Today we have a quick legal ethics note from the classic 1986 Frank Miller Daredevil storyline, Born Again (which is available collected in trade paperback). At the outset of the story, Wilson Fisk (aka the Kingpin) sets out to destroy Matt Murdock’s life. One of the first steps is to get him disbarred. To do this, Fisk frames him for bribing a witness to perjure himself (aka subornation of perjury). A brilliant defense by Foggy Nelson keeps him out of prison, but Murdock nonetheless loses his license to practice law. But how does that work? Can a lawyer be ‘sentenced’ to losing their license?
The answer is ‘sort of, at least in New York.’ First, let’s take a closer look at the facts.
I. Bribery and Perjury
In New York, bribing a witness is a class D felony. N.Y. Penal Law § 215.00. Subornation of perjury is not a separate offense, but rather the person doing the suborning is guilty of perjury by accomplice liability. See Staff Comments of the Commission on Revision of the Penal Law. Revised Penal Law. 292-93 (1965). First degree perjury (i.e. swearing falsely and making a material false statement as part of one’s testimony) is also a class D felony. N.Y. Penal Law § 210.15. Class D felonies are punishable by up to 7 years imprisonment with a mandatory minimum of at least one year, unless:
the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose an indeterminate or determinate sentence, the court may impose a definite sentence of imprisonment and fix a term of one year or less.
However, it is not clear to me whether there was any mandatory minimum provision at all in 1986, and the court may have had discretion to sentence Murdock to probation only. So that could explain why Murdock didn’t end up in prison despite what happens next.
As Fisk narrates, “Even as he hears the much-tempered verdict of the court that he will not face a prison sentence, as I had planned—that all he will lose is his license to practice law…whatever reactions he has are hidden—even, I suspect, from himself.” So Murdock doesn’t receive a prison sentence, but he does lose his license. But how could a criminal court do that?
This is a fair question. Disbarment is not a criminal punishment per se. In New York, for example, attorney discipline is ordinarily handled by the Appellate Division (i.e. the intermediate courts of appeal). However, in New York, a felony conviction results in an automatic disbarment. N.Y. Judiciary Law § 90(4)(a). We discussed this last year with regard to She-Hulk’s disbarment. So while the trial court wouldn’t technically sentence Murdock to losing his license, a conviction on either felony count would result in immediate, automatic disbarment with no action from the Appellate Division necessary. Since the court undoubtedly knew this would happen, it could take that into account when deciding not to sentence Murdock to prison.
The circumstances of Matt’s disbarment are a little odd, but it actually hangs together pretty well due to New York’s unusual felony disbarment rule. Since Murdock loses his license right off the bat, there’s not a lot of legal issues in the rest of Born Again, but it’s a great story in its own right.
However, we will quibble with the fact that Matt is summoned to a grand jury hearing “and not as a witness” (i.e. as the defendant). Lots of comic books get this wrong, so we’ll say it again in the hope that comic book authors won’t keep making the same mistake: grand jury hearings are secret. There’s no judge, no public gallery, and the defendant (technically only a suspect at that point) is not present or represented by an attorney. There’s just the prosecutor, a court reporter, the grand jury, and one witness at a time. We know that means grand jury scenes sometimes have to be depicted without the main character present, but on the other hand “a grand jury would ‘indict a ham sandwich,’ if that’s what you wanted,” so we recommend not bothering. Just assume that the grand jury handed down an indictment and move on to the actual trial.