She-Hulk #4

She-Hulk #4 brings up one legal issue and a host of ethical issues.  Minor spoilers ahead, but nothing earth-shattering.

I. Conflict Currency?

Previously we learned that Jennifer Walters’s client, Kristoff Vernard, son of Victor von Doom, was seeking asylum in the United States.  He hired Walters and paid her in Latverian Francs.  Unfortunately for Walters, when her assistant Angie Huang went to deposit them at the bank the money was confiscated as “conflict currency.”  Unfortunately for us, I can’t find any indication that this is an actual legal concept.

The US places a lot of economic restrictions on countries such as Cuba, Syria, and North Korea, but as far as I can tell there is no US law or regulation prohibiting possession of Cuban pesos, Syrian pounds, or North Korean won.  Now, there are definitely laws and regulations that go the other direction.  For example, part of the Cuban embargo prohibits the withdrawal or export of currency from the United States by, or on behalf of, or pursuant to the direction of Cuba or a Cuban national.  31 CFR § 515.201(a)(3).  But the US seems less concerned about the importation or possession of Cuban currency per se, as far as I can tell.

However, in the case of a larger embargo (like the one against Cuba), it would be entirely possible to argue that possession of a large quantity of Latverian Francs is strong circumstantial evidence of a significant business transaction with Latveria or Latverian nationals.  And since the Latverian Francs represent proceeds of the crime, they would be subject to civil forfeiture.

It’s also possible that the US could simply pass a law making it illegal to possess Latverian Francs outright.  But “conflict currency”, both as a term and as a concept, does not seem to be a real thing, as far as I can tell.

II. Client Confidentiality and Ethical Advice

There are two major ethics issues in She-Hulk #4.  First, Walters goes to San Francisco, new home of Matt Murdock (aka Daredevil), where she discusses the Vernard case.  She doesn’t discuss much that wouldn’t be a matter of public record, but it raises a point worth mentioning briefly.  There is an important exception to the duty of confidentiality when a lawyer needs to secure their own legal advice about how to comply with the rules of professional conduct.  ABA Model Rule 1.6(b)(4).  Walters’s conversation with Murdock can be seen as falling under that exception.  They are clearly speaking to one another as attorneys, in a confidential setting (the top of the Golden Gate Bridge), about an important ethical issue, which is:

III. The Limits of Zealous Advocacy

Murdock says that “We’re lawyers, and so we take an oath to be zealous advocates for our clients–to go to any lengths to represent their interests.”

There is a lot to unpack here.  The phrase “zealous advocate” gets tossed around a lot when discussing legal ethics and a lawyer’s obligations to his or her clients, but let’s start with this oath business.

In New York the attorney’s oath is the same as any other public office, as prescribed by the state constitution, art. 13, § 1:

I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the office of ……, according to the best of my ability

No zealous advocacy there.  Here in Missouri the oath is specific to attorneys and a bit more elaborate, but there’s still nothing in there about zealous advocacy, at least not directly.  There is a reference to the Rules of Professional Conduct, though.  Maybe that’s where it sneaks in?

Sort of.  The preamble to the ABA Model Rules describe “the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.” (emphasis added, and more on that part later).  And comment 1 to Rule 1.3 (“Diligence”) states that:

A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

But that’s it.  There’s no express rule requiring zealous advocacy, and the references to zeal are always tempered with discretion, lawfulness, courtesy, and civility.  Whatever zealous advocacy means, it most certainly does not mean “go to any lengths to represent [a client’s] interests.”

And this is more than just Murdock oversimplifying or exaggerating the role of the noble attorney, who must sacrifice everything for the good of the client.  No, he goes on to explain that, since he and Walters are superheroes, their “any lengths” stretch a lot farther “than it does for your average attorney drafting wills in Peoria.”  He then uses this to justify teaming up with Spider-Man to break Felicia Hardy (aka Black Cat) out of jail, assaulting numerous guards in the process, because they believed she had been framed but (evidently) could not prove it.

And that’s where it all falls apart.  Look back up to those excerpts from the Rules.  Murdock didn’t stay “within the bounds of the law.”  He literally used offensive tactics.  It would be one thing if he used his powers to go the extra mile by, for example, being able to tell if a witness was lying or by collecting evidence the police would miss.  And indeed he does that.  But he cannot possibly justify something like breaking Hardy out of prison by reference to the ethical rules.  They just don’t work that way.

Alas, Walters is persuaded by Murdock, and so she travels to Latveria, busts some Doombot heads, and persuades Doom to let his son live his own life.  It’s a fun and funny story, but I think Walters learned the wrong lesson.  The real lesson to learn from Murdock is that sometimes being a superhero is just plain irreconcilable with being an attorney, and you have to choose which is more important.  Frequently Murdock chose being a superhero.  In the end that got him disbarred in New York.  What I would have liked to have seen is a conversation about whether that was worth it, not an attempt to rationalize what Murdock did.  He can’t have his cake and eat it too.

17 responses to “She-Hulk #4

  1. I would presume that the idea of “zealous advocacy” is implied under the commonly accepted meaning of “to the best of my ability”. An advocate must do his very best, in other words, be “zealous” and do all he can to advance his client’s case (within the bounds of other ethical demands).

    For supers, I would imagine that the “zealous advocate” dilemma would most applies to defense attorneys for villains. Even if the client is obviously guilty (or confesses), it is still the defense’s duty to do everything possible (again, so long as it is legal and otherwise ethical) to gain acquittal at trial.

    • James Pollock

      “zealous advocacy” is a buzzword often referenced, though not actually required, much like the Hippocratic Oath is to doctors.

      To me (not an attorney, although I did score fairly highly on the MPRE) zealous advocacy can be seen as becoming aware of every possible tactic and strategem, and then choosing from them wisely. So, for example, if an opposing counsel submits documents electronically at 12:04PM the day after the due date, they COULD choose to attack the documents as untimely, but should not, as the long-term effects of being seen as a dick are likely to be ultimately injurious to the client’s interests.

      I don’t think it’s inherently impossible to be a superhero and a lawyer, although the diligence rule would create some interesting situations (is it reasonable for me to put down this work, miss my client’s deadline, and jeopardize his interests, in order to save the city from Mr. Awful and the League of Property Destruction?) but secret identities probably are categorically outside the ethical rules, as a secret identity is inherently deceptive.

  2. I have no legal idea concerning this, but I had some thoughts on it.

    I thought a “conflict currency” was just one whose value fluctuated wildly as a result of conflicts – like the German mark in World War 2, or Confederate currency during the War of Northern Aggression in the US? If so I can see it being made illegal if it was the currency of a nation to which the US (or whoever) is at war with, since money is often printed to finance wars and so purchasing any at all would be de facto financing of the other side.

    Again, I have no idea whatsoever about any legal basis regarding this, it’s just some thoughts.

    • I don’t believe either of those applies (and I don’t think that the U.S. ever actually banned a currency though I could be wrong on that), and even if they did Latverian currency still wouldn’t fall under those restrictions since the nation generally does not seem to be economically unstable, nor is it at war with the United States.

      • James Pollock

        “I don’t think that the U.S. ever actually banned a currency”

        The U.S. declared confederate money to be without value. Is that the same thing?

      • There could be said to be some precedent set by that, but Latveria is not a part of a nation that is rebelling in an effort to become a separate nation-state. Latveria is a recognized sovereign nation-state with all the rights that come with that, including a recognized currency.

        Indeed, while I haven’t read the issue so I can’t speak with total knowledge of it, it’s pretty strange that they wouldn’t know that the money was not legally usable in the United States and even stranger that client would be carrying the sum on him instead of paying her with a check from some bank account. And simply seizing the money? As we see here, it is actually very possible for someone to legitimately have that money without taking any part in illegal activities by the Latverian government.

        Adding to that the fact that any intelligent member of the Latverian government probably has a secret account somewhere in Europe purely in American dollars, and this is possibly the most counterproductive sanctions I’ve heard of to date. What’s the point of banning a currency when they’re probably doing all their illegal business in resources and American dollars?

    • I think “conflict currency” is a conceptual play on “conflict diamond” (also known as “blood diamonds”, which are illegal to trade in many nations.

    • James Pollock

      “I thought a “conflict currency” was just one whose value fluctuated wildly as a result of conflicts”

      I agree with the comment below that it probably is derived from “conflict diamonds”… on the one hand, they are often mined with forced labor and used to fund anti-social activities, on the other hand, they are not under the control of the diamond cartel which acts to limit supply. I am only troubled by one of these, but some governments by the other or by both.

      “since money is often printed to finance wars and so purchasing any at all would be de facto financing of the other side.”

      Trading with the enemy can certainly be made illegal. But mere possession of the other side’s currency? I’m leery of any law that criminalizes possession of currency. Well, except for the 1933 Double Eagle. There’s literally only one in the world that was legally obtained.

  3. I wonder if this was written to try to establish that superheroes should be left to do good things as a counter to points raised around the events of the Civil War story. If so, then sadly all it did was remind us that the Registration side had some pretty good points.

    • The point of the Civil War story line was that both sides had good points, instead of being the usual good-guys-vs-bad-guys. Even Captain America could see that the registration side had some points, and for him that’s really saying something.

      • James Pollock

        Well, the point of the Civil War was to offer an opportunity to pit good guys against other good guys (see Secret Wars, The Marvel Super-Hero).

        But yeah, both sides had good points. The best drama exists when the bad guys have good reasons for what they do. (See “Heart of Ice”, Batman animated series. Seriously… see it.)

  4. James Pollock

    Is it not possible that “zealous advocacy” is required not by legal ethics, but by the law of agency?

  5. Guy Plunkett III

    I don’t know about “conflict currency” but I have a distinct memory of stamps from North Korea being verboten. As a 10 year old stamp collector I picked some up when we lived in Germany in the early 60s, and was told (by the dealer, IIRC) that they were illegal to have in the US. Something about the 1917 Trading with the Enemy Act. What a rebel 😉

    • James Pollock

      Well, there is some danger in obtaining your legal advice from German stamp dealers.

      • Greg Price

        Well, a stamp dealer would be expected to know quite a bit about laws that applied directly to the subject of stamps.

        I wouldn’t go to a German stamp dealer for advice on, say, an American divorce, but I’d at least take under advice what he had to say on the subject of the legality of possessing certain stamps in the US.

    • That sounds rather improbable, and I wonder what court would enforce it over a stamp, however this site is very careful to note that you should never seek personal legal advice here, so if you were ever in that position obviously you should seek the advice of a lawyer.

      • James Pollock

        I did what most people would do. I looked it up on Wikipedia.

        There IS an article on North Korean postal history and postage stamps. It does not mention anything about them being illegal. It does say that North Korean postage stamps have English writing on them.

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