She-Hulk #4

She-Hulk #4 brings up one legal issue and a host of ethical issues.  Minor spoilers ahead, but nothing earth-shattering.

I. Conflict Currency?

Previously we learned that Jennifer Walters’s client, Kristoff Vernard, son of Victor von Doom, was seeking asylum in the United States.  He hired Walters and paid her in Latverian Francs.  Unfortunately for Walters, when her assistant Angie Huang went to deposit them at the bank the money was confiscated as “conflict currency.”  Unfortunately for us, I can’t find any indication that this is an actual legal concept.

The US places a lot of economic restrictions on countries such as Cuba, Syria, and North Korea, but as far as I can tell there is no US law or regulation prohibiting possession of Cuban pesos, Syrian pounds, or North Korean won.  Now, there are definitely laws and regulations that go the other direction.  For example, part of the Cuban embargo prohibits the withdrawal or export of currency from the United States by, or on behalf of, or pursuant to the direction of Cuba or a Cuban national.  31 CFR § 515.201(a)(3).  But the US seems less concerned about the importation or possession of Cuban currency per se, as far as I can tell.

However, in the case of a larger embargo (like the one against Cuba), it would be entirely possible to argue that possession of a large quantity of Latverian Francs is strong circumstantial evidence of a significant business transaction with Latveria or Latverian nationals.  And since the Latverian Francs represent proceeds of the crime, they would be subject to civil forfeiture.

It’s also possible that the US could simply pass a law making it illegal to possess Latverian Francs outright.  But “conflict currency”, both as a term and as a concept, does not seem to be a real thing, as far as I can tell.

II. Client Confidentiality and Ethical Advice

There are two major ethics issues in She-Hulk #4.  First, Walters goes to San Francisco, new home of Matt Murdock (aka Daredevil), where she discusses the Vernard case.  She doesn’t discuss much that wouldn’t be a matter of public record, but it raises a point worth mentioning briefly.  There is an important exception to the duty of confidentiality when a lawyer needs to secure their own legal advice about how to comply with the rules of professional conduct.  ABA Model Rule 1.6(b)(4).  Walters’s conversation with Murdock can be seen as falling under that exception.  They are clearly speaking to one another as attorneys, in a confidential setting (the top of the Golden Gate Bridge), about an important ethical issue, which is:

III. The Limits of Zealous Advocacy

Murdock says that “We’re lawyers, and so we take an oath to be zealous advocates for our clients–to go to any lengths to represent their interests.”

There is a lot to unpack here.  The phrase “zealous advocate” gets tossed around a lot when discussing legal ethics and a lawyer’s obligations to his or her clients, but let’s start with this oath business.

In New York the attorney’s oath is the same as any other public office, as prescribed by the state constitution, art. 13, § 1:

I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the office of ……, according to the best of my ability

No zealous advocacy there.  Here in Missouri the oath is specific to attorneys and a bit more elaborate, but there’s still nothing in there about zealous advocacy, at least not directly.  There is a reference to the Rules of Professional Conduct, though.  Maybe that’s where it sneaks in?

Sort of.  The preamble to the ABA Model Rules describe “the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.” (emphasis added, and more on that part later).  And comment 1 to Rule 1.3 (“Diligence”) states that:

A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

But that’s it.  There’s no express rule requiring zealous advocacy, and the references to zeal are always tempered with discretion, lawfulness, courtesy, and civility.  Whatever zealous advocacy means, it most certainly does not mean “go to any lengths to represent [a client’s] interests.”

And this is more than just Murdock oversimplifying or exaggerating the role of the noble attorney, who must sacrifice everything for the good of the client.  No, he goes on to explain that, since he and Walters are superheroes, their “any lengths” stretch a lot farther “than it does for your average attorney drafting wills in Peoria.”  He then uses this to justify teaming up with Spider-Man to break Felicia Hardy (aka Black Cat) out of jail, assaulting numerous guards in the process, because they believed she had been framed but (evidently) could not prove it.

And that’s where it all falls apart.  Look back up to those excerpts from the Rules.  Murdock didn’t stay “within the bounds of the law.”  He literally used offensive tactics.  It would be one thing if he used his powers to go the extra mile by, for example, being able to tell if a witness was lying or by collecting evidence the police would miss.  And indeed he does that.  But he cannot possibly justify something like breaking Hardy out of prison by reference to the ethical rules.  They just don’t work that way.

Alas, Walters is persuaded by Murdock, and so she travels to Latveria, busts some Doombot heads, and persuades Doom to let his son live his own life.  It’s a fun and funny story, but I think Walters learned the wrong lesson.  The real lesson to learn from Murdock is that sometimes being a superhero is just plain irreconcilable with being an attorney, and you have to choose which is more important.  Frequently Murdock chose being a superhero.  In the end that got him disbarred in New York.  What I would have liked to have seen is a conversation about whether that was worth it, not an attempt to rationalize what Murdock did.  He can’t have his cake and eat it too.