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.)
I. Law Firms and Annual Reviews
We open with attorney Jennifer Walters headed to an annual review at the firm of Paine & Luckberg, LLP, where she works as an associate attorney. She goes into the meeting expecting a stellar review and a bonus. After all, she worked 2800 billable hours and did great work. How realistic is that figure?
At a high-end New York firm, which Paine & Luckberg appears to be, a requirement of 1800-2200 billable hours is typical. Most attorneys will do well to spend 90-95% of their time on billable work, meaning Walters actually worked something like 3080 hours, or almost 60 hours per week. This is definitely within the realm of possibility, but it would be a serious strain for most people. Walters has clearly done an exceptional amount of work.
Despite this, the partners tell her that she won’t be receiving a bonus at all. Walters responds that this is ludicrous, since “at the rate you bill me out, you must have made a million bucks off me.” Doing the math suggests that Walters’s billable rate must be about $350/hour. This is not out of line for a mid-level associate at a New York firm. However, the partners counter that there is also her (“very competitive”) salary and overhead.
And this is a fair point. A general rule of thumb is that a firm’s income from associates is divided into a third for overhead (e.g. the building, support staff, $50,000 salvaged teak conference tables), a third for the associate’s salary, and a third for the partners’ profits. This suggests that Walters is being paid somewhere around $333k per year. That’s in the rough ballpark for a mid-level associate at a New York firm, especially when you consider what the partners say next: Walters was hired because of her connections. The firm assumed that she would bring in a substantial amount of business from Tony Stark, Danny Rand, the Fantastic Four, etc.
This is also realistic. Not all attorneys are hired because they are the best lawyer in the applicant pool. Some are hired because they will be able to bring in business. This is sometimes true even of new attorneys, but it’s very common among lateral hires (i.e. experience associates), and it’s virtually required of anyone being hired as a partner. Law firms need clients, and promotion is often more about sales than the practice of law. As the partners say “You were not hired to bill hours and work cases. We have lawyers for that.”
So Walters gives the firm the finger (if you’ve read the comic you’ll know what I mean) and walks out. She wouldn’t be the first dissatisfied attorney to walk away from a big firm.
II. The Harrow Matter
The next major development in the story is Walters’s first client as a sole practitioner, Holly Harrow. Holly is the widow of Dr. Jonas Harrow, an inventor who was also, admittedly, a criminal. Apparently Jonas attempted to negotiate the sale of some improvements in repulsor technology to a Stark subsidiary called Accutech. The company declined to take him up on it but then came out with virtually identical improvements six months later. Holly is trying to sue Stark for damages.
What’s not entirely clear is what the basis of the suit is. Walters says something about not doing a lot of patent cases, but it’s not clear that there is a patent. If there is a patent, then it’s a straightforward case of patent infringement. The bit about Accutech allegedly stealing the technology is evidence of willful infringement, which would be a nice thing to prove from the plaintiff’s point of view, but it’s not necessary.
What seems more likely is that Jonas didn’t have a patent, at least not yet. In which case the lawsuit is probably based on violation of a non-disclosure agreement, theft of trade secrets, or possibly arguing that Jonas was entitled to inventorship credit (and thus ownership) of a patent improperly filed by Accutech. Luckily it doesn’t really matter what the specific basis of the suit is, just that Jonas had some kind of legal claim and that Holly inherited that claim when he died.
We see one brief court scene, in which Stark’s attorneys (led by the excellent character of Legal) respond to a motion for temporary injunctive relief with a mountain of motions and counterclaims. For the most part I don’t have any trouble with this scene. I think the judge would have heard the arguments regarding the injunction first, then allowed Stark to make its motions, but the way it’s written is more compact and better shows Stark stonewalling the plaintiff.
The motions and counterclaims that Stark makes are mostly reasonable: summary judgment, change of venue, extensions on multiple grounds, removal of Walters as counsel because of conflict of interest, and a counterclaim for tortious interference.
Summary judgment seems a little premature. One would expect a motion to dismiss to be filed first. Change of venue seems a little weird, since the suit was brought in the Southern District of New York, Harrow appears to live in New York, and Stark is headquartered there. However, the failed deal was with Accutech, which is based in California, so if most of the witnesses and evidence are located there, then a transfer to California might not be out of the question.
Walters clearly does have a conflict of interest here, but it may be waivable. In any case it’s a matter for her and her client.
The tortious interference counterclaim is odd. It suggests that Holly or Jonas tortiously interfered with a contract or possibly with prospective business relations. Maybe one of the Harrows convinced a client of Stark’s not to buy its improved repulsor technology because they claimed it was stolen? We don’t see any evidence of this, but it’s possible.
In the end Walters talks to Stark, explains the situation with the help of a recording of Jonas’s pitch to Accutech, and the case settles. As Walters states “ninety percent of lawyering is conversations.” Inasmuch as 90%+ of civil cases settle before trial, that’s true.
III. Some Ethical Lapses
It wouldn’t be a She-Hulk story without a few ethical lapses, however. When first meeting Holly, Walters says “I’m not going to take the case” but then promptly says “Relax, I know this guy. Well. I’m not going to take the case because I don’t think you’ll end up in court at all. … Let me talk to him. I’ll see what I can do.”
This seems to confuse “taking the case” with “filing a lawsuit.” Walters is clearly acting as Holly’s attorney, even before the eventual lawsuit is filed. I’m not sure why this exchange was written that way, but leaving a prospective client unclear on whether they are represented is a bad idea. It’s not good for the client, and it can lead to malpractice liability. If a prospective client comes away thinking an attorney-client relationship has been formed, but the lawyer doesn’t think so and thus doesn’t pursue the case, then the client can sue for malpractice.
After the case is resolved we see Holly approach Walters at her favorite bar. Apparently Walters hasn’t been returning her calls (a huge no-no: always return a client’s calls or other communication). Holly says that “We never talked about fees” and then presents Walters with a check for $150,000. Walters initially tries to turn down the money, but Holly insists.
There are two issues here. First the good news. By initially refusing the money, Walters is making it clear that she is not soliciting a gift from the client, which is prohibited by New York Rule of Professional Conduct 1.8(c)(1). Now the bad news: by not discussing fees with her client throughout her representation, Walters has blatantly failed Rule 1.5(b):
A lawyer shall communicate to a client the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible. This information shall be communicated to the client before or within a reasonable time after commencement of the representation and shall be in writing where required by statute or court rule.
Better to have unexpectedly done the work for free than to unexpectedly present the client with a bill, but it’s still not okay. For example, a client who incorrectly assumes that they will be charged for the attorney’s services may decide not to pursue a case as aggressively as they otherwise would.
IV. Conclusion
All told I’m very happy with this first issue. The writing and art were good, the writer made some reasonable compromises on accuracy and detail in service of the plot, and the issue does a good job of setting up Walters’s new career as a solo attorney. If you haven’t read it yet, check it out.
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