Law and the Multiverse

(This guest post was written by Scott Maravilla.  Scott writes at the Contract Law Profs Blog and is an alumnus at the PrawfsBlawg.  By day, Scott is an Administrative Judge at the Federal Aviation Administration, although all of the opinions expressed in this post are Scott’s own, and do not represent those of the FAA.  Thank you to Scott for this great post!)

Daredevil is the fictional alter ego of lawyer Matt Murdock in the Marvel Universe encompassing both comics and film.  As a boy, he was blinded by radioactive chemicals, which also left him with his remaining senses functioning at superhuman levels.  This also included a sort of “radar sense” that allows him to perceive his environment in a 360º manner, thus giving our hero an advantage in any fight.

Murdock continues to live in the Hell’s Kitchen neighborhood of New York City (now Clinton but we tend to overlook that fact) where, by night, he fights various nefarious supervillains (his arch-nemesis being Wilson Fisk, a.k.a, The Kingpin).  By day, Matt is an attorney.  He has his own law firm located right in Hell’s Kitchen with his partner, Foggy Nelson (Nelson & Murdock).  One of the emerging themes of the story is that Matt Murdock often finds himself representing the very villains he’s captured.  Thus, the issue arises whether is ethical for Matt Murdock to represent the alleged criminals he brought to justice as Daredevil.

Illuminating that question is a New Jersey Advisory Committee on Professional Ethics opinion:  Opinion 709 – Conflict of Interest: Municipal Police Officer Who Is an Attorney Engaging in Private Practice of Criminal Law, 185 N.J.L.J. 1202 (September 25, 2006), 15 N.J.L. 2166 (October 16, 2006).  The full text of the Opinion can be found here  and here.

The Advisory Committee was concerned with “the propriety of a municipal police officer who is an attorney affiliating with a law firm located in a municipality bordering that in which he serves as police officer” representing criminal defendants.  The Committee concluded that the representation of a criminal defendant by an officer within his or her municipality is prohibited under RPC 1.8(k).  While Daredevil is practicing in New York, not New Jersey, we’ll view the Advisory Opinion as persuasive (which it is).

Opinion 709 observes that the Rules of Professional Conduct (RPC) for New Jersey do not have a sanction for an appearance of impropriety.  Thus, the most obvious reason to dissuade Murdock’s practice is not available in the Garden State.  However, the appearance prohibition is included in many other jurisdictions including New York.

RPC 1.8(k) states that:

 A lawyer employed by a public entity, either as a lawyer or in some other role, shall not undertake the representation of another client if the representation presents a substantial risk that the lawyer’s responsibilities to the public entity would limit the lawyer’s ability to provide independent advice or diligent and competent representation to either the public entity or the client.

I recognize that Daredevil is not “employed by a public entity.”  However, for purposes of this post, we are assuming that Daredevil’s actions are sanctioned by the authorities (in the comics and television series, this is not always the case).  The public support for his endeavors helps to make the case more persuasive (it also opens up for some interesting debate in the comments section).

RPC 1.8(k) further provides that an “attorney who is employed by a municipality as a police officer shall not undertake representation of a client if there is a substantial risk that the attorney’s responsibilities to the municipality would limit the attorney’s ability to provide independent advice or diligent and competent representation to the client.”  RPC 1.7(a)(2) also prohibits representation where there is a “significant risk” that the lawyer’s ability to advise the client is “materially limited” by their responsibility to a third party.

The Opinion provides that “[m]unicipal police officers exercise full law enforcement powers within the territorial limits of their municipality.”  They have a duty, within their municipalities to enforce the law, “to take other steps to detect and apprehend violators of the law,” and assist with the prosecution.  The latter is very important because the work involved with the prosecutors may affect the ability of the lawyer to provide legal advice in another matter.

For further support in analyzing the conflict between lawyer and assisting the prosecution, the Advisory Committee relied upon the New Jersey Supreme Court holding in State v. Clark, 162 N.J. 201 (2000).  The Court “held that a municipal prosecutor may not represent a defendant in a criminal matter in the Superior Court of the county in which he or she serves as municipal prosecutor.”  The Court’s rationale was “that the integrity of the criminal justice system could be impaired when an attorney serves a dual role of municipal prosecutor and criminal defense attorney in the same county.”  Based on this line of reasoning, the Opinion notes that “the police officer witness [could give] direct testimony for the prosecutor one day in Superior Court, then appear as opposing counsel to the same prosecutor the next day in his role as defense attorney.”  Like Opinion 709, the Supreme Court declined to extend the ban beyond the jurisdiction at issue.

While not prosecuting, Matt Murdock is serving as the attorney for the alleged criminals in the very jurisdiction in which he apprehended them.  In Daredevil # 174, he represented Melvin Potter, a.k.a., Gladiator asserting an insanity defense.  In the recent Netflix series, the firm represented Frank Castle, a.k.a., The Punisher, who was also defeated by Daredevil.

Murdock’s representation does pose a “significant risk” of being “materially limited” by his obligations to a third party, i.e. Daredevil.  Can he really allow Melvin Potter to walk only to later combat him when he assumes his alter persona, Gladiator?  The same goes for the unremorseful Punisher who is himself an anti-hero.  Further, as in Clark, “the integrity of the criminal justice system could be impaired when an attorney serves a dual role of” a superhero.

Following the logic of Opinion 709 and Clark, the case against Daredevil is even stronger because the officers in question there do not purport to represent the perpetrator they themselves arrested.  It is not as if he is the defense attorney for supervillains captured by the Fantastic Four or Spiderman.

Interestingly, according to Opinion 709, RPC 1.8(k) and Clark may also prohibit representing criminal defendants in other jurisdictions.  It depends on the particular facts of the case.  So, Murdock is not completely off the hook when it comes to super-team ups (sorry, Defenders).

The one ray of hope for the firm of Nelson & Murdock is that Daredevil’s conflicts are not automatically imputed to Foggy Nelson.  The “conflicted lawyer must be screened completely from any representation by other lawyers in the firm.”  As Foggy Nelson knows the secret identity of Daredevil (at least in the Netflix show), this arrangement can be made.