Season 3 of Daredevil was phenomenal, and easily one of the best seasons of the Marvel Netflix series, or of any show for that matter.
Major spoilers ahead if you have not finished Daredevil season 3!
Like most viewers who had just finished watching this masterpiece, I began to dissect the ethical issues presented by the protagonists’ plan to partner with Karen Page as they reopen their law firm with the name Nelson Murdock & Page. One of the final scenes of this season reunites Foggy Nelson, Karen Page, and Matt Murdock, as they happily discuss how they triumphed over seemingly insurmountable odds and a near invincible enemy without compromising their core values. It is clear that, despite the trials they have gone through, the battle-weary heroes have grown closer than ever before. In an homage to when he first dreamed up the law firm of Nelson & Murdock, Foggy grabs a napkin and designs a new plaque to memorialize the recreation of their firm. Unlike the original napkin, and in recognition of the struggles and obstacles they have overcome together, this plaque reads, “Nelson Murdock & Page.” This heartfelt moment presents an ethical issue: can a nonlawyer, like Karen, be a partner in a law firm? Karen points this out, and Foggy replies that Karen is “one hell of an investigator.” This, however, does not resolve the problem of whether a lawyer may partner with a nonlawyer, even one that is a skilled private investigator.
All lawyers are governed by rules of professional conduct. Foggy and Matt are subject to the New York Rules of Professional Conduct (“NYRPC”) which state, “A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.” NYRPC Rule 5.4(b). Rule 5.4 is titled “Professional Independence of a Lawyer” and was instituted to “protect the lawyer’s professional independence of judgment.” [1] The general theory behind subsection (b) is that if a lawyer were permitted to enter into a partnership arrangement with a nonlawyer, the nonlawyer, who is not beholden to the same ethical standards, may negatively impact the lawyer’s representation of clients in order to further the interests of the partnership. Although this rule against nonlawyer ownership has faced opposition in multiple jurisdictions, including New York, it remains in effect. In December 2011 the American Bar Association (ABA) Commission on Ethics 20/20 released for comment a discussion draft proposing a limited form of nonlawyer ownership of law firms.[2] In 2012, the New York State Bar Association House of Delegates responded to this discussion draft reaffirming its opposition at this time to any form of nonlawyer ownership of law firms.[3] Therefore, under the NYRPC Rule 5.4(b) Karen can not partner with Matt and Foggy to form a law firm in New York.
The dream of Nelson, Murdock, & Page (or Page Murdock & Nelson) is not necessarily over however. There are two ways in which the three could form a partnership, but they are unlikely. First, the three could give up on partnering to form a law firm. NYRPC Rule 5.4(b) only prohibits the partnership of lawyers and nonlawyers when the partnership provides legal services. Matt and Foggy could theoretically sacrifice their careers as attorneys and join Karen as a Private Investigator. Jessica Jones may resent the added competition, but there would be no ethical hurtles. This option is highly unlikely as Foggy and Matt seemed to be looking forward to reviving the glory days of helping the less fortunate in the courtroom and getting paid in chickens.
A slightly more palatable option would involve leaving Hell’s Kitchen, and the entire state of New York for that matter. NYRPC’s Rule 5.4 is based on ABA Model Rules of Professional Conduct (“MRPC”) Rule 5.4. Most jurisdictions,[4] including New York, have adopted the MRPC, albeit with some changes. Most changes are relatively small, however Washington, D.C. has made a significant change to Rule 5.4.[5] Washington, D.C.’s Rule 5.4 permits nonlawyers to have an ownership interest in law firms, and has done so for over 20 years.[6] Washington, D.C.’s Rule 5.4 adds a limited exception for firms where the nonlawyer owner provides professional services for the law firm and the following conditions are met:
1) The partnership or organization has as its sole purpose providing legal services to clients;
2) All persons having such managerial authority or holding a financial interest undertake to abide by these Rules of Professional Conduct;
3) The lawyers who have a financial interest or managerial authority in the partnership or organization undertake to be responsible for the nonlawyer participants to the same extent as if nonlawyer participants were lawyers under Rule 5.1; and
4) The foregoing conditions are set forth in writing.[7]
Nelson Murdock and Page would likely be able to meet these conditions. The first requirement is that the nonlawyer with a financial interest in the firm must “perform[] professional services which assist the organization in providing legal services to clients.”[8] Here, Karen would be providing professional investigative services for the firm. The ABA’s Commission on Ethics 20/20 used Washington, D.C. as an example when considering a modification of Rule 5.4. In its discussion draft specifically used “investigators participating in the evaluation of cases and assisting in the evaluation of evidence and development of strategy,” as an example of a professional nonlawyer whose services would be ideally suited for partnership in a law firm. The remaining conditions would likely be easily satisfied as well. They clearly want to start a law practice with its sole purpose providing legal services to clients. Karen will have no problem agreeing to abide by the Rules of Professional Conduct. Matt and Foggy will take responsibility for Karen, and they will have no issue putting this all in writing. The only problem with this option is convincing Matt to leave his beloved Hell’s Kitchen and move to the nation’s capital.
It is worth noting that forming the firm in Washington, D.C. and keeping an office in Hell’s Kitchen is not an option. This issue was directly treated in a NYSBA Ethics Opinion.[9] In that case a New York attorney sought to either join a Washington, D.C. based firm with a nonlawyer partner or create a subsidiary office in New York for that firm. The Committee concluded that a New York-based lawyer practicing primarily in New York could not be a partner in a Washington, D.C. firm that is partially owned by a nonlawyer. The key factor in the Committee’s reasoning was the location of the majority of the attorney’s legal work. “Occasional litigation in New York” would be permissible, but “if the partnership were created for the very purpose of litigation in New York, establishing it in the District of Columbia would be ineffective to circumvent the New York rules on fee sharing.”[10] Creating a shell firm in Washington, D.C. to circumvent New York’s rules will not work.
Unless the partnership of Nelson Murdock and Page does the majority of its legal work in Washington, D.C. or does not do legal work at all, Matt and Foggy are going to run into ethical trouble if they try to partner with Karen and start a law firm. Until Karen passes the bar, “Nelson Murdock & Page” should probably stay on the napkin.
Only 3 years of school, hundreds of thousands of dollars in debt, and a two-day exam away.
[1] ABA Model Rules of Professional Conduct Rule 5.4, Comment.
[2] Jamie S. Gorelick and Michael Traynor, Discussion Paper on Alternative Law Practice Structure, December 2011, https://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20111202-ethics2020-discussion_draft-alps.authcheckdam.pdf
[3] http://www.nysba.org/workarea/DownloadAsset.aspx?id=26682
[4] California is the only U.S. jurisdiction which has not adopted the Model Rules of Professional Conduct as a base for its ethical rules.
[5] For a full treatment of the differences between jurisdictions, refer to the ABA website, e.g. https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc_5_4.pdf
[6] A detailed history of Wasahington, D.C.’s Rules of Professional Conduct may be found here: https://www.law.cornell.edu/ethics/dc/narr/DC_NARR_0.HTM
[7] Washington, D.C. Rules of Professional Conduct Rule 5.4(b)
[8] Id.
[9] NYSBA Ethics Opinion 1038 (December 16, 2014), http://www.nysba.org/CustomTemplates/Content.aspx?id=53798
[10] Id.
