Monthly Archives: April 2014

Landslide Article

Posted on April 14, 2014 by | 1 comment

I recently co-authored an article with Professor Brad Desnoyer and Janet Fries discussing superhero-related intellectual property topics, both real and fictional.  Last month the article was published in Landslide, the magazine of the ABA section of IP law, as the cover story!  You can read the article for free online. Thanks to Brad and Janet for their excellent work on the article and to David Postolski for putting everything together.

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Posted in copyright, intellectual property, patents, trademark

She-Hulk #3

Posted on April 8, 2014 by | 7 comments

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.

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Posted in immigration law, legal ethics, She-Hulk

As a Matter of Law, the Opera is Haunted

Posted on April 3, 2014 by | 16 comments

Today’s post was inspired by this question from Sara, who writes:

In the Andrew Lloyd Webber Musical The Phantom of the Opera, it is made clear that the new owners of the Opera Company and building were unaware of a chandelier-dropping, money-demanding, havoc-wreaking, stage hand-killing “opera ghost” they were to encounter squatting in their basement when they purchased the building and the company.

Would this end up being a case of “buyer beware”, where they now have to deal with this murderous costumed freak on their own, or would there be a chance of them getting their money back, since no contract they signed would have mentioned a ghost?

I would have liked to save this question for Halloween, but it’s too good a question to wait six months.  I know next to nothing about French law, so I’m going to approach it from a US perspective.  Good thing, too, because it turn out that there’s a famous New York case almost exactly on point: Stambovsky v. Ackley, 169 A.D.2d 254 (1991).  The full text of the case is worth reading if only because it is full of terrible ghost puns.

In Stambovsky a resident of New York City bought a house in the village of Nyack, a small suburb of New York.  Unfortunately for the buyer the house had a long and storied history in the community of being haunted, which the out-of-town buyer did not discover until after the purchase.  Whether the buyer was superstitious or merely concerned with the diminished resale value of a haunted house, he sought to rescind the contract on the theory that the seller should have disclosed the house’s haunted status.

Ordinarily a court might balk at having to determine whether a house is haunted, but in this case the seller had previously made a point of claiming in both the national and local press that the house was indeed haunted.  As a result the court held that the seller was legally prevented (“estopped”) from claiming otherwise and thus “as a matter of law, the house is haunted.”

Having thus established that the house was haunted, the court held that the case called for an exception to the general rule of caveat emptor (“buyer beware”):

Where, as here, the seller not only takes unfair advantage of the buyer’s ignorance but has created and perpetuated a condition about which he is unlikely to even inquire, enforcement of the contract (in whole or in part) is offensive to the court’s sense of equity. Application of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.

In light of all this, what do we make of the case of the Opera Populaire?  The buyers were evidently ignorant of the haunting, whereas the sellers were aware, and we may assume that even in the 1880s one would be unlikely to inquire as to the haunted status of a property.  So far, so good.

(NB: Since at least some members of the opera company know that the Phantom is a flesh-and-blood squatter rather than a ghost, it may be that the question is whether a seller has a duty to disclose knowledge of a dangerous squatter on the premises.  Inasmuch as this is a rare thing (especially for an otherwise legitimately occupied and used building) that would be very difficult for a prospective buyer to ascertain on their own (not even the seller knew where the Phantom’s lair was) it seems that a seller would have the same duty to disclose a real Phantom as a spectral one.)

However, a key difference from Stambovsky is that the sellers did not create the condition.  It’s not as though the former owners invited the Phantom to take up residence or popularized the story of the building being haunted (as far as I know).  It could be argued that they perpetuated it by not taking adequate steps to rid the building of the Phantom, but on balance I’m not sure that’s enough.  In Stambovsky the seller “deliberately fostered the public belief that her home was possessed,” whereas at least originally the story of the Phantom was mostly a matter of whispered rumors.  The Stambovsky court repeatedly emphasized the seller’s prior actions, which are mostly lacking in this case.

Thus, the outcome in this case would probably turn on the extent to which the seller had traded on the opera house’s haunted state, but there would at least be an argument for the buyers undoing the sale.  The exception to caveat emptor created in Stambovsky might not reach quite that far, however.

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Posted in mailbag, property law