Over on our Facebook page we got a request from Obidike to take a look at Daredevil: Redemption, a six issue series from 2005, also available in trade paperback:
Have you guys read David Hines’ Daredevil: Redemption? I met the author and he claims that a lawyer in the US claims he was spot on with the legal stuff in the story? Do you agree?
There are several legal issues in the story, but we’re going to focus on just a couple of the more overt ones. There are a few minor spoilers ahead, but nothing too serious. For those who haven’t read it, the basic setup of the story is that Murdock is hired to represent a teenager accused of murder in the (fictional) town of Redemption, Alabama. Almost all of the action occurs in that small town, Daredevil makes only a few appearances, and there are no other superheroes or supervillains. The story gives up the broad strokes of capes and superpowers in favor of a well-told human drama. It’s a pretty good read, and we recommend picking up a copy.
I. Pro Hac Vice
You may already be asking yourself “waitaminute: how can Murdock practice law in Alabama. Isn’t he from New York?” It’s true that the legal profession is regulated by the states, and ordinarily one must be licensed in a state in order to practice there. However, in some cases, an attorney may be given special permission by a court to practice out of state. This is called appearing pro hac vice and is typically done for one-off cases or in cases where the attorney has a history of representing the client in their home state and now needs to represent them in a different state.
The way this is described in the comic is quite accurate. The local attorney says:
Here’s the situation. The judge has allowed for you to work in the state of Alabama under pro hac vice. He wasn’t too happy, but you have a good rep and, with the press watching this one, he didn’t want anyone calling bias. Under state regulation, I sign all the paperwork, I sit beside you in court, but otherwise it’s your case.
That’s pretty much how it works in the real world. Local counsel can do more than just sign papers and sit in court, though. Sometimes they are active parts of the legal team, and often they are valuable sources of information on local rules, unstated court customs, and the personalities of judges and court staff. But fundamentally they are there to make sure that the out-of-state attorneys don’t screw up.
As a side note: what matters is where the attorney is physically located when he or she does the work, not where the client is. If Murdock had stayed in New York and simply consulted over the phone or by email, he wouldn’t have needed to be admitted pro hac vice. It wouldn’t matter that he would be advising a client about Alabama law, either. Alabama doesn’t care what lawyers in New York do, and New York doesn’t care where the client is, only that the attorney in New York is licensed in New York.
II. The Guilty Client and the Not Guilty Plea
As Murdock often does, he asks his (prospective) client whether he committed the crime. The client says, “Let’s say I am. You have to defend me even if I say I killed the kid, right?” Murdock responds:
Wrong. My professional code of ethics would not allow me to enter a plea of not guilty on your behalf if you tell me you are guilty. That information would be protected by the rules of client confidentiality, but I would be obliged to withdraw from representing you.
There are a couple of issues here. First the good news: Murdock is correct that the confession would be confidential. Now the bad news: there is nothing in the New York or Alabama Rules of Professional Conduct that would prevent an attorney—knowing his or her client is factually guilty of a crime—from entering a plea of not guilty on behalf of the client (although actually it’s the client who states the plea in most cases).
As you probably know, in the United States criminal defendants are presumed innocent until proven guilty. The plea of “not guilty” is necessary in order to force the state to prove its case. It’s not a claim of innocence made under oath. Someone who pleads not guilty and is proven guilty is not also guilty of perjury, for example. As Robert F. Cochran, Jr. explained:
But, of course, courts do not treat the plea inquiry seriously. Courts expect criminal defendants to plead “not guilty,” irrespective of their guilt. They have avoided what would likely be a constitutional problem by giving defendants what might be called a “right to lie” at the plea inquiry.
“How Do You Plead, Guilty or Not Guilty?”: Does the Plea Inquiry Violate the Defendant’s Right to Silence?, 26 Cardozo L. Rev. 1409, 1433 (2005). Cochran describes several rationales for this right to lie, including one by Jack Sammons:
[In a criminal trial] there is only one truth which concerns us, and that is the truth of the government’s case. No other truth matters. We permit the defendant the dishonesty of the not guilty plea, and of the questioning of what he knows to be the truth, and, in doing so, we destroy the dishonesty of the plea and of the questioning. . . . It is not dishonest to lie to others when society removes the expectation of the truth for its own moral purposes . . . . [W]hen [the defendant] lies or [defense counsel lies] for him, to put the government to the test by a plea of not guilty or a questioning of what he knows to be the truth, that is not lying at all because only one truth matters—the truth of the government’s case.
In any case, there are many reasons why a client “admitting guilt” to his or her attorney is not the same as the client being legally guilty. Legal guilt requires that the state prove its case, which doesn’t always happen even when the client is factually guilty. And the client could be confused, insane, have a faulty memory, or be lying to his or her attorney in order to protect someone else. So there is no reason for the attorney to feel ethically compelled not to allow the client to enter a plea of not guilty even if the client confesses to the attorney.
Now, what a lawyer can’t do is knowingly assist a client in committing perjury. This usually isn’t a problem in a criminal case, since most criminal defendants don’t take the stand. But if they do (and that’s ultimately the client’s choice, not the attorney’s), the attorney can’t ask questions knowing that the client is going to lie. There are a few approaches here:
1. The attorney can withdraw. This is difficult to do in the middle of a trial, but it’s usually not necessary because of option 2.
2. The attorney can simply invite the client to give an open-ended narrative. For example: “Tell us what you remember from that night.” Usually this story will get destroyed on cross-examination, but that’s why criminal defense attorneys usually advise their clients not to take the stand. This approach is approved by Model Rule 3.3 and its New York and Alabama equivalents.
3. In some states the attorney can let the client perjure themselves and then inform the court of the perjury. Obviously this is not a very satisfying approach for the attorney or the client.
4. Some commentators, such as Monroe Freedman, have argued that the attorney should simply question the client in the usual way, perjury or no. Freedman would say that the attorney can’t coach the client on how to lie most persuasively or rehearse the false testimony, but there’s no need to dance around the issue with open-ended narrative questions, either. This is a controversial position, to say the least. See, e.g, Stephen Gillers, Monroe Freedman’s Solution to the Criminal Defense Lawyer’s Trilemma is Wrong as a Matter of Policy and Constitutional Law, 34 Hofstra L. Rev. 821 (2006). It is also universally rejected by ethical codes in the US, but I include it for completeness.
The rest of the book is pretty accurate, and it actually hits a lot of key points regarding withdrawing a confession and cross-examining witnesses. The one major error is irrelevant to the plot anyway. It’s always nice to see a book that gets the legal details right and also tells a good story.