A Little Bit of Legal Ethics

As many of our readers know, She-Hulk‘s alter-ego, Jennifer Walters, is an attorney, and many issues of that comic feature courtroom and law firm scenes.  I was reading She-Hulk (2005) #1 and was struck by a scene that gives us a chance to talk about something a little unusual: legal ethics.  Since there are relatively few comic book characters who are lawyers, this topic doesn’t come up very often, but it’s an issue that is near and dear to many lawyers’ hearts (or at least their pocketbooks).

I. The Facts

In the comic, Walters is out for a jog when she encounters a woman being assaulted by two men.  Although she is unable to transform into She-Hulk, she dispatches the assailants with martial arts.  It is then revealed that Spider-Woman and Captain America were on the scene, but did not intend to intervene unless Walters needed assistance.  So far, so good: nothing wrong with an attorney engaging in a bit of defense of others.

But then Walters commits a significant ethical lapse.  She tells the rescued woman “Miss, I should inform you that I’m an attorney.  And I’d be more than happy to represent you if you feel that these ‘heroes’ and their delayed response has in any way caused you emotional distress.”  You may be wondering what’s wrong about this.  Isn’t that what an attorney would do?  Perhaps surprisingly, the answer is ‘no.’

(NB: We’re aware that Walters was mostly just good-naturedly ribbing the Avengers, but ethical principles shouldn’t be breached even for the sake of a joke.  Also, as an aside, the ’emotional distress’ claim is nonsense in this case as the Avengers owed the woman no particular duty to rescue her.  See this post for more.)

So what did Walters do wrong?  She solicited a potential client in person.  What’s worse, she did so immediately after the potential client had been assaulted and, allegedly, emotionally distressed.  So how is an attorney supposed to know what (not) to do?  And how can non-attorneys know when an attorney is breaking the rules?  For that we turn to the “law of lawyering,” a term we assure you we did not just make up.

II. The Law of Lawyering

The legal profession is primarily regulated at the state level, so the ethical rules that bind attorneys vary from state to state, but 49 of the 50 states have adopted some variation on the American Bar Association Model Rules of Professional Conduct.  Most states have basically adopted the Model Rules wholesale.  New York, where the events of the comic took place, was one of the last states to adopt the Model Rules (as the New York Rules of Professional Conduct), and in fact it was still using the old New York Lawyer’s Code of Professional Responsibility at the time the comic was written.  However, as it turns out the result is the same under either set of rules.

The current New York Rules of Professional Conduct have this to say about solicitation under Rule 7.3:

(a) A lawyer shall not engage in solicitation:

(1) by in-person or telephone contact … unless the recipient is a close friend, relative, former client or existing client; or

(2) by any form of communication if: …

(iv) the lawyer knows or reasonably should know that the age or the physical, emotional or mental state of the recipient makes it unlikely that the recipient will be able to exercise reasonable judgment in retaining a lawyer

So this kind of in-person solicitation is prohibited in New York (and the rules are similar in most states), and even if the woman fell into one of the exceptions, Walters still should have known that the woman’s emotional state made it unlikely that she could exercise reasonable judgment so soon after being the victim of a crime.  And in fact there are special rules about that kind of thing, per Rule 7.3(e):

(e) No solicitation relating to a specific incident involving potential claims for personal injury or wrongful death shall be disseminated before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

So even if the woman fell into one of the exceptions and her judgment wasn’t impaired, Walters still should have waited.

There is, by the way, a long history of prohibiting this kind of in-person solicitation, which is also called “barratry.”  In fact, it’s still a crime in some jurisdictions, including New York where it’s a misdemeanor.  N.Y. Judiciary Law § 479, 485; See also Tex. Penal Code § 38.12.  The Supreme Court has held that these kinds of rules are a permissible regulation of commercial speech.  Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995).

It’s worth pointing out that these rules are not arbitrary. People who are solicited for business while they are experiencing acute distress are less likely to be able to make an informed decision about who would be best to retain.  Even if you aren’t distressed it can be hard to make a fully-informed, free decision about representation while a fast-talking attorney is trying to talk you into choosing them.

People being solicited are also less likely to make a good decision about whether or not they want to retain counsel at all. What could seem like an absolutely terrible accident at the scene can turn out to be not that big of a deal. And what someone wants to do while in the throes of anger or fear may be very different from what they want to do a few days later. But once the legal process is started it can be difficult and expensive to stop. It’s a lot better for everyone if suit is never filed in the first place if it isn’t going to go anywhere. So there is a compelling social reason for prohibiting the solicitation of legal business in the immediate aftermath of an accident: we want people to make calm, rational decisions about whether or not they want to sue and who they want to be represented by.

III. The Consequences

Cases of attorney misconduct are handled by the state disciplinary authority, in this case the discipline and grievance committees appointed by the Appellate Division of the New York State Supreme Court.  Although victims of attorney misconduct may file complaints, the purpose of a disciplinary hearing is to punish misconduct, not to compensate victims.  However, the victim may have a separate civil claim against the attorney, as in a legal malpractice case.

In New York, attorney discipline includes caution, admonishment, reprimand, censure, suspension, and disbarment. How bad does it look for Walters?  As far as we know this is her first disciplinary offense, and solicitation is far from the worst thing an attorney can do (e.g. lying, stealing from clients, and jury & witness tampering are all much worse).  New York disciplinary decisions are not the easiest thing to research, but our guess is that she would likely receive a letter of caution, an admonition, or possibly a reprimand.  Attorneys have received worse punishments for solicitation in New York, but it’s usually in conjunction with misrepresentation or other aggravating circumstances.

A letter of caution is an informal, confidential notice of disapproval.  It goes in the attorney’s file but it’s not public.  It’s basically a warning.  An admonition is a formal disciplinary action but it’s still confidential.  A reprimand is similar to an admonition except the matter may also be referred to the court for further action.

As mentioned above, Walters may also be guilty of a misdemeanor.  The woman Walters solicited probably wouldn’t have a civil claim against her, though, so that’s a small consolation.

IV. Conclusion

Attorney discipline and malpractice are serious issues.  A few hundred attorneys are disbarred and a few billion dollars in legal malpractice damages are awarded every year.  All attorneys should take care to uphold the highest ethical standards, and superhero attorneys are no exception.

17 responses to “A Little Bit of Legal Ethics

  1. This is confusing, so hopefully you guys will indulge what MIGHT be a borderline in-universe/real life question. So you can’t solicit basically unless you essentially had some prior contract, contact, or relationship? And you can’t solicit based on a SPECIFIC event? Or, as the snippet says,

    “(2) by any form of communication if: …

    (iv) the lawyer knows or reasonably should know that the age or the physical, emotional or mental state of the recipient makes it unlikely that the recipient will be able to exercise reasonable judgment in retaining a lawyer”

    I’m curious because you see lawyer ads for DUIs on buses all the time, you see commercials for law firms for various drug and chemical-type things and events all the time. What I’m curious… if I was a lawyer in NYC in the Marvelverse or Metropolis, could I put up a billboard soliciting clients in general then to do things like file suits vs the Avengers or Stark Industries or the Justice League for specific events? Like… Hulk/Doomsday or Loki or Mandarin or whomever attacks. Superman or Iron Man ended up using a person’s car to smash someone in the face, atomizing the car.

    Could I solicit like, “Do you think you’ve been a victim, suffered property damage, or been injured because of the Justice League/Avengers? Dial 555-555-1212!” Could I append, “During the Starro invasion of 2009” ?

    Sorry if this is rambling. I’m not sure how to word this in a legal sense.

    • This is a fair question, and it’s answered by explaining exactly what “solicitation” means. The Rules give a definition, and I debated including it in the post but decided not to. In any case, here it is:

      For purposes of this Rule, “solicitation” means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain. It does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client.

      The comments to the Rule go on to explain:

      A “solicitation” means any advertisement: (i) that is initiated by a lawyer or law firm (as opposed to a communication made in response to an inquiry initiated by a potential client), (ii) with a primary purpose of persuading recipients to retain the lawyer or law firm (as opposed to providing educational information about the law …, (iii) that has as a significant motive for the lawyer to make money (as opposed to a public-interest lawyer offering pro bono services), and (iv) that is directed to or targeted at a specific recipient or group of recipients, or their family members or legal representatives.

      Here, Walters started the conversation, apparently to persuade the woman to retain her services, there was no mention of providing the service for free, and it was plainly directed specifically at that woman.

      Note, by the way, that all solicitations are advertisements (and so must also follow the rules for advertising), but not all advertisements are solicitations. So that’s why you see billboards and other non-targeted advertisements. Even though they might specify a source of injury (e.g. asbestos exposure, a drunk driver), they aren’t actually targeted at or tailored to specific people. Anyone driving by can see the billboard, and anyone watching that channel sees the ad.

      • Martin Phipps

        By the same token then if a prostitute advertises her services in a newspaper then that is not solicitation because she hasn’t targeted a specific person or group, right? Does that mean that the police can never arrest “escorts” simply for placing ads even though everyone knows what an escort is?

      • That’s a completely different kind of solicitation, I’m afraid.

      • …or is it?

      • Yes, it’s definitely completely different. Check the definition of solicitation that I quoted above. It’s specifically about “advertisement initiated by or on behalf of a lawyer or law firm…the primary purpose of which is the retention of the lawyer or law firm.”

      • Yeah, I know. Bad joke.

  2. Could she claim that by saving the woman that they were now close friends? What WOULD make them close friends? Are there any similar cases, like a lawyer who had just pulled someone out of a car accident, or from a burning house or something?

    Also, she wasn’t offering to help with wrongful death or personal injury, but for emotional distress.

    • In this case, Walters left the scene without even asking the woman’s name or giving her own. It’s doubtful she could even claim they had become friends with a straight face, much less close friends. I couldn’t find any New York ethics opinions defining “close friend,” but I did find one that stated that an attorney had become a close friend of the client’s family over three years. That suggests that time is a significant factor.

      The comments to the rules don’t define personal injury, but to my mind, infliction of emotional distress is a kind of personal injury. In New York, an action for intentional infliction of emotional distress requires either a physical impact or definite physical symptoms that are capable of clear medical proof. An action for negligent infliction of emotional distress requires either physical contact or at least endangerment of the plaintiff’s physical safety. Further, it would be malpractice not to at least discuss her claims against the men who assaulted her, and that’s plainly a personal injury.

  3. I’m more interested in the violation — or potential violation I guess– of the attorney witness rule.

    • It is true that attorneys generally may not serve as witnesses and advocates in the same proceeding. However, there are two exceptions that may save Walters here.

      First, the client may be represented in court by another attorney from Walters’s firm (Goodman, Lieber, Kurtzberg & Holliway), since Walters would be called as a witness on behalf of the client. This is a straightforward and typical solution.

      Second, it’s possible (though very unlikely) that the tribunal would authorize the testimony.

  4. i have a basic question:

    if lawyers may not solicit, how do small lawyers get jobs?

    • That is a good question! The short answer is “it’s very difficult.” Lots of books have been written about the subject (this one, for example).

      Some common approaches include: hoping for referrals from the state bar directory; advertising; maintaining a web site; hoping for referrals from other attorneys (e.g. if they can’t represent someone due to a conflict of interest, they may refer them to another attorney); and introducing yourself to people, hoping they ask what you do for a living, then hoping they’ll ask about representation. As you can probably guess, these methods are either expensive, time-consuming, or unreliable—and sometimes all three at once.

  5. If Jamie Madrox, the Multiple Man, had one of his “dupes” go to law school and become a full fledged lawyer, and then later absorbed that “dupe” and its knowledge, would the main Jamie be a lawyer as well, or merely have the knowledge of one? Would his future duplicates all be lawyers, and for that matter, would they be considered individual lawyers – in other words, would Madrox, Madrox, and Madrox be considered a separate law firm from Madrox, Madrox, Madrox, Madrox, and Madrox?

    According to Wikipedia he is a licensed attorney, but this situation seems to grow confusing. (Probably to Jamie himself as well.)

  6. Pingback: The She-Hulk Violates Rule 7.3 of the NY Rules of Professional Conduct | theConstitutional.org

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  8. I would contend that the Avengers are State Actors, and even beyond normal police, would have a specific duty to rescue. They are paid and sponsored by the US Government to keep the public safe, creating a special relationship, while normal police only have a duty to the general public (which is bullshit, but that’s another topic for another day).

    Now if it were the Xmen or Heroes for Hire, there would not be a duty to rescue, but the Avengers are state actors.

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