Saul Goodman’s Tactics in North Carolina: Lawyer Faces Disciplinary Hearing for “Fake Client”

One of Saul Goodman’s most notable scenes in the drama show, Better Call Saul, features him at the defendant’s table. Next to Goodman stands a doppelganger of his client. His real client spectates from the gallery as Goodman cross-examines the plaintiff’s witness; Goodman’s case is made when he gets the witness to falsely identify the defendant on trial [1].

While the “fake client” tactic has been sensationalized in the media, its actualization in the courtroom has not had the success of its scripted counterpart.

On June 30, 2023, the North Carolina State Bar issued a complaint against Nicolle T. Phair before the North Carolina State Bar’s Disciplinary Hearing Commission. Phair, a practicing criminal defense attorney based in Sanford, NC, was representing a client in an alleged hit-and-run accident during a hearing on June 10. Prior to the start of the hearing, Phair and her client left the courtroom together. According to the complaint, Phair then “directed [her client] to remain in the lobby for the remainder of the events at issue” and requested a favor from a child-support litigant from an adjacent courtroom [2]. The favor consisted of the litigant simply standing in for Phair’s client behind the defense table. When questioned by the litigant, Phair assured them, as alleged by the complaint, that the judge was aware of the tactic and that she wanted to see if anyone would pick the litigant out [3].

When the judge asked the prosecutor and Phair to approach the bench to discuss the possibility of a plea agreement for Phair’s client, the litigant remained by the table. Phair approached to decline an agreement in place of trial on the grounds that the witness would not be able to properly identify the client [4].

A lunch recess was called prior to the trial. During the start of the recess, the judge asked Phair regarding the identity of the litigant, and Phair voluntarily disclosed the use of the tactic. The judge threatened to hold both Phair and the litigant in contempt but withheld due to her honesty with the court. According to Phair’s response, the judge’s threat was the first time she “realized that her tactic was problematic, as she never intended to mislead anyone, or make false statements” [5].

The state bar has claimed fraud in tribunal proceedings, obstruction of justice, and disobedience of tribunal proceedings in the lawsuit against Phair. Disciplinary action is requested pursuant to NC General Statute section 84-28(b)(2) due to Phair’s violation of the state bar’s Rules of Professional Conduct.[6]

In her response filed on August 28th, Phair denied most allegations as “at the time she tried this tactic, [she] genuinely believed that it was an acceptable strategy” [7]. Additionally, Phair has claimed that the tactic was not intended to deceive, would have been employed during the trial when examining witnesses, and would have made clear that the victim would not be able to positively identify her client. Phair has asked the commission for disciplinary action that both permits her to continue practicing law—as she acted with no intent to deceive the court and voluntarily admitted to the tactic’s use—and recognizes “her desire to represent clients zealously and her cooperation with clients and the court" [8].

Both Better Call Saul and Phair’s actions indicate the potential that a witness misidentification of a defendant can have on the sway of the jury, regardless of whether or not there is a “fake client” involved. For one, it can acquit a defendant, as it did in a federal arson trial in the 1980s [9]. However, it can also lead to the conviction of defendants who did not commit the alleged crimes. While the intentional use of “fake clients” for misidentification may only be permitted to exist without consequence in the media, the use of witness identification generally has had and does continue to have effects in our courts today.