Category Archives: legal ethics

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.

Daredevil: Born Again

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.

II. Disbarment

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.

III. Conclusion

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.

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!

Wolfram & Hart and…Legal Ethics?

Our latest monthly column at Subculture for the Cultured has just been published.  It answers the following question sent in by Arthur:

On Joss Whedon’s show Angel, the law firm Wolfram and Hart hire Angel as CEO. As far as I know, if you incorporate a law firm, it can only be owned by lawyers. Does any rule like this apply to officer positions as well? Would there be any legal ramifications of having Angel as their CEO without any business or legal experience?

The answer might just surprise you!

The Dark Knight: Legal Ethics

So The Dark Knight Rises comes out next week. In preparation, we’re taking a look at one of the issues from The Dark Knight. Specifically… isn’t Coleman Reese violating the rules of professional ethics? (Spoilers below!)

I. The Setup

Coleman Reese is an attorney hired by Wayne Enterprises to assist with the pending merger with LSI Holdings. While “running the numbers,” Reese discovers some irregularities and goes on a fishing expedition. He finds blueprints of the Batmobile (aka the Tumbler) and—correctly!—concludes that Bruce Wayne is Batman. One of the funnier moments in the movie is here, where Reese attempts to blackmail Wayne Enterprises by confronting Lucius Fox about this discovery. Suffice it to say that he hadn’t crunched all of the relevant numbers.

Later, Reese goes public, or at least tries to. This is after the Joker threatens to kill people if Batman doesn’t come forward. Things don’t go as planned, and the Joker changes his mind, but that’s the basic idea.

II. The Blackmail

Clearly, blackmail is a bad idea. Blackmailing Batman is a worse one. But apart from the blackmail, Reese was right to go to Fox about his discoveries. ABA Model Rule 1.13, Organization as Client, reads, in part, as follows:

(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.

Bruce Wayne is certainly a “person associated with the organization,” and he’s definitely acting in a manner related to the representation—spending Wayne Enterprises’ money, if nothing else—which is probably a violation of a legal obligation to the organization, i.e., not wasting shareholder dollars or using corporate assets for personal projects. That’s called “embezzlement”. It’s also “likely to result in substantial injury to the organization,” as that cellphone surveillance project wasn’t exactly free. Not to mention any negative press or damage to the corporation should Batman’s identity be discovered. And the right thing to do if a lawyer for a corporation discovers something like that is to go to the CEO. Which Reese did. And if he’d simply said “Mr. Fox, we’ve got a problem here,” he’d have been entirely in the clear. Unfortunately, he got greedy, with hilarious results.

III. The Media Interview

But when the Joker threatens mayhem should Batman not step forward, Reese decides to go to the media. This time, he’s actually in the clear, completely. ABA Model Rule 1.6, Confidentiality of Information, reads, in part:

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:(1) to prevent reasonably certain death or substantial bodily harm;

It doesn’t say that the client will be causing the death or injury, just that revealing the information is reasonably necessary to prevent such. So if a lawyer has information about a client, and the lawyer reasonably believes that revealing it will save someone’s life, they can reveal it (NB they don’t have to, but they may). That’s what Reese decided to do. The Joker threatened to kill people unless he got this information, and Reese reasonably concluded that revealing that information might save people.

Of course, the Joker changed his mind, at which point revealing that information would not be reasonably calculated to save anyone’s life. So if he had revealed the information after the Joker changed the terms, he’d have violated the rules of ethics.

III. Conclusion

So while Reese trying to blackmail Wayne was a problem, going to Fox wasn’t. And going public when the Joker threatened Gotham City was actually fine. We’ll have another post about the potential embezzlement issue next week as we prepare for the release of The Dark Knight Rises!

Daredevil: Yellow

Daredevil: Yellow is a fantastic retelling of Daredevil’s origin story by Jeph Loeb and Tim Sale, whose watercolor illustrations are a great match for the setting and mood of the story.  The subtitle is a reference to the color of Daredevil’s original costume.  It’s part of a related series by Loeb and Sale that includes Spider-Man: Blue, Hulk: Gray, and the (hopefully forthcoming) Captain America: White.  The story is framed as a retrospective by Murdock, relating how he came to start a law practice with Foggy Nelson, become Daredevil, and fall in love with Karen Page.

Nelson and Murdock’s first big break comes when the Fantastic Four approach the firm for representation.  We don’t get a lot of detail regarding the work, but Reed Richards describes it as “the lease on the Baxter Building, patents, that sort of thing.”  Foggy eagerly replies “We’d be happy to.  And anything else you might want to bring us, Mr. Richards.”  This is all incidental to the main storyline, but it raises an issue near and dear to my heart: the practice of patent law.

I. The Peculiarities of Patent Law

The practice of patent law can be divided into two broad categories: practicing before the Patent and Trademark Office and “everything else.”  Practicing before the PTO includes:

preparing and prosecuting any patent  application, consulting with or giving advice to a client in contemplation of  filing a patent application or other document with the Office, drafting the specification or claims of a patent application; drafting an amendment or reply to a communication from the Office that may require written argument to establish the patentability of a claimed invention; and drafting a communication for a public use, interference, reexamination proceeding, petition, appeal to the Board of Patent Appeals and Interferences, or other proceeding.

37 C.F.R. § 11.5.  That’s quite the laundry list, but basically, this means drafting and applying for patents, which can involve a lot of communication with the Patent Office, including some adversarial procedures in which a patent is opposed by another party.  It also includes giving advice and counsel regarding alternatives to patents, including those available under state law.  Note that it doesn’t include anything to do with trademarks; with one very narrow exception, only attorneys can do that, and any attorney can.  37 C.F.R. § 11.14.

“Everything else” includes other transactional matters (e.g. negotiating patent licenses) and litigation (e.g. suing for patent infringement).

Why does this distinction matter?  Because not just anyone—or any attorney—can represent someone before the Patent and Trademark Office, whereas any attorney can handle “everything else.”  Admission to practice before the PTO requires a technical background (broadly speaking: a bachelor’s degree in science or engineering or the equivalent, see here for the complicated details) and passing the registration examination, which is sometimes called “the patent bar exam.”  The examination consists of 100 multiple choice questions, mainly derived from the Manual of Patent Examining Procedure, the rulebook for patent examiners.  The pass rate for the exam is considerably lower than most state bar exams.

Notably, admission to practice before the PTO does not require a law degree or a license to practice law.  Non-lawyers who pass the registration exam become patent agents and lawyers who do so become patent attorneys.  Both have the same abilities to practice before the PTO, but only a patent attorney can handle “everything else.”  If a patent agent later becomes an attorney, he or she can pay a fee to have their registration changed to say “patent attorney,” but there is no functional difference.

II. So What’s the Problem?

Actually, there isn’t necessarily a problem.  Reed did say “patents,” not “patent applications,” so it could be that he’s talking about something like negotiating licenses or handling an infringement suit.  While patent attorneys often deal with the full spectrum of patent law, it is not uncommon for patent litigators or patent license specialists not to be patent attorneys.  So Reed could have a separate firm handle the work of obtaining patents (aka “patent prosecution”) and leave licensing and litigation to Nelson and Murdock.  Or Reed could even represent himself before the PTO, which is always an option even for someone who is not a patent attorney or agent, albeit not one that I would recommend, even for someone as smart as Reed.

Alternatively, Nelson or Murdock could be a patent attorney.  I couldn’t find any information on their undergraduate degrees, so it’s possible that one or both of them have the required technical background.  Statistically this is unlikely, since only about 7% of attorneys have a science or engineering degree.  R. Kim Craft and Joe G. Baker, Do Economists Make Better Lawyers? Undergraduate Degree Field and Lawyer Earnings, 34 J. of Econ. Educ. 263, 271 (2003).  Still, it’s possible, and Murdock clearly has an aptitude for mechanical engineering, since his billy club is chock full of clever gadgets of his own design.

III. Conclusion

It’s a pretty minor issue, but I couldn’t pass up an opportunity to talk about this particular quirk of patent law.  I’ll be taking a look at the other books in the Loeb & Sale series in the future, but until then I recommend checking out Daredevil: Yellow for yourself!

My Cousin Vinny: The Perils of Joint Representation

Today’s post is our contribution to Abnormal Use’s My Cousin Vinny 20th anniversary celebration. Although it doesn’t have anything to do with comic books or superheroes, we still recommend giving it a watch. It’s a comedy, but it’s actually one of the more accurate representations of trial procedure in a film (which isn’t necessarily saying a lot). If you haven’t seen it, the Wikipedia article has a thorough plot synopsis, but we recommend buying a copy, since it really is a pretty good movie.

Since the movie has been around for 20 years, a lot of ink has been spilled on it, but there’s at least one issue that isn’t often discussed, probably because it’s only implicit in the film. The issue is that the defendants, Bill and Stan, are represented jointly by Bill’s cousin Vinny, but joint representation is fraught with ethical issues, especially in a criminal case. (For those looking for some kind of connection to comic books, I’ll note that a lot of supervillains work in groups and might find themselves in a joint representation situation. The same ethical issues apply.)

Simultaneous representation of clients whose interests may conflict is a common enough issue that there’s a rule especially for it.  ABA Model Rule of Professional Conduct 1.7:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

The movie takes place in Alabama, and its rule is similar. Notably, the Alabama rules were adopted effective January 1, 1991, so it’s conceivable that the rule applied during the time in which the film is set.

The situation in the movie is an example of paragraph (a)(2): “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.”  What exactly does the rule mean by that?  The official commentary goes into more detail:

A conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.

Rule 1.7 Comment 23 (emphasis added). So it seems very likely that the rule applies in this case.

Paragraph (b) describes the circumstances under which a client can be represented despite a conflict, but unfortunately they aren’t met here. It’s far from his worst ethical lapse (repeatedly lying to a judge, anyone?), but Vinny almost certainly cannot reasonably believe that he “will be able to provide competent and diligent representation to each affected client.”  That is, he might believe it (in fact he nearly says as much), but his belief isn’t reasonable given the seriousness of the case and his lack of experience and knowledge. Nor does the movie contain any indication that Bill and Stan gave informed, written consent, although I might excuse that omission on the grounds that it would be a relatively boring detail.

So why exactly is the potential for conflict of interest so grave in a criminal case?  There are lots of reasons, but a major one is that codefendants may be sorely tempted to point the finger at each other in exchange for favorable treatment (e.g. immunity or a better plea bargain). Imagine in this case if Stan (accused of being an accessory to murder) claimed that it was all Bill’s idea and that Bill had kidnapped him after committing the murder.  That’s a fine defense for Stan, but it puts Bill on the hook for both murder and kidnapping. As their attorney it would be impossible for Vinny to be loyal to both Bill and Stan in that situation. The conflict would be further complicated by his family relationship to Bill.

Another example: neither Bill nor Stan waived their Fifth Amendment rights and took the stand.  What if the prosecution had offered immunity to whichever one testified against the other?  It would be virtually impossible for Vinny to advise his clients fairly.

As it happens the prosecution didn’t offer any deals, and both defendants agreed with Vinny’s strategy, so there wasn’t a serious conflict. And, for what it’s worth, Mitchell Whitfield (the actor who played Stan) says in an interview with Abnormal Use that he doesn’t think Stan would have turned state’s evidence if a deal had been offered: “[L]et’s say it was different, and there was something that I had that I could have used to sort of say, “Oh, look, he’ll get five years and they’ll try him.” No.  Never.  I’m neurotic, but I’m not a narc.”

It’s also hard to fault the writers for not wanting to introduce the complexity of two attorneys (with the exception of the brief appearance of the public defender).  But in many real-world criminal cases it’s a common strategy to turn co-defendants against each other, which is why this rule is so important.

Vinny’s joint representation of Bill and Stan was ethically problematic, even if it was ultimately only a theoretical problem.  In my opinion that makes it all the more worthwhile to examine it, much like the legal issues implicit in comic books. I also don’t think one more ethical breach hurts the movie, since Vinny’s inexperience and ethical problems are essential to the plot.  My Cousin Vinny holds up pretty well even when watching it critically. If you haven’t seen it, I recommend it.