law. Equipped with a Classical education from Eton College, Fielding went on to study the law in Leiden, the Netherlands (formerly South Holland).
Though he returned to London with the intention to write, Fielding’s law degree was more useful than he had anticipated. New and harsh censorship restrictions, which attempted to curtail political satire on the stage, forced the young playwright from the theatre for a more lucrative role as a barrister. Success in this role and a political stance that favoured the Church of England led to Fielding being named London’s chief magistrate.
Not content with merely hearing cases in court, Fielding decided to take a more active role in judicial reform and law enforcement. Demonstrating the same grasp of social concerns so prominent in his novels, Fielding campaigned for more humane prison conditions and a less blasé approach to capital punishment. Fielding and his brother even established the Bow Street Runners, known as London’s first professional police force. The motivation behind this establishment was to regulate and legalise law enforcement, formerly a corrupt practise in the hands of a select few private citizens.

Sarah Rey

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Is the reality of being a lawyer anything like how you imagined it?

I am generally aware of some of the shortcomings of the legal profession in terms of its lack of progress in changing the balance of women leaders in firms, at the bar and on the bench over the last thirty years; the slow response to the problem of burgeoning numbers of young law students not being able to be provided with experience and training within firms; and the poor cultural practices in some firms and legal institutions. However I have been fortunate to have worked with a range of eclectic and feisty lawyers in two firms (medium sized and the large), and followed this with 11 rewarding years establishing my own award-winning firm, Justitia, with my colleague, Mary-Jane Ierodiaconou (who has recently been appointed an Associate Justice of the Supreme Court). With the blue sky opportunities and flexibility that running your firm enables, we have been able to create opportunities for law students to be an intrinsic part of our law firm model, and created a positive workplace culture that aspires to be innovative and different. So when I fell into the study law, little did I know that I was commencing a journey that would allow me to learn many new skills beyond just an understanding of legal principles. Through my legal training I have been able to explore entrepreneurialism and deepen my understanding of how business works and lead an organisation. So no, it has not been anything like what I might have imagined.

What are your passions outside the law?

I am interested in girls’ education, the difference it can make to them and their place in the world and how that can change the world. In the past 15 years I have been involved in the educational governance structures of seven Australian schools for girls established by an international order of sisters whose inspirational founder, Mary Ward, lived 400 years ago.
In my down time, I like traveling to foreign countries with my family so we can learn about life, culture and religions beyond our world in Melbourne. We have been fortunate to have experienced a wide array of countries and cultures and met many diverse people. I would like my children to feel part of a wider world, that extends beyond our Australian borders.
When I have more time, I would like to write up some family history involving a Jewish relative during the second world war, and do something with a treasure trove of taped interviews with student politicians which I conducted in the 1980s.

If you could give one bit of advice to new lawyers, what would it be?

If you have a passion to practice a particular type of law, or work in a particular part of the profession, do not be deterred if you do not get there on the first attempt. There are many ways to create opportunities and make oneself attractive to a prospective employer. Sometimes it pays to think outside the box. Industry knowledge and skills can be obtained through other related, and even non-legal, roles, and then you can knock on the door again of the organisation which previously declined your application, and say, this is what I now have to offer. Importantly it can help to show passion and that you will go to great lengths to obtain the desired job. If you aren’t feeling any passion for your job, perhaps you should ask if it is right for you.

What makes a lawyer a great lawyer?

I think a great lawyer is someone who sets their own emotions to one side, providing dispassionate, logical, reasoned advice to their client. The great lawyer has excellent people skills, and high emotional intelligence, and can communicate effectively, clearly and compassionately with their client, reading the landscape and taking into account all the elements that bear on their advice. The great lawyer is ready to do battle on behalf of their client where necessary. The great lawyer can find a cost effective and lasting solution.

What at the hazards of this profession?

One hazard is staying in a job because you are paid well, but you feel no passion for or connection with either the subject matter or the people with whom you work. We can sometimes be sucked in to thinking that life is all about money and status. But it may not be the right place to be, and the cost of sustained unhappiness and non-fulfilment, or remaining in a dysfunctional workplace, can be high. Instead it is important to ask is this the right place for me, and if not, seek advice from friends and colleagues to ascertain where might be the right fit for one’s skills and priorities. And I would repeat the shortcomings I identified above.

How do you balance life and work?

I cycle to work, which is 10 km from home and helps me keep my stress levels down; I actively pursue my friendships so that I have emotional support in daily life; I remain involved in my children’s lives, though sometimes it is worth checking in with them to find out if they think you are actually as present as you think you are; I am involved in organisations outside of law which shows me my legal skills have some value outside of my workplace and this is a confidence boost; and I work in my own business which means I have flexibility and control over my workload to lead a balanced life and pursue diverse interests.

What is your best tip for maintaining sanity in the law?

Don’t sweat the small things. Nothing lasts forever. As Heraklitus, the Greek philosopher said: we step into the same river, and yet it is not the same river, as you never step twice into the same river. Nothing rests, everything passes, nothing lasts, cold becomes warm, warm becomes cold, wet dries, and dryness becomes wet…. Everything has its day. Things change, and we need to be adaptive and be able to move along with that change.

Bio
Sarah is the managing partner of Justitia, an established workplace relations law firm in Melbourne and serving clients nationally. Justitia has won multiple awards from bodies such as the LIV’s “Law Firm of the Year” and AHRI’s “Sir Ken Robinson Award for Workforce Flexibility”, recognising its unique work culture and excellent client service. www.justitia.com.au @SarahMRrey

Domo Arigato, Mister Roboto (Esq.)

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By Dean R P Edwards

“My lawyer’s such a lifeless tool” might be soon closer to the truth as the day approaches when your lawyer (or at least their paralegals) may well be tools.

By tools, I mean machines. Computerised, automated workers, part of a wave of technological innovation that promises to sweep in the real “Knowledge Economy”. And that day’s not too far off, if recent reports are to be believed. Continue reading

Her Honour, Magistrate Pauline Spencer

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When did you know that you wanted to be a lawyer?

I actually didn’t really know I wanted to a lawyer until I started working in a law firm. When I was finishing school I wanted to be a vet or a physiotherapist. It was the 80s (the time of power suits and the glamour of “LA Law”) and a stint of work experience with a vet confirmed I did not like blood, so I enrolled in Commerce/Law degree. Given the way law was taught back then, law school seemed so unconnected with real life. It was not until I got a part time job in a law firm doing personal injuries cases and started to meet with injured workers and their families that I realised the law could assist people. It was then that I decided I wanted to be a lawyer.

What attracts you most to the profession of law?
So at first it was helping individual people, then I worked on a few cases that had broader social implications and I was attracted to the law as a tool for broader systemic change. It was important though to build my skills as a lawyer. I think it was Justice Kirby who once said that if you want to use the law to make change then you have to be a good lawyer first and foremost.

If you had your time again, would you choose to practice in law? If not, what else would you choose to do?
I think I would be a lawyer again. I would love to go to law school now with the new focus on teaching social context and therapeutic jurisprudence. I do worry about the graduates coming out of law school now given how hard it is to find graduate positions and sustain a living in the industry.

What was the single moment, case or event that you feel defined you as a lawyer?
I can’t think of a single moment and I wonder whether this idea of the heroic lawyer with THE big case is healthy for lawyers. For me the types of moments that defined me as a lawyer were when I was able to show compassion to someone who needed my assistance. Maybe it’s these little moments that lawyers should celebrate more. They can happen every day if you choose to practice in that way.

If you could only give one bit of advice to new lawyers, what would it be?
Try to expose yourself to as a many experiences as possible before you decide which area of the law you want to focus on. The law is so diverse and it takes a while to find out what will excite and sustain you.

What is your best tip for maintaining sanity in the law?
It might be hard but try to find a job that you love where you feel you can make a difference. If you can’t find that job then try to make a difference outside of your day job e.g. volunteering at a community legal centre advice night.

What will the legal profession look like in twenty five years time?
Lawyers in all areas of the law will work in multi-disciplinary teams where the lawyer will work with social workers, financial counsellors, drug counsellors to deal not only with the legal problem but with the impacts of the law on the individual and the broader community. Their work will be informed by the law but also other disciplines like addiction medicine and behavioural science. Therapeutic jurisprudence, the maximisation of the therapeutic impacts of the design of the law, legal process and the roles of legal actors, will become part and parcel of how lawyers work.

Her Honour was appointed as a Magistrate with the Magistrates’ Court of Victoria in 2006. She currently sits at Dandenong Magistrates’ Court one of Victoria’s busiest mainstream courts. Her Honour previously worked in as a lawyer in private practice and in the community legal centre movement. Prior to her appointment, she was the Executive Officer of the Federation of Community Legal Centres, the peak body for over 50 community legal centres in Victoria. Her Honour has an interest in therapeutic jurisprudence; improved responses to family violence; and improving connections between the court and the community. She is a member of the Advisory Group for the International Therapeutic Jurisprudence in the Mainstream Project: www.mainstreamtj.wordpress.com