On Monday, Sean Hannity walked himself right into an awkward comparison.
It happened after the bombshell revelation in a Manhattan courtroom that Trump attorney Michael Cohen’s client list included the Fox News Channel host. On his afternoon radio show, Hannity explained that his relationship with Cohen was limited to a few “brief discussions” about business matters.
“I might have handed him 10 bucks [and said,] ‘I definitely want your attorney-client privilege on this,’ ” Hannity told listeners Monday afternoon. “Something like that.”
Online, the “handed him 10 bucks” line immediately launched comparisons to an infamous scene from AMC’s smash hit “Breaking Bad.”
In a memorable exchange, one of the shadiest lawyers in television history, Saul Goodman, played by Bob Odenkirk, tells the show’s meth-dealing main characters to “put a dollar in my pocket” to ensure that their conversations about criminal misdeeds remain protected.
And if you are trying to steer clear of a scandal, it’s best if your legal thinking does not echo the “Breaking Bad” lawyer, who later became the protagonist of the prequel, “Better Call Saul.”
“I love ‘Breaking Bad’ as much as the next person, but I probably wouldn’t take Saul’s ‘put a dollar in my pocket’ approach to attorney-client privilege,” one Twitter user said.
But both “Breaking Bad” and Hannity’s conception of attorney-client privilege seem to rest on a faulty understanding of the legal concept. In a 2015 article in the New Mexico Law Review, Armen Adzhemyan and Susan M. Marcella compared the popular show’s presentation of the law with the reality of federal court, including what the pair called the “myth of the dollar bill.”
“Saul has a habit of grossly overstating the reach of the attorney-client privilege,” the two authors wrote.
The famous scene between Goodman, Walter White and Jesse Pinkman appears in the show’s second season, in the eighth episode, titled “Better Call Saul.” Hoping to intimidate one of the attorney’s clients, White and Pinkman kidnap Goodman at gunpoint, bind his wrists and take him out into the desert.
But in true sleazy lawyer fashion, Goodman flips the script, instead offering advice on the pair’s criminal enterprise.
“First things first, you’re gonna put a dollar in my pocket, both of you,” Goodman tells them. “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, make it official.”
Both stuff cash into the lawyer’s suit jacket.
“You’re now both officially represented by Saul Goodman and Associates,” Goodman announces. “Your secrets are safe with me under threat of disbarment.”
Not exactly, Adzhemyan and Marcella said.
Attorney-client privilege is not laid out in one law or the U.S. Constitution. Instead, the concept has worked its way into American jurisprudence through the English common law, state statutes and rulings of the courts.
Privilege exists between a lawyer and a potential client or client seeking legal advice when the “predominant purpose of the communication was to render legal advice,” Adzhemyan and Marcella wrote.
The “Breaking Bad” scene in the desert is incorrect, the pair argue, because payment is not necessary if the conversation is about legal advice. “There is simply no reason to exchange a dollar,” they wrote. “To invoke the privilege, Saul only needs to confirm that Walt and Jesse seek his legal advice as potential clients.”
The flip side to this is that payment — as Hannity suggested on his radio show — does not automatically mean privilege.
“Exchanging a dollar bill with a lawyer does not magically cloak subsequent conversations with that lawyer under the protection of the privilege,” Adzhemyan and Marcella said. “Not even seven barrels of cash can buy the attorney-client privilege where none is warranted.”
And courts have narrowly defined privilege as legal discussion between lawyer and client. It “does not apply to business, lobbying, or public relations advice, even from a lawyer.”
Then there’s criminal activity, which is what the three characters were ultimately engaged in. The “crime-fraud exception” to the privilege excludes from confidentiality communication between an attorney and a potential client that’s in furtherance of a crime — even if the lawyer does not realize at the time the advice is for something illegal.
On Monday, Hannity continued to deny that he had ever hired Cohen but also appeared to contradict his “handed him 10 bucks” line.
“I never retained him, received an invoice, or paid legal fees,” the Fox News host tweeted. “I have occasionally had brief discussions with him about legal questions about which I wanted his input and perspective. I assumed those conversations were attorney-client confidential, but to be absolutely clear they never involved any matter between me and a third party.”
By then, however, the “Breaking Bad” meme had exploded.
And Hannity was taking withering criticism for not disclosing his relationship with Cohen to viewers even while using his show to repeatedly and vehemently criticize the federal raid on Cohen’s office and home, as The Washington Post’s Paul Farhi reported.
But at this point in the chaotic legal mess swirling around Cohen, Trump and now Hannity, another bit of dialogue from that “Breaking Bad” scene in the desert might be worth keeping in mind.
“The way I see it, someone is going to prison,” Goodman tells his new clients. “It’s just a matter of who.”
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