Could Karen Page Tell Homeland Security about the Punisher?

Let's Take Aim at how the Duty of Confidentiality Applies to Legal Assistants

In Marvel’s The Punisher episode “Gunner,” Homeland Security Agent Dinah Madani questioned Karen Page about the Punisher Trial. Madani’s questioning about a former client of Nelson & Murdock is highly problematic, because Karen easily could have disclosed confidential information learned from her work on the Castle case.

New York attorneys have a duty to protect the confidential information of former clients. See, NY CLS Rules Prof Conduct R 1.9 and NY CLS Rules Prof Conduct R 1.6. Attorneys can use client confidential information to prevent reasonably certain, substantial bodily harm, or prevent a client from committing a crime. See, NY CLS Rules Prof Conduct R 1.6(b)(1) and (2).

Karen worked as a legal assistant for Nelson & Murdock. The law recognizes those who work for attorneys as “privileged agents.” United States v. Kovel, 296 F.2d 918, 921-22 (2d Cir. 1961). As such, Matthew Murdock and Foggy Nelson’s duty to protect confidential information would apply to Karen Page, as she was their agent.

Karen questioned Frank Castle on his past, which is generally accepted for a paralegal or legal assistant to do in a case. (See, Daredevil, season two, episodes “Semper Fidelis” and “Guilty as Sin”). However, Karen also gave Castle advice on what she thought Frank should do for his defense, which crosses the line into Karen giving legal advice, which violated the rule only lawyers can give legal advice. NY CLS Jud § 484.

What does this mean for Agent Madani’s questioning of Karen? First, Karen had a duty to not disclose confidential information about Frank Castle, unless that information specifically could be used to prevent a crime, death, or substantial bodily harm. Secondly, the legal advice that Karen gave Castle is not protected, because Karen is not a lawyer and cannot give legal advice. Third, Karen was also flirting with aiding Castle in committing crimes by providing him information after her employment at Nelson & Murdock. Those discussions would not be protected by any privilege.

How should Karen proceed in talking with Homeland Security? With a very skilled lawyer to help her navigate what was confidential and what she could disclose.

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Josh Gilliland

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, the ABA Web 100 for Best Legal Blog and Podcast categories, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.