Category Archives: superheroes

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.

Ultimate Spider-Man #117

The question behind today’s post comes from Levi.  Trigger warning: this post deals extensively and frankly with the subject of suicide.

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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.)

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The Wolverine: Grand Theft Superpower

When I saw The Wolverine I was reminded of this post on “Superpowers as Personal Property,” which considers the idea of treating “stealing” superpowers as theft.  If you’ve seen The Wolverine you probably know where I’m coming from.  If you haven’t, read on but beware: major spoilers follow.

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The Wolverine

The Wolverine is the latest X-Man movie from Fox, the sixth in the series overall. It’s set after the events of X-Men III: The Last Stand, and is in continuity with the earlier (admittedly dreadful) X-Men Origins: Wolverine. Unlike that one, this movie is actually okay. It focuses on Wolverine’s connections with Japan, introducing Mariko Yashida (first appearance, Uncanny X-Men # 118, 1979) and several other characters from the comics, including Yukio and Viper.

In this post we’re going to take a look at one of the legal issues, specifically the issue of inheritance, which is actually pretty key to the plot. But we’ll have to do so with a disclaimer: the movie is set in Japan, and neither of us know much if anything about Japanese law, either in general or particularly about estates and inheritance. So we’re forced to analyze it in the context of American law, and we’ll do so in comparison to prevailing opinions, not any particular state’s law.

There are major spoilers inside. Continue reading

Batman: Court of Owls

Batman: The Court of Owls is the first few issues of Batman in the New 52. It concerns a shadowy conspiracy referenced in a child’s nursery rhyme apparently common knowledge in Gotham City. The story itself does have a few things to discuss, but this time we’re going to talk about shadowy conspiracies generally. How realistic is it, legally speaking, for a group of people trying to control Gotham City (or the world for that matter) to pull off something like this? Continue reading

The Man of Steel Confesses

I know I said the post on Lois Lane’s employment contract would probably be our last post on Man of Steel, but we got a great question from Neal that I couldn’t resist writing up.  Neal—who is a rabbi in New York—writes:

You may remember that Clark Kent goes into a church and confesses to the priest (let’s assume he’s a Catholic priest, for the sake of argument, though to be clear different religions handle “confession” and counseling relationships differently) that he’s the guy everybody is looking for. Now, in NY, that priest can’t be compelled to testify or reveal information obtained while performing the duties of a clergy- penitent or clergy-congregant relationship (as I broadly understand it) but there ARE mandated reporting laws, e.g. regarding child and elder abuse.

So could the Feds or the state government have compelled the priest to testify given that:

1) An alien might not be presumed to be a member of the church, especially if he just showed up and had no prior relationship to this denomination or its clergy,

and

2) the stakes are just so damn high, like planetary destruction. If there is a mandated reporting law for child abuse- and to be clear I am not 100 percent sure even that overrides the legal protection of the clergy relationship in all instances- wouldn’t it apply on a vastly larger scale with something like this?

These questions raise several issues related to the confessional privilege.

I. The Confessional Privilege in Kansas

At common law there was little or no legal protection for statements made to a member of the clergy in confession or otherwise while seeking religious advice or counsel.  Instead, the privilege is largely derived from statutes.  Generally speaking it is weaker than, for example, the attorney-client privilege, but in some states the confessional privilege can be pretty broad.

I believe that the confessional scene takes place in Smallville, which is located in Kansas.  In Kansas the privilege is defined in the Kansas Rules of Evidence, specifically K.S.A. 60-429(b):

A person, whether or not a party, has a privilege to refuse to disclose, and to prevent a witness from disclosing a communication if he or she claims the privilege and the judge finds that (1) the communication was a penitential communication and (2) the witness is the penitent or the minister, and (3) the claimant is the penitent, or the minister making the claim on behalf of an absent penitent.

So in other words, Clark (if he’s present) or the priest (if Clark is absent) could claim the privilege (become the claimant) in order to prevent the priest from disclosing what Clark told the priest, or in order to prevent Clark from disclosing the same.

Now, there are a lot of specialized terms in that definition, including “penitent” and “penitential communication” (we’ll assume the priest is a regular or duly ordained minister).  Those terms are defined in 60-429(a):

“penitent” means a person who recognizes the existence and the authority of God and who seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging his or her moral obligations, or in obtaining God’s mercy or forgiveness for past culpable conduct

“penitential communication” means any communication between a penitent and a regular or duly ordained minister of religion which the penitent intends shall be kept secret and confidential and which pertains to advice or assistance in determining or discharging the penitent’s moral obligations, or to obtaining God’s mercy or forgiveness for past culpable conduct.

So right off the bat we can see the answer to one of the issues: there’s no requirement that Clark have been a member of the church in question or otherwise have had a pre-existing confessional relationship with the priest.  As long as he “recognizes the existence and the authority of God and … seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging [his] moral obligations”, that’s sufficient.  And honestly I’m not too sure about the “recognizes the existence and the authority of God” part, but it doesn’t appear to have been put to the First Amendment test, at least in Kansas.

In this case, Clark is at least seeking advice or assistance in determining his moral obligations (i.e. whether to reveal himself as Superman and try to do good in the world with his powers).  And it appears that he intended the communication to be confidential.  He and the priest were alone in the church, and I don’t recall him telling the priest it was okay to tell anyone else.  There was a strong implication that it was a confidential conversation, and that Clark told the priest what he did precisely because he believed it was confidential.

II. Any Exceptions?

The Kansas statute, like many such statutes, does not contain much in the way of exceptions.  It sets a relatively high bar to accessing the privilege in the first place, but once it’s reached, that’s pretty much it.  Many states do provide an exception for child abuse reporting, particularly if members of the clergy are mandatory reporters, but the issue does not appear to have come up in Kansas.  Certainly there is no broad exception for the public good or public safety.  And that makes a certain amount of policy sense.  The confessional privilege would be largely pointless if those confessing the possibility of endangering themselves or others (e.g. by committing a violent crime) were not protected by it.

III. But Wait, What About the Feds?

It’s all well and good that the privilege would apply in state court in Kansas, but what about federal court?  After all, it’s not exactly the local sheriff that’s looking for Clark.  Would the priest still be able to keep quiet if there was some kind of federal proceeding?

Maybe, maybe not.  There is no federal confessional privilege statute.  One was proposed as part of the Federal Rules of Evidence, but it was not approved by Congress.  Over the years a federal common law privilege has developed, and it appears to be recognized in Kansas. U.S. v. Dillard, 2013 WL 875230 (D.Kan. Mar. 7, 2013) (“Plaintiff does not take issue in this case with the general existence of the [confessional] privilege. Neither does this Court.”).

I have yet to see a federal case that describes the contours of the privilege clearly, so I will take this summary from a treatise on the subject:

The communication by a spiritual communicant is privileged if it is made to an ordained or otherwise duly accredited functionary of a religious organization in his capacity as such. … The communication must have been made for the purpose of obtaining spiritual aid or religious or other counsel, advice, solace, absolution, or ministration. It must also have been made in confidence.

Paul F. Rothstein & Susan W. Crump, Federal Testimonial Privileges § 10:3.

In this case, the federal privilege would also appear to apply.

IV. Conclusion

The state law confessional privilege probably applied in this case and there probably wasn’t an exception.  The same is likely true of the federal privilege, bearing in mind that it exists on somewhat shaky ground, having never been formally approved by the Supreme Court or even (as far as I can tell) the 10th Circuit, in which Kansas is located.

 

Lawyer2Lawyer Podcast

[Spoiler Alert for The Dark Knight Rises.  If you haven't seen it yet, you should.]

Last month I was invited onto Lawyer2Lawyer to discuss legal issues raised by the end of The Dark Knight Rises, as originally discussed in this guest post by Mike Lee. Lawyer2Lawyer is a podcast that analyzes contemporary news topics from a legal perspective on the Legal Talk Network. Normally they cover serious news stories, but this time the question was “is Batman legally dead?”  I was joined on the show by Michael Baroni, General Counsel at Palace Entertainment and a long-time Batman fan.

Listen here: Is Batman Legally Dead?

The Avengers and Campaign Finance

Thanks to Adam for alerting us to this article at The Daily Caller comparing the effects of campaign finance laws on Bruce Banner and Tony Stark.  The article is an opinion piece and definitely has an editorial slant that we at Law and the Multiverse express no opinion of our own about, but the legal analysis is great.  We only wish we’d thought of it ourselves, actually.