Category Archives: legal ethics

The Trial of Captain America

Posted on June 7, 2011 by | 3 comments

The Trial of Captain America was a 5 issue Captain America story arc covering the trial of James Buchanan “Bucky” Barnes, who took over as Captain America following Steve Rogers’s apparent death.  There are a bunch of legal issues here—mostly handled pretty well—so let’s get right to it.  Spoilers ahoy.

I. The Charges

By way of background: In 1945 Bucky was found by the Russians after the plane he was in exploded, plunging him into the icy North Atlantic.  The Russians revive Bucky and take advantage of his amnesia to reprogram him as an assassin.  During his career as the Winter Soldier, Bucky kills numerous US citizens.  When word of this leaks out decades later, Bucky submits to a criminal trial in order to clear his name.

So, are these charges appropriate?  There’s no statute of limitations for murder, so when they occurred is unimportant.  But what about where?  No doubt some of the murders occurred “within the special maritime and territorial jurisdiction of the United States” as required by the federal murder statute, 18 USC 1111.  But what if Bucky murdered a US citizen abroad?  Could he still be charged in a US court for that?  As it turns out, maybe.  18 USC 2332 criminalizes, among other things, the murder of US nationals abroad, but it was only enacted in 1986.  Bucky could potentially dodge being charged for a few early crimes that way, but it only takes one successful murder charge to make for a serious prison sentence.

II. Legal Ethics

Steve Rogers asks a friend (and former girlfriend) of his, Bernie Rosenthal, to act as Bucky’s defense attorney.  That’s not the problem.  The problem is that Steve not only sits in on Bucky’s first meeting with Bernie but actively participates in discussion of trial strategy.  We don’t see them discuss anything too sensitive, but this is a great way to waive attorney-client privilege.  Only the client can waive the privilege, but the simplest way to do it is to let a non-privileged person (like Steve) in on the confidential information.  To protect against this, Bernie probably should have asked Steve to leave the room lest he be called to testify about their discussion.  At the very least she should have informed Bucky that letting Steve stay in the room would risk waiving the privilege.

As Kate Spencer did in Manhunter vol. 2, Bernie goes on a Larry King Live-esque talk show to argue her case in the court of public opinion.  Unlike in  Manhunter, this comic doesn’t show her saying anything particularly problematic.  In fact, the host says “many would argue [Bucky] has already been tried in the media”, to which Bernie replies “And that’s why I’m here, Barry.  For weeks we’ve had a 24 hour-a-day bashing of my client with no balance whatsoever.”  This could be seen as an invocation of ABA Model Rule 3.6(c):

a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(A side note: Steve, Bernie, and Bucky discuss whether to put Bucky on the stand, with Bernie against it, Steve initially for it, and Bucky agreeing with Bernie.  While most issues of trial strategy are ultimately at the discretion of the attorney, whether or not a criminal defendant takes the stand is up to the defendant.  ABA Model Rule 1.2(a).  So while Bernie can (wisely) counsel Bucky not to take the stand, Bucky could have gone against that advise.  The same is true of the decision to waive the right to a jury trial, which Bucky does.)

III. Cameras in the Court Room

The judge in the case bars cameras from the courtroom in order to avoid a media circus.  This is a curious thing to mention because it’s a federal case, and cameras are forbidden in federal courts, outside of a very recent pilot program.  Still, a judge has pretty much complete control over the court room, and even if cameras were potentially allowed he could easily prohibit them instead.

IV. “Doctor-Patient Confidentiality”

Sin, daughter of the Red Skull, leaks a video of a interview from a psychiatric hospital in which she accuses Bucky of being the Red Skull’s willing accomplice (and not, as Bucky claimed, mind controlled).  It’s strongly hinted that Sin made up the accusations on the tape knowing that they would be used in the trial.  In any case, the prosecution submits the video as evidence.  While Steve and Bernie are discussing the tape (another ethically shaky move), Steve asks “is it even admissible?”  Bernie replies “I don’t know.  Leaking your own psych interviews to the press probably invalidates doctor-patient confidentiality.”  This is a pretty serious misstatement of the physician-patient privilege for two reasons.

First, doctor-patient confidentiality refers to a doctor’s ethical obligation to keep what a patient tells them confidential.  The physician-patient privilege is the evidentiary privilege that allows a patient to prevent a physician from testifying as to certain things in certain circumstances.

Second, yes, leaking the tape to the press would waive the privilege, but as the holder of the privilege Sin was always free to do so.  The privilege prevents no problems with regard to the tape’s admissibility as long as it is clear that Sin was responsible for the leak.

It’s also worth noting that the federal courts do not recognize the physician-patient privilege.  See, e.g., United States v. Bek, 493 F.3d 790, 801-02 (7th Cir. 2007) (“we can find no circuit authority in support of a physician-patient privilege … and we can find no reason to create one now”).  However, they do recognize the psychotherapist-patient privilege.  See Jaffee v. Redmond, 518 U.S. 1 (1996).  So depending on who Sin was talking to in the interview, a privilege might or might not have existed in the first place, at least as far as the federal courts are concerned.

However, all of this misses the real reason the tape is very likely inadmissible: it’s hearsay because the tapes are Sin’s out of court statements offered to prove the truth of what she’s saying (i.e. that Bucky was a willing accomplice of the Red Skull).  Further, none of the hearsay exemptions or exceptions apply.  Sin isn’t discussing the details of a conspiracy with Bucky that she was a part of while she was a part of it, so Federal Rule of Evidence 801(d)(2)(E) doesn’t apply.  Although it’s a quasi-medical interview these particular statements don’t seem like they were made “for purposes of medical diagnosis or treatment,” so 803(4) doesn’t apply.  Sin is unavailable to testify, but her testimony doesn’t meet any of the 804(b) exceptions.  The 807 / 804(b)(5) catchall exception could apply, but we find it extremely hard to believe that Sin’s interview has the necessary “equivalent circumstantial guarantees of trustworthiness.”  She is, after all, a delusional psychopath with a known vendetta against Captain America.  It’s hard to get less trustworthy.

—

There are more legal issues  in this storyline to talk about.  Check out part 2 here!

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Posted in criminal law, criminal procedure, evidence, legal ethics

Manhunter, Volume 2

Posted on June 3, 2011 by | 15 comments

(Note: We’ll have a review of the new X-Men movie up soon.)

This is the second post in our series on the Marc Andreyko run of Manhunter (here is the first).  The second volume contains some interesting legal issues, including prosecutorial ethics and subpoenaing a superhero.  Spoilers follow.

I. Prosecutorial Ethics

Kate Spencer (aka Manhunter) is a federal prosecutor.  In advance of the trial of Shadow Thief for the murder of Firestorm, Kate appears on a Larry King Live-esque TV show to talk about the trial, which she is litigating.  A caller asks Spencer if she thinks Shadow Thief will plead out or offer to turn state’s evidence against other supervillains.  Spencer responds “Well, I can’t get into specifics about the prosecution’s plans, but Mr. Carl Sands has many connections in the supervillain community, so I would, theoretically, be interested in hearing what information he would have to offer” (emphasis in original).

This is a somewhat problematic statement.  California Rule 5-120—California’s version of ABA Model Rule 3.6—governs trial publicity, and it specifically applies to prosecutors and defense attorneys.  The general rule is that

A member who is participating … in the … litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Here, Spencer is participating in the litigation of a matter and has made an extrajudicial statement (i.e. out of court) that will definitely be disseminated by means of public communication (she’s on a live national TV show).  The question is, does the statement have a substantial likelihood of materially prejudicing the trial?  That’s hard to know.  Certainly the statement could be prejudicial because it suggests the defendant’s guilt by association.  However, if it can be proved in court by admissible evidence, then that’s less of a problem.  Unfortunately, we never see such evidence introduced, so it’s hard to say.  This kind of statement is indicative of the careful line prosecutors and other litigators must walk when talking about a case, and Spencer’s other public comments (at least the ones we see) are carefully measured.

II. Serving Superman a Subpoena

Actually, Superman, Hawkman, and Batman are served, although we only see Superman and Hawkman testify.  The interesting thing is, they are served at Justice League headquarters on the Moon.  Naturally this raises a question: is such service of process effective?  After all, it’s for a federal court case, but the Moon is explicitly not the territory of any nation.

Federal Rule of Criminal Procedure 17 states:

A marshal, a deputy marshal, or any nonparty who is at least 18 years old may serve a subpoena.  The server must deliver a copy of the subpoena to the witness….If the witness is in a foreign country, 28 U.S.C. § 1783 governs the subpoena’s service.

The process server delivers the subpoenas in person the three recipients.  But what about this “foreign country” business?  We think a court would consider this to include the Moon, despite its non-territorial status.  The Rules make a distinction between the United States and “foreign countries,” and a court could easily read this to mean “the rest of the universe.”

As the Supreme Court has said “Nor can it be doubted that the United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal. … It is also beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned.”  Blackmer v. United States, 284 U.S. 421, 437-38 (1932).  It is unlikely that the courts would allow a witness to escape this duty simply by fleeing to unclaimed territory, especially when service of process was otherwise carried out properly.

So on to 28 USC 1783:

(a) A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it … of a national or resident of the United States who is in a foreign country … if the court finds that particular testimony … by him is necessary in the interest of justice

(b) The subpoena shall designate the time and place for the appearance …. Service of the subpoena … shall be effected in accordance with the provisions of the Federal Rules of Civil Procedure relating to service of process on a person in a foreign country. The person serving the subpoena shall tender to the person to whom the subpoena is addressed his estimated necessary travel and attendance expenses, the amount of which shall be determined by the court and stated in the order directing the issuance of the subpoena.

Superman, Hawkman, and Batman are all identified as nationals or residents of the United States (“Superman of Metropolis, Hawkman of St. Roch, Batman of Gotham”), and presumably the court is satisfied that their testimony is necessary.  And since the JLA has a teleporter, Superman and Hawkman can fly, and Batman owns his own plane, we’ll assume that either travel and attendance expenses were waived by the witnesses or that the court found them to be zero.

In sum: if you can find them, you can subpoena a superhero pretty much anywhere.  And if they don’t show up, then the court can find them in contempt, fine them up to $100,000, and sell their stuff to pay the fine under 28 USC 1784.

III. Superheroes on the Stand

Hawkman and Superman both testify at the trial as witnesses for the prosecution.  Hawkman testifies about the defendant, Shadow Thief, and Superman testifies about Firestorm, the victim.  We want to address two issues raised by their testimony.  First, Hawkman gives a good example of common hearsay issues, and Superman gives a good example of the practical reality of asking a superhero about their identity on the stand.

Spencer asks Hawkman “And did you, in your many confrontations with [the defendant], ever warn him of the dangers of prolonged use of the device [that gave the defendant his powers]?”  Hawkman answers “When he wasn’t trying to kill me, yes, but [the defendant] wouldn’t hear of it.  He believed that he was stronger than the belt and ignored my multiple warnings.”

There are two issues here.  First, Hawkman is recounting his own out of court statements to the Shadow Thief (i.e. the warnings).  This is not hearsay, however, because the statement is not offered to prove that the belt was, in fact, dangerous (Hawkman’s own expert testimony regarding the belt is sufficient for that).  Instead, the statement is offered to prove only that Shadow Thief was on notice.  This is a classic non-hearsay use of an out of court statement.

Second, Hawkman says “[the defendant] wouldn’t hear of it.  He believed that he was stronger than the belt.”  This is problematic.  If Shadow Thief had made some statements to that effect (e.g. “I’m strong enough, Hawkman”), then Hawkman’s testimony as to those statements would be admissible under FRE 803(3) as “a statement of the declarant’s then existing state of mind.”  As it was, though, the defense really should have objected to that answer.

Finally, the defense asks Superman point blank “what is your legal identity?”  Naturally, Superman refuses to answer.  Then the defense does the smart thing and simply notes that the witness is refusing to answer a direct question under oath, thus impeaching Superman’s credibility as a witness.  Theoretically the defense could press the issue, and the court could even find Superman in contempt, but everybody knows that would be a pointless distraction.  This is probably how things like this would actually play out in court.

IV. Conclusion

There are more legal issues to cover in the next three volumes, so stay tuned for the rest of this series!

15 Comments

Posted in criminal procedure, evidence, legal ethics

The Lincoln Lawyer

Posted on May 27, 2011 by | 28 comments

A couple of months ago we were asked about the movie The Lincoln Lawyer.  It’s not a comic book film, but it’s still close enough to pop culture that we thought people might be interested in a short post about it.  Spoilers follow, starting with the question itself.

“Benjamin Button” asks “is it feasible that any of [Mickey Haller’s] ‘legal obligations’ could prevent him from telling the courts that his client did in fact murder someone?”

In the film, Mickey Haller is the titular criminal defense lawyer.  He discovers that one of his clients (Louis Roulet) is a serial killer, but attorney-client privilege apparently prevents him from disclosing information that could free a former client (Jesus Martinez) wrongly convicted of one of Roulet’s crimes.  So the question really goes to the crux of the plot: is Haller actually in an ethical bind, and is his solution actually within ethical boundaries?

I. The Attorney-Client Privilege and the Duty of Confidentiality

The film is correct in stating that the privilege is held by the client, not the attorney, and that an attorney has an obligation to keep a client’s confidences.  In California, where the film takes place, the Business and Professions Code § 6068(e)(1) states that attorneys must “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”  Confidentiality is a key part of being an attorney, and attorneys take that obligation very seriously, even in the face of death threats and criminal charges.  Without Roulet’s permission Haller could not testify against Roulet in court, nor could he disclose what he knew to the police or anyone else.

There are narrow exceptions to the duty of confidentiality, but they do not apply here.  In California, an attorney “may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.”  California Rules of Professional Conduct 3-100.  Although Roulet showed signs of being a serial killer he was careful not to overtly threaten anyone or indicate a planned future crime.  Haller’s hands remain tied.

II. Haller’s ‘Solution’

Unfortunately, Haller’s solution is not free of ethical problems, to say the least.  The biggest issue is that Haller inappropriately discloses confidential information to at least two people: Gloria and Margaret.

Gloria is the imprisoned client that he uses to relay information to a known jailhouse snitch; she alleges to the snitch that if he testifies against Roulet that the prosecutor will cut him a deal.  There are several problems here.  First, there’s the breach of confidence inherent in disclosing anything that Roulet told Haller.  Second, he asked Gloria to solicit the snitch to commit perjury.  This is a violation of Rule 1-120 and quite likely a crime as well.

Margaret is Haller’s ex-wife and a prosecuting attorney.  Haller tells Margaret that his investigator, Frank, found information tending to exonerate Jesus Martinez and implicating Roulet in a prior murder.  But Frank only found that information as part of his investigation into Roulet’s alibi, and therefore the information is privileged.  Note that in many jurisdictions Margaret would be under an affirmative duty to report Haller’s ethical breach (ABA Model Rule 8.3), but California does not have a mandatory reporting rule for attorneys.  Nonetheless, she could theoretically report him, although the movie suggests that would be out of character for her.

III. Haller’s Other Ethical Breaches and Crimes

Haller commits several other ethical breaches, but we’ll limit our discussion to three of the most egregious ones.  First, he lies to a judge about the need to continue a trial by inventing a fictitious witness (“Mr. Green”) in order to extract payment from a client.  This violates Rule 5-200: an attorney “Shall not seek to mislead the judge … by an artifice or false statement of fact.”  It also violates § 6068: an attorney may not “encourage … the continuance of an action or proceeding from any corrupt motive of passion or interest.”  It’s also almost certainly a crime.

Second, Haller commits an ethical violation when he promises to recommend Val Valenzuela’s bail bond services in exchange for being recommended as an attorney to Roulet.  Rule 1-320(B) states “A member shall not compensate, give, or promise anything of value to any person … for the purpose of recommending … employment of the member … by a client, or as a reward for having made a recommendation resulting in employment of the member … firm by a client.”  Although it ultimately comes out that Roulet had specifically requested Haller and that Valenzuela was simply trying to secure a recommendation for his bail bond service, Haller did not know that at the time that he made the deal with Valenzuela

Third, it is strongly implied that Haller contacted the biker gang and asked them to beat up Roulet.  This is obviously a crime.

IV. The Good Stuff

We don’t want to sound too down on the movie.  It’s an enjoyable court room drama with a nice twist, and it gets many of the legal details right, even if the protagonist is ultimately a scoundrel and a hypocrite.  (Haller defends his career as a criminal defense lawyer on the basis of the sanctity of the justice system and criticizes a prosecuting attorney for going too far, yet Haller himself repeatedly acts outside the justice system.)

So, here’s some of the good stuff.  Criminal defendants often do not get nice rooms alone with their attorneys; the movie’s portrayal of conversations between Haller and his clients are pretty accurate.  Court is largely fairly boring, heated objections are rare, the jury is excused when discussing issues like whether a new witness can be put on the stand, and objections are made with reasons instead of simply by shouting ‘objection!’  Attorneys are usually collegial toward one another outside the courtroom.

V. Conclusion

The Lincoln Lawyer is a pretty good film as long as you don’t come away with the mistaken impression that Haller is just a slick attorney who knows how to work the system.  Instead, he’s a flawed, conflicted attorney who often uses morally and legally questionable means to accomplish noble ends.

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Posted in criminal law, legal ethics, movies

A Little Bit of Legal Ethics

Posted on February 28, 2011 by | 17 comments

As many of our readers know, She-Hulk‘s alter-ego, Jennifer Walters, is an attorney, and many issues of that comic feature courtroom and law firm scenes.  I was reading She-Hulk (2005) #1 and was struck by a scene that gives us a chance to talk about something a little unusual: legal ethics.  Since there are relatively few comic book characters who are lawyers, this topic doesn’t come up very often, but it’s an issue that is near and dear to many lawyers’ hearts (or at least their pocketbooks).

I. The Facts

In the comic, Walters is out for a jog when she encounters a woman being assaulted by two men.  Although she is unable to transform into She-Hulk, she dispatches the assailants with martial arts.  It is then revealed that Spider-Woman and Captain America were on the scene, but did not intend to intervene unless Walters needed assistance.  So far, so good: nothing wrong with an attorney engaging in a bit of defense of others.

But then Walters commits a significant ethical lapse.  She tells the rescued woman “Miss, I should inform you that I’m an attorney.  And I’d be more than happy to represent you if you feel that these ‘heroes’ and their delayed response has in any way caused you emotional distress.”  You may be wondering what’s wrong about this.  Isn’t that what an attorney would do?  Perhaps surprisingly, the answer is ‘no.’

(NB: We’re aware that Walters was mostly just good-naturedly ribbing the Avengers, but ethical principles shouldn’t be breached even for the sake of a joke.  Also, as an aside, the ’emotional distress’ claim is nonsense in this case as the Avengers owed the woman no particular duty to rescue her.  See this post for more.)

So what did Walters do wrong?  She solicited a potential client in person.  What’s worse, she did so immediately after the potential client had been assaulted and, allegedly, emotionally distressed.  So how is an attorney supposed to know what (not) to do?  And how can non-attorneys know when an attorney is breaking the rules?  For that we turn to the “law of lawyering,” a term we assure you we did not just make up.

II. The Law of Lawyering

The legal profession is primarily regulated at the state level, so the ethical rules that bind attorneys vary from state to state, but 49 of the 50 states have adopted some variation on the American Bar Association Model Rules of Professional Conduct.  Most states have basically adopted the Model Rules wholesale.  New York, where the events of the comic took place, was one of the last states to adopt the Model Rules (as the New York Rules of Professional Conduct), and in fact it was still using the old New York Lawyer’s Code of Professional Responsibility at the time the comic was written.  However, as it turns out the result is the same under either set of rules.

The current New York Rules of Professional Conduct have this to say about solicitation under Rule 7.3:

(a) A lawyer shall not engage in solicitation:

(1) by in-person or telephone contact … unless the recipient is a close friend, relative, former client or existing client; or

(2) by any form of communication if: …

(iv) the lawyer knows or reasonably should know that the age or the physical, emotional or mental state of the recipient makes it unlikely that the recipient will be able to exercise reasonable judgment in retaining a lawyer

So this kind of in-person solicitation is prohibited in New York (and the rules are similar in most states), and even if the woman fell into one of the exceptions, Walters still should have known that the woman’s emotional state made it unlikely that she could exercise reasonable judgment so soon after being the victim of a crime.  And in fact there are special rules about that kind of thing, per Rule 7.3(e):

(e) No solicitation relating to a specific incident involving potential claims for personal injury or wrongful death shall be disseminated before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident.

So even if the woman fell into one of the exceptions and her judgment wasn’t impaired, Walters still should have waited.

There is, by the way, a long history of prohibiting this kind of in-person solicitation, which is also called “barratry.”  In fact, it’s still a crime in some jurisdictions, including New York where it’s a misdemeanor.  N.Y. Judiciary Law § 479, 485; See also Tex. Penal Code § 38.12.  The Supreme Court has held that these kinds of rules are a permissible regulation of commercial speech.  Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995).

It’s worth pointing out that these rules are not arbitrary. People who are solicited for business while they are experiencing acute distress are less likely to be able to make an informed decision about who would be best to retain.  Even if you aren’t distressed it can be hard to make a fully-informed, free decision about representation while a fast-talking attorney is trying to talk you into choosing them.

People being solicited are also less likely to make a good decision about whether or not they want to retain counsel at all. What could seem like an absolutely terrible accident at the scene can turn out to be not that big of a deal. And what someone wants to do while in the throes of anger or fear may be very different from what they want to do a few days later. But once the legal process is started it can be difficult and expensive to stop. It’s a lot better for everyone if suit is never filed in the first place if it isn’t going to go anywhere. So there is a compelling social reason for prohibiting the solicitation of legal business in the immediate aftermath of an accident: we want people to make calm, rational decisions about whether or not they want to sue and who they want to be represented by.

III. The Consequences

Cases of attorney misconduct are handled by the state disciplinary authority, in this case the discipline and grievance committees appointed by the Appellate Division of the New York State Supreme Court.  Although victims of attorney misconduct may file complaints, the purpose of a disciplinary hearing is to punish misconduct, not to compensate victims.  However, the victim may have a separate civil claim against the attorney, as in a legal malpractice case.

In New York, attorney discipline includes caution, admonishment, reprimand, censure, suspension, and disbarment. How bad does it look for Walters?  As far as we know this is her first disciplinary offense, and solicitation is far from the worst thing an attorney can do (e.g. lying, stealing from clients, and jury & witness tampering are all much worse).  New York disciplinary decisions are not the easiest thing to research, but our guess is that she would likely receive a letter of caution, an admonition, or possibly a reprimand.  Attorneys have received worse punishments for solicitation in New York, but it’s usually in conjunction with misrepresentation or other aggravating circumstances.

A letter of caution is an informal, confidential notice of disapproval.  It goes in the attorney’s file but it’s not public.  It’s basically a warning.  An admonition is a formal disciplinary action but it’s still confidential.  A reprimand is similar to an admonition except the matter may also be referred to the court for further action.

As mentioned above, Walters may also be guilty of a misdemeanor.  The woman Walters solicited probably wouldn’t have a civil claim against her, though, so that’s a small consolation.

IV. Conclusion

Attorney discipline and malpractice are serious issues.  A few hundred attorneys are disbarred and a few billion dollars in legal malpractice damages are awarded every year.  All attorneys should take care to uphold the highest ethical standards, and superhero attorneys are no exception.

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Posted in legal ethics