Better Call Saul: The Nana Problem

With due respect to The Good Wife and The Grinder, the best lawyer show on television right now is Better Call Saul, the Breaking Bad prequel that tells the origin story of shady attorney Saul Goodman.

I’m working on a longer piece about what Better Call Saul gets right (and wrong) about the legal profession. But I thought I’d do a quick post on the most recent episode because there seems to be some confusion over what was so problematic about the television commercial Jimmy aired without permission to attract prospective plaintiffs in the Sandpiper case.

Many people seem to think the ad is potentially defamatory because it basically accuses Sandpiper of stealing. Ordinarily, that might well be problematic. One company generally isn’t allowed to accuse another of misconduct in advertising. That’s a good way to get yourself sued for trade libel.

In this case, however, that’s probably not an issue. The reason is that libel laws typically have an exception for communications related to a legal proceeding. Indeed, law firms routinely issue press releases seeking plaintiffs in cases against specific companies accused of fraud.

It’s true that commercials in mass tort cases often don’t mention specific companies by name. But that’s more for practical reasons than fear of liability. Victims are more likely to recognize the condition they have or the drug they’re taking than they are the name of manufacturer who caused their injuries. Moreover, there may be multiple manufacturers of the products at issue, so it’s not always clear which defendant is responsible for which plaintiff’s injuries.

In the Sandpiper case, mentioning the company’s name was necessary because prospective clients likely wouldn't know the commercial was referring to them otherwise.

The real issue with the commercial is that most attorneys view advertising as unprofessional. For many years, in fact, the ethical rules governing attorneys actually prohibited all advertising. That changed  in 1977, when the Supreme Court ruled such total bans violate the First Amendment. Even now, however, advertising on TV is still considered by many attorneys to be low class. Just one step above ambulance chasing.

Davis & Main is more open minded than most firms about attorney advertising, but even they have strong reservations about looking unprofessional. We saw this clearly in the old mesothelioma ad Jimmy’s assistant showed him. The partners were so preoccupied with protecting the firm’s image they approved something more like a dry legal filing than a commercial.

That’s why Kim was so surprised Clifford Main liked Jimmy’s ad. She knows that, even when firms like Davis & Main advertise, it doesn’t look remotely like what Jimmy did.