Today we’re continuing our analysis of Mahunter vol. 4. In Part 1 we discussed conflicts of interest, fee arrangements, and client gifts. For Part 2 we have more legal ethics issues and a note about grand juries. These are some of the same ethical issues we discussed during our recent legal ethics CLE program. Spoilers abound.
I. Trial Decorum and Grand Juries
During Wonder Woman’s grand jury hearing, Kate Spencer objects to a statement made by the prosecutor. After being admonished by the judge, Spencer uses a feigned apology to plant seeds of doubt in the minds of the members of the grand jury (“I apologize your honor. It was just reflex. I’d almost forgotten how different grand juries were from real ones…how low the burden of proof, how geared in favor of the prosecution they are…”). After a remark from the prosecutor the judge threatens them both with contempt. Spencer admits to Wonder Woman that the disruption was intentionally calculated to anger the judge, causing her to forget to tell the jury to disregard Spencer’s statement.
There are many problems with this scene. First, the potential defendant and his or her attorney are not present at a grand jury hearing, except that the potential defendant could be called as a witness. The comic book sort-of acknowledges this with a line by the judge saying that an exception was allowed for this unique case. The problem with this explanation is that there isn’t a judge at a grand jury hearing, either. Grand jury hearings are led by the district attorney, who acts as both legal advisor to the grand jury and as the prosecutor.
Federal Rule of Criminal Procedure 6(d) explicitly spells out who may attend a grand jury hearing: “The following persons may be present while the grand jury is in session: attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device. No person other than the jurors, and any interpreter needed to assist a hearing-impaired or speech-impaired juror, may be present while the grand jury is deliberating or voting.” There is no room for a judge to make an exception. Heck, there’s no room for a judge at all. Even the witnesses are only allowed in one at a time (hence “the witness being questioned”).
This may seem unfair, but remember that a grand jury is convened in order to indict someone; the adversarial process has not started yet. Thus, there is only a potential defendant, who is no different from any other witness. However, after an indictment has been returned the defendant may challenge the composition of the grand jury (e.g. on grounds of bias). 28 USC 1867. But this is after the fact, not during the hearing.
Of course, Spencer’s claim that she’d “almost forgotten” how grand juries work is ridiculous. Not only is it basic criminal procedure, Spencer was a federal prosecutor herself for some time before moving to defense and would have conducted many grand jury hearings. So her claim is either a lie or an admission of incompetence. That’s the kind of nonsense that judges do not suffer gladly.
Second, Spencer’s outburst was also an unethical intentional disruption of the hearing. ABA Model Rule 3.5(d) states “A lawyer shall not … engage in conduct intended to disrupt a tribunal.” (And in case you’re wondering, the comments to Model Rule 3.5(d) together with Rule 1.0(m) show that a grand jury hearing is a ‘tribunal’ for purposes of the rule, judge or no.)
(On a more minor point, the comic portrays the wrong number of grand jurors. A federal grand jury “must have 16 to 23 members.” Fed. R. Crim. P. 6(a)(1). The comic shows a typical jury of 12.)
II. Allocation of Authority Between Lawyer and Client
Spencer discovers that Wonder Woman killed Maxwell Lord because Lord was psychically controlling Superman, making him believe that his friends and allies were actually villains. In fact, Spencer obtains video evidence proving as much. However, Wonder Woman forbids Spencer to use that evidence out of concern for Superman’s reputation as a force for good. Spencer agrees to the constraint even though it will make her job much harder.
As it happens that’s exactly right. ABA Model Rule 1.2(a) states that “a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.” Rule 1.4(a)(2) essentially reiterates the obligation to consult with the client: “A lawyer shall … reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” Furthermore, the comments to Rule 1.2(a) specify that “lawyers usually defer to the client regarding … concern for third persons who might be adversely affected.”
So here Spencer is definitely doing the right thing. If for some reason she felt that she couldn’t represent Wonder Woman under those constrains the solution would be to withdraw as her attorney.
III. Media Rights
In order to work around Wonder Woman’s prohibition against using the video as evidence, Spencer decides to contact Superman, apparently on the assumption that if he agrees to testify then Wonder Woman will be okay with it. Since Spencer doesn’t exactly have Superman’s home phone number she contacts Lois Lane and asks her to relay the message. The plan works but “[Lois] almost made me sign over exclusive media rights to ‘my story’ in this case.”
Spencer was right not to sign any such deal. ABA Model Rule 1.8(d) says: “Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.” The policy here is that lawyers with media deals will feel tempted to sensationalize or play up the entertainment value of the case to the client’s detriment.
Strictly speaking, this Rule is about agreements between the lawyer and the client regarding the client’s media rights. However, Spencer’s duty of confidentiality means that she would almost certainly need Wonder Woman’s permission in order to sign media rights over to Lois Lane. The result is the same.
Further, this also raises issues of inappropriate trial publicity, at least if the story was published while the case was ongoing.
Today was a mixed bag for Spencer. She got some things right and some things wrong. Unfortunately, the writers sort of painted themselves into a corner by framing the story around the grand jury hearing instead of a trial. At that point they had little choice but to contrive a way to put Spencer and Wonder Woman in the court room. We guess they didn’t want Wonder Woman to even be indicted, but that led to some compromises. We say stick to trials. They’re more dynamic, and most people have at least a general sense of how they work.