A Little Bit of Legal Ethics

As many of our readers know, She-Hulk‘s alter-ego, Jennifer Walters, is an attorney, and many issues of that comic feature courtroom and law firm scenes.  I was reading She-Hulk (2005) #1 and was struck by a scene that gives us a chance to talk about something a little unusual: legal ethics.  Since there are relatively few comic book characters who are lawyers, this topic doesn’t come up very often, but it’s an issue that is near and dear to many lawyers’ hearts (or at least their pocketbooks).

I. The Facts

In the comic, Walters is out for a jog when she encounters a woman being assaulted by two men.  Although she is unable to transform into She-Hulk, she dispatches the assailants with martial arts.  It is then revealed that Spider-Woman and Captain America were on the scene, but did not intend to intervene unless Walters needed assistance.  So far, so good: nothing wrong with an attorney engaging in a bit of defense of others.

But then Walters commits a significant ethical lapse.  She tells the rescued woman “Miss, I should inform you that I’m an attorney.  And I’d be more than happy to represent you if you feel that these ‘heroes’ and their delayed response has in any way caused you emotional distress.”  You may be wondering what’s wrong about this.  Isn’t that what an attorney would do?  Perhaps surprisingly, the answer is ‘no.’

(NB: We’re aware that Walters was mostly just good-naturedly ribbing the Avengers, but ethical principles shouldn’t be breached even for the sake of a joke.  Also, as an aside, the ’emotional distress’ claim is nonsense in this case as the Avengers owed the woman no particular duty to rescue her.  See this post for more.)

So what did Walters do wrong?  She solicited a potential client in person.  What’s worse, she did so immediately after the potential client had been assaulted and, allegedly, emotionally distressed.  So how is an attorney supposed to know what (not) to do?  And how can non-attorneys know when an attorney is breaking the rules?  For that we turn to the “law of lawyering,” a term we assure you we did not just make up.

II. The Law of Lawyering

The legal profession is primarily regulated at the state level, so the ethical rules that bind attorneys vary from state to state, but 49 of the 50 states have adopted some variation on the American Bar Association Model Rules of Professional Conduct.  Most states have basically adopted the Model Rules wholesale.  New York, where the events of the comic took place, was one of the last states to adopt the Model Rules (as the New York Rules of Professional Conduct), and in fact it was still using the old New York Lawyer’s Code of Professional Responsibility at the time the comic was written.  However, as it turns out the result is the same under either set of rules.

The current New York Rules of Professional Conduct have this to say about solicitation under Rule 7.3:

(a) A lawyer shall not engage in solicitation:

(1) by in-person or telephone contact … unless the recipient is a close friend, relative, former client or existing client; or

(2) by any form of communication if: …

(iv) the lawyer knows or reasonably should know that the age or the physical, emotional or mental state of the recipient makes it unlikely that the recipient will be able to exercise reasonable judgment in retaining a lawyer

So this kind of in-person solicitation is prohibited in New York (and the rules are similar in most states), and even if the woman fell into one of the exceptions, Walters still should have known that the woman’s emotional state made it unlikely that she could exercise reasonable judgment so soon after being the victim of a crime.  And in fact there are special rules about that kind of thing, per Rule 7.3(e):

(e) No solicitation relating to a specific incident involving potential claims for personal injury or wrongful death shall be disseminated before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

So even if the woman fell into one of the exceptions and her judgment wasn’t impaired, Walters still should have waited.

There is, by the way, a long history of prohibiting this kind of in-person solicitation, which is also called “barratry.”  In fact, it’s still a crime in some jurisdictions, including New York where it’s a misdemeanor.  N.Y. Judiciary Law § 479, 485; See also Tex. Penal Code § 38.12.  The Supreme Court has held that these kinds of rules are a permissible regulation of commercial speech.  Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995).

It’s worth pointing out that these rules are not arbitrary. People who are solicited for business while they are experiencing acute distress are less likely to be able to make an informed decision about who would be best to retain.  Even if you aren’t distressed it can be hard to make a fully-informed, free decision about representation while a fast-talking attorney is trying to talk you into choosing them.

People being solicited are also less likely to make a good decision about whether or not they want to retain counsel at all. What could seem like an absolutely terrible accident at the scene can turn out to be not that big of a deal. And what someone wants to do while in the throes of anger or fear may be very different from what they want to do a few days later. But once the legal process is started it can be difficult and expensive to stop. It’s a lot better for everyone if suit is never filed in the first place if it isn’t going to go anywhere. So there is a compelling social reason for prohibiting the solicitation of legal business in the immediate aftermath of an accident: we want people to make calm, rational decisions about whether or not they want to sue and who they want to be represented by.

III. The Consequences

Cases of attorney misconduct are handled by the state disciplinary authority, in this case the discipline and grievance committees appointed by the Appellate Division of the New York State Supreme Court.  Although victims of attorney misconduct may file complaints, the purpose of a disciplinary hearing is to punish misconduct, not to compensate victims.  However, the victim may have a separate civil claim against the attorney, as in a legal malpractice case.

In New York, attorney discipline includes caution, admonishment, reprimand, censure, suspension, and disbarment. How bad does it look for Walters?  As far as we know this is her first disciplinary offense, and solicitation is far from the worst thing an attorney can do (e.g. lying, stealing from clients, and jury & witness tampering are all much worse).  New York disciplinary decisions are not the easiest thing to research, but our guess is that she would likely receive a letter of caution, an admonition, or possibly a reprimand.  Attorneys have received worse punishments for solicitation in New York, but it’s usually in conjunction with misrepresentation or other aggravating circumstances.

A letter of caution is an informal, confidential notice of disapproval.  It goes in the attorney’s file but it’s not public.  It’s basically a warning.  An admonition is a formal disciplinary action but it’s still confidential.  A reprimand is similar to an admonition except the matter may also be referred to the court for further action.

As mentioned above, Walters may also be guilty of a misdemeanor.  The woman Walters solicited probably wouldn’t have a civil claim against her, though, so that’s a small consolation.

IV. Conclusion

Attorney discipline and malpractice are serious issues.  A few hundred attorneys are disbarred and a few billion dollars in legal malpractice damages are awarded every year.  All attorneys should take care to uphold the highest ethical standards, and superhero attorneys are no exception.