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Breaking Bad Season 2 Episode 8, Saul Goodman tells Walt and Jesse (who just kidnapped him) to put a dollar in his pocket so they'll have attorney-client privilege.

first things first you're gonna put a dollar in my pocket both ya. You want attorney-client privilege don't you so that everything you say is strictly between us I mean it put a dollar in my pocket come on make it official come on do it that's it come on just a dollar

Link to YouTube clip

Would this actually give Walt and Jesse attorney-client privilege?

2 Answers 2

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There's no privilege.

Under N.M. Evid. R. 11-503., New Mexico's attorney-client privilege protects communications that are:

  • confidential; and
  • made for the purpose of facilitating or providing professional legal services to that client; and
  • between a client and his lawyer.

The test doesn't ask if money changed hands, so paying a lawyer does not mean your communications are privileged. There are many services a lawyer can provide for money that are not shrouded behind privilege, and courts will routinely compel the disclosure of communications they deem to be "business advice" rather than "legal advice." Bhandari v. Artesia General Hosp., 317 P.3d, 856 (2013) ("Butler provided the memorandum as a mixture of legal and business advice in his capacity as both in-house counsel and a senior vice president of the Corporation. We hold that the memorandum is business advice and thus unprivileged."). And if money were required, defendants with public defenders or pro bono counsel wouldn't have privilege.

Under Rule 11-503, there's no privilege for Saul's conversation with Walt and Jesse. Saul is representing Badger, who is adverse to Walt and Jesse, so there isn't an attorney-client relationship. Further, Saul isn't providing legal assistance to Walt or Jesse; he's providing them advice on how to evade detection.

You could try to interpret that as a request for legal advice, but the argument would be self-defeating. Because the advice to procure a stand-in defendant would amount to concealing identity, aiding a felon, and compounding a crime, it would fall within the crime-fraud exception, which says that the privilege does not apply to communications made "to enable or assist anyone in committing or planning to commit what the client knew or reasonably should have known to be a crime or fraud." Rule 11-503(D).

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  • How do adversaries prove that privilege does not apply to the communications when they can't see the contents of communications without violating that privilege if it did apply?
    – nick012000
    Feb 4, 2023 at 6:12
  • 1
    Usually with a privilege log: en.wikipedia.org/wiki/Privilege_log
    – bdb484
    Feb 4, 2023 at 6:15
  • What stops the attorney from lying about the nature of the advice they verbally provided in the log?
    – nick012000
    Feb 4, 2023 at 10:49
  • Contempt, sanctions, disbarment, etc.
    – bdb484
    Feb 5, 2023 at 6:42
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In the , if the lawyer has agreed to represent Walt and Jesse, then they are covered by the privilege, even if they have not yet payed any fee at all. Paying a retainer, even a nominal one dollar, can help confirm that a lawyer/client relationship exists, but it is the agreement to enter into the relationship that matters, not the fee that establishes the relationship and thus the privilege.

The Louisiana State Bar Association page on "Establishing the Attorney-Client Relationship" says::

The establishment of the attorney-client relationship involves two elements: a person seeks advice or assistance from an attorney; and the attorney appears to give, agrees to give or gives the advice or assistance. If the client reason- ably believes that there is an attorney-client relationship, then the lawyer has professional obligations to that client. Further, lawyers also have certain professional obligations to non-clients, including former clients (see La. Rule of Prof. Conduct 1.9) and prospective clients who ultimately do not retain the lawyer (see La. Rule of Prof. Conduct 1.18) Therefore, it is essential that both attorney and client understand whether the attorney-client relationship exists.

...

After you have screened a prospective client, conducted the conflicts check, and gathered information and impressions through an initial interview, you must tell the client whether you will represent her, preferably in writing. That writing should clearly define the scope of the attorney-client relationship. The best practice is to discuss the scope of the representation with the potential client in the initial consultation and then to confirm that in writing in the engagement letter.

Note that there is no mention of a fee as essential to forming the relationship. The Louisiana guidance above is, as I understand it, typical of US rules on the subject.

I should note that I have not watched this show, and am not familiar with the fictional events in it. If it is not plausible that an actual attorney/client relationship is being formed, or if the advice is on how to commit or escape the detection of a crime, there would be no privilege.

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  • Paying a retainer, no matter how small, is a very clear indication that there was no misunderstanding between the two parties about their relationship. One might think he is asking for legal advice (legally protected confidential) while the other might think he is being asked for personal advice (not protected). The retainer isn't required, but it's a good idea. Apr 16, 2021 at 0:48

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