Category Archives: legal ethics

She-Hulk #3

She-Hulk #3 picks right up where issue #2 left off, introducing Jennifer Walters’s second client: Kristoff Vernard, son of Victor von Doom.  Kristoff is seeking political asylum in the United States, and while Walters was his fifteenth choice to represent him, she agrees to take him on as a client.  This issue mentions a lot of details relating to the law of asylum, so I’m going to take a stab at explaining those.  And once again it wouldn’t be She-Hulk without an ethically questionable decision or two!

I. Political Asylum

Walters explains that obtaining asylum requires proving that the asylum seeker has a “well-founded fear of persecution” in their country of origin and that living in the United States is the only way to get away from it.  This is basically accurate.

The well-founded fear of persecution standard is derived from the standard for refugees, 8 U.S.C. § 1101(a)(42):

The term “refugee” means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion

The “unable or unwilling to return” part is presumably what Walters meant by “living in the United States is the only way to get away from it.”

Of course, that’s merely the standard for refugee status.  Claiming asylum is a little more detailed, requiring four elements described by the Board of Immigration Appeals:

(1) the alien possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; (2) the persecutor is already aware, or could easily become aware, that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and (4) the persecutor has the inclination to punish the alien.

Matter of Mogharrabi, 19 I. & N. Dec. 439, 446 (1987).  Vernard would seem to meet these four factors, and presumably his unwillingness to serve the Latverian government would count as a political opinion.

The next major thing Walters asks about is how long Vernard has been in the US.  It turns out he has been in the US for exactly one year, which sends Walters racing to get to the courthouse.  Again this is correct.  There is a hard one year limit on asylum claims. 8 U.S.C. § 1158(a)(2)(B).

Walters exaggerates a little when she says there isn’t a judge in the world that will stay past five.  There are often judges or at least magistrates on call for late-night search warrants and other time-sensitive court business, but this doesn’t fall under any of those circumstances.

When Walters and Vernard finally make it to the court, the judge asks whether there is an I-589 on file or an EOIR-28.  The first is an application for asylum.  The second is a notice of entry of appearance as an attorney, which would need to be filed before Walters could represent Vernard before the New York City Immigration Court, which is indeed located at 26 Federal Plaza as described in the first page of the comic.

Curiously (to me), Walters argues that Vernard is eligible for asylum because he is being persecuted because of membership in a particular social class, namely the Latverian royal family.  It is true that a family can qualify as a particular social class.  Gebremichael v. I.N.S., 10 F.3d 28 (1st Cir. 1993).  But Vernard isn’t being persecuted simply because he’s a member of the Latverian royal family; indeed his membership in the royal family affords him numerous privileges and protections.  Rather, it is his refusal to follow the government’s policy of succession that is the source of the fear of persecution.  If, for example, Vernard were a member of the royal family but not heir to the throne he wouldn’t have a well-founded fear of persecution.  But I won’t quibble about that too much: Vernard still had a good claim based on political opinions, and membership in the royal family is a little easier to explain.

II. The Duty of Confidentiality and the Attorney-Client Privilege

Once again it wouldn’t be She-Hulk without a casual ethical lapse.  Rather than conduct Vernard’s intake interview at her office, Walters takes him to a coffee shop, where they discuss the case in the crowded shop and outside with several people nearby.  Nothing they discuss is an important secret (it’s not as if they’re discussing where he hid the body or something), but it is nonetheless a potential violation of the duty of confidentiality.

Attorneys owe a duty of confidentiality to their clients.  In New York this duty is described by Rule 1.6:

(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule …

“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege

But information cannot be protected by the privilege if the lawyer discusses confidential information with the client in a non-confidential setting.  This can include communicating in the presence of third parties.  See, e.g., People v. Harris, 57 N.Y.2d 335 (1982) (speaking to a lawyer in the presence of a police officer and another person); Bower v. Weisman, 669 F.Supp. 602 (S.D.N.Y. 1987) (talking in an elevator).  If the communication is never really confidential then the privilege doesn’t exist.

Now, there’s no ethical problem if the client voluntarily disregards confidentiality, but in this case Walters was the one to (firmly) request conducting the interview in public.  Vernard may have reasonably believed that the conversation would be protected, since his (prospective) attorney was the one to suggest the idea.

Again, we don’t see Walters or Vernard discuss anything terribly secret or damaging in public, but it’s a bad practice to discuss a case with a client in public.

She-Hulk #2

Today’s post is a short one based on the second issue of Charles Soule’s run of She-Hulk.  Soule continues to do great work, though this issue doesn’t have quite as many legal issues to discuss.  A big one is revealed at the end of the issue, but I don’t want to spoil it.  Instead I’m going to talk about attorneys and non-compete agreements.

When Jennifer Walters left her job with the firm of Paine & Luckberg, she was told that all of her outstanding cases would be assigned to other associates, except for “the blue file.”  As a partner explains, “we took that case as a courtesy to you.  If you go, it goes too.”  We learn a little more about the mysterious blue file in issue #2, but not enough to discuss yet.  What we do see in issue #2 is Walters trying (and failing) to drum up business from clients for whom she did work while she was at Paine & Luckberg.  But wait: is it legal for an attorney to attempt to poach clients from her former employer?  Perhaps surprisingly, the answer is yes.

Non-competition and non-solicitation agreements are a common feature of many employment contracts, especially in industries that are dependent on sales relationships with specific customers or which involve employees learning a lot of not-quite-trade-secrets-but-still-important information.  The specifics vary from industry to industry, employer to employer, employee to employee, and (most importantly) state to state, but basically they seek to prohibit the employee from competing with the employer for a certain amount of time after the employment relationship is terminated.  This can include working for a competitor, working in the same industry, or trying to solicit the employer’s clients.  A few states basically ban the practice outright, and those that allow it do so with significant restrictions.  This usually takes the form of limitations on the geographic, temporal, and industry scope of such agreements.

For example, an employee might be forbidden from working in the same (relatively narrowly defined) industry, for a year or two, within the same city.  This means the employee could find similar work in another part of the country, or work in a related but distinct field, or just wait it out.

New York, where She-Hulk works, is a state that allows such restrictive covenants, but only to the extent that they are reasonable and necessary to protect valid business interests.  The general rule is that they are allowed if they are “reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee.”  BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 388-89 (1999).  But there is a special rule for attorneys.

In every state that I am aware of (including New York) there is an ethical rule similar to ABA Model Rule 5.6, which states:

A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement;

The justification for the rule is found in the comments, which state that

An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer.

One might observe that this is equally true of every other profession and its clients, but there is not necessarily any hypocrisy here.  Remember that this is an ethical rule created by the legal profession, not an exception to the law.  Without this rule it is entirely possible that law firms could impose non-compete agreements on their employees and partners, although one could imagine a court carving out an exception for criminal defendants on the basis of the Sixth Amendment right to counsel.

The bottom line is that, although the firm intended to keep its clients, Walters was almost certainly free to try to poach them.

She-Hulk #1

Marvel has started a new run of She-Hulk, written by practicing attorney Charles Soule.  In contrast to the somewhat further ranging series written by Dan Slott, this volume promises to focus somewhat more closely on Jennifer Walters’s day job.  So has Soule’s considerable legal experience allowed him to blend interesting stories and accurate legal detail?  Let’s take a look.

(Spoilers ahead: if you haven’t checked out the first issue (which is pretty good), go buy it.)

Continue reading

Law and the Multiverse Online CLE Programs

For many attorneys it will soon be annual CLE reporting season.  If you need CLE credits, we may be able to help.  We have partnered with Thomson West in the past to produce four online, on-demand programs with CLE credit available in most states:

What Superheroes and Comic Books Can Teach Us About Constitutional Law

Real-Life Superheroes in the World of Criminal Law

Everyday Ethics from Superhero Attorneys

Kapow! What Superheroes and Comic Books Can Teach Us About Torts

For a 20% discount on any or all of these programs, use code KABLAM2013.

And if you missed the IP and the Comic Book Superhero program presented by the ABA IP Section, it is available for pre-order as an audio CD for delivery on May 17th.  It may be available as an on-demand program later, I’m not sure.

Finally, if you’ve already taken these courses or are looking for something different, keep an eye out for a new program (presented by Thomson West) to be announced soon.

ABA Litigation Section Roundtable

On Tuesday, March 19th I will be speaking at an ABA Section of Litigation Roundtable, presented by the Business Torts Committee and co-sponsored by the Young Advocates Committee.  The Roundtable will be available via teleconference from 12pm-12:50pm Central / 1pm-1:50pm Eastern and also live here in St. Louis at the St. Louis University Law School, room 303.  Click here to register for the teleconference.  If you would like to attend in person, please RSVP to laura.mclaughlin@logan.edu.

The roundtable topic will be superhero attorney ethics, but since this is not a CLE presentation, the conversation will not necessarily be limited to that subject.  I hope you can attend!

The Money Pit

The Money Pit is a 1986 film directed by Richard Benjamin and starring Tom Hanks and Shelley Long. Hanks plays Walter Fielding, a young New York entertainment lawyer, who with his girlfriend Anna (Long) are forced to find a new place to live on short notice when Anna’s ex-husband returns from Europe, tossing them out of his apartment, where they had been living. They discover what appears to be a lucky break in the form of a stately old mansion which is being forcibly sold to pay for legal fees.

Walter is himself in fairly hot water when the movie begins. Sometime prior to the events of the film, his father, a former partner in what seems to have been a father-and-son law practice, absconded with $2.9 million in client funds. It’s not clear precisely how this was done, but the substance of it seems to be that he made off with the firm’s trust account. Walter is left paying the bill.

To secure the sale of the house, Walter borrows $200,000 from a client. The client happens to be a minor and a stupidly successful pop star, so he can afford it.

So the questions here are (1) whether Walter really would be left to pay his father’s debts, and (2) whether it’s legal and ethical to borrow money from a client under those circumstances. Continue reading

Castle: “Probable Cause”

There are a lot of spoilers in this one, so we’ll cover the setup inside. But the issue we’re looking at here is the nature of the criminal offense of escape and its potential sentence under New York Penal Law Continue reading

Daredevil: Redemption

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.

III. Perjury

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.

IV. Conclusion

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.

Daredevil #18

The most recent issue of Daredevil raises some interesting legal questions, though unfortunately we may have to wait until the next issue to get all the details.  Nonetheless, let’s see what we can figure out from what we know already.

(As usual, there are spoilers ahead, but you really should be reading Mark Waid’s Daredevil run.  It’s available digitally via Comixology or in print at your friendly local comic book store, so go get a copy and come back.)

I. Accessory to Murder

The “client of the month” in this issue is the brother of Adele Santiago, a nurse working for drug kingpin Victor Hierra.  Adele was charged with being an accessory to Hierra’s murder.  The only problem is that he and she were in a locked room when Hierra was killed, drained of his blood without leaving a trace of evidence.  Presumably lacking enough evidence to charge her with the murder directly, the prosecutor charged her with being an accessory.  Under N.Y. Penal Law § 20.00, acting as an accessory to a crime carries the same criminal liability as the underlying crime:

When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.

We can probably eliminate the “solicits, requests, commands, [or] importunes” part, leaving “intentionally aids.”  I suspect the prosecutor’s theory will be that Adele helped the murderer enter and leave, presumably taking Hierra’s blood with him.

Now, you might think, “wait, how can Adele be charged with being an accessory to murder if the prosecutor can’t prove who killed the victim?”  It turns out that it doesn’t matter:

In any prosecution for an offense in which the criminal liability of the defendant is based upon the conduct of another person pursuant to section 20.00, it is no defense that: … 2. Such other person has not been prosecuted for or convicted of any offense based upon the conduct in question

N.Y. Penal Law § 20.05.  Thus, it’s enough that the prosecution can prove that Hierra was murdered (which should be easy: draining someone’s blood without leaving any evidence doesn’t exactly happen by accident) and that Adele helped.  The evidence is all circumstantial, but that can be enough if there’s no reasonable doubt.

II. The New Business Model, Redux

So that’s what Adele is charged with, but she isn’t the one who came to see Foggy at the former Nelson & Murdock (now just Nelson) law office.  Rather, Adele’s brother (first name not given) showed up, asking about Nelson & Murdock’s services assisting clients in representing themselves.  We’ve written about that before and concluded that, while difficult to do well, it is theoretically ethically sound, at least in New York.  That makes this exchange between Adele’s brother and Foggy kind of weird:

AB: [Adele's corrupt public defender] barely makes an effort.  You must teach me what I need to know.

Foggy: *Sigh* Mr. Santiago, this isn’t a dispute over a neighbor’s fence.  This is way above your pay grade.  I can’t teach you.

It’s just as well that Foggy ultimately decides to take the case as Adele’s lawyer, since Adele’s brother couldn’t represent her himself.  (Basically) anyone can represent themselves, but only a lawyer can represent another person, at least in the US.

Similarly, since Adele’s brother isn’t a lawyer, Foggy couldn’t ethically teach him to teach Adele, for at least two reasons.  First, attorney-client privilege would go out the window because everything would be going through a third party.  Second, it’s hard enough to do a reasonable job of teaching someone to represent themselves; teaching a person to teach another would be much more difficult.  So while Foggy came to a correct result (representing Adele directly), the alternatives he seemed to be considering made no sense.

III. Conclusion

Several more legal questions came up in this issue, but we’ll have to wait and see what happens before we can comment on them fully.  We may also revisit Adele’s case and Foggy’s representation.  It will be interesting to see where Waid goes with both.

Daredevil #17

Today’s post covers the latest issue of Daredevil, “Divide by Hero.”  Mark Waid’s run continues to be terrific, and this issue was particularly good.  Most of it is a flashback, so it’s a good issue to check out even if you haven’t been following the series (which you really should be).  A couple of legal issues stood out in this issue, including one involving my personal area of practice, patent law, which doesn’t come up terribly often in comics.  Minor spoilers ahead.

I. Invention Promotion Companies and Other Scams

Part of the flashback story involves a scientist, Elliot Pasko, who had been taken in by a company called Fortknight, which Foggy Nelson describes as “a predator corporation posing as a no-strings endowment fund.  They stake promising young inventors…then bury them with bogus ownership claims, patent infringement allegations, and worse whenever their ‘beneficiaries’ strike gold.”  As it turns out, there are quite a few scams aimed at inventors, though they usually don’t take this form.  Nonetheless, what Foggy describes could work.

The most common form of scam is the ‘invention promotion company.’  The United States Patent and Trademark Office has a useful page that details the common elements of these scams.  Basically they lure inventors with unwarranted promises of success at the Patent Office and easy money, when in reality they either deliver nothing or, at most, an often useless design patent that protects only the non-functional design of a thing.  The kinds of companies are a real problem, particularly for individual inventors, but Fortknight seems to be operating a different kind of scam.

I suspect that the way Fortknight’s scam would work is that the company would promise research funding, but hidden in the agreement would be an assignment of patent rights from the inventor to Fortknight.  Then, as soon as the research was far enough along to apply for a patent, Fortknight would pull the rug out from under the inventor, obtain a patent, and sue the inventor if he or she tried to continue their research elsewhere.  If an inventor assigns their rights, then they can be prevented from making, using, or selling their own invention just like anyone else.

As a side note (and as discussed in our review of Daredevil: Yellow), there’s no reason that Nelson & Murdock couldn’t take this case, since it involves patent litigation rather than practice before the United States Patent & Trademark Office.

II. Profit Sharing and Legal Ethics

Foggy took Pasko’s case under curious terms: “all the pro bono he required in exchange for ten percent of future profits.”  Now, pro bono doesn’t necessarily mean free; it can also mean working at a substantially reduced rate, but this isn’t pro bono work.  This is for-profit work (literally) that is effectively a kind of contingent fee, since if Pasko loses then there definitely won’t be any profits.  But is this kind of thing ethical?  The answer is a highly qualified yes.

In New York, “A lawyer may accept an equity interest in a client if the lawyer complies with the Rule of Professional Conduct governing business transactions with clients and the acceptance does not otherwise create a conflict for the lawyer or result in an excessive fee.”  NYSBA Opinion 913.  Entering into a business transaction with a client in this way brings with it several requirements, including that the transaction be fair, reasonable, and communicated in writing.  The client must also be advised of and be given a reasonable opportunity to seek independent legal advice regarding the transaction.  And the client must communicate his or her informed consent in writing.  Contingent fee arrangements likewise have their own rules, mostly to do with carefully explaining the nature of the fee agreement in writing.  See NY Rule 1.5(c).

Other jurisdictions have taken a similar approach.  See, e.g., LA County Bar Assoc. Formal Opinion No. 507; DC Bar Opinion 300.

I’ll admit that I was a bit surprised by this result.  I knew that lawyers could, under some circumstances, enter into business transactions with clients, and that lawyers could take contingent fees.  But I did not expect that the two could be ethically combined.  I would have thought that combining the risks involved would simply be too much and that ethics committees would opt for a bright line rule prohibiting the practice.

III. Conclusion

Daredevil doesn’t always get the law right, but it’s better than most comics on that score.  And despite my initial skepticism, it looks like it was right this time around as well.  Kudos to Mark Waid for combining accuracy and excellent storytelling.