Category Archives: She-Hulk

Guardians of the Galaxy and She-Hulk

Guardians of the Galaxy was a really terrific movie, and I highly recommend it.  As with many of the more cosmic Marvel storylines there isn’t much more for me to say about it than that.

I’ve continued to follow She-Hulk with similar results.  The last couple of issues have been good (albeit a little bit wheel-spinning in terms of the larger story arc), but there haven’t been any big legal issues that leapt off the page at me.  Still, it’s a good book.  The writer, Charles Soule, has indicated that “There’s a bunch happening in issues 8-10 I think [Law and the Multiverse will] have a field day with”, so I’m looking forward to that in a couple of months.

So, back to the backlog of questions from readers.  Look for more (and more substantial) posts in the coming weeks.

She-Hulk #4

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

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She-Hulk #3

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

I. Political Asylum

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

She-Hulk #2

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

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

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

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

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

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

A lawyer shall not participate in offering or making:

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

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

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

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

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

She-Hulk #1

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

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

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