Conflicts of Interest in the Representation by Matt Murdock of Alleged Criminals Apprehended by Daredevil

(This guest post was written by Scott Maravilla.  Scott writes at the Contract Law Profs Blog and is an alumnus at the PrawfsBlawg.  By day, Scott is an Administrative Judge at the Federal Aviation Administration, although all of the opinions expressed in this post are Scott’s own, and do not represent those of the FAA.  Thank you to Scott for this great post!)

Daredevil is the fictional alter ego of lawyer Matt Murdock in the Marvel Universe encompassing both comics and film.  As a boy, he was blinded by radioactive chemicals, which also left him with his remaining senses functioning at superhuman levels.  This also included a sort of “radar sense” that allows him to perceive his environment in a 360º manner, thus giving our hero an advantage in any fight.

Murdock continues to live in the Hell’s Kitchen neighborhood of New York City (now Clinton but we tend to overlook that fact) where, by night, he fights various nefarious supervillains (his arch-nemesis being Wilson Fisk, a.k.a, The Kingpin).  By day, Matt is an attorney.  He has his own law firm located right in Hell’s Kitchen with his partner, Foggy Nelson (Nelson & Murdock).  One of the emerging themes of the story is that Matt Murdock often finds himself representing the very villains he’s captured.  Thus, the issue arises whether is ethical for Matt Murdock to represent the alleged criminals he brought to justice as Daredevil.

Illuminating that question is a New Jersey Advisory Committee on Professional Ethics opinion:  Opinion 709 – Conflict of Interest: Municipal Police Officer Who Is an Attorney Engaging in Private Practice of Criminal Law, 185 N.J.L.J. 1202 (September 25, 2006), 15 N.J.L. 2166 (October 16, 2006).  The full text of the Opinion can be found here  and here.

The Advisory Committee was concerned with “the propriety of a municipal police officer who is an attorney affiliating with a law firm located in a municipality bordering that in which he serves as police officer” representing criminal defendants.  The Committee concluded that the representation of a criminal defendant by an officer within his or her municipality is prohibited under RPC 1.8(k).  While Daredevil is practicing in New York, not New Jersey, we’ll view the Advisory Opinion as persuasive (which it is).

Opinion 709 observes that the Rules of Professional Conduct (RPC) for New Jersey do not have a sanction for an appearance of impropriety.  Thus, the most obvious reason to dissuade Murdock’s practice is not available in the Garden State.  However, the appearance prohibition is included in many other jurisdictions including New York.

RPC 1.8(k) states that:

 A lawyer employed by a public entity, either as a lawyer or in some other role, shall not undertake the representation of another client if the representation presents a substantial risk that the lawyer’s responsibilities to the public entity would limit the lawyer’s ability to provide independent advice or diligent and competent representation to either the public entity or the client.

I recognize that Daredevil is not “employed by a public entity.”  However, for purposes of this post, we are assuming that Daredevil’s actions are sanctioned by the authorities (in the comics and television series, this is not always the case).  The public support for his endeavors helps to make the case more persuasive (it also opens up for some interesting debate in the comments section).

RPC 1.8(k) further provides that an “attorney who is employed by a municipality as a police officer shall not undertake representation of a client if there is a substantial risk that the attorney’s responsibilities to the municipality would limit the attorney’s ability to provide independent advice or diligent and competent representation to the client.”  RPC 1.7(a)(2) also prohibits representation where there is a “significant risk” that the lawyer’s ability to advise the client is “materially limited” by their responsibility to a third party.

The Opinion provides that “[m]unicipal police officers exercise full law enforcement powers within the territorial limits of their municipality.”  They have a duty, within their municipalities to enforce the law, “to take other steps to detect and apprehend violators of the law,” and assist with the prosecution.  The latter is very important because the work involved with the prosecutors may affect the ability of the lawyer to provide legal advice in another matter.

For further support in analyzing the conflict between lawyer and assisting the prosecution, the Advisory Committee relied upon the New Jersey Supreme Court holding in State v. Clark, 162 N.J. 201 (2000).  The Court “held that a municipal prosecutor may not represent a defendant in a criminal matter in the Superior Court of the county in which he or she serves as municipal prosecutor.”  The Court’s rationale was “that the integrity of the criminal justice system could be impaired when an attorney serves a dual role of municipal prosecutor and criminal defense attorney in the same county.”  Based on this line of reasoning, the Opinion notes that “the police officer witness [could give] direct testimony for the prosecutor one day in Superior Court, then appear as opposing counsel to the same prosecutor the next day in his role as defense attorney.”  Like Opinion 709, the Supreme Court declined to extend the ban beyond the jurisdiction at issue.

While not prosecuting, Matt Murdock is serving as the attorney for the alleged criminals in the very jurisdiction in which he apprehended them.  In Daredevil # 174, he represented Melvin Potter, a.k.a., Gladiator asserting an insanity defense.  In the recent Netflix series, the firm represented Frank Castle, a.k.a., The Punisher, who was also defeated by Daredevil.

Murdock’s representation does pose a “significant risk” of being “materially limited” by his obligations to a third party, i.e. Daredevil.  Can he really allow Melvin Potter to walk only to later combat him when he assumes his alter persona, Gladiator?  The same goes for the unremorseful Punisher who is himself an anti-hero.  Further, as in Clark, “the integrity of the criminal justice system could be impaired when an attorney serves a dual role of” a superhero.

Following the logic of Opinion 709 and Clark, the case against Daredevil is even stronger because the officers in question there do not purport to represent the perpetrator they themselves arrested.  It is not as if he is the defense attorney for supervillains captured by the Fantastic Four or Spiderman.

Interestingly, according to Opinion 709, RPC 1.8(k) and Clark may also prohibit representing criminal defendants in other jurisdictions.  It depends on the particular facts of the case.  So, Murdock is not completely off the hook when it comes to super-team ups (sorry, Defenders).

The one ray of hope for the firm of Nelson & Murdock is that Daredevil’s conflicts are not automatically imputed to Foggy Nelson.  The “conflicted lawyer must be screened completely from any representation by other lawyers in the firm.”  As Foggy Nelson knows the secret identity of Daredevil (at least in the Netflix show), this arrangement can be made.

Mailbag Roundup

Teaching and research have kept me very busy this semester, but I wanted to present a roundup of questions I’ve received and answered via email recently. There are lots of spoilers below, so be warned.

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Wonder Woman: Illegal Immigrant

A reader sent in a link to this Wonder Woman panel, asking “All joking aside, how illegal is this?”

The short answer is, unsurprisingly, “pretty illegal.”  The longer answer is “but maybe not as illegal as you might think.”  Although the linked post shows an excerpt from DC Special Series #19: Secret Origins of Super-Heroes (Fall 1979), the same basic story was first printed in Sensation Comics #1 (January 1942).

Under modern law, even though both Dianas Prince agreed to the transaction, it would still be identity theft.  The state in which this is occurred isn’t wasn’t clear to me*, but New York’s statute is typical:

A person is guilty of identity theft in the third degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby:
1. obtains goods, money, property or services

N.Y. Penal Code § 190.78.  Assuming Wonder Woman went on to make bank transactions, collect a paycheck, etc using the other Diana Prince’s identity, that’s sufficient.

However, the good news for Wonder Woman is that identity theft laws don’t go back very far.  New York’s was enacted in 2002, and the federal identity theft law was enacted in 1998.  An admittedly not-particularly-exhaustive search didn’t turn up any identity theft laws in force in 1979, much less 1942.

The bad news is that the relevant parts of 18 USC § 1546(a) were in force in 1979, making it a federal crime to:

sell[] or otherwise dispose[] of…such visa, permit, or other document [prescribed by statute or regulation as evidence of authorized stay or employment in the United States], to any person not authorized by law to receive such document

As the purchaser, 1979 Wonder Woman would be liable for the same crime as a co-conspirator or solicitor.  But 1942 Wonder Woman escapes that fate, since the original version of that law only goes back to 1948.  A similar story applies to 26 USC § 7206 (fraud and false statements, like on a tax return) and 18 U.S. Code § 371 (conspiracy to defraud the US).

However, even if there wasn’t a federal crime that could be pinned on Wonder Woman for buying someone’s identity in 1942 (and I’m not saying there definitely wasn’t), the state she was in would have had fraud and conspiracy laws that would have applied in a case like this.  But that would be small potatoes compared to the modern penalties for the same act.

* Somewhere outside of Washington, DC apparently.  Very likely in Washington, DC itself (thanks to TerryC for the correction!).  I (still) defend my use of New York as an example on the grounds of laziness.

Is Batman a Murderer?

Nerdist’s Jessica Chobot interviewed me about an interesting legal issue from Batman Begins: is Batman criminally responsible for Ra’s al Ghul’s death?  A similar question was asked in a comment to this post back in 2012, but the answer had to wait until now.  So is Batman a murderer? What about Jim Gordon?  Watch the interview to find out!

More News From My Day Job

As many readers may already be aware, my day job is a Lecturer and researcher at the Center for Empirical Research in the Law at Washington University in St. Louis.  Recently I became the lead developer for the Supreme Court Database, one of CERL’s flagship projects, and yesterday we released the newest version of the database, including coverage of cases from 1791 through today.  The database is used for a variety of legal research and journalism projects, so if you’re a stats & analysis nerd in addition to a comic book and legal nerd, check it out!

Daredevil Season 2, Part 2 – The Trial

Following my previous post about Daredevil Season 2, we now move to the main event, the trial of…

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Daredevil Season 2, Part 1

There is so much to discuss about Season 2 of Daredevil that I’m not going to follow the usual post format.  Spoilers ahead, naturally.

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Daredevil Season 2

I’ve received a few different questions about the second season of Daredevil, which puts Matt & Foggy’s legal practice front and center in a key storyline, which I won’t spoil here.  I’ve just gotten through watching the season, and wow is there ever a lot to discuss—and not in a good way.  More to follow.

Bound by Law: A Copyright Law Comic Book

Hat tip to Kohel Haver for pointing me to Bound by Law, a free comic book created by the Duke Law School Center for the Study of the Public Domain.  Bound by Law is a funny but educational introduction to the basics of copyright law, including fair use, infringement, and the public domain.  The book uses a documentary filmmaker as an example, but many of the issues apply equally to other arts and media.  Check it out!

Batman v. Superman and Import Licenses

(Lawrence M. Friedman is a partner at Barnes, Richardson & Colburn, LLP and an adjunct professor at the John Marshall Law School’s Center for International Law.  He is also the author of the Customs Law Blog and a previous guest poster here at Law and the Multiverse.)

Heading into Batman v. Superman: Dawn of Justice, I had some trepidation mixed with anticipation. You’ll have to judge the movie for yourself. My short review is that it is filled with great fan service and universe building, but continues to mistreat Superman as a character. To make up for that, Wonder Woman is great and Ben Affleck is perfectly good in the cowl and cape. That’s all I will say on the quality of the movie. What about the legal issues?

Very early in the movie, it becomes clear that Lex Luther and Lexcorp could use my professional help. Explaining why requires at least a minor spoiler. Consider yourself warned.

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