Nelson & Murdock: Worse Client Consultations Ever

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March 20, 2016

The fictional attorneys Franklin “Foggy” Nelson and Matt Murdock have the very real world problems with running a small law firm. Real attorneys every day have clients who cannot afford paying their legal bills. This has negative consequences on the operational costs of running a firm, from practice management software, to online legal research, to making payroll. While alternative fees are good, it is extremely difficult to keep the lights on when clients pay in bananas.

Nelson & Murdock have a serious ethical issue with how they conduct client consultations. Karen Page identifying each prospective client in the waiting room, publically disclosing each individual’s legal problem, potentially is a violation of a New York attorney’s duty of confidentiality to a prospective client.

New York’s Rules of Professional Conduct, Section 1.18(a) state that “A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a “prospective client.” Every person in the waiting room of Nelson & Murdock had disclosed information to the Karen Page for the possibility of representation by Nelson & Murdock. Those communications arguably would have been protected under Section 1.18(b) from disclosure. Moreover, both Foggy Nelson and Matt Murdock had a duty to supervise Karen Page as a non-lawyer under New York’s Rules of Professional Conduct, Section 5.3, in how she maintained that information.

The New York State Bar Association Ethics Opinion 1067 addresses the duty of confidentiality to prospective clients under New York’s Rules of Professional Conduct, Section 1.18(b). The Opinion defines the test for confidentiality as follows:

Whether the prospective client’s identity, the fact of the consultation, and the subject matter of the consultation constitute confidential information turns on whether the information is protected by the attorney-client privilege, on whether disclosure likely would be embarrassing or detrimental to the prospective client, and on whether the prospective client has asked the lawyer not to disclose the information.

Foggy Nelson and Matt Murdock should both discuss the importance of confidentiality with Karen Page for prospective clients. Whether or not there was an ethical violation would turn on each individual client. It is a smart practice to not create legal risk where there would otherwise be none.

As to the matter of attorney’s fees, there is nothing in Rule 1.5 that would prohibit Nelson & Murdock being paid in pies as “excessive” legal fees (except as to calories). However, while pies are extremely tasty at accounts receivable meetings, they do not pay any bills.

War of the Purple Roses

By

Josh Gilliland

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December 4, 2015

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Jeri Hogarth on AKA Jessica Jones was the poster child for everything horrible with attorneys. She bribed a juror at the beginning of her career, was having an affair with her secretary Pam, and was ethically challenged in arguably acting against the best interests of her client Hope with the press. Then there is the entire issue of secretly taking the aborted fetus of her client for experimentation. Some lawyers own restaurants on the side; Jeri apparently did bio-medical research.

Jeri’s wife Wendy sought a divorce from Jeri, likely based on Jeri’s adultery with Pam. Adultery is one of the specifically enumerated reasons for a divorce under New York law. NY CLS Dom Rel § 170(4).

Wendy demanded as a divorce settlement to have first 75% of Jeri’s income, and then ultimately 90%, in exchange for not disclosing old emails that contained evidence of Jeri’s jury tempering to the New York State Bar, which would result in immediate disbarment for Jeri upon conviction.

Problem: Wendy was demanding 90% of Jeri’s income to cover up a crime. This would make that provision of the divorce agreement void, as one cannot contract to cover-up a crime. This also poses serious ethical issues for Wendy’s lawyer, who effectively was helping threaten criminal liability as consideration for a divorce agreement to take an unconscionable amount of money.

A divorce agreement where one party has to provide 90% of their income to the other would fall under the class meaning of “unconscionable,” because “no man in his senses and not under any delusion would make on the one hand, and as no honest and fair man would accept on the other.” Murray on Contracts, section 96, citing Hume v United States, 132 U.S. 406 (1889), quoting from Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125, 155 (Ch. 1750).

Wendy demanding 90% of Jeri’s income would be extortion under New York law, which is defined as when one person compels another to deliver them property in order to avoid 1) accusing the victim of a crime or cause criminal charges to be instituted against them, or 2) expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule. NY CLS Penal § 155.05(2)(E)(iv) and (v). Courts as a matter of public policy do not enforce illegal bargains and as such, would not enforce a divorce agreement founded upon extortion.

Is Wendy entitled to a divorce from Jeri? Yes. Should Jeri be disbarred if she is convicted of jury tampering? Yes. Can Wendy extort Jeri for 90% of her assets in exchange for not reporting Jeri to the bar in a divorce agreement? No way. The Courts are not an instrument to enforce illegal deals for revenge.

Moira Queen on Trial: What Can They Actually Try Her For?

By

Brad Blanchard

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November 7, 2015

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I hate watching the law played out on TV, because the law is often exacting and detail oriented. But good stories often require painting with a broad brush. Which means I spend a lot of time saying “You can’t do that” while being shushed by others. But, aside from a few head scratching moments, The Arrow did one of the better jobs I’ve seen. Still, for fun, here’s my favorite pieces of what they got right, and what they got wrong.

Are you required to let your opponent know when you invoke Rule 15?
Absolutely! And a good attorney invokes it as often as needed.

What does Rule 15 do?
In a Federal criminal trial it means someone wants to depose a witness before trial. That helps you figure out how strong your case will be at trial. Both sides get to be there so, yeah, they know when you invoke it.

Under Federal civil rules you invoke Rule 15 to amend a pleading. Which you then serve on your adversary so, yeah, they also know that you invoked it.

Under Starling City rules, apparently, it means you want the death penalty… which you tell opposing counsel about in court… as a professional courtesy? They must invoke the death penalty a lot to give it its own rule. Example: “Your honor, I object! Also, I’d like to invoke Rule 15.”

Can Lead Attorney for the State Laurel be disbarred for talking to Defendant Moria Queen without Moira’s attorney present?
Yes. Will she be? Hard to say, but some kind of reprimand from the legal bar is likely.

The whole point of having a lawyer is to keep you from saying and doing things you’ll regret. Avoiding Moira’s lawyer, so you can talk to Moira alone, and convince her to take a plea deal, instead of going to trial, because you know about her affair with Malcom Merlyn, is bad form. It could screw up your case. It could also get you disbarred. Just a bad idea all around.

Did Moira engage in a Conspiracy to Murder?
Yes.

Conspiracy is an agreement between two or more people to commit a criminal act with an overt act to that end. She agreed to help out Malcom Merlyn with the machines that would destroy the Glades; she gave him access to the materials necessary to build machines; and she intended that the Glades be destroyed by the machines, along with all of its occupants. So, yeah, guilty of conspiracy to murder.

Does she have a defense for withdrawing?
Yes. Assuming her lawyer wasn’t so busy making unnecessary bail motions that she forgot to put on a withdrawal of conspiracy defense for the jury.

Going on TV to tell people you were part of a conspiracy is a pretty clear way to withdraw, especially if your co-conspirator is watching. And seeing as how Malcom waited some time to set off the machines, he had plenty of time to decide if he wanted to withdraw and not destroy the Glades as well. Even in a jurisdiction that requires the individual to stop the crime in order to withdraw, she would be ok because she pled for people to get out of the Glades, and then was prevented from further action by being immediately arrested by the police who would then, presumably, be responsible for stopping the crime. Unless, of course, they would prefer people who join conspiracies to withdraw by putting on a mask and going all vigilante on their former co-conspirators.

Is she responsible for aiding and abetting 503 mass murders?
That depends on how many people Malcom killed before she withdrew from the conspiracy.

She’s accountable for all the crimes that occurred before the she withdrew (including the “dozens” of murders he committed while she was part of the conspiracy) but not the stuff that happened afterwards. So, if we’re talking about the 503 people who died in the Glades after she went on TV, the answer is no.

If she were responsible for those deaths could she use duress as a defense?
No, not even if she met all the elements, which she doesn’t. Let’s run the numbers:

Well-grounded fear? Check!
Imminent threat of death or serious bodily harm? Umm… Probably not. Imminent means now, as in “right now!” Not months or years. A defense using months or years might work for someone chained in a house with no means of escape, but Moira is pretty much free to go wherever she wants and do whatever she wants whenever she wants.
No reasonable opportunity to escape? Well… she does live in her own house, run her own company and have enough money to go anywhere she wants in the world at any time, which would include, I’m assuming, the police station. Or, she could just tell the police when they come to her house. Which they do semi-regularly. So, I’m going to say no.

Even if she could meet all the elements, you’re not allowed to kill one person, or dozens, to save someone else, even if they are your children. Sorry Moira.

Can she be held responsible for jury tampering?
No. Unless Starling City has a special rule for that too.

Jury tampering occurs when an individual, such as Malcom Merlyn, by use of corruption or threats tries to influence the outcome of a trial. Jury tampering is serious business, and the penalties can be pretty severe. Let’s be honest though, if you’re Malcom Merlyn, and you’ve killed hundreds of people, a little jury tampering isn’t going to keep you up at night. But Moira had nothing to do with it so she can’t be held responsible. That’s all on Malcom.

Because the jury was tampered with, can they try her again?
No.

The Fifth amendment of the U.S. Constitution forbids double jeopardy, which means you can’t be tried twice for the same crime. Even if your former co-conspirator comes back from the dead and threatens the jury, once a jury reaches a not-guilty verdict and the judge ratifies it in court, they can’t try her again for that same crime. So, Moira is a free woman, but keeping all those secrets is going to get her killed if she’s not careful. Oh, wait….

A Daredevil of Attorney Ethics Over the Crime-Fraud Exception

By

Josh Gilliland

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April 13, 2015

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Marci Stahl, Esq., a [fictional] attorney at the [fictional] “Big Law Firm” Landman & Zack, is a case study of attorney ethics on Marvel’s Daredevil series on Netflix.

Landman & Zack is the mythical law firm we heard about in law school. First year associates probably are paid $190,000 a year, have to bill 720 hours a month, and represent morally ambiguous clients, like a Japanese whaling company. Some poor lawyer has to say with a straight face, “My client is simply conducting research, tasty research,” in a defamation and harassment suit against environmental activists. These lawyers learn to live without having a reflection thanks to suits made from endangered species. For the lucky few who do not have a nervous breakdown, they have the option to go to the Carousel at age 35, with the hopes of becoming a junior partner.

Enter Marci Stahl, Esq., the former girlfriend of Foggy Nelson. Ms. Stahl admits to “Foggy Bear” Nelson that Landman & Zack represents Wilson Fisk, the crime lord who is not yet called The Kingpin. Fisk is the law firm’s highest billing client.

Nelson confronted Stahl that her firm was aiding Fisk in a criminal enterprise. Furthermore, Nelson went so far as to say Stahl had lost her soul at Landman & Zack. Stahl responds by sneaking Fisk’s client files out of Landman & Zack and giving them to the law firm Nelson & Murdock.

Marci Stahl’s actions are a piñata of ethical issues. Attorneys have a duty to counsel a client to NOT engage in illegal conduct. New York Rules of Professional Conduct 1.2(d). Furthermore, a lawyer may refuse to participate in conduct the lawyer believes to be unlawful. New York Rules of Professional Conduct 1.2(f). As stated in comment 10 to Rule 1.2(d), lawyers are to avoid assisting a client by preparing a fraudulent document or concealing wrongdoing. As such, a lawyer should advise a client if the requested conduct would violate the law. Id. If a client will not change their conduct and the lawyer’s participation would violate the law, the lawyer should withdraw from the case. Id. Moreover, there are cases where a lawyer would have to disaffirm any documents prepared for the client. Id; Rule 1.6(b)(3); Rule 4.1, Comment [3].

Ms. Stahl turned over client material to an adverse law firm. This is highly problematic for her, because a lawyer should not knowingly reveal confidential information. New York Rules of Professional Conduct 1.6(a) and NY CLS CPLR § 4503. A lawyer can reveal confidential information under the following conditions:

1) To prevent reasonably certain death or substantial bodily harm;

2) To prevent the client from committing a crime;

3) To withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;

4) To secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;

5)(i) To defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct;

New York Rules of Professional Conduct 1.6(b).

Ms. Stahl turned over information to Nelson & Murdock without the knowledge of her firm or consent of her client. The information was clearly “confidential.” However, it was also evidence of racketeering. As recognized by New York Courts, the “intent to commit a crime is not a protected confidence or secret.” People v. DePallo (2001) 96 N.Y.2d 437, 442.

The “Crime-Fraud” exception to attorney work product doctrine is not “intended to shield an attorney’s or his agent’s fraud or otherwise impede investigation of criminal activity.” In re Grand Jury Subpoenas Served upon John Doe (Sup.Ct. 1988) 142 Misc.2d 229, 232. The purpose of keeping attorney work product confidential is “to protect from disclosure to party adversaries the attorney’s mental thought process in determining the significance of evidence and the strategies and arguments he has developed in preparing a case for trial.” Id; 3A Weinstein-Korn-Miller, NY Civ Prac para. 3104.43, at 31-157.)

Landman & Zack’s work product is likely key evidence in the racketeering charges against Wilson Fisk. The fact lawyers assisted a criminal enterprise would make them part of a conspiracy, and subject to immediate disbarment if convicted. Attorneys have been charged in the past with racketeering in violation of 18 USCS § 1962(c), so this is not the stuff of comic book stories. See, Wade v Gaither (2009, DC Utah) 623 F Supp 2d 1277.

Stahl’s best argument for turning over client confidential material to Nelson & Murdock is that she engaged the firm to secure advice on compliance with her ethical duties and whether her client had broken the law. While this argument is problematic since the firm Nelson & Murdock had been adversarial to Wilson Fisk, thus on its face should violate Stahl’s duty to loyalty to Fisk, it is the least bad position for her. The better plan would have been turning the material over to the FBI in order to prevent her client from committing more crimes. However, with the way anyone who opposed Wilson Fisk kept ending up dead, it was objectively reasonable for Stahl to work with another law firm.

Can Daredevil Ethically Accept Iron Man’s Gift of Sight?

By

Josh Gilliland

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December 30, 2014

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Tony Stark in Superior Iron Man #3 took a page from the Beyonder’s Secret Wars II playbook and tried buying Matt Murdock by giving Murdock sight. Just as the Beyonder learned, Matt Murdock is too ethical of a lawyer to be bought off with his vision. In this case, justice literally was blind.

Tony Stark claimed he gave Murdock a tailored strain of Extremis as a “gift.” However, Murdock’s vision was only temporary and would require “constant boosters” for Murdock to retain his sight. Would such a “gift” be proper to an attorney? Alternatively, could Stark give Murdock his sight back as a retainer agreement?

See No Evil, Hear No Evil, Speak No Evil

California attorneys have a duty to “support the Constitution and laws of the United States and [California]” and not “to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.” Cal Bus & Prof Code § 6068(a) and (g).

Stated otherwise, lawyers must not only follow the law, but they cannot take a case to help their clients break the law.

The Gift of Sight

Matt Murdock would be unable to represent anyone with an adverse interest against Tony Stark if Murdock accepted “Extremis-Vision” as a gift. Additionally, it is difficult to not find Extremis to be a controlled substance or a form of medical treatment that should be regulated by the FDA (or prescribed by a licensed doctor). At best, Stark would be practicing medicine without a license, and at worse, would be a new form of drug dealer addicting San Francisco.

If Matt Murdock were accepting regular boosters from Tony Stark to retain his vision, this would make representing someone who wanted to sue Stark over Extremis near impossible. This would create a conflict between any prospective client and Murdock because of his dependence on Stark.

Lawyers cannot represent a client, without written consent, where the lawyer has a personal relationship with a party or witness (Cal. Rules of Prof’l Conduct, Rule 3-310(B)(1)); or where the lawyer has business, financial, professional or personal relationship with a person that would be “affected substantially by resolution of the matter” (Cal. Rules of Prof’l Conduct, Rule 3-310(B)(3); or the lawyer has a personal interest in the subject matter of the representation (Cal. Rules of Prof’l Conduct, Rule 3-310(B)(4)).

If Murdock were dependent on Tony Stark for his vision, there is really no denying that Murdock would have a personal interest in all potential litigation against Tony Stark. As such, Murdock would be in an ethically challenged position to accept Stark’s “gift” and represent anyone adverse to Stark.

Moreover, if Extremis is a controlled substance or unlicensed medical treatment, Murdock arguably being a party to Stark’s criminal venture would be considered an act “involving moral turpitude, dishonesty or corruption,” that could be grounds for disbarment, if such actions were a felony or misdemeanor. Cal Bus & Prof Code § 6106.

The Unholy Retainer

Lawyers cannot be retained to help commit crimes. No evil corporation can ask their general counsel on how to avoid murder chargers for willfully poisoning donuts or knowingly selling exploding clothes. Attorneys have the duty to uphold the US Constitution and laws of their states. They will not help people commit crimes.

Tony Stark could not argue his “It’s not hard to be God, because I have been playing human” speech to Matt Murdock was protected by the attorney-client privilege for three big reasons.

First, while Stark might argue giving Murdock his vision was a retainer agreement for Murdock’s legal opinion, Murdock did not accept representation. A retainer agreement is when a client pays a lawyer a sum of money to secure representation. Banning Ranch Conservancy v Superior Ct., 193 Cal App 4th 903, 916-917, 123 Cal Rptr 3d 348, 357-358 [2011].

While restoring someone’s sight would be a very non-traditional retainer, there is nothing directly on point saying it would be valid or impermissible as an alternative fee.

Tony Stark’s discussion with Matt Murdock did not at any point actually request legal advice. As such, even if Stark claimed he was a prospective client asking for Murdock’s legal assistance, Stark did not actually pose a legal question to Murdock. As no legal advice was sought, there were no attorney-client communications.

Finally, even if Stark did pose a legal question to Murdock, it would not be protected under the crime-fraud exception to the attorney-client privilege. Cal Evid Code § 956.

The entire point of the discussion was Stark stating he was above humanity. Given the fact Stark effectively was offering Murdock “hush-money” to join Stark’s venture in addicting people to Extremis, the content of these discussions could be disclosed to law enforcement that Stark was a threat to others or arguably taken into custody on a 5150 hold for psychological evaluation.

What Are Henry's Ethical Duties to Frank Irving as an Attorney?

By

Josh Gilliland

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September 30, 2014

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The Horseman of War on Sleepy Hollow is a lawyer. Or pretending to be one. Either way, just lovely for our reputation as attorneys.

The reveal came at the end of The Kindred when Henry visited former Sheriff Frank Irving in a prison psychiatric hospital. The NEW Sheriff in town apparently was pushing the limits on cruel and unusual punishment, seeking not just psych evaluations, but threats of electric shock therapy. “Henry the Lawyer” appeared to put a stop to the tests, which is what a lawyer is exactly supposed to do for his client at object police torture.

However, Henry had Irving sign papers (most likely the engagement letter) that pricked the former sheriff’s finger, in effect making him sign the engagement letter in blood.

This raises many important legal issues. No one should EVER sign a contract of any type without reading it first. God knows what evil clause is in there that could negatively impact Frank Irving. No legal fees or retainer could include someone’s soul, even though not specifically stated in any state’s ethical rules.

Henry might be a powerful warlock, but that does not mean he passed the bar in the late 18th Century. New York does not permit people to engage in the unauthorized practice of law, warlock or not. The law specifically prohibits any “natural” person from holding themselves out to the public to practice law (including appearing in Court and advertising), without having been licensed, admitted to practice law in New York, and taken an oath to the Constitution. NY CLS Jud § 478.

If Henry is a licensed attorney, he has several major breaches of his ethical duties. The first being having his client sign a blood oath that likely goes against his client’s interests. This act would violate his Duty of Loyalty to Frank Irving to not act adversely against his client.

Henry also has a significant conflict of interest with Irving, as Henry’s goal is to bring about the Apocalypse under the direction of Moloch, which goes against Irving’s interests. A lawyer may not represent someone if a lawyer’s professional judgment will be adversely affected by the lawyer’s own business or personal interests. NY CLS Jud Appx R 1.7(a)(2). As Henry wants to destroy the world and use Irving in some way to achieve that goal, this conflict of interest unquestionably would violate Henry’s ethical obligations to Irving.

Henry is also violating his duties to New York State and the US Constitution, with his active criminal conspiracy to kidnap his mother, commit murder, and bring about the end of the world. All of these actions would result in disbarment.