The Ethical Problems of Changing the name of Nelson & Murdock

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November 4, 2018

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.

Karen pretending to be a lawyer. (All lawyers’ desks have skulls on them).

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.

Ethical Concerns of Representing Dracula

By

Josh Gilliland

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October 30, 2018

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There is the long running lawyer joke that attorneys are vampires. However, the story of Dracula features an attorney who was retained by a creature of the night for leasing property in England. In the 1931 film, Renfield travels to Transylvania and quickly falls under Dracula’s spell. Renfield assists the vampire in traveling to England aboard a sailing ship, alerting Dracula when the sun had set for the Count’s nightly feeding on sailors. For a different take on the story closer to the book, check out the Fictional Podcast has a great three part series telling the story that follows Jonathan Harker on his ill-fated trip to Transylvania.

Here is a question worthy of a bar exam, what should a lawyer do if a vampire seeks their legal representation?

Client Discrimination Based on Status as a Vampire

Attorneys have a duty “[n]ever to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.” Cal. Bus. & Prof. Code § 6068(h). Moreover, lawyers “shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability in accepting or terminating representation of any client.” California Rules of Professional Conduct Rule 2-400(B)(2).

It would be wrong to reject representing a vampire on the sole basis the client is a vampire. Lawyers cannot discriminate based on a disability (such as being undead, bursting into fame if exposed to sunlight, and requiring human blood based on dietary restrictions), or national origin (such as being Transylvanian). These factors are alone not a basis for rejecting someone as a client and could be grounds for a discrimination lawsuit.

Lawyer Can’t Advise Breaking the Law

Renfield (or Harker in the book) did not know Dracula’s intentions besides his real property interests in England. This is important, because attorneys are not supposed to advise clients on violating laws. California Rules of Professional Conduct Rule 3-210. If the attorney knew that Dracula intended to travel to England in order to murder and feed on an unsuspecting population who did not decorate their homes with Crucifixes and Communion wafers, the attorney did not knowingly advocate violating the laws against murder. If the attorney knew Dracula’s intent, then there is a serious ethical breach.

Attorney-client Privilege Doesn’t Apply to Enabling Crimes

Attorneys have a duty to maintain their client’s confidential information. Cal. Bus. & Prof. Code § 6068(e)(1). However, an attorney may, but is not legally required, to reveal confidential information if the attorney believes it is necessary to prevent criminal activity that can result in death or substantial bodily harm. Cal. Bus. & Prof. Code § 6068(e)(2). Moreover, the attorney-client privilege does not apply if a lawyer’s services were sought to enable or aid anyone to commit a crime. Cal Evid Code § 956(a).

Dracula’s attorney would have to maintain his client’s confidential information that went into securing the real property agreements, but if the lawyer knew of Dracula’s intent to kill, then the lawyer has options for informing law enforcement. The attorney could inform the police of Dracula’s intent to kill people for their blood, which could include the location of Dracula’s properties. However, there is no legal requirement that the attorney has to inform law enforcement, which would make the lawyer a true monster if he decided to not take any action to stop his client from feeding on others.

If the attorney offered Dracula legal advice on how to murder, locations around London that would be prime hunting grounds, that advice would not be protected by the attorney-client privilege. At that point the lawyer has transformed from attorney to henchman, and is assisting with committing crimes.

Is it Cool a Lawyer is Representing AND Dating a Dagger’s Mom?

By

Josh Gilliland

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June 22, 2018

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Marvel’s Cloak and Dagger shows a significant ethical issue for a lawyer named “Greg.” Greg is representing Melissa Bowen, Tandy’s mother, against the Roxxon Corp. The mega-evil company pinned the destruction of an oil rig on Tandy’s father, who was killed in a car crash after the oil rig exploded. Eight years later, Greg the lawyer has been navigating the corporate shell games in trying to bring justice to the Bowen family.

Greg also has a sexual relationship with Melissa, does considerate acts of kindness such as buying groceries, and has the hope of one day marrying Melissa. Greg is also married and apparently has a thing for women who need to be rescued. This is an ethical minefield for Greg. The Louisiana Rules of Professional Conduct state, “in representing a client, a lawyer shall exercise independent professional judgment and render candid advice.” The annotations to the ABA Model Rule state:

“Emotional detachment,” in the words of the ABA’s Ethics Committee, is “essential to the lawyer’s ability to render competent legal services.” A lawyer who engages in a sexual relationship with a client, the committee concluded, risks losing “the objectivity and reasonableness that form the basis of the lawyer’s independent professional judgment.” Because of this threat to independent judgment, and because of the problems of confidentiality and conflicts of interest that lawyer-client sex presents, the committee concluded that a lawyer would be “well advised to refrain from such a relationship.”

In re Ashy, 98-0662 ( La. 12/01/98), 721 So. 2d 859, 867.

Greg is a solo practitioner. Taking on a multi-national corporation that sues former employees for seeking medical treatment on the grounds they violated their confidentiality agreement (See, Daredevil season 1), requires Greg to be able to render independent professional judgment. The fact he is having a sexual relationship with Melissa, whose life has been destroyed by Roxxon, would mean he is not emotionally detached from his client. This would heavily compromise his ability to give his best legal representation.

Attorneys are not supposed to provide financial assistance to a client, except in specific situations with court costs and litigation expenses. La. St. Bar Ass’n. Art. XVI § 1.8. Arguably buying groceries and meals could be considered financial assistance for a client who is unemployed and living in desperate conditions.

Greg appeared to have honorable goals to help the Bowen family, however, his sexual relationship with Melissa would be a serious breach of his ethical duty to provide independent professional judgment and render candid advice. Unfortunately, this turned into a moot point after the episode Call/Response.

Are Human Sacrifices Protected by the Attorney-Client Privilege?

By

Josh Gilliland

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April 11, 2018

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Catherine Wilder on Hulu’s Runaways is a case study in attorney ethics. She met her future husband Geoffrey while representing him in jail. She is the mother of Alex Wilder, the teenager who is arguably the glue that holds the teenage “Runaways” together as a team.

Catherine and Geoffrey are members of Pride, a civic group connected to the cult/church Givborim, which conducted ritualistic human sacrifices to prolong the life of Jonah, a supernatural villain. Making matters worse, these sacrifices were done at the Wilder property.

Alex Wilder expressed concern over his mother’s impressive skill as an attorney. However, what are the legal ethical issues with Catherine Wilder participating in human sacrifices as part of a quasi-religious ceremony wearing red robes?

Representation of Geoffrey Wilder while Incarcerated

Catherine met her future husband Geoffrey while he was awaiting trial for murder. After a discussion with Jonah, Geoffrey asked a friend Darius Davis to admit to the murder for which Geoffrey was arrested.

While it was clear Geoffrey was attracted to Catherine, there was no evidence to suggest they had a sexual relationship while Catherine represented Geoffrey. Such representation could have been improper, if it caused Catherine to perform legal services incompetently. Cal. Rules of Prof’l Conduct, Rule 3-120(B)(3). This rule does not apply to spouses where the relationship predates representation. Rule 3-120(C).

The problem for Catherine is she willingly assisted in a fraud upon the Court in offering Darius Davis as the shooter for Geoffrey’s crime. This is the very essence of an act of “moral turpitude, dishonesty or corruption,” which would be cause for disbarment or suspension. Cal. Bus. & Prof. Code § 6106.

Human Sacrifices are Not Protected by the Attorney-Client Privilege

Catherine Wilder has no way to argue the sacrifices committed on her property are in any way protected by the attorney-client privilege. As a preliminary matter, the California attorney-client privilege states that a client has the right to refuse from disclosing any confidential communications with their attorney. Cal. Evid. Code § 954. This would require Catherine to represent every member of Pride individually, which has significant legal issues as to potential conflicts between Pride members, such as those who had knowledge of another member’s child being killed. Moreover, the attorney-client privilege does not apply if a lawyer’s services were sought to enable or aid anyone to commit a crime. Cal Evid Code § 956(a). As the members of Pride were killing teenagers, there is no way for Catherine to provide legal advice on how to murder children.

Catherine could not argue Pride had any religious freedom to perform the “energy transference” of runaway teenagers in some quasi-religious ceremony for Givborimism. As has been held in case law:

The devotee of a religious cult that enjoins polygamy or human sacrifice as a duty is not thereby relieved from responsibility before the law. In such cases the belief, however false according to our own standards, is not the product of disease. Cases will doubtless arise where criminals will take shelter behind a professed belief that their crime was ordained by God, just as this defendant attempted to shelter himself behind that belief. We can safely leave such fabrications to the common sense of juries.

People v. Schmidt, 216 N.Y. 324, 339-40, 110 N.E. 945, 949-50 (1915), citing Guiteau’s Case, 10 Fed. Rep. 161, 175, 177; Parsons v. State, 81 Ala. 577 at 594; Reynolds v. U. S., 98 U.S. 145; People ex rel. Hegeman v. Corrigan, 195 N. Y. 1, 13.

Killing runaway teenagers is murder. Lawyers are supposed to uphold and defend the Constitutions of the United States and their state, not be willing participants in the deaths of children. The actions of the members of Pride could not hide behind the attorney-client privilege. Catherine should be disbarred for the [fictional] deaths and tried for conspiracy to commit murder.

Could Karen Page Tell Homeland Security about the Punisher?

By

Josh Gilliland

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November 25, 2017

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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.

The Trauma of Being She-Hulk After Marvel’s Civil War II

By

Megan Smith

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January 16, 2017

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Jennifer Walters, formerly known as the Incredible She-Hulk, has been struggling ever since the end of the events of Marvel’s Civil War II. At the beginning of the event, Walters is knocked unconscious in a battle royal between a passel of various superheroes and Thanos, the mad Titan; she spends the rest of the event in a coma, sometimes being visited by former teammates, but otherwise missing in action. Although she makes it out of Civil War II alive and with a new solo series (entitled simply, Hulk), it’s clear she’s been changed for the worse.

We see her trauma in the major life changes she decides to make at the start of her new series; she now remains in her human form, forswears crime-fighting, and returns to her legal practice. Whereas she used to remain in her She-Hulk form as both civilian and superhero, that body now brings with it traumatic memories of her last fight. Even thinking about what happened (and the family and colleagues she has lost) causes her to break out in a sweat and double over in pain. She also appears to be separating herself from the people she knew in her superhero life. When Patsy Walker, aka HellCat, texts her to see how she is, Jennifer doesn’t respond. When she leaves work, we see her lock herself away in her apartment alone.

Based on the Mayo Clinic’s helpful website and her own behavior, it appears that Jennifer now suffers from post-traumatic stress disorder (PTSD). Symptoms of PTSD include recurrent, intrusive, memories of the traumatic event (check); avoidance of talking about the event or to anyone related to it (check); changes in emotional reactions, including irritability, overwhelming guilt, shame, or anxiety (check); and negative changes in thinking and mood, including difficulty in maintaining close relationships and a loss of interest in previously enjoyed activities (double-check). Jennifer is plagued by thoughts she cannot control, has cut herself off from the superhero world she once loved, and is anxious and irritable due to this trauma. It certainly looks like PTSD.

Attempting to juggle PTSD and any job is hard enough; trying to do that within a licensed profession is a different ball of wax altogether. Attorney licensure is regulated by the bar of each state. In New York, where Jennifer practices, the appellate division of the supreme court for each geographic division of New York (called “departments”) determines whether a person “possesses the character and general fitness requisite” to practice as an attorney in the first place; they also determine whether to sanction or disbar an attorney from practice. NY CLS Jud §90.

Attorney discipline generally happens through a court case filed by the Departmental Disciplinary Committee (DDC) in the department where the attorney practices law. New York law provides that whenever the DDC petitions the “court to determine whether an attorney is incapacitated from continuing to practice law by reason of physical or mental infirmity or illness […] this court may take or direct such action as it deems necessary or proper to determine whether the attorney is so incapacitated, including examination of the attorney by such qualified experts as this court shall designate.” 22 NYCRR §603.16(b)(1).

The appellate division is “authorized to censure, suspend from practice or remove from office any attorney and counsellor-at-law admitted to practice who is guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice; and the appellate division of the supreme court is hereby authorized to revoke such admission for any misrepresentation or suppression of any information in connection with the application for admission to practice.” NY CLS Jud §90(2).

There’s no allegation that Jennifer lied or hid any information when she became an attorney (she did not gain her powers or experience mental illness until well after she was already licensed, and it appears that her She-Hulk alter-ego has been common knowledge since then). There’s also nothing to suggest that she has engaged in any fraud, deceit, crime, misdemeanor, or any conduct prejudicial to the administration of justice (think: lying to police or blackmailing clients).

The concern for Jennifer lies with the specter of professional misconduct and malpractice. There are not many New York state attorney disciplinary cases involving mental health issues that have reached the appeal stage, and many of the ones that exist seem to purposefully shroud their details to protect the attorneys’ privacy. The few details we have, however, are illuminating: they are either cases where the diseases themselves have made the attorneys incapable of performing legal work (because they were removed from reality, as the attorneys in In re Cohen, 92 AD 2d 139 (1983), In re Colp, 185 AD 2d 43 (1993), and In re Dickson, 196 AD 2d 399 (1994), were) or they are cases where the effort of dealing with the mental illness made it impossible for the attorneys to keep up with their work. This second category of case includes In re Guran, 126 AD 2d 216 (1987), (where the attorney was too mentally disordered to prepare for his own disbarment hearing); In re Jordon, 202 AD 2d 141 (1994), (where the attorney’s severe, chronic, depression and resulting mental fragility caused her to engage in unspecified misconduct); and In re Rochlin, 100 AD 2d 263 (1984), (another severe depression case where the attorney lied to clients and fabricated legal documents because he could no longer keep up with his work).

As everyone knows Jennifer Walters used to be the She-Hulk, it seems unlikely that a psychiatrist interviewing her would think she’d had a break from reality when she talks about the fantastical cause of her pain. With the severity of her panic attacks and the physical manifestations of her stress, however, it seems possible that Jennifer’s trauma may lead to her neglecting her work and engaging in bad behavior to try to keep up. If so, a petition by the DDC and a court order could force her into a psychiatric evaluation and a pause from her life as a lawyer.

Without her superhero or professional identities, who would Jennifer Walters even be? If she’s unwilling or unable to treat her PTSD, we may just find out.

Did Daredevil Adequately Prepare for the Punisher’s Trial?

By

Josh Gilliland

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March 22, 2016

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Spoiler Warning: Do not read unless you have watched Daredevil season 2 episodes “Semper Fidelis” and “Guilty as Sin.”

Matt Murdock and Foggy Nelson represented Frank Castle in his trial that included 37 murder and 98 other charges. Both attorneys owed Castle the duty of competency and loyalty in their representation.

Problem: Murdock was late to trial, so he missed giving his opening statement, forcing Foggy to take the lead instead. Did Murdock violate his duty of competency to his client?

New York defines the duty of competence for attorneys under New York’s Rules of Professional Conduct, Rule 1.1:

(a) A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

(b) A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it.

(c) A lawyer shall not intentionally:

(1) fail to seek the objectives of the client through reasonably available means permitted by law and these Rules; or

(2) prejudice or damage the client during the course of the representation except as permitted or required by these Rules.

The committee notes also explain how lawyers must adequately prepare their case as follows:

Thoroughness and Preparation

[5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client may limit the scope of the representation if the agreement complies with Rule 1.2(c).

Matt Murdock did not prepare for trial, instead spending the night with Electra roughing up a perverted language professor to crack a code used by The Hand. Murdock’s vigilante life as Daredevil kept him out late, so he overslept, and thus was late to court.

Foggy Nelson had the option to delay giving the Defense’s opening statement until after the Prosecution’s case-in-chief. Defense attorneys often make this strategic decision so the Defense effectively responds to the Prosecution’s case before calling their witnesses (think of a delayed opening statement as a sorbet to cleanse the jurors’ intellectual palates). Foggy decided to give the Defense own opening statement extemporaneously, which carried higher risk then Murdock being late.

Matt Murdock’s lack of preparation extended to missing strategy sessions, witness preparation, and working with his trial team. Attorneys have been suspended for failing to appear for schedule compliance conferences and even disbarred for systemic violations of their professional responsibilities. See, In the Matter of Jorge Sorote, 973 N.Y.S.2d 101 (Sept. 17, 2013) and In the Matter of C. Vernon Mason, 621 N.Y.S.2d 582 (Jan. 26, 1995).

Murdock being late to the courthouse and missing the beginning of the trial is very bad on its face. However, since Murdock had Nelson as has co-counsel, this makes the situation murky on whether Castle suffered any prejudice. Moreover, Nelson had the option to defer the opening statement until Murdock arrived. Nelson did not have to give the opening statement at that exact moment and could have avoided the risk to the client.

This does not free Murdock of any violation of the duty of loyalty to Frank Castle. Moreover, Murdock likely breached his fiduciary duty to Foggy Nelson, as his legal partner, with his inattention to Castle’s case. Castle could have had a valid complaint against Murdock to the New York Bar, minus Castle’s own sabotaging his own case.

A few notes on Trial Advocacy and Evidence:

The District Attorney improperly objected to Murdock’s cross-examination questions as “leading.” The entire point of cross-examination is to ask leading questions to control the witness, which is allowed. It is equally wrong to object to cross-examination as argumentative, because cross-examination by its very nature is supposed to be argumentative to discredit the witness.

There was also the issue whether Dr. Gregory Tepper altering medical records were relevant to Frank Castle’s case. In Federal Courts and many states a witness’ veracity for truthfulness is relevant. Dr. Tepper altering medical records would discredit his testimony, which could be introduced on cross-examination. See, Federal Rules of Evidence Rule 608(b)(1) and California Rules of Evidence Rules 785 and 786. New York has similar rules based on common law, as New York States does not have an evidence code.

Confronting Dr. Tepper with evidence of falsifying medical records would be potentially devastating and extremely relevant to Castle’s case. However, as the medical records would have been collateral, the Judge would have limited questioning to avoid confusing the jury with facts not material to Castle’s case.