Category Archives: legal ethics

Breaking Bad: Better Call Saul!

In the eighth episode of season two of Breaking Bad, “Better Call Saul,” our… heroes?… learn that one of their own has been busted. It’s time to hire a lawyer. Said lawyer turns out to be Saul “Goodman” McGill. Apparently he does better business when clients think he’s Jewish. This episode is a real workout for legal ethics, so let’s get into it. Continue reading

Grimm Round-Up

Grimm is a new TV series inspired by Grimm’s fairy tales (which have also been adapted into an unrelated comic book series).  The premise is that Nick Burkhardt, a Portland homicide detective, is a descendant of the Grimms, a line of monster hunters who fight the various monsters that inspired the original fairy tales.  The show’s intersection of police procedural and the supernatural is a good fit for us, and some readers have asked about it, too.  Since Grimm is a procedural, there aren’t too many legal issues on any given show, but we’ve picked up a few to discuss from the first three episodes.  Spoilers ahead for anyone who hasn’t seen them.

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Daredevil #3

The third issue of Daredevil took an interesting turn, legally-speaking.  The firm of Murdock & Nelson is trying out a new business model, and there are ethical issues aplenty!

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Daredevil #2

Our coverage of the recently re-launched Daredevil continues with the second issue.  There are some great legal topics here, including criminal procedure and legal ethics.

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Daredevil

As a movie, Daredevil was alright as a movie, but man were there ever some serious legal errors and oddities.  We watched the Director’s Cut, which includes a major subplot left out of the theatrical version.  Like all of our reviews, this one is full of spoilers.

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She-Hulk Gets Disbarred

In the most recent She-Hulk run, we find in She-Hulk # 22 that Walters has been disbarred. We don’t find out why until # 29.

Let’s take a look at what happened. There’s spoilers here for those who care.

I. The Run Up

We learn about what went down in bits an pieces, but most of the story comes out in # 29 in the form of what amounts to a flashback. Why David et al chose to tell the story this way I’ll never know, but whatever. Walters was representing Arthur Moore, aka “Dark Art,” a one-off villain who hasn’t made any other appearances as far a I can tell. The guy had been accused of robbery and had come to Walters’ firm of Goodman, Lieber, Kurtzman, and Book (Holliway having stepped down), for defense. Unlike most other villains, Moore actually sort of picked on Walters fairly consistently for representing a villain, which was kind of weird. In any case, Walters manages to get his case dismissed because all of the evidence the prosecution had was acquired in an illegal search on a pretextual traffic stop. Evidence acquired in violation of the Fourth Amendment being inadmissible, the judge threw out the indictment. If we give the writers a pass for doing this in open court instead of with motions in limine, we’re doing okay so far.

Moore’s personal effects are then returned by the police, and Moore takes possession of them back in the firm’s offices. One of these things is some kind of mystical gem. Moore then asks whether he’s still protected by attorney-client privilege, and when Book tells him that he is, Moore uses the gem to telepathically transmit images of him doing a bunch of bad stuff to kids. She-Hulk goes berserk, punches him through a few walls, and after confronting him in the street, basically tells the entire crowd what Moore has done. On the next page, we find that she’s been disbarred and is leaving the firm.

II. Attorney-Client Privilege The Duty of Confidentiality

Attorney-client privilege is one of the most important features of legal ethics, and ethical issues aside, skilled litigation attorneys are going to be constantly on the lookout for discovery requests and lines of questioning that run up against it.  The foundation of the privilege is an attorney’s duty to keep a client’s confidences.  Unsurprisingly, blabbing a client’s guilt in public is nearly always a violation of that duty of confidentiality.

However, the rule is not absolute, and there are certain contexts where an attorney may reveal information delivered in confidence. One of them may actually apply here, namely N.Y. Rule of Professional Conduct 1.6(b)(1) and (2), which permit an attorney to reveal confidential information to prevent “reasonably certain death or bodily harm” and to prevent the client from committing a crime, respectively. If a client credibly says that he is going to hurt or kill someone, an attorney is not prevented from calling the cops. Depending on how one reads Moore’s revelations, it’s possible that he could have been communicating that there were still kids in danger. In which case he was basically declaring open-season on himself, at least insofar as those particular kids were concerned.

Still, that point is debatable, and if there weren’t any kids in trouble, Walters will be. The book also mentions that it’s inadvisable to attack a client. This is true.  Not only is it illegal, it’s likely an ethical breach as well, since the crime in question “adversely reflects  on the lawyer’s honesty, trustworthiness or fitness as a lawyer” in violation of Rule N.Y. Rule 8.4(b).  After all, would you trust a lawyer who punched her last client through a wall?

III. Scope of Representation

Moore hired the firm to represent him in his robbery case. The information he revealed had to do with entirely different crimes that were not the subject of that representation.  Could Walters’ argue that she owed no duty of confidentiality because the information he revealed was beyond the scope of her representation?

Unfortunately for Walters, almost certainly not. First, scope of representation can only really be limited ahead of time and with the informed consent of the client. N.Y. Rule 1.2(c). Second, just before Moore did his thing, Book specifically affirmed that he was still protected by attorney-client privilege.  As N.Y. Rule 1.6(a) says, confidential information specifically includes information that is:

(a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.

The fact that Moore was using that to goad She-Hulk into doing something stupid is probably not going to matter: being a fiduciary means putting the interests of the client ahead of one’s own.  And being a criminal defense attorney means that sometimes you have to keep terrible secrets.

IV. Getting Disbarred

The question then becomes whether all of this was enough to get She-Hulk disbarred. That’s debatable. Disbarment is the most serious punishment in the legal ethics context. It means losing one’s ability to practice law, probably permanently, and getting disbarred in one state can serve as grounds for getting disbarred in the rest. Because it is so serious, disciplinary commissions—usually arms of state supreme courts—tend to impose lesser penalties like reprimands and temporary suspensions before they disbar someone.

Here, disbarment seems perhaps a bit much. Walters had not been up on any ethical charges to this point—as far as we know—and her breach does not actually seem to have put Moore in any legal danger. We don’t hear anything about Moore being prosecuted or otherwise getting in additional legal trouble. It seems plausible that the New York Departmental Disciplinary Committee would go for a lesser punishment. Still, it’s not impossible that disbarment could have resulted, as there is usually some discretion there, and publicly violating the duty of confidentiality is pretty serious.

Of note: in New York an attorney is automatically disbarred if he or she is convicted of a felony.  N.Y. Judiciary Law § 90(4).  If Walters plead guilty to a minor felony charge in regard to the incident (e.g. second degree assault), that would be sufficient to result in her disbarment.  If she stayed out of trouble for seven years she could apply for reinstatement.  N.Y. Judiciary Law § 90(5)(b).

V. The Set Up

Except for the fact that the whole thing was a set up. There were no kids in danger. Moore did what he did deliberately, at the behest of someone trying to destroy She-Hulk, personally and professionally. We find out that he had abducted the kids, but that they were all being kept in a cabin upstate, well cared for. He returned them once Walters’ disbarment was finalized. The DDC is not likely to look very kindly on this kind of sting job, and may well have been amenable to reversing itself should Walters have cared to make a motion. Turns out she didn’t, as she was pretty disillusioned by the whole affair, but it seems likely that Walters could have gotten her license back without the massive public relations stunt she pulls a few issues later.

VI. Conclusion

So basically, this story works. Breaching the duty of confidentiality is a violation of legal ethics, and can serve as grounds for getting disbarred. It’s unlikely, but not impossible, that the DDC would have disbarred Walters at this point, but one can argue that her status as She-Hulk makes her situation delicate enough that they may have gone straight for disbarment. And the fact that the whole thing was a set up may mean that she could have gotten her license back, but the story is pretty clear that she didn’t want to, so that’s more or less moot.

As the She-Hulk stories from # 22 on don’t involve Walters practicing law, there’s a lot less here than there is in the earlier stories. There’s probably another post or two to be had, but we’re reaching the end of the material here, at least with regard to legal ethics.

Manhunter, Volume 4, Part 3

We’ve made it to the last part of our series on Manhunter volume 4. This is also the penultimate entry in our larger series on Manhunter, since volume 5 is pretty light on legal issues. To celebrate wrapping up this series, we’re giving away a complete set of volumes 1-5 of the Marc Andreyko run of Manhunter. To enter, simply send an email with “Law and the Multiverse Manhunter Giveaway” in the subject to james@lawandthemultiverse.com.  Please note that you must be 13 or older to enter.  We’ll choose a winner at random from among all of the entries we receive and announce it with the final Manhunter post.  (In the future we’ll probably give away books before we start writing about them, but we only had the idea for this recently.)

Now on to today’s post.  The remaining issues to talk about in volume 4 are some evidentiary problems and the “elephant in the room” jurisdictional issue.  Spoilers ahead!

I. Evidence, Grand Jury Procedure, and More Legal Ethics

After Spencer obtains Superman’s agreement to testify and to allow the use of the videotape proving that Superman was acting under Lord’s psychic control, she arranges a meeting at the judge’s home with the judge, the prosecutor, Superman, and herself.  There she shows the judge and prosecutor the videotape.  As we’ve discussed, there would ordinarily be no judge involved at the grand jury stage of things.  Curiously, the comic gets several things right at this point that almost make up for things it got egregiously wrong earlier.

First, the judge correctly remarks that she can’t speak to Spencer without the prosecutor present.  California Rule of Professional Conduct 5-300(B) states that attorneys cannot communicate with a judge regarding the merits of a case except

(1) In open court; or
(2) With the consent of all other counsel in such matter; or
(3) In the presence of all other counsel in such matter; or
(4) In writing with a copy thereof furnished to such other counsel; or
(5) In ex parte matters.

So Spencer was right (so far as it goes) to call the prosecutor into the meeting.

Second, the comic correctly shows that both the judge and the prosecutor are not at court while the grand jury is deliberating.  As mentioned in the last post in this series, no one except the jurors and any necessary interpreters may be present for federal grand jury deliberations.

Third, the judge correctly tells Spencer that the evidence can only be offered at trial.  The prosecutor can choose what evidence to present to the grand jury, and once the grand jury has begun deliberating it is too late for the prosecutor to offer any new evidence.  Of course, it’s highly unlikely that the prosecutor would show such evidence to the grand jury anyway.  Although prosecutors may have an ethical duty to give the defendant any evidence tending to prove the defendant’s innocence (ABA Model Rule 3.8(d)), it’s up the defendant to actually use that evidence.  The prosecutor has no obligation to do the defense’s job for it.

Although the comic gets a lot correct there, there’s still a significant error here.  Specifically, a judge would look at the video or listen to what Superman had to say outside of the proper context (i.e. a trial or at least a pre-trial hearing).  For one thing, Superman wasn’t under oath, and for another the prosecutor wasn’t given an appropriate opportunity to contest the admissibility of the video (he made a lame show of opposition but the judge told him to shut up).  So we’ll have to give this part a mixed review: kudos for getting some of the ethical and procedural issues right but minus points for trying to present evidence outside of court.

II. Jurisdiction

We saved this issue for last because it actually makes almost everything else in this case moot: the United States has no jurisdiction over Maxwell Lord’s murder because Wonder Woman killed Lord at Checkmate’s headquarters in Switzerland, which is outside both the US’s territorial boundaries and the federal government’s special maritime and territorial jurisdiction.  The fact that Lord is a US citizen doesn’t change the result.

Of course, Wonder Woman could have been charged and tried in Switzerland.   It’s not entirely clear where Checkmate headquarters is located within Switzerland, so we’re not sure which canton’s laws would apply.  In some cantons, Spencer could represent Wonder Woman but it would require the permission of the local authorities and the assistance of a local attorney.  See, e.g., Article 23 of the Geneva Loi sur la profession d’avocat.  In cantons that allow non-lawyers to represent people in court she could certainly represent her.  See, e.g., §§ 2-3 of the Basel Advokaturgesetz.  But in other cantons there doesn’t seem to be any provision for a foreign, non-EU attorney to represent a client in court.  See, e.g., the Bern Kantonales Anwaltsgesetz.

However, even if she could represent Wonder Woman we don’t think it would be a good idea.  Spencer doesn’t appear to speak any of Switzerland’s official languages, and she presumably knows little or nothing about Swiss law, which is a civil law system and thus fundamentally different from US law.  Even if Wonder Woman requested her services, Spencer would have to consider whether she could competently represent Wonder Woman as required by the California Rules of Professional Conduct.  Those rules still apply even if Spencer is outside of the country.  Rule 1-100(D)(1).

Since we know about as much about Swiss law as Spencer, we will not speculate as to what the result might have been had Wonder Woman been tried in Switzerland.  If there are any Swiss lawyers in the audience we’d love to hear from you in the comments.

That’s all for this issue.  Be sure to enter the drawing!

Manhunter, Volume 4 Part 2

Today we’re continuing our analysis of Mahunter vol. 4.  In Part 1 we discussed conflicts of interest, fee arrangements, and client gifts.  For Part 2 we have more legal ethics issues and a note about grand juries.  These are some of the same ethical issues we discussed during our recent legal ethics CLE program.  Spoilers abound.

I. Trial Decorum and Grand Juries

During Wonder Woman’s grand jury hearing, Kate Spencer objects to a statement made by the prosecutor.  After being admonished by the judge, Spencer uses a feigned apology to plant seeds of doubt in the minds of the members of the grand jury (“I apologize your honor.  It was just reflex.  I’d almost forgotten how different grand juries were from real ones…how low the burden of proof, how geared in favor of the prosecution they are…”).  After a remark from the prosecutor the judge threatens them both with contempt.  Spencer admits to Wonder Woman that the disruption was intentionally calculated to anger the judge, causing her to forget to tell the jury to disregard Spencer’s statement.

There are many problems with this scene.  First, the potential defendant and his or her attorney are not present at a grand jury hearing, except that the potential defendant could be called as a witness.  The comic book sort-of acknowledges this with a line by the judge saying that an exception was allowed for this unique case.  The problem with this explanation is that there isn’t a judge at a grand jury hearing, either.  Grand jury hearings are led by the district attorney, who acts as both legal advisor to the grand jury and as the prosecutor.

Federal Rule of Criminal Procedure 6(d) explicitly spells out who may attend a grand jury hearing: “The following persons may be present while the grand jury is in session: attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device.  No person other than the jurors, and any interpreter needed to assist a hearing-impaired or speech-impaired juror, may be present while the grand jury is deliberating or voting.”  There is no room for a judge to make an exception.  Heck, there’s no room for a judge at all.  Even the witnesses are only allowed in one at a time (hence “the witness being questioned”).

This may seem unfair, but remember that a grand jury is convened in order to indict someone; the adversarial process has not started yet.  Thus, there is only a potential defendant, who is no different from any other witness.  However, after an indictment has been returned the defendant may challenge the composition of the grand jury (e.g. on grounds of bias).  28 USC 1867.  But this is after the fact, not during the hearing.

Of course, Spencer’s claim that she’d “almost forgotten” how grand juries work is ridiculous.  Not only is it basic criminal procedure, Spencer was a federal prosecutor herself for some time before moving to defense and would have conducted many grand jury hearings.  So her claim is either a lie or an admission of incompetence.  That’s the kind of nonsense that judges do not suffer gladly.

Second, Spencer’s outburst was also an unethical intentional disruption of the hearing.  ABA Model Rule 3.5(d) states “A lawyer shall not … engage in conduct intended to disrupt a tribunal.”  (And in case you’re wondering, the comments to Model Rule 3.5(d) together with Rule 1.0(m) show that a grand jury hearing is a ‘tribunal’ for purposes of the rule, judge or no.)

(On a more minor point, the comic portrays the wrong number of grand jurors.  A federal grand jury “must have 16 to 23 members.”  Fed. R. Crim. P. 6(a)(1).  The comic shows a typical jury of 12.)

II. Allocation of Authority Between Lawyer and Client

Spencer discovers that Wonder Woman killed Maxwell Lord because Lord was psychically controlling Superman, making him believe that his friends and allies were actually villains.  In fact, Spencer obtains video evidence proving as much.  However, Wonder Woman forbids Spencer to use that evidence out of concern for Superman’s reputation as a force for good.  Spencer agrees to the constraint even though it will make her job much harder.

As it happens that’s exactly right.  ABA Model Rule 1.2(a) states that “a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.”  Rule 1.4(a)(2) essentially reiterates the obligation to consult with the client: “A lawyer shall … reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”  Furthermore, the comments to Rule 1.2(a) specify that “lawyers usually defer to the client regarding … concern for third persons who might be adversely affected.”

So here Spencer is definitely doing the right thing.  If for some reason she felt that she couldn’t represent Wonder Woman under those constrains the solution would be to withdraw as her attorney.

III. Media Rights

In order to work around Wonder Woman’s prohibition against using the video as evidence, Spencer decides to contact Superman, apparently on the assumption that if he agrees to testify then Wonder Woman will be okay with it.  Since Spencer doesn’t exactly have Superman’s home phone number she contacts Lois Lane and asks her to relay the message.  The plan works but “[Lois] almost made me sign over exclusive media rights to ‘my story’ in this case.”

Spencer was right not to sign any such deal.  ABA Model Rule 1.8(d) says: “Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.”  The policy here is that lawyers with media deals will feel tempted to sensationalize or play up the entertainment value of the case to the client’s detriment.

Strictly speaking, this Rule is about agreements between the lawyer and the client regarding the client’s media rights.  However, Spencer’s duty of confidentiality means that she would almost certainly need Wonder Woman’s permission in order to sign media rights over to Lois Lane.  The result is the same.

Further, this also raises issues of inappropriate trial publicity, at least if the story was published while the case was ongoing.

IV. Conclusion

Today was a mixed bag for Spencer.  She got some things right and some things wrong.  Unfortunately, the writers sort of painted themselves into a corner by framing the story around the grand jury hearing instead of a trial.  At that point they had little choice but to contrive a way to put Spencer and Wonder Woman in the court room.  We guess they didn’t want Wonder Woman to even be indicted, but that led to some compromises.  We say stick to trials.  They’re more dynamic, and most people have at least a general sense of how they work.

Manhunter, Volume 4 Part 1

This is the first part of our fourth post in our series on the Marc Andreyko run of Manhunter (prior posts onetwo, and three).  This volume has quite a few more legal issues than the last one, including conflicts of interest, fee arrangements, grand jury procedure, multiple evidentiary issues, the allocation of authority between the lawyer and the client, and lawyers’ media rights.  We’ll talk about the first two of those issues in this post.  The rest will have to wait for future entries in this series.  As always, spoilers follow.

I. Conflicts of Interest

In this volume we see the conclusion of the trial of Dr. Psycho (short version: he flips out and tries to kill everyone before the verdict is read; Kate Spencer / Manhunter stops him; it turns out he was found not guilty anyway).  Later, Spencer represents Wonder Woman, who has been accused of murdering Maxwell Lord.  As a reporter in the comic puts it: “How do you rep heroes and villains?”  If the report knew Spencer’s identity as Manhunter, he might also have asked “How do you rep the same villains that you fight as a superhero?”

ABA Model Rule 1.7 describes conflicts of interest between current clients.  As a criminal defense lawyer, Spencer will rarely run afoul of a direct conflict of interest, since her clients are never suing each other.  However, she may run afoul of a ‘material limitation’ in her ability to effectively represent her clients.  From the Rule:

[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if … 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.

As you can see, the conflict can exist not only between clients but between a client and anyone, including the lawyer.  The comments to the Rule further explain that “a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.”

Spencer is written as a highly competent lawyer able to separate her identities and responsibilities as a lawyer and a superhero.  But the ethical rule doesn’t require an actual conflict; a significant risk is sufficient.  Under that standard, Kate really should seek to fix the conflict.  And as it turns out, many conflicts can be waived.  As the Rule explains:

[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.

So how does this apply to Spencer and her motley mix of clients?

A. Conflicts Between Wonder Woman and Villain Clients, Current and Former

In this case, Wonder Woman appears to give something like informed consent, which we can presume was confirmed in writing.  Certainly Spencer and Wonder Woman discuss the various kinds of clients that Spencer represents, and Wonder Woman praises Spencer’s objectivity.  We don’t know if Spencer has any other clients at the moment, but if any are the type that routinely fight superheroes (especially if they fight Wonder Woman specifically), Spencer will have to seek their consent as well.

But what of Spencer’s other clients, like Dr. Psycho?  Well, after he attacked her we can presume that he is a former rather than a current client, but attorneys still owe many duties to their former clients, and Model Rule 1.9 covers conflicts with former clients.  Per the Rule, most conflicts with former clients can be cured by informed, written consent, but an attorney generally can’t reveal confidential information or use it to disadvantage a former client.  The problem is that a client like Dr. Psycho may very well refuse to give that consent, even if only out of spite.

Here, though, Spencer doesn’t need Psycho’s consent, since she is representing Wonder Woman in an unrelated matter that will not require using anything she learned in confidence from Psycho.

B. Conflicts Between Spencer-as-Manhunter and Villain Clients

It’s all well and good that Spencer didn’t need Psycho’s consent to represent Wonder Woman, but what about representing Psycho in the first place?  Was there not a significant risk that Spencer’s secret identity as Manhunter could materially limit her ability to zealously advocate for a supervillain like Dr. Psycho?  Part of the problem here is that Spencer’s secret identity is, well, secret.  It would be impossible for her to get Psycho’s informed consent without informing him of her identity.  (NB: This wasn’t a problem with Wonder Woman since WW had deduced Spencer’s identity already.  It probably wouldn’t be a problem anyway in that case.).  If this seems like an insurmountable problem, that’s because it is.  If Spencer wants to keep her identity secret yet still represent supervillains, she has no choice but to break the ethical rules.

II. The Meaning of Pro Bono and Client Gifts

Because Themyscira’s United States assets were frozen after Maxwell Lord was killed, Spencer offers to take the case pro bono (short for pro bono publico: for the public good)—except that she also asks Wonder Woman to train her.  Is this a problem?  Doesn’t pro bono mean “free of charge” as well?

Actually, as ABA Model Rule 6.1 explains, most pro bono work can and should be “without fee or expectation of fee,” but it can also be “delivery of legal services at a substantially reduced fee to persons of limited means.”  Under the circumstances, Wonder Woman is a person of limited means.  The question is whether a one-on-one training session with an A-List superhero is really a substantially reduced fee.  That’s hard to say either way, but in the end it’s a moot point.  As the comments to the rule explain, “The responsibility set forth in this Rule is not intended to be enforced through disciplinary process,” so no one is going to formally chastise Spencer if she claims this as pro bono work.

But what if Spencer really is representing Wonder Woman for free.  Taking a close look at the dialogue, it’s arguable that Spencer was soliciting a gift from Wonder Woman.  Rule 1.8(c) flatly forbids attorneys from soliciting substantial gifts from their clients unless the client is a relative.  It would behoove Spencer to make it clear (preferably in writing, per Rule 1.5) that the training was, in fact, the fee for her services and not a gift.

III. Conclusion

There are a ton of legal issues in this volume left to discuss, so stay tuned!

Law and the Multiverse CLE Reminder

Just a reminder for the attorneys in the audience:  Our online CLE courses presented by Thomson West are fast approaching.  The June 21st program is an overview of some torts concepts illustrated by comic book situations, and the June 27th program is about superhero attorneys and legal ethics.  Be sure to use promotional code HEROES2011 for a 25% discount!