She-Hulk Gets Disbarred

In the most recent She-Hulk run, we find in She-Hulk # 22 that Walters has been disbarred. We don’t find out why until # 29.

Let’s take a look at what happened. There’s spoilers here for those who care.

I. The Run Up

We learn about what went down in bits an pieces, but most of the story comes out in # 29 in the form of what amounts to a flashback. Why David et al chose to tell the story this way I’ll never know, but whatever. Walters was representing Arthur Moore, aka “Dark Art,” a one-off villain who hasn’t made any other appearances as far a I can tell. The guy had been accused of robbery and had come to Walters’ firm of Goodman, Lieber, Kurtzman, and Book (Holliway having stepped down), for defense. Unlike most other villains, Moore actually sort of picked on Walters fairly consistently for representing a villain, which was kind of weird. In any case, Walters manages to get his case dismissed because all of the evidence the prosecution had was acquired in an illegal search on a pretextual traffic stop. Evidence acquired in violation of the Fourth Amendment being inadmissible, the judge threw out the indictment. If we give the writers a pass for doing this in open court instead of with motions in limine, we’re doing okay so far.

Moore’s personal effects are then returned by the police, and Moore takes possession of them back in the firm’s offices. One of these things is some kind of mystical gem. Moore then asks whether he’s still protected by attorney-client privilege, and when Book tells him that he is, Moore uses the gem to telepathically transmit images of him doing a bunch of bad stuff to kids. She-Hulk goes berserk, punches him through a few walls, and after confronting him in the street, basically tells the entire crowd what Moore has done. On the next page, we find that she’s been disbarred and is leaving the firm.

II. Attorney-Client Privilege The Duty of Confidentiality

Attorney-client privilege is one of the most important features of legal ethics, and ethical issues aside, skilled litigation attorneys are going to be constantly on the lookout for discovery requests and lines of questioning that run up against it.  The foundation of the privilege is an attorney’s duty to keep a client’s confidences.  Unsurprisingly, blabbing a client’s guilt in public is nearly always a violation of that duty of confidentiality.

However, the rule is not absolute, and there are certain contexts where an attorney may reveal information delivered in confidence. One of them may actually apply here, namely N.Y. Rule of Professional Conduct 1.6(b)(1) and (2), which permit an attorney to reveal confidential information to prevent “reasonably certain death or bodily harm” and to prevent the client from committing a crime, respectively. If a client credibly says that he is going to hurt or kill someone, an attorney is not prevented from calling the cops. Depending on how one reads Moore’s revelations, it’s possible that he could have been communicating that there were still kids in danger. In which case he was basically declaring open-season on himself, at least insofar as those particular kids were concerned.

Still, that point is debatable, and if there weren’t any kids in trouble, Walters will be. The book also mentions that it’s inadvisable to attack a client. This is true.  Not only is it illegal, it’s likely an ethical breach as well, since the crime in question “adversely reflects  on the lawyer’s honesty, trustworthiness or fitness as a lawyer” in violation of Rule N.Y. Rule 8.4(b).  After all, would you trust a lawyer who punched her last client through a wall?

III. Scope of Representation

Moore hired the firm to represent him in his robbery case. The information he revealed had to do with entirely different crimes that were not the subject of that representation.  Could Walters’ argue that she owed no duty of confidentiality because the information he revealed was beyond the scope of her representation?

Unfortunately for Walters, almost certainly not. First, scope of representation can only really be limited ahead of time and with the informed consent of the client. N.Y. Rule 1.2(c). Second, just before Moore did his thing, Book specifically affirmed that he was still protected by attorney-client privilege.  As N.Y. Rule 1.6(a) says, confidential information specifically includes information that is:

(a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.

The fact that Moore was using that to goad She-Hulk into doing something stupid is probably not going to matter: being a fiduciary means putting the interests of the client ahead of one’s own.  And being a criminal defense attorney means that sometimes you have to keep terrible secrets.

IV. Getting Disbarred

The question then becomes whether all of this was enough to get She-Hulk disbarred. That’s debatable. Disbarment is the most serious punishment in the legal ethics context. It means losing one’s ability to practice law, probably permanently, and getting disbarred in one state can serve as grounds for getting disbarred in the rest. Because it is so serious, disciplinary commissions—usually arms of state supreme courts—tend to impose lesser penalties like reprimands and temporary suspensions before they disbar someone.

Here, disbarment seems perhaps a bit much. Walters had not been up on any ethical charges to this point—as far as we know—and her breach does not actually seem to have put Moore in any legal danger. We don’t hear anything about Moore being prosecuted or otherwise getting in additional legal trouble. It seems plausible that the New York Departmental Disciplinary Committee would go for a lesser punishment. Still, it’s not impossible that disbarment could have resulted, as there is usually some discretion there, and publicly violating the duty of confidentiality is pretty serious.

Of note: in New York an attorney is automatically disbarred if he or she is convicted of a felony.  N.Y. Judiciary Law § 90(4).  If Walters plead guilty to a minor felony charge in regard to the incident (e.g. second degree assault), that would be sufficient to result in her disbarment.  If she stayed out of trouble for seven years she could apply for reinstatement.  N.Y. Judiciary Law § 90(5)(b).

V. The Set Up

Except for the fact that the whole thing was a set up. There were no kids in danger. Moore did what he did deliberately, at the behest of someone trying to destroy She-Hulk, personally and professionally. We find out that he had abducted the kids, but that they were all being kept in a cabin upstate, well cared for. He returned them once Walters’ disbarment was finalized. The DDC is not likely to look very kindly on this kind of sting job, and may well have been amenable to reversing itself should Walters have cared to make a motion. Turns out she didn’t, as she was pretty disillusioned by the whole affair, but it seems likely that Walters could have gotten her license back without the massive public relations stunt she pulls a few issues later.

VI. Conclusion

So basically, this story works. Breaching the duty of confidentiality is a violation of legal ethics, and can serve as grounds for getting disbarred. It’s unlikely, but not impossible, that the DDC would have disbarred Walters at this point, but one can argue that her status as She-Hulk makes her situation delicate enough that they may have gone straight for disbarment. And the fact that the whole thing was a set up may mean that she could have gotten her license back, but the story is pretty clear that she didn’t want to, so that’s more or less moot.

As the She-Hulk stories from # 22 on don’t involve Walters practicing law, there’s a lot less here than there is in the earlier stories. There’s probably another post or two to be had, but we’re reaching the end of the material here, at least with regard to legal ethics.

16 Responses to She-Hulk Gets Disbarred

  1. How far does the principle that confidentiality and other duties to the client override the lawyer’s own interests go? Could a client continue to claim privilege if he or she announced that they had already committed a crime against the lawyer? E.g., if Moore had told Walters that he had visited her home and killed her family, or that he had in fact poisoned her fatally, would she still be barred from revealing this information (since it’s all accomplished already, not a future crime), let alone seeking to have him prosecuted or bringing an action against him?

    • Ryan Davidson

      Two things come into play there. First, attorneys are generally able to use confidential information in claims that have against their own clients. Otherwise it’d be impossible to collect fees, but the rule permits tort claims in general.

      Second, there’s scope of representation issues here. True, an attorney cannot reveal confidential information about anyone who reasonably perceives himself to be a client. This is why when Book specifically affirmed attorney/client privilege, Moore could probably get away with it. But I have a hard time believing that a court would consider a situation like the one you describe to be reasonably perceived to be within the scope of representation.

  2. Martin Phipps

    Not only is it illegal, it’s likely an ethical breach as well, since the crime in question “adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer” in violation of Rule N.Y. Rule 8.4(b). After all, would you trust a lawyer who punched her last client through a wall?

    I would have thought the above would equally apply to shooting a client’s mother or having a client beaten up by a biker gang. :) Of course it’s all fiction. I suppose the lawyer in the Lincoln Lawyer would have claimed self defense in both cases although both cases did involve him carrying a concealed weapon.

    Oh and I suppose Walters will also claim self defense. There is a reasonable doubt that the villain was actually hurting her with his psychic assault. It might not stop her from getting disbarred though.

    • That Rule would indeed likely apply to Haller (the lawyer in The Lincoln Lawyer). We could probably have made a whole series of posts about all of the ethical problems in that film, but we stuck to the highlights.

      Anyway, in this case, even if Walters could claim self-defense with regard to punching Moore, that wouldn’t cover the breach of confidentiality.

  3. If he still had the kids held somewhere throughout the whole thing (regardless of how well cared for they were), doesn’t that make this an ongoing crime? Wouldn’t that then fall under the second exception you mention? Or has Law & Order lied to me once again? :<

    • The question is whether Walters thought it was an ongoing crime or not. If so then she would be in the clear to reveal that information to the authorities, even if it turned out she was wrong (i.e. if Moore had actually committed no crime at all). But if the mental images were of completed past crimes then she wouldn’t be privileged to reveal that even if it turned out that the crimes were actually ongoing.

  4. Mister Andersen

    I remember hearing somewhere that as an officer of the court, if a client admits guilt to their lawyer that they are pleading not guilty to, the lawyer has a duty to report that admission to the authorities and to withdraw representation. Is that true?

    • No. The most straightforward explanation is that a plea is not a sworn statement, and therefore pleading not guilty when one is actually guilty is not perjury. Neither is it evidence, so it can’t be false evidence, which lawyers are forbidden to offer and have a duty to correct if they discover that it has been offered. A plea not guilty is really just the defense requiring the prosecution to prove its case in court.

      Criminal defendants have other special protections as well. For example, if a lawyer knows that a criminal defendant client intends to lie on the witness stand, the lawyer has to let the client take the stand. ABA Model Rule 3.3(a)(3). However, the lawyer can’t assist in the perjury, and so the lawyer will usually use a very open-ended prompt like “please tell the jury what happened that night” rather than asking specific questions.

      • Mister Andersen

        So at what point does knowledge of their client’s guilt and criminality legally compel a lawyer to part ways with the client before they’re considered to be aiding and abetting, or an accessory, or even a co-conspirator?

      • Ryan Davidson

        At the point where the attorney withholds information from the authorities about a crime that is being planned. Knowledge of a client’s guilt as such will never subject an attorney to sanctions. It is only knowledge of impending guilt, i.e. a crime that has yet to be committed, that is a problem.

    • Then there’s the fact that there have been cases where the accused chose to claim responsibility for crimes they didn’t commit.

  5. Not law related but I believe the reason David waited so long to tell the story of the Shulkie getting disbarred was because he started writing scripts before Dan Slott finished his run and didn’t know how Slott was going to end it. That is why his early stories were not set in the law firm and away from Slott’s characters

  6. If it’s a setup in the sense that the kids are not being hurt, but the kids really were captured, isn’t it still an ongoing crime (kidnapping)?

    • Ryan Davidson

      Potentially. But the question is what She-Hulk believed at the time. In the story, there’s no evidence that she believed that crimes were ongoing.

  7. My only legal training is from watching every episode of the original law and order. Does New York still do the “extreme emotional distress” thing? I mean, he didn’t just describe, in graphic detail, what he wanted to do to a bunch of kids, he committed some sort of serious psychic assault (ooh, look at all those ‘s’ sounds) that led to her, what, experiencing it? Or something?

    I mean, come on, doing something like that to the She Hulk has got to be considered, legally, suicide.

    Jump off a bridge: die.
    Step in front of a bus: die.
    Deliberately piss off a Hulk: die twice in a fire.
    Do so by involving kids: twice more, with spiders and snakes.

    I know the law expects a lawyer to put the client’s interests first, but does it really expect the lawyer to be superhuman? Even if she is?

    • That might possibly be a basis for a defense for the punching, but I don’t think it would let Walters off the hook for telling the public about what her client (apparently) did.

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