This is the first part of our fourth post in our series on the Marc Andreyko run of Manhunter (prior posts one, two, and three). This volume has quite a few more legal issues than the last one, including conflicts of interest, fee arrangements, grand jury procedure, multiple evidentiary issues, the allocation of authority between the lawyer and the client, and lawyers’ media rights. We’ll talk about the first two of those issues in this post. The rest will have to wait for future entries in this series. As always, spoilers follow.
I. Conflicts of Interest
In this volume we see the conclusion of the trial of Dr. Psycho (short version: he flips out and tries to kill everyone before the verdict is read; Kate Spencer / Manhunter stops him; it turns out he was found not guilty anyway). Later, Spencer represents Wonder Woman, who has been accused of murdering Maxwell Lord. As a reporter in the comic puts it: “How do you rep heroes and villains?” If the report knew Spencer’s identity as Manhunter, he might also have asked “How do you rep the same villains that you fight as a superhero?”
ABA Model Rule 1.7 describes conflicts of interest between current clients. As a criminal defense lawyer, Spencer will rarely run afoul of a direct conflict of interest, since her clients are never suing each other. However, she may run afoul of a ‘material limitation’ in her ability to effectively represent her clients. From the Rule:
[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if … there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
As you can see, the conflict can exist not only between clients but between a client and anyone, including the lawyer. The comments to the Rule further explain that “a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.”
Spencer is written as a highly competent lawyer able to separate her identities and responsibilities as a lawyer and a superhero. But the ethical rule doesn’t require an actual conflict; a significant risk is sufficient. Under that standard, Kate really should seek to fix the conflict. And as it turns out, many conflicts can be waived. As the Rule explains:
[A] lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
So how does this apply to Spencer and her motley mix of clients?
A. Conflicts Between Wonder Woman and Villain Clients, Current and Former
In this case, Wonder Woman appears to give something like informed consent, which we can presume was confirmed in writing. Certainly Spencer and Wonder Woman discuss the various kinds of clients that Spencer represents, and Wonder Woman praises Spencer’s objectivity. We don’t know if Spencer has any other clients at the moment, but if any are the type that routinely fight superheroes (especially if they fight Wonder Woman specifically), Spencer will have to seek their consent as well.
But what of Spencer’s other clients, like Dr. Psycho? Well, after he attacked her we can presume that he is a former rather than a current client, but attorneys still owe many duties to their former clients, and Model Rule 1.9 covers conflicts with former clients. Per the Rule, most conflicts with former clients can be cured by informed, written consent, but an attorney generally can’t reveal confidential information or use it to disadvantage a former client. The problem is that a client like Dr. Psycho may very well refuse to give that consent, even if only out of spite.
Here, though, Spencer doesn’t need Psycho’s consent, since she is representing Wonder Woman in an unrelated matter that will not require using anything she learned in confidence from Psycho.
B. Conflicts Between Spencer-as-Manhunter and Villain Clients
It’s all well and good that Spencer didn’t need Psycho’s consent to represent Wonder Woman, but what about representing Psycho in the first place? Was there not a significant risk that Spencer’s secret identity as Manhunter could materially limit her ability to zealously advocate for a supervillain like Dr. Psycho? Part of the problem here is that Spencer’s secret identity is, well, secret. It would be impossible for her to get Psycho’s informed consent without informing him of her identity. (NB: This wasn’t a problem with Wonder Woman since WW had deduced Spencer’s identity already. It probably wouldn’t be a problem anyway in that case.). If this seems like an insurmountable problem, that’s because it is. If Spencer wants to keep her identity secret yet still represent supervillains, she has no choice but to break the ethical rules.
II. The Meaning of Pro Bono and Client Gifts
Because Themyscira’s United States assets were frozen after Maxwell Lord was killed, Spencer offers to take the case pro bono (short for pro bono publico: for the public good)—except that she also asks Wonder Woman to train her. Is this a problem? Doesn’t pro bono mean “free of charge” as well?
Actually, as ABA Model Rule 6.1 explains, most pro bono work can and should be “without fee or expectation of fee,” but it can also be “delivery of legal services at a substantially reduced fee to persons of limited means.” Under the circumstances, Wonder Woman is a person of limited means. The question is whether a one-on-one training session with an A-List superhero is really a substantially reduced fee. That’s hard to say either way, but in the end it’s a moot point. As the comments to the rule explain, “The responsibility set forth in this Rule is not intended to be enforced through disciplinary process,” so no one is going to formally chastise Spencer if she claims this as pro bono work.
But what if Spencer really is representing Wonder Woman for free. Taking a close look at the dialogue, it’s arguable that Spencer was soliciting a gift from Wonder Woman. Rule 1.8(c) flatly forbids attorneys from soliciting substantial gifts from their clients unless the client is a relative. It would behoove Spencer to make it clear (preferably in writing, per Rule 1.5) that the training was, in fact, the fee for her services and not a gift.
There are a ton of legal issues in this volume left to discuss, so stay tuned!