Daredevil #3

The third issue of Daredevil took an interesting turn, legally-speaking.  The firm of Murdock & Nelson is trying out a new business model, and there are ethical issues aplenty!

I. When and How an Attorney Can Withdraw from Representation

Before we get into the new business model, though, we have to discuss how and why the firm withdrew from its representation of Jobrani, the plaintiff in the police brutality suit.  Apparently, a psychiatric evaluation revealed that Jobrani has been hearing voices telling him to drop the case.  Nelson says this “makes you an unreliable witness on your own behalf.  We can’t help you. Nor can I in good conscience refer you to another lawyer.”

Is this a good enough reason to withdraw from representation?  Unlike a client, who can fire a lawyer at any time for any reason or no reason, an attorney may only withdraw from representation at certain times and under certain circumstances.  In New York, there is only one reason that could conceivably apply in this case:

a lawyer may withdraw from representing a client when: …
(7) the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively;

New York Rule 1.16(c).  Failing to disclose the psychiatric evaluation mightsatisfy (7), but the omission was discovered quickly.  Furthermore, as we discuss below, it’s not that big of a deal.  Hearing voices telling you to drop the case could easily be chalked up to self-doubt or anxiety.  The solution would be to bring in an expert witness to explain it to the jury, assuming the defense brought it up.  Even if ethically allowed withdrawal would be a tremendous overreaction on Nelson’s part.

Furthermore, even if withdrawal were otherwise permitted, they’re in the middle of litigation!  This may mean having to get the court’s permission to withdraw, per New York Rule 1.16(d).  Finally, there’s New York Rule 1.16(e):

upon termination of representation, a lawyer shall take steps, to the extent reasonably practicable, to avoid foreseeable prejudice to the rights of the client, including giving reasonable notice to the client [and] allowing time for employment of other counsel

Nelson’s abrupt, rather harsh withdrawal fails to comply with that rule.

We understand that the reason Daredevil took this tack with the Jobrani case was so that it could set up the new business model, but we wish Mark Waid would have done a little more research (or, ahem, asked us) about a more plausible reason for Murdock & Nelson to be unable to represent Jobrani.  It may seem like a small detail, but it’s unfortunate that readers might have gotten the wrong idea about when and how a lawyer can drop a client.  If people don’t know their rights, unscrupulous lawyers could take advantage of them.

Here’s a possible ethical alternative: Murdock is harangued in and out of the court room with allegations that he is Daredevil, and if Matt can’t effectively represent Jobrani—and Nelson is swamped with other work—then they would have to withdraw, which they could ethically do under those circumstances.  Other lawyers won’t take the case because of the threatening messages from Klaw’s soundshadows, so that leaves the new business model.

II. The New Business Model

Now we come to the big twist: rather than represent clients directly, Murdock & Nelson will coach clients who will represent themselves, right down to what to say in court.  It’s cheaper for the clients and Murdock stays out of the eye of the paparazzi.  Win/win, right?  But could there be ethical issues here, at least in New York?

Like several states, New York has adopted the ABA Model Rule allowing limited representation agreements: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances, the client gives informed consent and where necessary notice is provided to the tribunal and/or opposing counsel.”  New York Rule 1.2(c).  A common example of a limited representation agreement is when an insurance company pays for an attorney to represent a client; the lawyer’s representation will be limited to whatever the insurance policy covers.

This scheme is a little different: Murdock & Nelson will help their clients with the whole matter, they just won’t appear in court for them.  This is a kind of “unbundled” legal service (i.e. something short of full service representation).  More commonly the way it works is that the lawyer prepares court filings (e.g. motions and memos) rather than coaching the client through courtroom appearances, but we believe that if the former is ethical then the latter is as well because coaching a client doesn’t implicate the certification procedural (e.g. Fed. R. Civ. P. 11).

New York courts and ethics committees have recognized the propriety of this kind of “ghostwriting.”  New York County Law Association Committee on Professional Ethics Op. 742 (2010); Citibank (South Dakota) N.A. v. Howley, 927 N.Y.S.2d 815 (N.Y. Civ. Ct. 2011) (noting that ghostwriting is permitted as long as Rule 1.2(c) is complied with).  Note, however, that not all states permit this practice, so in this case it is fortunate that Murdock & Nelson are in New York.

So, if Murdock & Nelson comply with Rule 1.2(c)’s requirements of reasonableness, informed consent, and notifying the tribunal and opposing counsel, this business model may be ethically sound, at least in New York.

9 responses to “Daredevil #3

  1. So Murdock and Nelson are preparing super detailed legal memos/opinions for their clients then? Interesting.

    • From the description in issue #3 the emphasis seemed to be on coaching and guidance rather than memo drafting, but I have to imagine they would do that as well. As for super detailed: I would guess they would be ordinary memos and motions (i.e. competently written but not extraordinary).

  2. I have to seriously wonder about the validity of their plan. A major point of Gideon v. Wainwright was that the average American citizen would not be able to stand a fair chance of managing their own defense in a criminal case. Obviously this is different in that Murdock and Nelson are still giving the clients advice, but can that really prepare a client for the expertise the opposing lawyers will have?
    On a related note, would the two be ethically required to suggest another lawyer for clients incapable of defending themselves, i.e. ones with speech impediments or who cannot speak English?

    • I don’t think Gideon is a problem. The right to a lawyer in a criminal case is not absolute. If the state and county decide that you can afford a lawyer on your own (and the bar for this is lower than you might think), then you won’t get a public defender or a court-appointed attorney. And if you then decide to go with Murdock & Nelson’s limited representation, perhaps because you feel you can’t afford or don’t need full-service representation, then that’s your business.

      Remember, the right to represent oneself is also protected by the Constitution and statute. See, e.g., Faretta v. California, 422 U.S. 806 (1975); 28 U.S.C. § 1654. If you can choose to represent yourself or to be represented by an attorney, then it stands to reason that you can choose something in between.

      As for whether this arrangement is as good as the opposing lawyers? That’s not the ethical or constitutional requirement. A lawyer must only provide competent representation, and the Sixth Amendment only guards against ineffective assistance of counsel. If the opposing lawyers were more than competent, tough luck, I’m afraid.

      As to your other question: strictly speaking, if an attorney can’t competently represent a prospective client there is no ethical obligation to refer them to another attorney who can. However, I think most attorneys would agree that it’s an implicit aspirational (i.e. ‘should’ rather than ‘must’) part of the ethical rules, particularly those dealing with ensuring equal access to the justice system.

      • I wasn’t referring to the legal right to a lawyer if that’s what you mean*, but rather the difficulty citizens would have pursuing justice or defending themselves. Even if they were coached beforehand they couldn’t have the experience of Murdoch or Nelson and probably wouldn’t know how to react to any possible surprises. Essentially my criticism is on how well it would work, rather than ethical or legal issues.

        *When I brought up Gideon v. Wainwright I was simply referring to the fact that part of the case showed that the average citizen simply can’t reasonably defend themselves. Would coaching prior to trial really change that?

      • I see what you mean. In that case, no, I don’t think it would be equivalent to full representation by a competent attorney in most cases. But for someone with an easy case it might be sufficient.

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  4. Many parties in family court are pro se. Limited representation would probably improve the efficiency of the family court (otherwise simple divorces with one or two unresolved issue, such as custody of children, for example) by ensuring that information necessary to the court is presented in the format or formats most useful to the court, while keeping costs down for the parties.

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