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.