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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