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.