Nelson & Murdock Becomes Just Nelson

Today’s post is about the latest issue of Daredevil.  (If you aren’t following Mark Waid’s run on Daredevil, you should be.  If you want to catch up, the first six issues and issues 7-10.1 are available in trade paperback.)  After an unannounced nine day leave of absence from the firm on Daredevil business, Matt Murdock returns to find his law partner Foggy Nelson kicking him to the curb, at least for the time being.  So how does a law firm dissolve, and what are the consequences for Nelson and Murdock as newly independent attorneys?

I. Dissolving a Partnership

Since the sign on the door just says (or rather said) Nelson & Murdock, it’s likely that the firm is organized as an ordinary partnership, as opposed to a limited liability partnership or a professional corporation.  Typically those kinds of businesses are legally required to indicate their status (e.g. “Nelson & Murdock, LLP” or “Nelson & Murdock, P.C.”).  It is possible that Nelson & Murdock is an LLP or PC that registered “Nelson & Murdock” as a fictitious name (called an assumed name in New York), but that’s needlessly complicated.

In any case, there are a couple of different ways that the partnership could be dissolved.  If the partnership was a “partnership at will” (i.e. a partnership that was established for no specific purpose and no particular duration), then any partner can dissolve it at any time.  See, e.g., Dunay v. Ladenburg, Thalmann & Co, Inc., 170 A.D.2d 335 (1991).  If that were the case here, then Foggy could certainly take his ball and go home, so to speak.  All that is required is that Foggy’s actions “must manifest an unequivocal election to dissolve the partnership.”  In this case, Foggy says “You need to leave. … I’ve delegated your workload, I’m taking your name off the door, and I’m demanding a break. … We’re through.”  That seems pretty unequivocal to me.

However, it seems unlikely that two competent attorneys would form a partnership without a partnership agreement.  And if the firm were actually an LLP or PC then there would definitely be a partnership agreement or corporate charter.

A partnership agreement can specify, among many other things, how, why, and when the partnership can be dissolved.  In this case, Matt had been completely out of communication for nine days, unannounced, and there was evidence that he had unresolved issues with depression.  Being unresponsive to clients is both unethical (see New York Rules 1.3 and 1.4) and can be the basis for a malpractice action.  If mental health issues interfere with a lawyer’s ability to perform his or her job competently, then that’s also a problem.  New York Rule 1.1.  It’s highly likely that this would meet the standard for dissolving the partnership under the partnership agreement.  Since Matt was the one ‘in the wrong,’ it’s not surprising that Foggy would keep the office and (apparently) the clients.

Once the partnership was dissolved, it would technically remain in existence long enough to wind up its affairs.  N.Y. Partnership Law § 61.  This would give the firm time to, for example, disburse the partnership assets to the partners, transfer clients to Nelson’s new firm, etc.

II. Consequences

Foggy appears to be keeping the firm’s clients, either by the terms of the partnership agreement or by default, since Matt is in no state to represent them at the moment.  But after Matt gets cleaned up, could he approach his former clients?

As a general rule, non-competition and non-solicitation agreements either cannot be enforced against attorneys or can be enforced only very narrowly.  New York Rule 5.6; Graubard Mollen v. Moskovitz, 149 Misc.2d 481 (Sup. Ct. 1990).  In fact, it would be unethical for Murdock or Nelson to offer or accept an agreement that restricted their right to practice after terminating the partnership.  This is very different in other fields, where noncompetes are common.  The courts have decided that choosing a lawyer is special in that regard.  So Murdock would likely be free to set up his own firm and even to attempt to solicit his former clients to come over to the new firm.

III. Conclusion

It will be interesting to see where Waid takes this.  Is this the end of Nelson & Murdock?  Will we see the two on opposite sides of the courtroom in the future?  Exciting stuff!

9 responses to “Nelson & Murdock Becomes Just Nelson

  1. Christopher L. Bennett

    Aren’t they both defense attorneys? How could they be on opposite sides in court? Or are you thinking they might take on civil cases?

    (This reminds me of a question that recently came up on a BBS — have Matt Murdock and Jennifer “She-Hulk” Walters ever either faced each other or worked together in the courtroom? I had no answer.)

  2. In theory, any licensed attorney is qualified to take on any legal matter except patents, which have special certification by the PTO. In the real world, most lawyers specialize… but in the current climate, a lot of lawyers find there isn’t enough work in their former specialty areas, and the smaller the law office, the more likely it is that they are scrambling to find enough paying work to keep the lights on.
    It would seem that, from a conflicts standpoint, Murdock should actually avoid criminal defense work, as he may be appointed to defend someone Daredevil captured, and ethically he’d have to decline the representation… but the judge isn’t going to allow him to withdraw after appointment without a really good reason.

    • There are various reasons a lawyer can give. Of course if he keeps practicing and defending in the same place for too long that’s going to run out. Maybe he could explain that he’s met the Daredevil?

      • James Pollock

        There are verious reasons, but lying to or even misleading the court is a serious breach of ethics. The fastest path to disbarment is mishandling a client’s money; lying to a court is probably the second fastest. Although taking up a career as a masked vigilante is probably not a wise long-term career move for any lawyer, criminal defense or otherwise.

      • It may not fly with the judge but what if Matt says “As Daredevil appears to be involved in this case and I’ve been publicly accused of being Daredevil, the issue is highly likely to come up during the trial and dealing with that is likely to detract from me properly defending the client.” as his excuse.

  3. “However, it seems unlikely that two competent attorneys would form a partnership without a partnership agreement.”

    Except for the fact that it happens all the time. It’s amazing how many people who should know better are willing to do business on the basis of mutual trust and a handshake.

    • Also, of course, a general partnership is what you get if you didn’t set up another form of organization, or did one of those other things defectively.

      Plus, of course, the partnership forms at a time when all parties are eager to work together, and aren’t thinking about what should happen if things go sour. (You know, kind of like marriages.)

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