Breaking Bad’s infamous ‘Saul Goodman’ begins his professional relationship with the series’ anti-heroes by demanding that each place one dollar in his pocket, for the purposes of enacting attorney-client privileges. Is this a dramatic device, or is this how situations really unfold in the U.S.? Would such an act be required in Australia?
Legal professional privilege operates in Australia and the U.S. to protect confidential communications between a client and a lawyer (or a third-party) for the purpose of providing legal advice, or for use in legal proceedings. It stems from public interest and the basic human right to defend oneself from criminal charges.
Both Australian and U.S. law protect communication between client and lawyer. However, Australian law incorporates a ‘dominant purpose’ test. This means that communications between a lawyer and client are protected if they are made for the dominant purpose of seeking or giving legal advice. In the U.S., attorney-client privilege is determined by the mere engagement of the lawyer by the client. Once legal representation is agreed to, attorney-client privilege is immediately cemented.
In demanding compensation for his services, Saul established an attorney-client relationship as both parties have formally agreed to a relationship of legal representation. If the exchange had taken place in Australia, this token gesture would have been irrelevant as the giving and receiving of legal advice (the dominant purpose test) would override the mere formality of the arrangement.
At the risk of dismantling an otherwise stirring scene, Saul may have been just as entitled to rely upon legal privilege in the absence of payment. Under Rule 1.18 of the American Bar Association’s Model Rules of Professional Conduct, similar attorney-client privileges apply to ‘prospective clients’ (a lower threshold is required to prove this status).
Privilege belongs to the client, not the lawyer, and so it is the client’s right to waive the protection. For example, in Breaking Bad, the anti-heroes admit to numerous crimes and their intent to commit further crimes. In Australia, a lawyer may disclose information despite a client’s claim of legal professional privilege, for the sole purpose of avoiding the probable commission or concealment of a serious criminal offence.
Drama aside, it is important for all clients to understand their rights to legal professional privilege so that it may be triggered in circumstances where it would benefit them. This is set out in this earlier post.