Once upon a time in New Mexico, there was a lawyer who was really, really good, or really, really bad, depending on your view of things. His name – or, at least, one of his aliases – was Saul Goodman, and he worked very hard for his clients to help them grow a small start-up into a business empire using the raw ingredients of over-the-counter medicine, stolen lab equipment, a dying chemist and a young punk with a memorable way with a swear word.
As one of TV’s sleaziest attorneys, Breaking Bad’s shiny-suited Saul Goodman provided legal counsel to his criminal clients with an unwavering advocacy, and often added enormous value to their operations. In doing so, he displayed many of the traits that we regularly hear are optimum for in-house counsel, from a thorough understanding of the business and its wider context to a consistent focus on commerciality, combined with an expert ability to weigh risks against opportunities. Goodman became much more than the sounding board for legal problems – his advice and real-world connections were so integral to the success of the business that he became a de facto partner in a wildly successful Albuquerque meth empire. There is much an in-house counsel can learn from Goodman and his approach (just as, admittedly, there is also much from which any smart lawyer should run screaming).
A quick recap for those who missed the original TV show: Breaking Bad is a multi-award-winning drama that follows the story of Walter White, a fairly ordinary middle-class family man who is diagnosed with terminal lung cancer. Crippled by medical bills and worried for the financial future of his pregnant wife and teenage son with cerebral palsy, White decides to use his skills as a high school chemistry teacher to manufacture methamphetamine, and employs local loser and former student Jesse Pinkman to distribute his product.
White quickly discovers that not only is he a genius at the making of meth, but that he has a real hunger for the power his burgeoning business gives him. He transitions from a reasonable, law-abiding nobody into ‘Heisenberg’, a criminal underlord in a pork pie hat, rapidly rising through the drug-ranks, taking delight in his own brilliance, and increasingly happy to dismiss the illegality and inevitable ensuing violence of the narcotics trade as collateral damage. Heisenberg and his immense ego devour White’s ethical core and lead him, his young partner and his family to a tragic unravelling.
Early on in season two, White and Pinkman turn to Goodman as things are getting a little out of hand. Goodman breezes in as a quintessential strip mall lawyer. Unsurprisingly, White expresses his uncertainty, but his partner is quick to assure him that this is the guy for them. Pinkman argues that – alongside bad interior décor, general cheesiness and the kind of connections that an entrepreneurial drug-pusher might literally kill for – Goodman is actually a great lawyer. He’s an excellent advocate, the kind of lawyer who knows the law intimately and manipulates it to the nth degree to protect his clients and push their business to ever greater financial rewards. Goodman repeatedly uses his skills and experience to save the two men, and his thorough understanding of the drug trade (and the larger context in which it exists) sets their enterprise on the kind of profitable trajectory that White and Pinkman could never have managed themselves. He helps them to operate largely within the boundaries of the law, keeping them just out of reach of the DEA, out of prison and alive. The pair soon see they are much better off retaining someone with his skills, utilising attorney-client privilege and making use of Goodman’s extensive connections within the criminal underworld. During one early standoff between White and Goodman, the lawyer reasons with him that ‘I’m not the guy you kill. I’m the guy you pay’.
Indeed. In that spirit, what makes a great general counsel? We asked a number of GCs: what specific lessons can be taken from Goodman?
One Australia-based GC from the financial services sector said: ‘Leaving legal ethics aside, in an odd way Goodman’s client commitment is quite incredible, and that is an essential feature of any successful lawyer. His willingness to stick with it and that care and connection with his clients is great. He tells it like it is. You know where you stand when he gives you his advice. Call it client commitment, call it whatever, he has it.’
All agreed that essential characteristics of a great GC include a good understanding of the business and the commercial context of the project, a proactive attitude and the ability to see the key issues, communicate effectively and work collaboratively. By these standards, Saul Goodman is in-house gold. He’s not an in-house lawyer, but he thinks like one.
Risk and opportunuity
‘Better safe than sorry, that’s my motto.’
Goodman is a master of the gutsy risk/opportunity balance. Risk is an ever-present burden on lawyers, and in-house counsel consistently talk of regulatory compliance and the way that this has subtly changed the nature of the in-house role. In balancing risk with opportunity and reward, lawyers are in danger of becoming much more risk-averse and less open to business opportunities, and seen as deal-breakers rather than deal-facilitators.
Goodman is aware of the many risks his clients face, and he devises ways they can operate on the side of legality as much as he can. He seeks to close the deal, make the exchange, facilitate the meet-up, open the line of distribution, all the while trying to keep the exposure of risk at a minimum, and expertly balancing those concerns.
‘A great GC sees him or herself as engaged in joint enterprise,’ says a GC from a bank. ‘Over years of being somewhere, you want people to be happy with you and you want to know you are participating in the forward march of the business; you will be swayed towards an end goal of opening new branches or, in Goodman’s case, selling more drugs, regardless of the increasing risk profile.
‘We don’t want to be seen by the commercial side as a “blocking department”. We like to think we are commercial and we are doing the right things for the business and we don’t want to say no all the time. If we don’t let our product developers do their job, then we won’t grow, and they may as well close their division down.’ The balance here, in the real world, is ongoing and difficult to get right.
One GC we spoke to said that it all comes down to a common goal. ‘You have to make money, you have an inherent push to grow – and if you are part of a business, that’s where you have to be, risks notwithstanding.’
Know the business and its context
‘As to your dead guy, occupational hazard. Drug dealer getting shot? I’m gonna go out on a limb here and say it’s been known to happen.’
A great in-house counsel needs to know how the business makes money, to know the difference between a really profitable deal and an average one. The more counsel know about which activities drive the profit margin, what the biggest costs are and how they can be managed, the better they can push the business forward. The key is to understand the bigger picture, so counsel can advise on law and strategy to get the business to where it needs to go. The company doesn’t necessarily want the details, but the answer, the risk and the cost.
Furthermore, great in-house counsel need a thorough understanding of the environment in which the company operates. This means looking at competitors, customers and the supply chain. The best advice is placed in context and follows a strategy.
Drive the business forward
‘Guys, why the long faces? You are sitting on a gold mine!’
Goodman understands that the more successful White and Pinkman are, the better the payoffs for all of them will be. So he takes a proactive approach, he gets involved, he ‘knows a guy who knows a guy’, and is always one step ahead of his clients, pre-emptive and pragmatic. Goodman is an experienced problem-solver, focused on finding practical solutions while keeping his clients under the radar and (mostly) out of trouble.
Specifically, Goodman sets White and Pinkman up with kingpin Gus Fring, which helps them make the move into the big league. He helps Pinkman buy a house with the proceeds, he uses his underworld associates to bug premises and ‘clean up’ collateral damage, and he comes up with creative ways to launder vast amounts of cash (nail salon? laser tag?) – finally settling on a car wash as a new ‘legit’ business for the White family. ‘Believe me, money laundering ain’t what it used to be. God, do I miss the 80s.’
THE STICKY PROBLEM OF LEGALITY AND ETHICS
‘There’s no honour among thieves… except for us, of course.’
As much as in-house counsel are increasingly important and integral to the organisation, there is no getting away from the fact that they are bound by ethical and professional obligations – the kind which Goodman flouts and disposes with, twists and manipulates in an effort to do all he can for White and Pinkman.
Certainly, as Goodman’s spin-off prequel Better Call Saul makes clear, this uneasy tension between the right way to do your job and the ‘best’ way to work for your client influences Goodman’s career from the start.
As much as he initially tries to be ethical and live by traditional standards of good behaviour, he finds himself just too good at breaking that code and crossing the line.
Another TV lawyer, played by actress Robin Weigert, is Sons of Anarchy’s Ally Lowen, who is legal counsel for a Californian motorbike gang and their head family. Reflecting on the role for The Atkin Report, Weigert says Lowen is always working the law to try and help her clients. She says: ‘I think she sort of loves working the clay of the law; and if that’s your passion, then a certain amount of moral relativism comes into play because you’re seeing what you can make happen and that becomes your interest more than… the literal right and wrongness of everything… She’s almost at a certain point that she has made a sport out of it, which is I think the compromise certain lawyers make.’
Dr Celia Moore, assistant professor of organisational behaviour at the London Business School, believes that Lowen and Goodman’s inventive and loose approach towards ethics and legality is not uncommon, and it represents one of the founding difficulties in-house counsel will face as ‘moral guardians’ of a company.
‘The way the law is practised encourages lawyers’ primary priority to be to represent their client to the best of their ability. That’s what they are paid for and that’s what they are valued for. This can, however, result in facilitating a neglect of what the ultimate spirit of the law is. In being the most vociferous protector of your client’s interest, you may not be simultaneously thinking about whether it meets the spirit of the law.’
While Goodman is a very effective counsel for the Heisenberg empire, Moore says his enthusiastic advocacy is a danger, and results in his willfully neglecting his duties of ethical behaviour, allowing him to sidestep thinking about ethical consequences.
‘GOODMAN IS A MASTER OF THE GUTSY RISK/OPPORTUNITY BALANCE. RISK IS NOW AN EVER-PRESENT BURDEN ON LAWYERS.’
‘The way lawyers’ jobs are set up actively facilitates the neglect of higher principles. Humans can only really focus on one thing at a time, and so when we are zealously focused on our client’s interest, it is easier to unintentionally neglect other concerns.’ Moore adds that since in-house counsel will also be focusing on the bottom line of the corporation, they are incentivised to push legal boundaries as far as possible.
She says that in-house counsel are often asked versions of ‘does x comply with the letter of the law?’ and, in answering, they become de facto moral arbiters of corporations. ‘The lawyers are the people to whom those questions are asked but those questions are framed in terms of whether actions meet the letter of the law, which may or may not be consistent with consensus views on what might be more ethical.’
Moore points out that ethics and legality are not the same thing, although we like to think that they are. Laws are made to reflect society’s ethics, but they are always a bit behind, and never a perfect representation. Essentially, she says, if you are constantly going to your in-house counsel to ask if what you are doing is within the boundaries of the law, you have got too close to the line and you need to step back.
One financial services GC we spoke to disagreed with Moore on this point: ‘It is not always true that if you find people asking “can we do this?” then the answer is probably no because it is skirting too close to the line. In our job, we learn to develop things that work around that line. And also “too close to the line” can mean not illegality as such, but something the regulators might or mightn’t accept. And these two things are different.’
Nevertheless, this ‘stepping back’ would have been very good advice for Goodman to take for himself. Breaking Bad ends with the lawyer engaging the services of yet another one of his criminal connections to assist him to ‘disappear’, although he only actually flees as far as Nebraska to work a minimum-wage, dead-end job in a shopping-mall doughnut outlet. Saul pays the high price of stepping so close to the line that it vanishes beneath your feet.